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]

Case BriefsForeign Courts

Lord Campbell, CJ., while deciding the custody of child allowed the Writ of Habeas Corpus, marking significant observations on ‘guardian of nurture’ in light of settled precedents.

Brief Facts

The present case is concerned with the custody of a ten-year-old girl, named, Alicia Race. A writ of habeas corpus is filed by the girl’s mother, who is also the guardian for nurture, the father being dead and there being no testamentary guardian. It is to be noted that the deceased father was a Protestant and the mother is a Roman Catholic by faith, practice and belief. No directions by the deceased father were given by testament as to the manner in which the children may be brought up. Further, the child whose custody is sought reads at a Catholic school in Hampstead.

After the father of the girl martyred in the service of the nation, the family was selected as objects of the Royal Patriotic Fund, wherein allowances were given for necessities including education. During his lifetime, the children were sent to Protestant school, visited their churches with all concurrence of the mother. However, in 1856, she sought to take away the children for the purpose of having them educated at Roman Catholics. The Commissioners of the Royal Patriotic Fund, upon consideration of the application called in the children to know their wishes. While the boy agreed and returned to his mother, the girl expressed great reluctance stating that, as much as she loves her mother, she would not go to a school where idolatrous worship is preached. Subsequently, the Commissioners and Miss Clarke, the school mistress, refused to give the girl to her mother. Hence, the present writ is moved. 

Arguments

For the school mistress and the Commissioners, it was argued by O’Malley and Lush, that the wish of the infant must be acknowledged and even if it is assumed that the mother was guardian for nurture, the custody sought was for an improper, inconsistent object of bringing up the child in a faith different from that of the deceased parent.

Issue

Whether the writ of habeas corpus maintainable against the school mistress and the Commissioners?

Whether rights of guardian in the nurture of higher importance than the wishes of the child?

Decision

Allowing the writ petition, the Court granted the custody of the minor child to her mother and further cited, “if a guardian, by reason of nurture, delivers the infant to another for instruction, he may afterwards, retake the infant.” It also suggested the child continue the school at Hampstead which in the Court’s opinion was admirably conducted but left the sole discretion on the mother to decide. Apropos, the wishes of child as put forth by the counsel for respondents, the Court making a comparison between wishes of child and rights of a guardian by nurture remarked that if such contention is to be accepted, “the Court must in each case ascertain whether there was sufficient intelligence by personal examination of the child”

Relied/Referred Precedents and Legislation

  • Radcliff’s case, 3 Rep. 37 a. 38 b., guardianship for nurture continues till the child attains the age of fourteen. As per the general rule, if a child within the age of seven is brought before the Court in a case of custody to guardian, it is bound to deliver the child, at once but if the age vary between seven to fourteen, the Court may examine and ascertain whether the child is competent to make a choice in a given situation, more clearly the ‘mental capacity’ of the child.
  • Serjeant Talfourd’s Act, 2&3 Vict. C. 54, s.1, where infant under the age of seven and in the sole custody or control of father, the Lord Chancellor or the Master of the Rolls may make an order that such infant be delivered to and remain in the custody of the mother until they attain the age of seven years. Calling it a peculiar age of nurture, the Court recognized it as entirely different from the guardianship for nurture which belongs to the father in his lifetime, even from the birth of the child.
  • Rex v. De Manneville, 5 East, 221, a writ of habeas corpus is an appropriate remedy in the cases where the child is below the age of seven.
  • Rex v. Johnson, 1 Str. 579, custody of a nine year old girl was given to her guardian (mother) from her testamentary guardian (nurse).
  • Rex v. Smith, 2 Str. 982, overruled, the previous case by allowing a boy of few months lesser than fourteen to reside with his aunt against the habeas corpus petition brought by his father.
  • Rex v. Greenhill, & E. 624, marks the settling of issue on a general rule wherein if a person within the age of twenty one years is brought before the Court, and possess the ability to exercise his choice, the Court shall leave on the individual to decide where he wishes to go but where he is incapable by any reason of making such choice, custody shall be decided by the Court.
  • In re Lloyd, mother of an illegitimate child was denied custody of a child between eleven and twelve years by relying on Rex v. Hopkins, wherein it was held, “Only while an illegitimate child is under seven that the Courts will interfere to protect the custody of the mother”
  • The instant Court also referred to several other decisions wherein despite a Parsee man adopted Christianity, the custody of the child was given to him, who was detained by the Parsee family. Moreover, in another case, the Court ordered a Hindu boy of twelve years, who professed to have embraced Christianity to be delivered to his father, who adhered to the Hindu religion.
  • In Villareal v. Mellish, 2 Swanet. 533 and Talbot v. The Earl of Shrewsbury, 4 Myl. & Cr. 672, the Court observed that it finds no distinction between different religions and will not interfere with the discretion of guardians as to the faith in which they educate their wards. In re Arabella Frances North, 11 Jurist 7, the Court held that the ward must invariably be educated in the religion of the father.

