Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Anoop Kumar Mendiratta, J. rejected bail to an accused allegedly kidnapping and raping a minor girl of 14 years. The Court held that merely because sometimes sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law.

A complaint was filed by the mother of the victim alleging that some unknown person had kidnapped her daughter of 15 years, missing since 09-07-2019. On investigation, the complainant was charged for offences under Sections 363, 366 and 376 Penal Code, 1860 and Section 4 &6 Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) as the victim was recovered along with her 8-month-old female child from the house of petitioner/accused and was about 1½ months pregnant. The complainant was arrested and thus, the present bail application was filed contending that the victim is wife of the petitioner-accused and is suffering on account of incarceration of the petitioner and he needs to take care of his wife and child.

State submitted that that victim was merely 14 years and 06 months of age, at the time she was lured and kidnapped by the petitioner and the entire machinery was kept in the dark by the petitioner who deliberately concealed the particulars of the victim and misled the investigating agency on the wrong path despite filing of the Habeas Corpus petition by the mother of the victim.

The Court noted that alleged marriage with a minor as claimed by the petitioner is in violation of the provisions of the Prohibition of Child Marriage Act, 2006.

Placing reliance on Independent Thought v. Union of India, (2017) 10 SC 800 and Jayanti Lal Dabgar v State of Gujarat, (2015) 7 SCC 359 wherein it was observed that sexual intercourse or sexual act by a man, even with his own wife under 15 years of age, has been classified as rape, the Court opined that sexual relationship with minor is prohibited and the law clearly treats them as offences even if the same is based upon alleged consent of a minor.

The Court observed that such incidents of luring a minor and entering into physical relationship, accused thereafter claiming consent of the minor, cannot be treated in a routine manner. Merely because the petitioner has claimed that marriage had been performed with the victim in a temple, the same cannot sanctify the offence as the victim was a minor and under 15 years of age at the time of the incident. The claim of marriage is also yet to be proved on record.

Thus, the Court rejected the bail being devoid of evidence in favour of accused suggesting consent of the parents to take their minor daughter away from their lawful custody along with constantly misleading the Court during investigation and his claim of consent by minor for sexual intercourse being irrelevant.

[Jagbir v. State, 2022 SCC OnLine Del 2159, decided on 22-07-2022]


Advocates who appeared in this case :

Mr. Lokesh Kumar Mishra, Mr. Himanshu Sharma and Mr. Haider Khan, Advocates, for the Petitioner;

Mr. Adhishwar Suri, Advocate for Ms. Supriya Juneja, Advocate for complainant with Complainant in-person, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

High Court Round UpLegal RoundUp

Allahabad High Court

Disability

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Right to Education

The Division Bench of Rajesh Singh Chauhan and Subhash Vidyarthi, JJ., dealt with a case where the admission of a class VIII student was rejected by the school authorities without proper information being given to the parents on time, so that such student could get his admission in any other institution inasmuch as to receive proper education is a Fundamental Right enshrined under Article 21-A of the Constitution of India. Read more

Manual Scavenging

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Andhra Pradesh High Court

Habeas Corpus

A Division Bench of Tarlada Rajashekhar Rao and K Manmadha Rao, JJ., directed the State authorities to produce the detenu-wife before Court as couple is major and have agreed to live together. Read more

Bombay High Court

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The Division Bench of Prasanna B. Varale and S.M. Modak, JJ. dismissed an FIR lodged under Section 376 of the Penal Code, 1860, and Section 4 of the POCSO Act, observing that the conflict had been addressed and the girl and boy intended to marry. Read more

Personal Liberty

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Extra-Marital Affair

The Division Bench of Sunil B. Shukre and G.A. Sanap, JJ., granted an application to quash an FIR filed under Section 306, 34 Penal Code. Read more

Advertisement/ Qualification

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Motor Vehicles Act, 1988

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Burden of Proof

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Hindu Marriage Act

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Consent vis a vis Sexual Relationship

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Departmental Proceedings

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Calcutta High Court

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Dispute Bill

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Peaceful Procession

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Reasonable Opportunity

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Child Trafficking

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Prostitution

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Victim Compensation Scheme

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Arbitration

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Delhi High Court

Arbitration & Conciliation

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Dishonour of Cheque

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Income Tax Act

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Arbitration

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FATF/ Economic Security

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Police Post

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Trademark Infringement

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Illegality

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Adjudication

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Organ Donation

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POCSO

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Income Tax

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Injunction

Pratibha M Singh, J. issued directives to domain name registrars whose offices are located outside of India and whose details are not disclosed so that they do not avoid injunction orders issued by Indian courts. Read more

Compensation

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Controller of Patents

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Foreign National Reservation

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Mandamus / Judicial Review

Table tennis players Swastika Ghosh and Manush Shah, who had challenged the decision made by the Table Tennis Federation of India on the athletes who will represent India in the Commonwealth Games in 2022, were refused relief by Dinesh Kumar Sharma, J. Read more

Gujarat High Court

Wages

Biren Vaishnav, J. dismissed a petition filed by a petitioner who was dissatisfied with the award dated 14-02-2020, which directed the petitioner-State of Gujarat to pay the respondent-sweeper salary for four hours of work per day, plus arrears from the date of reinstatement. Read more

Rape/Sodomy

Biren Vaishnav, J. dismissed a petition filed by a petitioner who was dissatisfied with the award dated 14-02-2020, which directed the petitioner-State of Gujarat to pay the respondent-sweeper salary for four hours of work per day, plus arrears from the date of reinstatement. Read more

Family Law

The Division Bench of Vipul M. Pancholi and Rajendra M. Sareen, JJ., rejected a plea brought by the father under Article 226 of the Indian Constitution seeking custody of his daughter. Read more

Arms Act

The licence under the Arms Act of 1959 (“the Arms Act”) for self-defense was rejected by the District Magistrate, and the Additional Secretary Home Department of the State Government upheld the previous ruling in an appeal. The petitioner filed a challenge, which was accepted by Judge A.S. Supehia. Read more

Promotion

A petition asking for a directive to nullify and disregard the Seniority List of Multi-Purpose Health Workers was granted by Judge Biren Vaishnav. Read more

PPF

A.S. Supehia, J. allowed a writ petition directing Bank to deposit PPF amount deducted for settlement of liability that the amount of Public Provident Fund account shall not be liable to any attachment in respect of any debt or liability incurred by the account holder. Read more

Gauhati High Court

Anticipatory Bail

Sanjay Kumar Medhi, J. denied a petitioner’s request for bail under Section 438 of the Criminal Procedure Code, 1973 (CrPC), in a case that was filed under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Read more

Drug and Food Safety

According to Rumi Kumari Phookan J., only a food inspector can investigate offences under the Food Safety and Standards Act, 2006 (FSS Act), and Maharashtra Police lacks both jurisdiction and jurisdictional authority to do so. As a result, the court ordered Maharashtra Police to pay the petitioner Rs. 2,00000 as petition costs. Read more

Narcotic Drugs and Psychotropic Substances Act

While granting bail to the applicant herein, under Section 439 of the Criminal Procedure Code (CrPC) for a case registered under Narcotic Drugs and Psychotropic Substances Act, 1985, Ajit Borthakur, J. held that the provisions of Section 37 of the NDPS Act shall not be applicable if the service courier driver is unaware of what is being transported by him. Read more

Himachal Pradesh High Court

Arbitral Proceeding

In the case where it was argued before the Court that the Arbitration and Conciliation Act, 1996 does not provide for any remedy to challenge an arbitral order and was therefore contrary to the “public policy of India,” Satyen Vaidya J. observed that, “The term “public policy of India” carries within it innumerable facets. Read more

Bail/ Parole

The plea for a parole extension filed under Section 482 of the Criminal Procedure Code (the “CrPC”) was denied by Judge Vivek Singh Thakur because Article 226 of the Indian Constitution provides the appropriate remedy. Read more

Jammu & Kashmir and Ladakh High Court

Anticipatory Bail

While deliberating on an anticipatory bail application concerning an FIR registered in Neemuch, Madhya Pradesh, the Bench of Sanjay Dhar, J., considered whether this High Court has the jurisdiction to grant bail in a case that has been registered beyond its local limits of jurisdiction under Section 438, CrPC. Read more

Right to Life

While reviewing the information and concerns provided by the petitioners, the M.A. Chowdhary, J. bench made some important remarks regarding the voluntary marriage of two adults. The Court declared that Articles 19 and 21 of the Constitution properly recognise a couple’s right to get married. Read more

Kashmiri Pandits

The bench of Sindhu Sharma, J., dismissed the petition because the petitioners lacked any inalienable right to allotment of government housing when ruling on the instant petition filed by 3 retired State Bank of India employees who had retained their respective government accommodations and were unhappy with the rent being charged at a commercial rate. Read more

Jharkhand High Court

Qualification for promotion

Anubha Rawat Choudhary, J. held that the respondent had the necessary experience of guiding research at the Doctoral level as of the cut-off date in a case relating to qualification to be appointed as a professor at Vinoba Bhave University, even though the concerned research student did not receive her degree. Read more

Karnataka High Court

Rape

M Nagaprasanna, J., annulled the proceedings against the petitioners in Byadarahalli Police Station Crime No.87 of 2022, which was pending before the Chief Judicial Magistrate, Bangalore Rural District, Bangalore. Read more

Agricultural land compensation

A Division Bench of Alok Aradhe and J M Khazi, JJ., rejected the appeal and overturned the impugned verdict, ordering the appellants to determine and pay the compensation to the respondents. Read more

