Case BriefsHigh Courts

Jharkhand High Court: Shree Chandrashekhar, J., addressed an issue with regard to maintenance under Section 125 of the Code of Criminal Procedure Code.

In the present revision petition, maintenance order under Section 125 of the Code of Criminal Procedure has been challenged.

Petitioner-Husband’s wife stated that her husband was irresponsible towards the conjugal relationship and neglected to maintain her. The matrimonial suit which was instituted by the husband seeking a divorce decree was disposed of on a compromise between the parties.

Petitioner’s counsel, Sanjay Prasad contended that the above-stated matrimonial suit was decreed “as per terms of the compromise” under which the wife had relinquished all her claims against the petitioner, hence petitioner’s wife was not entitled to maintenance under Section 125 of CrPC.

In the Supreme Court decision of Nagendrappa Natikar v. Neelamma, (2014) 14 SCC 452, Court dealt with the issue of whether a wife who has agreed for permanent alimony and given up future claim for maintenance is entitled to maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956 after the divorce?

To the above, the Supreme Court responded that

“The proceeding under Section 125 CrPC is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 CrPC by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act.”

In the present matter, Family Court Judge had observed that permanent alimony or maintenance was not given by the petitioner and the wife was unable to maintain herself. Hence, the Court awarded Rs 5000 monthly maintenance to the wife.

Object of Section 125 CrPC is to ensure that a wife, minor children or helpless parents do not suffer in penury.

High Court declined to interfere in the present matter keeping in mind the limitation under revisional jurisdiction and therefore dismissed the criminal revision.[Umesh Prasad Mahto v. Puspa Devi, 2020 SCC OnLine Jhar 645, decided on 06-07-2020]

Case BriefsHigh Courts

Bombay High Court: M.G. Giratkar, J. dismissed a second appeal filed against the judgments of the lower courts wherein the partition suit brought by the appellant was dismissed.

One Maghadeo, ho was the biological father of the appellant, had given the appellant in adoption to his real brother Fakira, who was childless. The appellant had now brought a partition suit, claiming his share in the property of Mahadeo. The Civil Judge dismissed the appellant’s suit holding that he was not entitled to claim partition in the property of his real father. The appeal filed before the District Judge was also dismissed. Hence, the appellant filed the instant second appeal.

R.L. Khapre, Advocate for the appellant, contended that the appellant had never been given in the adoption and, therefore, he had a right in the property left by his real father. Mahadeo, Per contra, S.R. Deshpande, Advocate representing the respondent, opposed the instant appeal.

On perusal of the record, the High Court found that the factum of the appellant having been given in adoption by Mahadeo to Fakira had been duly proved by the documents as well as his own admissions. Also, the testimony of the priest in whose presence the process of adoption was completed, was also found reliable and creditworthy. It was held: “The admission of the plaintiff in his cross-examination shows that his father Mahadeo died in 1963. Since then, till filing of the suit in the year 2001, he did not claim any partition from the defendants. The silence for a long time on the part of the plaintiff partition from the defendants. The silence for a long time on the part of the plaintiff itself shows that he was given in adoption to Fakira. His conduct shows that he is adoptive son of Fakira. His admissions and documents clearly show that he has inherited the property left by his adoptive father Fakira. Therefore, he cannot claim any partition in the property of his real father Mahadeo.”

Incidentally, it was submitted on behalf of the appellant that the issue in respect of adoption was not framed by the trial court. Therefore, there was no opportunity for the plaintiff to adduce proper evidence.

On this aspect, the Court relied on Satyadhyantirtha Swami v. Raghunath Daji Patil, 1925 SCC OnLine Bom 107, wherein it was held: “If there is no issue framed on a question but the parties have adduced evidence and discussed it before the Court, and the Court decides it as if there was an issue about it, the decree need not be set aside in appeal on the ground merely that no such issue was framed.” In the instant case, it was held that Issue 1 framed by the trial court included the issue of adoption and it could not be said that the appellant had no opportunity to adduce evidence on the said issue.

In such view of the matter, the appeal was held to be without merits and was, thus, dismissed. [Pandhari v. Vithoba, 2019 SCC OnLine Bom 3006, decided on 17-10-2019]

Case BriefsHigh Courts

Allahabad High Court: The Court observed that a child can be given in adoption by a parent if the other parent has abandoned the child and failed to fulfil all his duties as a parent.

The case before the Court was that the mother, who had remarried after her divorce, wished to give the child in adoption to her new husband. Since the father of the child was still alive and had not expressed consent for the adoption of the child, the District Court did not allow such adoption.

The Court observed that the biological father of the child  has abandoned him; rather has renounced him and has not performed any of his duties, which he owes to the child. He has also given up all his rights including the right of visitation. The Court reiterated that “if the biological father in this case has not taken any measures to bear his responsibility, the laws and the Court will hesitate to grant any such right in favour of a parent who has failed to do so.”

The High Court observed that although Indian law does not vest the exclusive right of giving in adoption to any one parent, yet the renunciation of such child by the parent shall be taken into consideration while determining the matter at hand. If the father had refrained from performing his fatherly duties then the mother can be given permission to give the child in adoption to her new husband. However, it is to be noted that such permission can be granted only if the father has completely and unequivocally given up his rights on the child. The consent of the other parent can be done away with only if the parent has renounced the world and not the child alone. [Shweta Gupta v. Rahul Keshav Jadhao; 2017 SCC OnLine All 2289, decided on 04.10.2017]

 

Case BriefsHigh Courts

Bombay High Court: Deciding on a foreign adoption petition filed by the petitioners for the adoption of two minors, the bench of of G.S. Patel, J., agreed to give the custody of children to the foreign adoptive parents and not the biological mother due to her indifferent behaviour towards the children.

In this case the two minors were found abandoned on 31st December 2012 by the Central Police Station, Ulhasnagar and were taken to central welfare committee which declared the children free for adoption. Subsequently, a Foreign Adoptive Petition was filed for the adoption of the two minors. While the petition was pending, the birth mother approached the Child welfare committee and demanded return of custody. At that time court was of the view that, though the biological mother had not stated to Court also why she did not even visit the children she claims custody of, nevertheless as she is a biological mother of the two children, the Court deemed it fit to allow her to take custody of the children but subject to certain safeguards that she must show improvement in her maternal behaviour towards the children before the children can be released to her. However, the mother did not bother to visit the children even once after the order was passed to meet them or to secure their release.

About five months later, on seeing the nonchalant behaviour of the biological mother towards the children, a second foreign adoptive petition was filed. On the basis of report prepared by Mr. Hareendran, the Scrutiny Officer of the ICSW and after meeting the children in person, the Court held that the children have already suffered too much and the petitioners can be trusted with their custody. Before allowing the adoption to the couple, the court also took into consideration their nature, qualifications, financial condition, family backgrounds and their relationship with each other.  [Children Of The World (India) Trust and Roy Edward Roos, 2016 SCC OnLine Bom 2529, decided on 27.04.2016]