 [Queen v. Clarke, 119 ER 1217 : (1857) 7 EL & BL 186]

Interesting the Supreme Court of India followed the dictum laid down in this judgment to grant custody of a minor illegitimate child to her mother in Gohar Begam v. Suggi, AIR 1960 SC 93 : 1960 Cri LJ 164

 

Case BriefsHigh Courts

Madhya Pradesh High Court, Gwalior Bench: S.A. Dharmadhikari, J., while addressing an issue with regard to the custody of a child held that the welfare of child is of paramount importance.

The instant petition was filed to seek habeas corpus direction respondents 1 to 5 to produce the corpus Yatharth before the Court who is alleged to be in illegal detention of respondents 6 to 8.

Brief Facts

Matrimonial dispute between the petitioner and respondent 6 was going on. Respondent 6 used to harass and beat the petitioner and demanded a dowry of Rs 5 lakhs from the petitioner.

Due to some altercation between the husband and wife, respondent 6 had locked the petitioner in a room and took away the minor child Yatharth along with him.

Corpus Yatharth is 15 months old child and has been illegally snatched by the respondent 6/husband and her in-laws from the possession of the petitioner, who is living in her parental house.

When the petitioner requested her husband to hand over the corpus to her, the respondent 6/husband beat the petitioner along with her brother and mother and had tied them with rope. In these circumstances, the petitioner was left with no other option, but to file an FIR.

Analysis and Decision

First Issue: Whether the Habeas Corpus petition is maintainable or not in respect of custody of a minor child, who is in the custody of the father and grandparents at Gwalior?

Court referred to the decision of the Supreme Court in Dushyant Somal v. Sushma Somal, (1981) 2 SCC 277 which dealt with the jurisdictional aspect with regard to the issuance of Habeas Corpus writ in respect of illegal custody of a child.

In view of the above decision, High Court is of the opinion that a writ petition for issuance of a writ in nature of Habeas Corpus under Article 226 in the peculiar facts and circumstances of the case is certainly maintainable.

Further, keeping in view the welfare of the child and other factors, the Court opined that the child has to be in the custody of the mother.

Decision

In the present case, the child is aged about 15 months and this Court keeping in view Section 6 of the Hindu Minority and Guardianship Act, 1956 is of the opinion that the child has to be given in the custody of the mother.

Bench is of the opinion that the welfare of a child is of paramount importance and the mother/petitioner, who has nurtured the child for 9 months in the womb, is certainly entitled to custody of the child keeping in view the statutory provisions governing the field.

Hence, the Court directed the respondent 6 to 8 to handover the custody of the child to the petitioner.

Accordingly, the instant petition stands allowed. [Madhavi Rathore v. State of M.P., 2020 SCC OnLine MP 1992, decided on 05-09-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., while addressing an application with regard to the custody of minor children observed that, it is trite law that till the minor children become 6 years of age, the custody ordinarily shall have to be with mother unless their welfare is an issue with the Court.

In the instant petition respondent 4 stated that initially for 6 months, he and the applicant lived together and after being assured of the relationship, she got the marriage registered under the Special Marriage Act.

Twins were born to the applicant, further the respondent 4 alleged against her about having the intimacy with her female classmate.

It is also stated by respondent 4 that since the applicant was desirous of living freely, she agreed to the divorce on the stamp paper of Rs 100 and they separated.

He denied the allegations of her having been beaten and driven from her matrimonial home and with regard to the custody of the minors, it was also contended that he had not agreed with the children be retained by the applicant.

Mother of the applicant also chose to file an affidavit in favour of respondent 4.