Protection of Witness

S. Sunil Dutt Yadav, J. listed a few causes of investigation delay, the primary causes of low conviction rate, the consequences of investigation delay, and guidelines for speedy investigation. Read more

Bigamy

M. Nagaprasanna, J. granted the petition in part and remarked that the quadrangle’s protagonists should resolve the issue among them rather than drag other people into the proceedings. Read more

Principles of Natural Justice

S.G. Pandit, J. dismissed the petition, leaving respondent-Railway authorities free to take action against the catering services after providing them with an opportunity under the law. Read more

Cruelty/ Divorce

The plea was partially granted by the division bench of S. Sunil Dutt Yadav and K.S. Hemalekha, JJ. The parties’ marriage was ended due to mental cruelty for the wife’s unfounded accusations against the husband. Read more

Domestic Violence

M. Nagaprasanna J. granted the petition and ordered that the application for maintenance be decided within two weeks after receiving a copy of this decision. Read more

Child sexual offence

The victim has now turned 18 years old, so the strictures under S. 33(5) of the Protection of Children from Sexual Offenses Act, 2012 (the “POCSO Act”) are no longer relevant. Therefore, M. Nagaprasanna, J. granted the petition filed to conduct an additional cross-examination of the child victim. Read more

Dowry Death

The FIR against the lady who had illicit connections with the complainant’s husband and was charged under Section 498-A of the Penal Code, 1860 was dismissed by Hemant Chandangoudar J. Read more

Dishonour of Cheque

M. Nagarprasanna J. allowed a petition filed under Section 482 of Criminal Procedure Code, 1973 (CrPC) and directed that interim compensation which would vary from 1% to 20% after recording necessary reasons be given as per the “conduct of the accused” for the applications filed under Section 143-A of the Negotiable Instruments Act, 1881 (NI Act). Read more

Kerala High Court

Habeas Corpus/ Special Marriage

A Division Bench of K Vinod Chandra and C Vijayachandran, JJ. dismissed the plea and denied the requested relief, concluding that the detainee maintained that he was not under any unlawful confinement. Read more

POCSO

Taking note of the alarming increase in the number of sexual offences committed against schoolchildren, Bechu Kurian Thomas, J., directed the Kerala Government and the Central Board of Secondary Education (CBSE) to include sessions/classes in the school curriculum on the provisions of the Protection of Children from Sexual Offenses Act, 2012. Read more

NTPC/ Discrimination

The decision by V.G. Arun, J., that NTPC’s notification for the recruitment of Assistant Law Officers is discriminatory and in violation of Article 16 of the Constitution because it restricts the selection process to only CLAT PG-2021 candidates comes as a significant relief to non-NLU law graduates looking for employment opportunities in PSUs. Read more

Cruelty/Desertion

A. Muhamed Mustaque and Sophy Thomas, JJ., who made up the Division Bench, ruled that cruelty must be judged from the viewpoint of a spouse, or how that spouse would interpret the actions of the other spouse, to be considered. Read more

Anticipatory Bail

Vijay Babu, a film producer and artist, was granted anticipatory bail by Bechu Kurian Thomas, J., in a high-profile rape case that sparked outrage in the film industry. The Court ruled that there is no legal prohibition against granting anticipatory bail to a person who is physically present overseas. Read more

Reproductive Rights

The Assisted Reproductive Technology (Regulation) Act of 2021 prohibits the sale of human gametes, zygotes, and embryos but does not forbid a couple from using their embryo to conceive a child. This is why V.G. Arun, J., allowed a couple to transfer their frozen embryo to another hospital for infertility treatment. Read more

Pre Arrest Bail

In a case concerning attacks against doctors and medical institutions, Bechu Kurian Thomas, J., denied pre arrest bail and held that granting pre-arrest bail to an accused who is alleged to have committed violence against a healthcare professional will send a wrong message to the public. Read more

Compulsory Licensing

While adjudicating a petition filed by a breast cancer patient seeking to afford life-saving medicines which otherwise cost more than twice her monthly income, V. G. Arun, J. directed Central Government to consider compulsory licensing of the breast cancer drug “Ribociclib”. Read more

Madhya Pradesh High Court

Rape

Anand Pathak, J. granted a petition filed under Section 482 of the Code of Criminal Procedure seeking the dismissal of an FIR filed against the petitioner and subsequent criminal proceedings for an offence under Sections 376 and 506 of the Penal Code, 1860. Read more

Bail/ Corruption

The applicant was arrested on February 3, 2022, for a crime punishable by Sections 409, 420, 467, 468, 471, 201, and 120-B of the Penal Code, 1860, as well as Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act, 1988. Anand Pathak, J. refused the applicant’s motion for bail. Read more

Arya Samaj

A petition was submitted to address and investigate several concerns regarding marriages solemnized in Arya Samaj Vivah Mandir Trust, and the Division Bench of Rohit Arya and Milind Ramesh Phadke, JJ. accepted it. Read more

Motor Vehicle

While dismissing an appeal filed under Section 173(1) of the Motor Vehicles Act, 1988 , Vishal Dhagat, J. held that the present case is a case of misrepresentation on the part of legal representatives/driver/owner of vehicle in contracting with the appellant for purchase of policy in name of deceased owner as contract entered between the parties is not voidable. Read more

Madras High Court

Mental Illness

G R Swaminathan J. answered in negative to the moot consideration that can certifying authority insist a Child suffering from mental illness, who requires a disability certificate, to come to premises of institution for assessment. Read more

Educational certificate

While addressing the grievance of some qualified doctors, G.R. Swaminathan, J. stated that because an educational certificate is not a marketable commodity, no lien can be exercised under Section 171 of the Indian Contract Act, 1872. Read more

Income Tax Appellate Tribunal

G. Chandrasekharan, J. declined to quash prosecution against actor SJ Suryah as the order of the Income Tax Appellate Authority, cancelling the assessment orders was not on merits. Read more

Social Media Intermediaries

B. Pugalendhi, J., revoked the bail of a YouTuber who made disparaging statements about the former Chief Minister of Tamil Nadu. Read more

Documentary/Oral Evidence

Senthil Kumar Ramamoorthy, J., stated that a suit cannot be hurriedly determined at the request of a plaintiff unless the plaintiff convinces the court that the suit claim has been fully established. Read more

Income Tax

A Division Bench of R Mahadevan and Sathya Narayan Prasad, JJ. rejected the tax appeal because guarantee commission and royalty must be subtracted from company profit to calculate the deduction under Section 80 HHC of the Income Tax Act, 1961. Read more

Service Rules

S M Subramaniam, J. upheld the decision taken by Indian Banks Association to unilaterally withdraw the facility for State Bank of India officers to visit overseas countries as part of Leave Travel Concession ‘LTC’/ Home Travel Concession ‘HTC’. Read more

Meghalaya High Court

POCSO

W Diengdoh J. quashed a POCSO case opining that just holding the hands of the victim girl and complimenting them would not amount to sexual intent or sexual assault under POCSO. Read more

Rape

The appeal, which challenged the April 27, 2021 judgement of conviction finding the appellant guilty under Section 376(2) of the Penal Code, 1860, was decided by the Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. The main focus of the appeal was the 20 years of rigorous imprisonment and Rs. 50,000 fine that was imposed. Read more

Public Interest Litigation

A petition concerning the current health-care system was heard by the Division Bench of Sanjib Banerjee, CJ, and W. Diengdoh, J. Read more

Life Imprisonment

The Division Bench of Sanjib Banerjee, Chief Justice, and W. Diengdoh, J., dismissed the petition and set aside the conviction order, which was directed against a judgment of conviction under Section 302 of the Penal Code, 1860 and the order of punishment, which sentenced him to life in prison. Read more

Orissa High Court

Superannuation

S.K. Panigrahi, J., denied the petition, stating that “no plea for a change of date of birth after five years from the joining date will be considered.” Read more

Transgender Rights

A.K. Mohapatra, J., has been instructed to complete the trans-sexual woman’s application for a family pension as soon as feasible, ideally within six weeks after receiving a certified copy of the order. Read more

Administrative laches

S. K. Panigrahi, J., ordered the State to pay simple interest at the rate of 6 percent per year on postponed salary within 30 days of today. Read more

Guardian and Wards Act

The case was dismissed by a Division Bench consisting of SK Sahoo and M S Raman JJ., giving the petitioner the freedom to seek the proper remedy before the proper venue in line with the law. Read more

Central Information Commission

A Division Bench of S. Muralidhar and R.K. Pattnaik, JJ. issued a declaratory writ to the effect that the impugned notification dated 11-08-2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 (‘RTI Act’), will not permit the Government to deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department. Read more

Compensation

Arindam Sinha, J. criticised the State for not following the procedure and granted compensation to a woman who conceived even after being sterilised by the State. Read more

Patna High Court

Right to Sanitation

Sanitation is a private, individual matter that is intimately connected to human dignity. Additionally, cleanliness has a crucial public health component. According to a recent ruling by the Division Bench of Sanjay Karol CJ and S. Kumar J, the right to sanitation falls under the purview of Article 21 and as a result, the State, National Highway Authority of India, and Oil Marketing Companies have been instructed to build public restrooms and other conveniences along all of Bihar’s highways. Read more

Rape

While dealing with a case of rape, A M Badar, J. observed that mere non-offering of physical resistance by a rape survivor cannot amount to the consent given by a woman for sexual activity under Section 375 of the Indian Penal Code (‘IPC’). Read more