Applicant alleged against the husband that he has criminal antecedents who deals with prohibited liquor and it is also reported in the newspaper.

Decision

According to the Advocate Chavada on behalf of the applicant, it has been a pure mistake on the part of the applicant not to have made mention of the application preferred under the Guardians and Wards Act provisions.

However, the said argument cannot be a bar to file writ petition of habeas corpus.

“Entire story of divorce deed has been concocted and marriage of the couple had been under Special Marriage Act, for they both being of different religions, divorce could not have taken place on Rs 100 stamp paper.”

Welfare of the Minor Children

Court observed that,

“What is far more important is to see as to whether the age of the twins is such where they can reveal their minds and what would be in their interest to do !

When obviously they are unable to state themselves for not having completed 3 years, their welfare would be of paramount consideration of the court.”

Bench stated that it is the requirement of the statute that once having chosen to be spouses under the Special Marriage Act, it is necessary for the parties to take recourse to the very law to even permanently sever the ties.

Writ of Habeas Corpus

In the instant matter, for the purpose of the writ of habeas corpus, Court has chosen not to permit reliance on the said document noticing the very question of the validity of this document couple with a serious allegation against the mother of the applicant.

The prime concern in the present matter is the children’s custody, it is a trite law that till they become 6 years of age, the custody ordinarily shall have to be with the mother unless their welfare is an issue with the Court.

Court further states that it shall not be led by any of the allegations attempting to assassinate the applicant’s character who dares to shape her life with dignity and self-help after leaving her matrimonial home.

Hence in view of the applicant’s position of her having a rented place and running a tiffin service with an earning of Rs 25,000, the right of the children to be maintained by both parents do not go away, the welfare of the children requires their custody to be handed over to the applicant.

With the custody of children being handed over to the mother immediately, the petition was disposed of. [Chavda Twinkle v. State of Gujarat, 2020 SCC OnLine Guj 1167, decided on 17-07-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of N.V. Anjaria and Ashok Kumar C. Joshi, JJ. addressed a petition wherein Writ of Habeas Corpus was sought in order to produce the daughter of the petitioner.

Matter:

Petitioner’s minor daughter was taken by respondent 4 when she was doing some labour work at a factory. Respondent 4 was also engaged in working at the same factory. Petitioner had lodged an FIR for offenses punishable under Sections 363 and 366 of Penal Code, 1860 as well as Section 18 of Protection of Children from Sexual Offenses Act, 2012., but no satisfactory reply came from the police.

In view of the above, petitioner approached the High Court through the present petition.

Further on issuance of order by this court, respondent-3 /Police was asked to take steps to trace the corpus. Later the proceedings kept adjourning due to the COVID-19 Outbreak and consequential suspension of regular court working.

In the meantime, Police succeed in tracing the minor girl with respondent 4. Girl and Respondent 4 were found to be in Panvel Talk of Ahmednagar District in the State of Maharashtra. On 18-04-2020 corpus was brought back to Gujarat. It was found that respondent 4 had taken the girl to various different places during the period.

As the Corpus was in police custody, request was made by the Additional Public Prosecutor to get the matter listed so that the girl could be produced before the Court. Thus the matter after being listed by Registry came up before the Court.

Permission was granted for the corpus to be produce through video-conferencing as, in the present circumstances it was not possible.

According to the Police Report it was noted that the girl was made to go through medical examination and the report for the same submitted to the Court. Respondent 4 had already been booked pursuant to the FIR and events thereafter.

According to the statement recorded by police, it was stated by the Corpus that she was willing to go her parent’s house.

Bench wanted to make sure of the fact that the girl was saying the above out of her own will and thus she was produced before the Court wherein the same question of her willingness was asked and Corpus stated that she was willing to go. Parents of the Corpus were also asked about their willingness to take their daughter to which their response was in positive.

Court directed the parents of the Corpus to take proper care their minor daughter, in view of the stated corpus was permitted to go with her parents. Police authorities were also directed to ensure safe passage of the corpus and her parents.

To ensure the well being of the Corpus, authorities concerned were erected to depute a Social Welfare Officer from the District and the said officer shall visit the house of corpus and report before ether competent authority after one month.