Punjab & Haryana High Court

Religious Beliefs

Karamajit Singh, J., directed the State of Punjab not to take “coercive steps” against Raveena Tandon, Farah Khan, Bharti Singh, Screen Abbas Aziz Dalal, and Frames Production in response to their petition seeking the quashing of an FIR filed against them for allegedly hurting religious sentiments during a Flipkart web show titled “Backbenchers.” Read more

NDPS Act

In a petition under section 439 CrPC for regular bail under sections 22, 25, 27-A, and 29 of the NDPS Act, Jasjit Singh Bedi, J., expanded the petitioner-accused on bail while repeating the observations made by various Courts, including the Supreme Court, on the requirement that section 42 of the NDPS Act be complied with by the relevant authority. Read more

Muslim Personal Law

After the petitioners were forced into marriage, a writ petition was filed to seek the protection of their life and liberty from family members. Jasjit Singh Bedi, J. instructed the Senior Superintendent of Police to determine the petitioners’ claims regarding the threat to their life and liberty after taking into account the petitioners’ capacity to enter into a legal marriage contract and attending to their concerns. Read more

Rajasthan High Court

Bailable Warrant

Dinesh Mehta, J. granted the petition and stated that while expediting the disposition of cases is important, so is adhering to the mandate of the law, including procedural law. Read more

Culpable Homicide

Farjand Ali, J. rejected the petitioner’s request for bail after finding that the investigating agency had overlooked several relevant pieces of evidence. The petitioner was accused of committing an honour killing. Read more

Police Protection

Sameer Jain J. granted police protection and directed the State authorities to charge an appropriate fee from the couple seeking police protection before the Court, if the income is found to be more than the taxable income under the Income Tax Act, 1961. Read more

Telangana High Court

Anticipatory Bail

Juvvadi Sridevi, J., granted anticipatory bail pending the conclusion of the inquiry and the submission of the final report. The Court remarked that the accused 2/petitioner 2 did not appear to have been served with a notice under Section 41-A CrPC, whereas the accused 1/petitioner 1 was simply provided with the notice. Read more

Prevention of Money Laundering

K. Lakshman, J. upheld the petitioner’s appeal against the Directorate of Enforcement’s (ED) request to extend the petitioner’s judicial custody so that the investigation could be finished, stating that a complaint filed without a complete investigation cannot be used to avoid the right to statutory bail under Section 167(2) CrPC. Read more

Maintenance under Section 125 CrPC

In a maintenance case, Sathish Reddy, J. stated that the wife’s earning capacity cannot be used to deny her maintenance. Read more

Commercial Courts Act

The appeal was allowed by the Division Bench of P. Naveen Rao and Sambasivarao Naidu, JJ., who overturned the impugned order’s stance that any disagreement arising from a contract involving real estate that is solely used for business or commerce and whose “specified value” exceeds one crore belongs in a commercial court alone. Read more

Tripura High Court

Harassment

While noting that there were no legitimate grounds to deny the employee gratuity and other retrial benefits, Arindam Lodh, J. directed the employer to release the employee’s gratuity, pension, and other retrial benefits. Read more


*Arunima Bose has put this report together.

Orissa High Court
Case BriefsHigh Courts

Orissa High Court: A Division Bench of SK Sahoo and M S Raman, JJ. disposed of the petition leaving the petitioner with liberty to seek appropriate remedy before appropriate forum in accordance with law.

The instant writ petition in the nature of Habeas Corpus was filed by the petitioner , who is the mother of a minor child, for the custody of the minor, which is currently with respondent 5, the father of the minor child.

Reliance was placed on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, wherein it was observed

“14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ Court has jurisdiction.

19. Habeas corpus proceedings do not justify or examine the legality of custody. Habeas corpus proceedings are a medium through which the custody of the child is addressed to the discretion of the Court.

The judgment also states that in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

It was also noted that in child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ Court which is summary in nature. What is important is the welfare of the child. In the writ Court, rights are determined only on the basis of affidavits. Where the Court is of the view that a detailed enquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Court. It is only in exceptional cases that the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.

The Court thus held “when the alternative efficacious remedy is available, we are not inclined to entertain the writ petition which is in the nature of habeas corpus.”

[Koushalya Das v. State of Odisha, 2022 SCC OnLine Ori 2008, decided on 07-06-2022]


Advocates who appeared in this case :

Mr PK Das, Advocate, for the petitioner;

Mr AK Sharma, Advocate, for the respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division Bench of K Vinod Chandra and C Vijayachandran, JJ. dismissed the petition and rejected the relief sought for, finding that the detenue stated not to be in any illegal detention. 

The facts of the case are such that the petitioner is the husband of the alleged detenue seeking issuance of a writ of habeas corpus to cause the production of the alleged detenue, on the premise that she is under illegal detention of her father/fifth respondent as they got married in spite of belonging to different religions and possible objections from their respective families.

The Court noted that as per a statement of the alleged detenue taken by a Woman Civil Police Officer, without the presence of the parents or any other family members of the alleged detenue, the alleged detenue stated that the marriage was registered without the knowledge of their parents; that the detenue thought of accompanying the petitioner after one month, since her mother was alone in their house; that both the families, who came to know about the marriage, are not willing to accept them; that the parents of the petitioner would never permit them to live together; that the detenue is seriously apprehensive of her safety at the house of the petitioner and that she is not under any illegal detention of her parents.

It was further stated by the alleged detenue that she was not subjected to any torture, whatsoever. Even when the alleged detenue would express that she is desirous of living with the petitioner, she fears that she would be ill-treated by the parents of the petitioner.

The Court observed that the alleged detenue is ambivalent in her stand and she prevaricates as between her desire to be with the petitioner on the one hand, and her serious apprehension and fear of being ill-treated by the parents of the petitioner, on the other hand.

The Court having limited jurisdiction held “we are not in a position to pass any order enabling the alleged detenue to live along with the petitioner. When the detenue is categoric in her statement that she is not under any illegal detention of her parents, we find no ground to issue a writ of habeas corpus. We, therefore, dismiss this writ petition.” [Sharaffudhin v State of Kerala, WP (Crl) No. 425 of 2022, decided on 31-05-2022]


For Petitioners: Mr P.T. Sheejish, Parvathy S.Krishnan P.K. Purush Harikiran, Praveenkumar P. Stephy Grace Raj Akhila Sridharan A.Abdul Rahman (A-1917)

For Respondent(s): Mr E.C. Bineesh


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of Tarlada Rajashekhar Rao and K Manmadha Rao, JJ. disposed of the petition and directed the respondents to set free of detenu’s liberty and the petitioner to take her back to lead happy marital life.

The brief facts of the case are that an inter-religious marriage was performed between the petitioner and detenu, namely, Mrs. Shaik Rijvana as per the rites and customs of Christian religion against the will and wishes of the parents and other relatives of the detenu. Due to solemnization of their marriage, the parents and relatives of detenu bore grudge against them and started harassing with active assistance of Police authorities. One day, on the pretext of causal check, the police authorities visited the house of the petitioner, manhandled his family members, including the detenu and forcibly abducted the petitioner’s wife. Subsequently, the petitioner requested the official respondents to refrain from forcibly abducting her but they bluntly refused to heed to it. On reliable information, the petitioner learnt that the detenu was confined in respondent 8, bungalow. Therefore, the efforts of the petitioner and his family members in securing the presence of the detenu ended futile. On the contrary, the action of police authorities in unlawfully detaining her is unsustainable and untenable. The present writ petition was filed by the petitioner seeking a direction to the official respondents to secure the presence of petitioner’s wife namely Mrs. Shaik Rijvana before the Court and set her at liberty.

The Court directed the respondent to produce the detenu before Court and on production of the same, the detenu was found to not be willing to stay with the parents and reported that there is no safety to her life and also further informed that she is major and she wants to live with Karthik/petitioner herein. On further production of the husband, it was fairly stated that he is ready to take his wife, who is the detenu, namely, Mrs. Shaik Rijvana and the detenu also stated that she is also willing to go and live with him.

The Court observed and held that on considering the submissions of the petitioner and the detenu, as they are majors and they have agreed to live together, this Court is of the considered view that there is no need for any interference of the parents in this writ petition. Therefore, this Court is not inclined to implead the petitioner/respondent NO.9 on record, and accordingly, the I.A No.1 of 2022 is dismissed.

[Chundura Karthik v. State of AP, 2022 SCC OnLine AP 1270, decided on 26-05-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Arup Kumar Goswami CJ and N K Chandravanshi J. dismissed the petition and declined to issue a writ of habeas corpus.

The facts of the case are such that the petitioner’s daughter’s marriage was solemnized with respondent 7 in the year 2011 because of love affair between them. They were blessed with a female child, but after some time, respondent 7 and his family members started raising suspicion alleging that she is suffering from an evil soul and used to torture her physically and mentally. A complaint was filed in police thana and during counselling the husband and his family agreed to take Juhi with them since that day there is no information about the well being of Juhi Sahu. Thus instant writ in the nature of habeas corpus, was filed seeking directions to the respondents/authorities to produce her missing daughter, Juhi Sahu, before this Court.

The order mentions that statements of relatives of both sides of the missing person were recorded, but nothing substantive was found with regard to her whereabouts.

The Court observed that perusal of record would show that during the course of hearing, this Court issued various directions in respect of the investigation to trace out the missing person Juhi Sahu, and in compliance of various orders, respondents 1 to 6/ police officials have filed various status reports/affidavit in respect of investigation of the matter, in which, they have categorically stated that despite their all possible efforts, they were not able to trace out the missing Juhi Sahu

The writ of habeas corpus is an effective means of immediate release from the unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient. For issuance of a writ of habeas corpus, the applicant must show a prima facie case of unlawful detention of the subject.

The Court relied on judgment Kanu Sanyal v. District Magistrate, Darjeeling (1973) 2 SCC 674 and traced the history, nature and scope of the writ of habeas corpus. It was observed “it is a writ of immemorial antiquity whose first threads are woven deeply “within the seamless web of history and untraceable among countless incidents that constituted a total historical pattern of Anglo-Saxon jurisprudence”.

The Court observed that the constitutional Courts across the country predominantly held in catena of judgments that establishing a ground of “illegal detention” and a strong suspicion about any such “illegal detention” is a condition precedent for moving a Habeas Corpus petition and the Constitutional Courts shall not entertain a Habeas Corpus petition, where there is no allegation of “illegal detention” or suspicion about any such “illegal detention”. Cases of missing persons cannot be brought under the provision of the Habeas Corpus petition.

It was further observed that cases of missing persons are to be registered under the regular provisions of the Indian Penal Code and the Police officials concerned are bound to investigate the same in the manner prescribed under the Code of Criminal Procedure. Such cases are to be dealt as regular cases by the competent Court of Law and the extraordinary jurisdiction of the Constitutional Courts cannot be invoked for the purpose of dealing with such cases of missing persons.

The Court held it is not a fit case for issuance of a writ of habeas corpus. Therefore, we decline to exercise the jurisdiction for issuance of writ of habeas corpus, and dismiss the writ petition, leaving it open to the petitioner and respondents to proceed in accordance with law.

[Jaymati Sahu v. State of Chhattisgarh, 2022 SCC OnLine Chh 737, decided on 22-04-2022]


Appearances

For petitioner: Mr. Yogesh Chandra Sharma

For Respondents 1 to 6. : Mr. H.S. Ahluwalia


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a habeas corpus case the Division Bench Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,

 “We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”

Background

The instant case arose out of unfortunate dispute between the appellant- wife and the respondent – husband over the custody of their minor male child Aaditya Kiran. The parties were married and living in New York, USA and the child held the citizenship of USA. It was for the treatment of the child for hydronephrosis in India, which required surgery that consent for international travel with one legal guardian, was executed by and between the appellant and the respondent on 04-02-2019. The consent was recorded in the said document to enable the child to travel with the mother–the appellant to India for the period between 05-02-2019 to 26-09-2019. It was further recorded that any changes to this plan shall be discussed and consented to by both the parents.

The child underwent a surgery on 14-03-2019 in Max Hospital, Saket, New Delhi. The certificate issued by Dr. Anurag Krishna, Director, Paediatrics and Paediatric Surgery of Max Hospital recorded  that he had examined the child on 12-07-2019 when he found that the child was doing well, however a suggestion was made that the child needed to be reviewed 6 to 7 months post-surgery along with a fresh ultrasound and renal scan.

Apple of Discord and Litigation History

It was the case of the respondent that the appellant had violated the international travel consent by not allowing the minor child to come back to USA by 26-09-2019, hence a petition was filed before the Circuit Court of Benton County, Arkansas, USA seeking primary care, control, and custody of the minor on account of his wrongful detention outside USA by the appellant wherein interim order was pronounced in favour of the respondent.

It was when no heed was paid to the said order by the appellant; the respondent approached the High Court of Punjab and Haryana seeking a writ of habeas corpus to secure release of the minor child from the illegal custody of the appellant. The High Court, by the impugned judgment decided the case in favour of the respondent and directed to hand over the custody of the minor the respondent.

Doctrine of Best Interest

The appellant’s stand was that there was a need to make a departure from the rule of “best interest of the child” or the “welfare principle” as welfare would mean balancing the interests of all the members of the child’s family and the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected.

Rejecting the contention of the appellant, the Bench held that the principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant. Opining that when a Court decides that it is in the best interest of the minor to remain in the custody of one of the parents, the rights of the other parent are bound to be affected, the Bench stated that the rights of parents/parent cannot be put on par with welfare of child.

Giving the example of visitation rights, the Bench stated, whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents.

Hence, the Bench concluded that the consideration of well-being and welfare of the child must get precedence over the individual or personal rights of the parents.

Whether the Court, while deciding custody matters, can compel one of the parents to move from one country to another?

Another question before the Court was whether a parent can be compelled to go abroad for enforcing the Court order in custody cases. In that regard, the Bench opined that the welfare of a minor being of paramount consideration in such proceedings, the Courts cannot decide where the parents should reside as it will affect the right to privacy of the parents.

Therefore, the Bench held that a parent has to be given an option to go abroad with the child and it ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child as it will all depend on the priorities of the concerned parent. However, noticing that in the impugned judgment the High Court did provide such an option to the appellant, the Bench held that there was no compulsion on the appellant to go abroad with the child.

Factual Analysis

Considering the submissions made by both the parties and evidence available on record the Bench made following observations:

  • It was not the case of the appellant that there was even a discussion with the respondent for modification of the said consent till date and admittedly, the period of travel mentioned in the consent was not extended by the respondent.
  • Though the doctor recorded that the child needed to be reviewed 6 to 7 months after the surgery along with fresh ultrasound and renal scan, the surgery had taken place 33 months back and the appellant had neither provided any medical opinion on the current health of the child nor any medical certificate recording that the child needs any further treatment or medical care in India.
  • The child had spent more than three years in USA and two and a half years in India. Therefore, it could not be said that there was a complete integration of the child with the social, physical, psychological, cultural and academic environment of either USA or India.
  • The respondent had financial resources to maintain the appellant and the minor child in USA.
  • The welfare report of Visiting Consular of US Embassy recorded that the appellant informed that “her aunt picks up the minor child from school and brings him home each day and stays with him throughout the day while the mother and grand-parents are at work. Moreover, a domestic helper is taking care of the needs of the child.” Therefore, the appellant was not devoting her whole day to take personal care of the minor and to attend to the needs of the minor child.
  • On the other hand, the respondent had submitted that he had an option to permanently work from home and his mother had a valid visa to stay in USA till 23-02-2024 who had expressed willingness to take care of the minor child in USA.

Conclusion

In the backdrop of above mentioned observations the Bench upheld the impugned judgment with some minor modifications and passed the following order:

  • The appellant was given option to travel to USA along with the minor child and to contest the proceedings pending in USA and in such case, the appellant was directed to communicate her willingness to the respondent within two fifteen days and inform him of possible travel dates which was to be within three months;
  • If the appellant opts for travelling to USA, the respondent was directed to sponsor air tickets for round trip, arrange separate accommodation for the appellant and if she wishes to continue in USA, the respondent was to take all possible steps for the extension of visa or for getting a new visa;
  • If the appellant agrees to travel, the respondent was directed to pay US$ 6,500 to the appellant for her initial expenditure in USA and after expiry of period of one month the respondent was to pay mutually agreed amount of maintenance along with proper medical insurance to the appellant and the minor child. Additionally, the respondent was directed to undertake obligation to provide proper medical treatment to the minor child;
  • If the appellant agrees to travel, for a period of three months from the date of her arrival, the respondent was not take any steps to implement or enforce the order passed by the Circuit Court of Benton County, Arkansas to enable her to contest the said case. Hence, for the said period the custody of the minor was to be with appellant; during that period the respondent was granted temporary custody of the minor child from 10 am to 5 pm on every Sunday and liberty to video call the minor child for half an hour on every day.
  • In the event, the appellant deny to visit USA and fails to communicate her willingness to visit USA within a period of fifteen days, the respondent was granted liberty to take custody of the child.

Additionally, the Bench added the parties would be at liberty to adopt agreed joint parenting plan if they wish to.

[Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43, decided on 12-01-2022]


*Judgment by: Justice Abhay S. Oka


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Madhya Pradesh High Court: Vishal Dhagat, J. disposed off a petition directing SHO’s to register cases against respondents in respective police stations.

The writ petition had been filed for producing members of their family before the Court. Counsel appearing for the petitioners submitted that respondent 8 and 9 had detained family members of the petitioners and using said members as labourers without paying any wages. SDOP Lakhnadon produced 17 persons before the Court.

It was submitted that said persons have been recovered from Gram Panchayat Teraswadi Tehsil Karbi District Kolhapur, Maharastra. It was submitted that respondent 8 and 9 were using these persons as bonded labourers.

Police Officer present before this Court and submitted that action will be taken against respondent 8 and 9 as per law and FIR and case will be registered against them.

Corpus mentioned above who were produced before this Court were set free from the Court and were allowed to go back to their houses.[Kamla Bai v. State of Madhya Pradesh, WP No. 28940 of 2021, decided on 03-01-2022]


Suchita Shukla, Editorial Assistant has reported this brief.


For petitioner: Shri S. N. Saraf

For respondent: Shri S. K. Shrivastava

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., while examining the scope of the writ of habeas corpus, expressed that,

The power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

Petitioner 1 asserted himself to be the father of the petitioner 2 corpus and filed the present habeas corpus petition alleging that the corpus was under illegal custody of his mother-respondent 4.

Writ of Habeas Corpus

Writ of habeas corpus is a prerogative writ and an extraordinary remedy, it is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain v. State of U.P., AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate Darjeeling, (1973) 2 SCC 674.

The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Sayed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247, and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed.