Petition disposed in the above terms. [Atubhai Nanjibhai Baraiya v. State of Gujarat, 2020 SCC OnLine Guj 506 , decided on 21-04-2020]

Case BriefsSupreme Court

Supreme Court: In a case where pre-mature release of convicts was sought in terms of a Scheme framed by the Government of Tamil Nadu, the bench of SA Nazeer and Deepak Gupta, JJ observed that a writ of  habeas corpus  will not lie and such a prayer should be rejected by the Court where detention or imprisonment of the person whose release is sought is in accordance with the decision rendered by a court of law or by an authority in accordance with law.

“The scope of the petition of habeas corpus has over a period of time been expanded and this writ is commonly used when a spouse claims that his/her spouse has been illegally detained by the parents.  This writ is many times used even in cases of custody of children.  Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ of habeas corpus must come to the conclusion that the detenu is under detention without any authority of law.”

Issue

Whether a writ of habeas corpus would lie, for securing release of a person who is undergoing a sentence of imprisonment imposed by court of competent jurisdiction praying that he be released in terms of some Government orders/Rules providing for pre­mature release of prisoners?

Background

  • A Scheme was framed in the State of Tamil Nadu for considering the cases of pre­mature release of convicted prisoners on the occasion of the Birth Centenary of M.G. Ramachandran, former Chief Minister of Tamil Nadu.
  • Various Writ petitions for habeas corpus were filed on the ground that the State has not given benefit of the premature release to the petitioners whereas many others have been given the benefit.

Observation

Considering that in all the petitioners in the present case were sentenced to imprisonment for life, the Court held that as such their detention cannot be said to be illegal. It is not for the writ court to decide whether a prisoner is entitled to parole or remission and these matters lie squarely in the domain of the Government.  The Court, however, added that the Court which deprives a person of his liberty in accordance with law also has the responsibility to ensure that such a person though under incarceration is not denied the other fundamental rights which he is entitled to. Therefore, there can be no dispute with the proposition that anybody who is behind bars and is ill­treated or is deprived of his liberties, may approach the Court for a writ of habeas corpus.

“A writ petition by a prisoner is maintainable if his fundamental rights are violated.”

The Court, further, said that the grant of remission or parole is not a right vested with the prisoner.  It is a privilege available to the prisoner on fulfilling certain conditions.  This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations. The court cannot exercise these powers though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rules.  

[Home Secretary (Prison) v. H. Nilofer Nisha, 2020 SCC OnLine SC 73, decided on 23.01.2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and N.B. Suryawanshi, JJ., dismissed a petition whereby the petitioners sought their release by invoking the writ of Habeas Corpus on the ground that their judicial custody was authorised beyond a period of 15 days he designated court, which is contrary to the mandate of Section 309(2) CrPC.

The petitioners were accused in a criminal case registered under various provisions of IPC and the MPID Act, 1999. The main ground pressed in to service by Subhash Jha and Harekrishna Mishra, Advocates for the petitioners, was that the proviso to Section 309(2) CrPC provides for remand of the accused of a term not extending 15 days at a time. In the present case, from time to time, the judicial custody of the petitioners was extended beyond 15 days, which according to them was in violation of Article 21 of the Constitution. Per contra, M.M. Deshmukh, APP for the State, opposed the writ petition.

Perusing Section 309(2) along with its first proviso, the High Court noted that the proviso to Section 309(2) CrPC carves out the exception to the general provision thereby imposing restriction that no Magistrate shall remand the accused persons to custody under Section 309(2) CrPC for a term exceeding 15 days at a time.

However, applying the settled principles of interpretation of statutes, the Court went on to observe: “In our considered opinion, the restrictions imposed on the Magistrate by this proviso are not applicable to the Court of Sessions.” It was further stated: “…on plain reading of section 309(2) of CrPC and its proviso, we are of the considered view that the said provision is clear and unambiguous and the distinction enshrined in provision cannot be read in the main provision of section 309(2) of CrPC to put limitation on the power of the trial Court while exercising the powers under section 309(2) of CrPC”

Also, relying on Saurabh Kumar v. Koneila Jail, (2014) 13 SCC 436 and State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, the High Court reiterated that writ of Habeas Corpus is not maintainable against the judicial order remanding the accused into the custody and appropriate remedy is to seek bail.