Maintainability of Habeas Corpus Petition

The question of maintainability of habeas corpus petition under Article 226 of the Constitution of India for custody of a minor was examined in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective.

High Court stated that the exercise of extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdiction fact where the applicant establishes a prima facie case that the detention is unlawful.

Only where the above-mentioned jurisdictional fact is established the applicant would become entitled to the writ as of right.

Further, the Bench added that the role of the High Court in examining cases of custody of a minor, in a petition for a writ of habeas corpus, would have to be on the touchstone of the principle of parens patriae jurisdiction and the paramount consideration to be the welfare of the child.

In the present matter, petitioner 2 was of the age of 6 years and under the exclusive care and custody of his mother since the time he was an infant of about 2 years of age.

Custody with Mother: Lawful or Unlawful?

High Court stated that, the private respondent was none other than the biological mother of the minor child. This being the fact, it may be presumed that the custody of the child with his mother is not unlawful.

It would only be in an exceptional situation that the custody of a minor may be directed to be taken away from the mother for being given to any other person-including father of the child, in exercise of writ jurisdiction.

 In view of the above discussion, Court did not exercise its extraordinary jurisdiction to entertain the petition seeking a writ of habeas corpus. [Sushil Kumar Tiwari v. State of I.P., 2021 SCC OnLine All 882, decided on 6-12-2021]


Advocates before the Court:

Counsel for Petitioner:- Maqsood Ahmad Beg, Naiyar Masroof Siddiqui

Counsel for Respondent :- G.A.

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care.

Instant habeas corpus petition was initially filed by the paternal grandparents seeking custody of the corpus a minor child stated to be of the age of 19 months at that point of time, who was said to be with her maternal grandfather.

It has been stated that despite various requests maternal grandfather was not handing over the custody of the corpus to the paternal grandparents and that the same amounted to illegal detention.

Factual Matrix 

Present habeas corpus petition principally seeks to raise claims with regard to guardianship and custody of the petitioner 1 (corpus) who is girl child stated to have been born on 04.06.2018 and presently aged about three years. It is not disputed that the mother of petitioner 1, upon being seriously ill was taken away by respondent 4 along with the minor child for medical treatment and she died on 31.07.2019 and since then the petitioner 1 is under the care and custody of the respondent 4, her maternal grand­father. The lodging of the FIR under Sections 498­A, 304­B IPC and Section 3/4 Dowry Prohibition Act, 1961, in which the petitioners 2, 3 and 4, are named as accused and the pendency of the criminal proceedings are reflected from the records.

Principal Issue

Whether from the facts of the case, it can be stated that the custody of the child is illegal?

Analysis, Law and Decision

Writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown as held in Mohammad Ikram Hussain v. State of U.P., AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate, (1973) 2 SCC 674.

Jurisdiction

The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would,  be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful.

Object and Scope of Writ of Habeas Corpus

In the case of Syed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247, it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed.

In the decision of Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, the question as to what would be dominating factors while examining the welfare of a child was considered and it was observed that while material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character, personality and talents.

Further, elaborating more it was noted that question of a claim raised by maternal grand­father for guardianship of a minor child whose mother had died after giving birth to the child was subject matter of consideration in Shyamrao Maroti Karwate v. Deepak Kisanrao Tekham, (2010) 10 SCC 314, and reiterating that in the matter of custody of a minor child, paramount consideration is welfare of minor and not rights of parents or relatives, it was held that the appointment of the maternal grand­father as guardian, was justified.

Court stated that considering the facts of the case in particular the allegations against the respondent and pendency of a criminal case for an offence punishable under Section 498­A IPC, it was observed in the decision in the case of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, that one of the matters which is required to be considered by a court of law is ‘character’ of the proposed guardian and that the same would be a relevant factor.

In an earlier decision in the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573,  where in almost similar circumstances the father was facing a charge under Section 498­A IPC, it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of the children to hand over their custody to the father.

Therefore, in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is.

Power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

 High Court observed that,

A writ of habeas corpus, is employed in certain cases, to enable a party to enforce a ‘right to control’ – arising out of a domestic relationship, especially to enable a parent to get custody and control of a child, alleged to be detained by some other person.

 Guardianship v. Welfare of the Child

 Bench expressed that while examining the competing rights with regard to guardianship vis-à-vis welfare of the child, the predominant test for consideration would be – what would best serve the welfare and interest of the child.

The interest of the child would prevail over legal rights of the parties while deciding matters relating to custody.

In Court’s opinion, the custody of a minor child with her maternal grandfather was not in any manner illegal and improper detention.

Reasoning out the above opinion, Court stated that the child from her infancy, when she was of a tender age, appears to be living with her maternal grand­ father. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor.

“…in deciding questions relating to custody of a minor child, as in the present case, the paramount consideration would be welfare of the minor and not the competing rights with regard to guardianship agitated by the parties for which the proper remedy would be before the appropriate statutory forum.”

In view of the above petition was dismissed. [Reshu v. State of U.P., Habeas Corpus WP No. 9 of 2020, decided on 22-10-2021]


Advocates before the Court:

Counsel for Petitioner:­ Rajeev Sawhney, Rajiv Lochan Shukla, Ramanuj Yadav, Virendra Kumar Yadav

Counsel for Respondent:­ G.A., Abhinav Gaur, Ankur Verma, Manoj Kumar Rajvanshi, Prakash Chandra Yadav

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Rabindranath Samanta and Soumen Sen, JJ., allowed a writ petition which was filed invoking the “jurisdiction of suspicion” in view of the order of detention passed by the Joint Secretary to the Government of India on 1st April, 2021 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (as amended), (in short PITNDPS Act). The petitioner was directed to be detained and kept in Malda Correction Home, Kolkata.

  • A case under Narcotic Drugs and Psychotropic Substance Act, 1985 was initially initiated against the persons including the petitioner in connection with recovery of 384.21 kg of ganja on 29th June, 2017 from a truck. The contraband was claimed to have been concealed behind the cabin of the truck.
  • On the basis of the complaint filed on behalf of NCB, a NDPS Case No. 111 of 2017 was initiated by the appropriate Court at Kamrup and thereafter trial commenced before the learned Additional Sessions Judge No.2, Kamrup(M), Guwahati. The record reveals that the petitioner was absconding and non-bailable warrant of arrest was issued against the absconder/petitioner repeatedly since 2nd May, 2018 until he was arrested on 12th December, 2019 in connection with the another NDPS Case, this time at Malda.
  • While he was on detention, in relation to the Malda case, the petitioner filed an application for bail before a Coordinate Bench. The prayer for bail was allowed by the Coordinate Bench on 21st December, 2020. The petitioner presumably could not immediately avail the benefits of bail due to financial difficulty and arranging sureties until 30th March, 2021 to furnish his bail bond.
  • During pendency of execution of warrant of arrest on 1st April, 2021, the authorities passed an order of preventive detention.
  • Based on the documents and the materials placed before the detaining authority and considering the motive of detenu, the detaining authority recorded its satisfaction with regard to the detenu’s continued tendency and inclination to indulge in acts of the illicit traffic and narcotic drugs and psychotropic substance in a planned manner. The modus operandi according to the detaining authority adopted by the detenu with his associate gives rise to the reasonable apprehension that if he is not detained he would indulge in similar activities of illicit traffic and narcotic drugs and psychotropic substance.

Counsel for the petitioner submitted that the order of detaining authority was on a colourable exercise of power and the purpose and motive behind the said order was to set at naught the order passed by the Hon’ble Division Bench in releasing the petitioner on bail. It was further submitted that the apprehension the detenu was likely to be released from the custody and hence a preventive detention order is required to be passed, is completely a misuse of the power and in any event, having regard to the fact that the petitioner was in custody, there was no requirement to pass any preventive detention order.

Additional Solicitor General appearing on behalf of the respondents submitted that the preventive detention is different from criminal prosecution and the two are mutually exclusive. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The only requirement is that the detaining authority has to come to the satisfaction that there exists a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same.

The Court explained,

Personal liberty of an individual is precious, invaluable and to be jealously secured and protected. The word “preventive” is different from ‘punitive’ as said by Lord Finley in R.V. Haliday reported in 1917 AC 260.

The law of preventive detention operate harshly on the accused and, therefore, it should be strictly construed and should not be used merely to clip the wings of the accused who has involved in the criminal prosecution. Freedom from arbitrary arrest is a basic human right recognised over the years. This right has been preserved and respected whenever there has been cases of preventive detention unless there were compelling necessity or reasons.

The Court perused the order of detention and found that authority did not even issue any detention order during custody. There was no fresh material available to the detaining authority subsequent to his arrest in relation to the Malda case or after the coordinate bench presided over by Justice Bagchi granted bail to the petitioner on 21st December, 2020.

The Court was of the opinion that in the instant case all materials that were available before the Division bench at the time of granting bail were also available with the detaining authority prior and subsequent to the order granting bail to the petitioner. Curiously the detaining authority did not challenge the order of the coordinate bench before a higher forum or apply for cancellation of bail. The detaining authority accepted the order of the coordinate bench dated 21st December, 2020 and the said order is still in force.

The Court was not satisfied with the explanation offered for not being able to produce the detenue before the Kamrup court in execution of the warrant of arrest or the production warrant as the detenue was well within the reach of the detaining authority as he was languishing in the correctional home at Malda. The Court drew support from the judgments of Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746 and Khudiram Das v. State of West Bengal, AIR 1975 SC 550.