The High Court, therefore, held that the petitioners were entitled to the writ of habeas corpus and their remedy lie elsewhere. Resultantly, the instant petition was dismissed. [Harshad Dinanath Bari v. State of Maharashtra, 2019 SCC OnLine Bom 5701, decided on 18-12-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ravindra Maithani and Alok Singh, JJ. contemplated a Habeas Corpus case where the petitioner Deep Singh sought production of a woman named Fiza, the petitioner alleged that the girl was lawfully married to him but was not being released by Child Welfare Committee.

It was contended by the Welfare Committee that the girl was still a minor and aged 13. The Court observed that the Welfare Committee was directed through a letter by the State to keep the girl in Bal Grah, there were some other documents which proved that the girl was aged 13 years. But in a subsequent letter, it was observed that the girl did not appear to be 13 years old and the girl herself made a statement related to it.  According to the girl, her date of birth had been rightly recorded in the Aadhaar card, but in school record, her date of birth was changed by her parents. Thus due to uncertainty related to age, the Court directed for an ossification test.

The abovementioned test was conducted by the Chief Medical Officer and it was revealed that the girl was around 19 years. It was observed that the State disputed her date of birth. As stated, when the girl was produced before the Child Welfare Committee, it was then observed that she did not appear to be of 13-year of age. She had stated that she was 19-years old and wanted to go with the petitioner with whom she had married. It was further observed by the Court that the girl was lawfully married the wife of the petitioner and both the petitioner and the girl were threatened by the relatives hence they sought protection from Punjab and Haryana High Court, which was granted by the said Court.

The Court further did not make any observation related to the age of the girl; it held that, “It may be a matter of further deliberations subject to the material produced by investigating agency, if any, during the course of investigation or trial of the case, as the case may be.”The Court set her free and there was no reason to confine her.[Deep Singh v. Superintendent of Police, 2019 SCC OnLine Utt 569, decided on 10-07-2019]

Case BriefsForeign Courts

“Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention……. Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited.”

Supreme Court of Canada: The Bench of Wagner, CJ. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Brown, JJ. dismissed an appeal filed by Minister of Public Safety and Emergency Preparedness against the judgment of Court of Appeal for Alberta whereby a detained immigrant’s application for habeas corpus was allowed.

Respondent herein entered Canada under a pseudo name and obtained refugee status. Later on, his refugee status was vacated and he was declared inadmissible to Canada due to misrepresentations in his refugee application and his involvement in criminal activity. Thus, a deportation order was issued against him. He was placed in immigration detention in a maximum security unit. Immigration officials reviewed his detention on a monthly basis, each time upholding the decision that he should be detained. Respondent filed a habeas corpus application under Section 10 (c) of the Canadian Charter of Rights and Freedoms on the ground that his detention had become unlawful, because it had become lengthy and indeterminate and the conditions of his detention were inappropriate, breaching his rights under Sections 7 and 9 of the Charter. The Chambers Judge declined to consider respondent’s application on the basis that the scheme set out in the Immigration and Refugee Protection Act, 2001 (IRPA) satisfied the Peiroo exception[1]. The Court of Appeal reversed this decision and allowed the respondent’s application.

The Court, by a majority of 6:1, noted that there are only two exceptions to the availability of habeas corpus: (i) challenging the legality of a criminal conviction where a statute provides for a right of appeal; (ii) it is not available in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review as broad as that available by way of habeas corpus.

It was opined that IRPA was a complete, comprehensive and expert scheme for immigration matters generally, but the statutory scheme set out in the IRPA did not provide for review as broad and advantageous as habeas corpus with respect to the specific basis upon which the respondent had challenged the legality of his detention, i.e., the length, uncertain duration and conditions of his detention.

It was held that the IRPA scheme fell short in at least three important ways: (i) the onus in detention review was less advantageous to detainees than in habeas corpus proceedings; (ii) the scope of immigration detention review before the Federal Courts was narrower than that of a superior court’s consideration of a habeas corpus application and; (iii) habeas corpus provided a more timely remedy than that afforded by judicial review. Therefore, the appeal was dismissed.[ Minister of Public Safety and Emergency Preparedness and Attorney General of Canada v. Tusif Ur Rehman Chhina, 2019 SCC OnLine Can SC 12, decided on 10-05-2019]


[1] Where Parliament has put in place a complete, comprehensive and expert statutory scheme providing for review of detention that is at least as broad as, and no less advantageous than habeas corpus review, superior courts should decline to exercise their habeas corpus jurisdiction in favour of that statutory scheme. (Peiroo v. Canada (Minister of Employment & Immigration, (1989), 69 O.R. (2d) 253.