The Court finally set aside the order of the detaining authority and the opinion of the Central Advisory Board setting the petitioner free.[Heisnam Chaoba Singh v. Union of India, 2021 SCC OnLine Cal 2691, decided on 05-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the Petitioner: Mr Uday Sankar Chattopadhyay, Mr Dibakar Sardar, Mr Pronay Basak, Mr Santanu Maji, Ms Snigdha Saha, Mr Subhayu Das

For the Union of India: Mr Y.J. Dastoor, Ld. A.S.G,Mr Vipul Kundalia, Ms Anamika Pandey

For the State: Mr Saibal Bapuli, A.P.P., Mr Md. Sabir Ahmed

For the respondents no. 7 to 9: Mr Phiroze Edulji, Mr Arijit Mazumdar

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., decided an issue with regard to the habeas corpus petition for custody of a minor.

Instant petition was filed to seek custody of petitioner 2 stated to be a minor of age about 5 years and 10 months by petitioner 1 who asserted to be his father.

Factual Background

It was stated that petitioner 2 was born in January 2014 and in May 2015 the mother of the corpus committed suicide at the petitioner’s home and thereafter an FIR was lodged against petitioner 1 and other family members under Section 498-A, 304-B of Penal Code, 1860 and 3/4 of Dowry Prohibition Act and petitioner 1 was sent to jail.

Respondent 4 filed a Habeas Corpus Writ Petition and this Court, upon taking notice of the fact that the father of the corpus and other family members were in jail, passed an order granting custody of the minor child to the maternal grandfather, who was respondent 4 in the present case.

Analysis, Law and Decision

High Court opined that lower courts were duty-bound to consider the allegations against the respondent and pendency of criminal case for an offence punishable under Section 498-A IPC.

Further, the Court added that the court of law should consider the matter with regard to the “character” of the proposed guardian.

Thus, a complaint against the father alleging and attributing the death of mother, and a case under Section 498-A IPC is indeed a relevant factor and a court of law must address the said circumstance while deciding the custody of the minor in favour of such a person.

In the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, where in almost similar circumstances the father was facing a charge under Section 498-A IPC, it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.

In Rachit Pandey (minor) v. State of U.P., Habeas Corpus Writ Petition No. 193 of 2020 this Court held that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of someone else other than in whose custody the child presently is. It was held that the prerogative writ of habeas corpus, is in the nature of the extraordinary remedy, which may not be used to examine the question of custody of a child except wherein the circumstances of a particular case, it can be held that the custody of the minor is illegal or unlawful.

Senior Counsel appearing for the petitioners did not point out as to how, the custody of petitioner 2 with his maternal grandfather can be said to be illegal or unlawful so as to persuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus. He has also not disputed that any rights with regard to guardianship or custody are to be agitated before the appropriate forum.

Therefore, the petition was dismissed. [Awanish Pandey v. State of U.P., 2021 SCC OnLine All 751, decided on 27-9-2021]


Advocates before the Court:

Counsel for Petitioner: Sanjay Mani Tripathi, Adeel Ahmad Khan, Na

Counsel for Respondent: G.A., Anupama Tripathi, Rakesh Kumar Tripathi

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Kalyan Rai Surana, J., held that the writ of habeas corpus cannot be invoked unless there is an allegation of illegal detention. The Bench said,

“Establishing a ground of illegal detention and a strong suspicion about any such illegal detention is a condition precedent for moving a habeas corpus petition.”

By filing this writ petition in the nature of habeas corpus, the petitioner had prayed for direction to recover her son, who had gone missing since 04-09-2016 and on failure of the State machinery to trace out the missing son of the petitioner, to pay compensation of Rs.50,00,000 to the petitioner and the wife of the missing person. The petitioner submitted that it was the responsibility of the Government to look after the security of its citizens and as the State could not provide security to her son, the State was duty bound to pay compensation. It was also submitted that more than 5 years had passed but except for submitting status reports, the State Police could do nothing and was clueless about whereabouts of her son.

Stand Taken by the State

The State submitted that the son of the petitioner had not only taken loan from the bank but he had also taken loan from many other private persons and had gone missing thereafter, moreover, the missing person had never approached the police seeking any protection and as such, hence, the State did not owe any duty to keep the son of the petitioner under protective surveillance.

The State argued that compensation could be granted only if right to life protected under Article 21 of the Constitution of India was violated by the State or its employees and public law remedy was not available to direct the State to pay compensation if a person goes missing out of his own volition.

Analysis and Opinion

Noticeably, after the FIR was filed, wide media publicity was given regarding the missing son of the petitioner and his photos were also published. On 19-01-2018, a report was submitted to the Superintendent of Police, that the matter was referred to CID Branch but the missing person could not be traced out.

Considering that there was no material on record to even faintly suggest that the son of the petitioner had gone missing after any action taken by the State Administration including Police, Para-military and Armed Forces, and that there was no material to show that the missing person had any threat perception from any militant or extremist groups and the State Police had never been called upon to provide any police protection to the missing person, the Bench stated that there was there was no material to show that the son of the petitioner had gone missing because of any negligence on part of the Police of State Administration.

Reliance was placed by the Court on Selvaraj v. The State, H.C.P. 2309/2016, wherein it had been held that, “a Man/Women voluntarily moving from their dwelling house to any other place of his/her own choice, then his/her family members or other person concerned with such a person can file a case for Man missing and on receipt of any such complaint, the Police having jurisdiction has to investigate the matter in the manner known to law. Under these circumstances, question of entertaining a Habeas Corpus Petition by the High Courts would not arise at all. Thus, it is a condition precedent that a person filing a Habeas Corpus Petition should establish that there is a prima facie case of illegal detention or at least a strong and reliable suspicion in respect of such illegal detention.”

Hence, the Bench held that establishing a ground of illegal detention and a strong suspicion about any such illegal detention is a condition precedent for moving a habeas corpus petition. Thus, the Bench stated, the Constitutional Courts would not entertain habeas corpus petitions where there is no allegation of illegal detention or suspicion regarding illegal detention. The Bench clarified that,

“Missing person cases would not come within the ambit of a habeas corpus petition, but such cases are required to be registered under the regular provisions of the Indian Penal Code and the police and other investigating agencies would investigate the same in the manner prescribed under the Code of Criminal Procedure.”

Verdict

Since no apprehension of kidnapping of illegal detention was made when the FIR had been lodged and at no point of time till date any witness examined by the police so far had expressed their apprehension that the son of the petitioner was kidnapped by any person including extremists, the Bench held that there being no iota of doubt that the son of the petitioner had suffered any illegal detention, the habeas corpus petition was held to be not maintainable. [Mamoni Kakoty v. State of Assam, W.P. (Crl.): 2 of 2018, decided on 28-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate B K Bhattacharjee

For the Respondent: GA, Assam

Case BriefsHigh Courts

Allahabad High Court: Yogendra Kumar Srivastava, J., dismissed the petition and rejected the issuance of writ of habeas corpus by a husband seeking production of his wife.

The facts of the case are such that petitioner 2, wife of petitioner 1, left her matrimonial home sometime in the month of June, 2019 on account of some serious differences with her husband (Petitioner 1) and an application for restitution of conjugal rights was filed by the Petitioner 1 which stands pending before the court of the Principal Judge, Family Court, Saharanpur.

Counsel for petitioners Mr Avinash Pandey submitted that sometime in the month of November, 2020 information was received by him suggesting that petitioner 2 was being detained at her parental home

Counsel for State submitted that petitioner 2 (wife) left her matrimonial home sometime in the month of June, 2019 on account of serious differences with her husband (petitioner 1), it is not a case of illegal and a writ of habeas corpus would not be entertainable.

The Court relied on Mohammad Ikram Hussain v. State of U.P., 1964 AIR 1625 and Kanu Sanyal v. District Magistrate Darjeeling (1973) 2 SCC 674 wherein it was observed that the writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause.

The Court further observed that the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.

The Court held “the petitioner no. 2 having left her matrimonial home on her own on account of a matrimonial discord, the present petition seeking a writ of habeas corpus at the behest of the petitioner no. 1 (husband) would not be entertainable.”[Mohd Ahmad v. State of UP, 2021 SCC OnLine All 542, decided on 05-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: In a habeas corpus case regarding custody of the child the Bench of Anupinder Singh Grewal, J., refused to consider extra-marital affair as a ground to deny custody of child to the mother. The Bench remarked,

“In a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. More often than not these allegations are made without any basis or foundation. Even assuming a woman is or has been in an extramarital relationship, the same by itself cannot lead to the conclusion that she would not be a good mother to deny her the custody of her child.”

Background

The petitioner had sought the issuance of a writ in the nature of habeas corpus for the release of her minor daughter who was alleged to be in the custody of her husband-respondent 4. Respondent 4 was an Australian citizen and the petitioner later joined him in Australia. Out of the wedlock, a girl child Jasreen Kaur Garcha was born. Later on, the petitioner and respondent 4 developed matrimonial differences which led to their separation. The parties arrived in India on 24-01-2020. It was by the petitioner that in a deep rooted conspiracy the child was taken away by respondent 4 when the petitioner had gone to her parental village. It was further contended by the petitioner that respondent 4, instead of acceding to the request of the petitioner to handover the child, started threatening her and the petitioner fearing her safety, fled back to Australia on 05-02-2020. She filed a petition for the custody of the minor child in the Federal Circuit Court, Australia and the court had passed an interim order directing respondent 4 to return the minor child to Australia.