Case BriefsHigh Courts

“Viewing Hindi or English as the only language does not seem to be the Constitutional mandate and it is with this end in view that our Constitution framers chiselled and shaped Article 348 of the Constitution of India.”

Patna High Court: The Three-Judge Bench of Amreshwar Pratap Sahi, CJ., Ashutosh Kumar and Rajeev Ranjan Prasad, JJ., was hearing a reference that came to this Bench from a writ petition (seeking issuance of writ of habeas corpus challenging a detention order) drafted in Hindi.

The instant reference came to this Court when a Division Bench of this Court in the present case, was in disagreement with another Division Bench judgment in Binay Kumar Singh v. Bihar State Electricity Board, 2010 SCC OnLine Pat 2286 wherein it was held that there is no prohibition under Article 226 and 227 of the Constitution of India, for institution of an application in Hindi.

The issue under reference was whether a writ petition under Article 226 and 227 of the Constitution of India could be filed in Hindi language and Devanagari script.

The issue raised before the Bench related to interpretation of the language employed in Notification No. 3/Hi 3-5043/68-185-Ra dated 09-05-1972 which “authorises the alternative use of Hindi language in the High Court in following proceedings:- (1) For arguments in civil and criminal cases before Patna High Court. (2) For submitting application with affidavits: However English shall continue to be used for applications submitted under Article 226 & 227 of the Constitution of India as an exception. Annexure attached to the applications shall not be required in English. Similarly, application connected with the tax reference shall continue to be submitted in English as well. In Special cases the Patna High Court may make an order to translate Hindi papers into English….”

The Court delivered three separate judgments. But Kumar and Prasad, JJ. in a ‘post-script’ endorsed the opinion of Sahi, CJ.

Amreshwar Pratap Sahi, CJ.

While spoken language in the Court includes native vernacular expressions but written language in the High Court was governed by the Rule 1 of Part-II under Chapter III of the Rules of the High Court at Patna which states that “Every application to the High Court shall be by a petition written in the English language.”

Article 343 of the Constitution states that Hindi shall be the official language of the Union; but Article 348 states that all the proceedings in the Supreme Court and every High Court shall be in English language, subject to Article 348(2) which categorically authorizes use of Hindi language or any other language for any official purposes in proceedings in the High Court.

He remarked that “even though the propagation of Hindi as a National language has seen a growth and adoption in the official work of the Union as well as a large number of the States, but so far as the judiciary is concerned, the use of the English language in all the High Courts of the Country as well as the Supreme Court continues to be English. The wide availability of legal expressions in the English language has not yet been perfectly substituted in any other regional language including Hindi.” He further expressed that “use of language is to be a matter of practice and to be inculcated from childhood to adolescence and beyond. This includes the use of language at home, in school and in the official curriculum.”

He opined that the general acceptability of the English language obligates its usage in order to maintain a uniformity of expression of ideas. He also pointed out that the use of Court language, particularly in higher judiciary, is of significance as it involves interpretation of laws that have come into existence with a global participation between different countries throughout the world.

It was opined that the introduction of a language to be used in Courts is to be directly in tune with the opportunities given to the students of law to educate; and the curriculum prescribed by the Bar Council of India clearly defines the medium of instruction in all law courses as English. The practicality of the issue at hand needs to be judged from the point of view of adaptability of Hindi by following it even in courses imparted by law colleges.

He observed that pleadings before a Writ Court in written language have to be understood in the authoritative language for an additional reason because the High Court under Article 215 of the Constitution is a Court of record. The wide nature of powers exercised by the High Court engulfs within itself the entire canvas of the population which may not include those which are yet to acquire any proficiency in the Hindi language. It was for this reason that the maintenance of records in the English language, was incorporated in the High Court Rules.

The Notification was issued in the exercise of powers under Article 348(2) of the Constitution, and thus it did not suffer from any infirmity. It was opined that the Apex Court in Dr Vijay Laxmi Sadho v. Jagdish, (2001) 2 SCC 247 had categorically held that even though the High Court Rules are framed in exercise of power under Article 225 of the Constitution of India yet they do not occupy a higher pedestal that the Constitutional mandate under Article 348 (2) and the Notification issued thereunder.