On the other hand, respondent No.4 submitted that the petitioner was involved in a relationship with his brother-in-law which had led to marital discord between the parties. The Panchayat was convened on 04-02-2020 and it was agreed that as the petitioner had permanent residency in Australia, the custody of the child would be handed over to respondent 4. He further submitted that after her return to Australia, the petitioner had preferred an application for the custody of the child and in the application, the Australian address of respondent 4 had been mentioned although she knew that he along with their child was in India. Relying on the judgment Ranbir Singh v. Satinder Kaur Mann, 2006(3) RCR (Civil) 628, respondent 4 submitted that a decree, which had been obtained from a foreign court on the basis of a fraud would not be enforceable in India.

 Observations and Decision

Noticing that the mother is the natural guardian of the child till the age of five years in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956, the Bench stated that the child would require love, care and affection of the mother for her development in the formative years. Similarly, the support and guidance of the mother would also be imperative during adolescence. Furthermore, the petitioner had permanent residency in Australia. She was earning Rs 70,000/- Australian dollars per annum and a handsome sum would be payable to her for the maintenance of child as well by the Australian authorities. The father was an Australian citizen. He had also obtained a diploma in Hospitality Management and was employed in Australia and only recently had come to India. He had a small piece of agricultural land and was stated to have some rental income as well.

The Bench opined that the principle of comity of courts had been followed by the Courts in India to honour and to show due respect to the judgments obtained by the Courts abroad. However, the judgment of a foreign court could not be the only factor while considering the issue of custody of a child to a parent. Reliance was placed by the Court on the decision of Supreme Court in Yashita Sahu v. State of Rajasthan, wherein the Bench had held,

In the fast shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which countrys courts will have jurisdiction. In many cases the jurisdiction may vest in two countries…Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of childs custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the childs welfare be investigated in a court in his/her own country.

Noticeably, the respondent 4 had leveled allegations pertaining to the character of the petitioner that she was in an extra-marital relationship with a relative of the petitioner. Opining that aside of the bald assertion in the petition, no supporting material had been brought before the Court, the Bench remarked that in a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. Therefore, allegations against the petitioner being wholly unsubstantiated were not considered relevant to adjudicate the issue of custody of the minor child.

Noticing that the respondent 4 had appeared initially in the proceedings in Australia, the Bench opined, it could not be said that the order was passed by the Australian Court behind the back of respondent 4 or was not in conformity with the principles of natural justice. Accordingly, the custody of the girl child was handed over to the petitioner. However, the petitioner was directed to arrange interaction of the child with respondent 4 through video conferencing and the parties were directed to abide by the orders of the Federal/Family Court in Australia.[Mandeep Kaur v. State of Punjab, 2021 SCC OnLine P&H 1060, decided on 10-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Divjyot Singh Sandhu
For the State of Punjab: DAG Dhruv Dayal
For Respondent 4: Adv. Inderpal S. Parmar

Case BriefsHigh Courts

Allahabad High Court: Vikas Kunvar Srivastav, J., addresses whether a minor girl on attaining majority can ratify the agreement of marriage that she had entered into when she was a minor? The legality of such an agreement tested.

Instant petition was moved on behalf of ‘Sadhna Kumari’ aged about 18 years through her next friend. Next friend allegedly the husband aged about 19 years.

OPs 4 and 5 (Parents of Petitioner Sadhna Kumari) with whom petitioner’s unlawful detention was complained.

Next Friend pleaded that the detenue petitioner Sadhna Kumari and next friend Shekhar were legally wedded and living as husband and wife since after an agreement purported to be of marriage.

Analysis and Decision

Bench noted that the petitioner’s counsel failed to show material averment as to the ‘solemnization of marriage’. Its date, place and time so as to establish the wedding of the petitioner and her next friend the alleged husband.

‘Agreement’ dated 31-07-2020 was pleaded as the basis of legal authority of the next friend to seek habeas corpus of petitioner Sadhna Kumari.

Purpose of Writ

It is to facilitate the next friend to cohabit with petitioner without interruption of anyone else, even the parents of Sadhna Kumari (OPs 4 and 5) with whom she is presently residing.

Legality of Agreement dated 31-07-2020

As per the High School Examination certificate, Sadhna Kumari’s date of birth was 17-03-2003. In view of the stated material fact, the ‘agreement’ purported to be of marriage when allegedly executed by the petitioner Sadhna Kumari on 31-7-2020 she was a minor aged about 17 years and 4 months, therefore, at the relevant date of agreement despite the alleged agreement of her consent to cohabit with Shekhar Pandey, the next friend as husband and wife, she could not be supposed to give valid consent in law.

A criminal case has been registered against the next friend on the complaint of the petitioner’s mother.

Agreement of which either party to it is a minor- Legal Status 

Agreements which are made enforceable in law are provided under the Indian Contract Act, 1872. Section 11 of the Indian Contract Act states that:

“every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”

 It is pertinent to keep in mind the age of the majority which capacitates a person to contract.

Since petitioner’s date of birth was 17-03-2003, she was undoubtedly on the date of ‘agreement’ dated 31-07-2020 a minor.

As per the definitions given in Child Marriage Restraint Act, 1929 and Juvenile Justice (Care and Protection of Children) Act, 2015 such a person has termed a child.

Court stated that the petitioner was a minor as well as a child also when she allegedly entered into the agreement to marry on 31-7-2020. Further, she was party to an agreement of marriage.

An agreement must not be opposed to law. The law applicable to petitioner being a Hindu, is “The Hindu Marriage Act, 1955”.

Section 5 (iii) of the said Act provides the marriageable age, according to which the marriage may be solemnized between any two Hindus, if the following conditions are fulfilled: –

“(iii) the bride groom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage.”

High Court held that The Hindu Marriage Act, 1955 and The Indian Contract Act, 1872 the petitioner had no legal capacity and competence to enter into the agreement to marry with Shekhar. Court added that even Shekhar was not of marriageable age under the law.

India Law states that in marriage where either the woman is below the age of 18 years or the man is below the age of 21 years, such marriage, if solemnized by the guardians becomes voidable under Section 5 of the Hindu Marriage Act at the instance of minor. He has option to ratify the marriage also.

 In the present matter, marriage was being claimed as an agreement to cohabit as husband and wife by virtue of an agreement dated 31-07-2021. Hence, the question was – whether on attaining the majority age a minor was competent to ratify his/her agreement executed in the age of minority?

Legal Position to address the above question:

(i) contract with minor is void and no legal obligation can ever arise on him/her therein,

(ii) the minor party cannot ratify the contract upon attaining majority unless the law specifically allows this, and

(iii) no court can allow specific permission of a contract with minor because it is void altogether.

When a contract is entered on behalf of lawful authority of a minor then only the option is available attaining majority to minor either to ratify or to rescind the contract entered by the person having lawful authority on his behalf.

Therefore, in view of the above discussion, the agreement dated 31-7-2020 of which one of the parties namely petitioner Sadhna Kumari a minor, is void, as the same is in violation of Sections 11 and 23 of the Indian Contract Act, 1872.

Elaborating its conclusion, High Court added that agreement dated 31-7-2020 purporting to be of marriage and consent to cohabit together, cannot be given effect so as to issue notice to opposite parties for the production of the petitioner in court for the purpose of recording her desire to ratify her alleged agreement to marry/consent deed, for the reason of the same being a void agreement.

Bench while dismissing the petition stated that this decision shall not impede the petitioner to enter into marital relations with a person of her choice on attaining marriageable age through a lawfully solemnized marriage or otherwise. [Sadhna Kumari v. State of U.P., 2021 SCC OnLine All 276, decided on 15-04-2021]


Advocates before the Court:

Counsel for the Petitioner: Janardan Singh

Counsel for the Respondent: G.A.

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., expressed that:

The remedy of writ of habeas corpus at the instance of a person seeking to obtain possession of someone whom he claims to be his wife would therefore not be available as a matter of course.

The present matter for writ of habeas corpus was filed to produce the corpus of petitioner 1 stated to be under detention.

On investigation, it was revealed that petitioner 1 had left her matrimonial home on her own on account of discord with her husband, petitioner 2 for the reason that he is stated to have entered into another marriage and a child was also stated to have been born out of the wedlock.

Petitioners counsel though disputing the factum of the second marriage did not controvert the fact of petitioner 2 being in an extra marital relationship and also that a child was born out of the said relationship.

Analysis and Decision

The writ of habeas corpus is a prerogative writ and an extraordinary remedy.

Bench observed that writ of habeas corpus is of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain v. State of U.P., 1964 AIR 1625 and Kanu Sanyal v. District Magistrate Darjeeling, (1973) 2 SCC 674.

Elaborating more on writ of Habeas Corpus, Court added that it has been held as a festinum remedium and accordingly the power would be exercisable in a clear case.

Hence, High Court held that in view of the other remedies available for the purpose under criminal and civil law, issuance of writ of habeas corpus at the behest of a husband to regain his wife may not be available as a matter of course and the power in this regard may be exercised only when a clear case would be made out.

Therefore, petitioner 1 having left the matrimonial home on her own due to a matrimonial discord, the present petition for a writ of habeas corpus at the behest of husband would not be entertainable.[Soniya v. State of U.P., 2021 SCC OnLine All 174, decided on 10-02-2021]

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., addressed a petition wherein petitioner is an accused of the offences lodged under Sections 498-A, 304-B Penal Code, 1860 and 3/4 of Dowry Prohibition Act, 1961 seeking custody of his children from their maternal grandparents.

The instant petition was filed for a writ of habeas corpus with an assertion that petitioner 2 and 3 (minor children of petitioner 1 age about 8 years and 3 years, respectively) were detained by respondents 4 and 5 (maternal grandparents of the minor children).

Petitioner 1 was sent to jail for being the primary accused in respect of an incident relating to the death of the wife of petitioner 1 i.e. mother of the children, whose custody was being sought.

Additional Advocate General submitted that since petitioner 1 was the principal accused in the above-stated criminal case, granting him the custody of children would be detrimental to their interests.

In Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, it was held that:

 the paramount consideration in such matters would be the welfare of the child, and the court, exercising ‘parens patriae’ jurisdiction, must give due weightage to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values and the character of the proposed guardian is also required to be considered. It was held that the pendency of a criminal case, wherein the father has been charged of causing the death of the minor’s mother, was a relevant factor required to be considered before an appropriate order could be passed.

 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, it was held that:

though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.

Petitioner could not demonstrate as to how the custody of minor children with their maternal grandparents could be said to be illegal or unlawful so as to persuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus.

Hence, petitioner withdrew the petition stating that he would pursue other remedies available under the law with regard to the custodial rights.[Pankaj v. State of U.P.,  2021 SCC OnLine All 116, decided on 20-01-2021]

Case BriefsHigh Courts

The parents together are a young child’s world. It is together that they groom him into his youth. It is together that they ensure the overall development of his personality in its myriad facets.

But marriage, like life, sometimes takes an unpleasant turn, where the spouses could turn into an estranged couple. 

It is in this situation that the Court, in the exercise of its parens patriae jurisdiction, called upon to perform the onerous task of keeping the young child’s world, as much together as can be. 

Allahabad High Court: J.J. Munir, J., observed that

What is important while deciding the issue of custody between two natural guardians, is where the minor’s welfare would be best secured. The statute indicates a preference for the mother, so far as a child below five years is concerned.

The instant petition was filed for a writ of habeas corpus, instituted by Master Anav’s mother, the first petitioner, asking the Court to liberate the minor from his father’s custody by entrusting the minor into hers, is about a young child’s devastating world.

Petitioner 1 states that during her stay with her husband, she was tortured physically and mentally, both. Her mother even gave dowry.

Later, petitioner 1 realised that her husband had an amorous relationship with her sister-in-law and another girl from the village to which she objected in vain. She was even forced to abandon the marriage and go back to her mother’s home.

The discord between parties was mediated by kinsmen, which resulted in what Meenakshi claims to be a mutual divorce.

Further, it was stated that Meenakshi after the above settlement went back to her mother’s home along with her young son, Anav. After some time petitioner 1 claimed that there was an unholy alliance between Meenakshi’s brother, Sunny and her estranged husband with two making it common cause to oust her minor son from her mother’s home.

While Ram Narayan wanted his son to stay with him, Sunny who is arrayed as the respondent 6 to this petition, wanted the child out of his mother’s home, where Meenakshi stays, because he thought Meenakshi may claim a share for her son in her ancestral property.

In light of the above motive, Meenakshi was beaten up and her son was snatched away, leading to locking up Meenakshi.

Later Anav was handed over to Meenkashi’s husband.

Analysis and Decision

Bench observed that the mother of the minor came up with serious allegations about her son being kidnapped by force by her brother and being delivered into her husband’s custody.

Court found no tangible evidence in regard to the child being forcibly removed from mother’s custody.

The minor is a young child of tender years. He is just four years old. The Court did not find him capable of expressing an intelligent preference between his parents, in whose custody, he would most like to be.

Amongst many things that this Court noticed is the fact that the father is not, particularly, interested in raising the minor.

A perusal of the settlement between the parties contained clause wherein it was specifically stated that the minor, Anav, then aged two and a half years, would stay in his mother’s custody.

The above-stated discloses the disinclination of the father to bear a whole-time responsibility for the minor’s custody and the complementary inclination of the mother to take that responsibility.

Mother’s right and that of the father, under Section 6(a) as to guardianship has been considered at par by the Supreme Court in Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.

So far as custody goes, as distinct from guardianship, between the two natural guardians, the mother is to be preferred by virtue of the proviso to Section 6(a) of the Act of 1956, in the case of a child below five years of age.

Bench observed the Supreme Court Decision in Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, wherein it was held that

A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.

Court added to its observation in custody matters that,

But, the general rule about custody of a child, below the age of five years, is not to be given a go-by. If the mother is to be denied custody of a child, below five years, something exceptional derogating from the child’s welfare is to be shown.

Bench noted that nothing on record was placed where it could be stated that the mother was unsuitable to raise the minor. Court found that the mother in the present case is more educated than the father.

Adding to the above, Court also stated that:

The mother, being found fit to have the minor’s custody, it cannot be the best arrangement to secure the child’s welfare, or so to speak, repair his devastated world. He must have his father’s company too, as much as can be, under the circumstances.

This Court must, therefore, devise a suitable arrangement, where the minor can meet his father in an atmosphere, that is reassuring and palliative. The father must, therefore, have sufficient visitation while the minor stays with his mother.

Hence, the habeas corpus writ petition was allowed in view of the above discussion. [Meenakshi v. State of U.P., 2020 SCC OnLine All 1475, decided on 02-12-2020]


Advocates who represented the parties in the matter:

Counsel for Petitioner:- Sushil Kumar Sharma, Mohit Kumar

Counsel for Respondent:- G.A., Amar Nath, Shravana Kumar Yadav

Case BriefsHigh Courts

Allahabad High Court: J.J., Munir, J., addressed a matter wherein the father of the minor children has been facing trial for criminal charges and has instituted the petition seeking custody of his minor children.

The instant petition was instituted for a writ of habeas corpus on behalf of two minor children.

Minors’ Custody

It was stated that respondent 4 and respondent 5 be directed to produce the two minor-children detenues before the Court and minors be given into the father’s custody who has instituted the instant petition.

Digvijay Singh, counsel for the petitioners and Pankaj Kumar Tyagi, counsel appearing on behalf of respondent 4 and Sri Jhamman Ram, Additional Government Advocate appearing on behalf of the State.

Analysis and Decision

The issue of minor’s custody in the present matter came into light after the unnatural death of their mother, regarding which Awadesh Gautam (husband) and four others of his family were reported to the police by the respondent 4 charging them with murder and destruction of evidence.

It was alleged that the minors were taken forcibly by respondent 4 when the husband of the deceased was sent to jail.

Bench on perusal of the above stated observed that the question regarding maintainability of a habeas corpus writ petition to decide issues regarding custody of children or guardianship between a parent snd some other kindred, or between two parents, both of whom are natural guardians, all of this has been fairly well-settled. The stated issue came up for consideration before the Supreme Court in Syed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247 wherein it was held that:

“…in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court.”

In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 it was held that:

“19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.”

In the present matter, Court stated that the custody cannot be termed as unlawful. Respondent 4 is the minors’ grandmother who has been given custody of the minors’ by Neeraj Gautam, the cousin or relative of Awadhesh’s in the presence of the Station House Officer.

Awadhesh who is the father of the minors’ could say that being the natural guardian of the two minors’ he has the right to seek their custody from the grandmother.

It is precisely this right which Awadhesh asserts, by virtue of Section 6 (a) of the Hindu Minority and Guardianship Act, 1956. He says he is the sole natural surviving guardian, and therefore, entitled to the minors’ custody. It is, no doubt, true that Awadhesh is the minors’ natural guardian under Section 6 (a) of Act, 1956, but the issue about the minors’ custody is not so much about the right of one who claims it, as it is about the minors’ welfare.

The issue of welfare of the child cannot be mechanically determined. It is to be sensitively approached, taking into consideration both broad and subtle factors that would ensure it best.

The principle governing custody of minor children, apart from other issues, fell for consideration of the Supreme Court in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.

In the above-cited case, the facts disclose that the father, who claimed the minors’ custody from his maternal grandfather and grandmother was like her, an accused in a case relating to his wife’s dowry death. Fathers’ involvement in a case relating to wifes’ dowry death was regarded by the Supreme Court as an important factor to be carefully addressed.

“…fact about the involvement of a natural guardian, in a criminal case relating to the death of a spouse, was held to be an important consideration while determining the question of welfare of the minor.”

Court interacted with the eldest amongst the minors’ who expressed that he is not disturbed at all about the fact that his maternal grandmother has placed him and his sister at Sri Braddhanand Bal Ashram. 

Further, the child added that he does not wish to go back to his father or stay with him. On being asked the reason, he says that he fears for his life. He also said that he wishes to stay at the hostel. During the course of the conversation, the child emotionally brokedown and wept. He insisted upon staying with the hostel and refused to go back to his father.

Later the Court looked into the allegations for which the father was facing trial, wherein it was noted that the wife had called up her mother stating that there was a conspiracy afoot, where she could be crushed to death under the wheels of a tractor. Later on, she was found dead near portraying it as an accident.

The totality of the circumstances on record shows that unless acquitted, it would not be appropriate to place the two minor children in their father’s custody.

Bench held that the father is not entitled to the minors’ custody when he is facing criminal charges. Once he is acquitted, it would be open to him to make an appropriate application seeking their custody to the Court of competent jurisdiction under the Guardians and Wards Act, 1890.

In the totality of the circumstances obtaining for the present, this Court did not find it appropriate to grant any visitation rights to Awadhesh Gautam.[Shaurya Gautam v. State of U.P., 2020 SCC OnLine All 1372, decided on 10-11-2020]