Sahi, CJ. held that Hindi has not been provided as an alternative language in respect of writ petitions under Article 226 and 227 of the Constitution of India and tax references. According to the plain meaning of the words used in the Notification, such pleadings presented for official use have to be necessarily in English and the same is fortified by the Rules of the High Court. However, he opined that there was no express prohibition regarding use of Hindi to the exclusion of English. It is open to a litigant to present his pleadings in Hindi but the authoritative text of it has to be in English to the extent as provided for in the Notification.

He observed that the question was not that of conflict of supremacy of any language but its viability and purpose as a use of Court language in certain classes of petitions. From that point of view, the Constitutional mandate has been always treated Hindi as an official language. For Court proceedings Hindi is practically a parallel language and is also spoken in the Patna High Court. There is no statutory or Constitutional bar for advancing oral submissions in Hindi. Thus, Hindi is not an alternative language but a language available as an elective option at the privilege of the user in Court proceedings subject to the limitation as contained in the Notification. Reliance in this regards was placed on Swaran Singh Bagga v. N.N. Singh, 1995 SCC OnLine Pat 274 where it was observed that there is no bar for any person to file an application in Hindi nor there is any bar for any person to advance argument in Hindi.

Sahi, CJ. remarked that that English language was being primarily used for training legal brains not only because of its historical past but also because of the global impact of the language of English in today’s context when laws from all over the world are being referred to in courses of study including International Law, Commercial Law and the like the translation of this massive global information into Hindi Devnagari script may not be possible in the near future nor such effective translation was available so as to train legal minds in Hindi. The voluminous material of legislations, documents, curriculum, sources of law, etc. in English could be translated overnight with exactitude for the use in educational institutions or even in Courts of law, as all of it formed a substantial basis of both legal education and continuing legal education. Thus, the use of material in English for advancing the cause of justice cannot be substituted overnight.

Sahi, CJ. approved the reasoning of Swaran Singh Bagga as correct and held that “so long as the notification dated 09-05-1972 was not modified, rescinded or substituted in any form, a petition under Article 226 and 227 of the Constitution of India or a tax reference can be filed in Hindi but it would have to be accompanied by an English version as well, which shall be the authentic version of the petition.

Ashutosh Kumar, J. held that a writ petition under Articles 226/227 of the Constitution of India can be filed in Hindi language also.

He opined that on reading the notification as a whole, the necessity of permitting use of Hindi as an alternative language, in terms of Article 348(2) and in obedience to the directives in Articles 350 and 351 of the Constitution was reflected.  He parted with the observation that “in the present day scenario, with the growth of education and the impact of globalization, it can hardly be said that English is not intelligible to the masses.”

Rajeev Ranjan Prasad, J. held that an application under Article 226 and 227 of the Constitution of India may be filed in Patna High Court only in English language, directing the State Government to look into the Special Directives as contained in Article 351 of the Constitution of India and come out with appropriate notification.

His opinion was based on perusal of the Constituent Assembly Debates which reflected division of opinion with respect to national language. He observed that English common law was the basis of Indian legal system and, to that end, the English language had been a useful medium of thought and expression. If the High Court adopts a local language, then it would be difficult for High Courts to cite judgments of other High Courts. Difficulty would also arise in the functioning of Supreme Court if the High Courts were to adopt different languages.

Concluding their opinions, Prasad and Kumar, JJ. in a ‘post-script’ endorsed the opinion of the Sahi, CJ. and held that “We, after having revisited our respective opinions, have come to the conclusion that the interpretation of the notification of 1972 given by Hon’ble the Chief Justice serves the twin purposes of pandering to the aspirations of preserving and promoting Hindi language and at the same time maintaining the exclusivity of the court language to English, for the benefit of the accessibility to an ever burgeoning case materials, case laws and research works in the area of law, which is mostly in English language and which is necessary in the background of the diverse, multicultural and multi linguistic country that we are in.”[Krishna Yadav v. State of Bihar, 2019 SCC OnLine Pat 594, Order dated 30-04-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Bench of Atul Sreedharan, J. hearing a habeas corpus writ filed by the mother of a girl who had married against her parent’s wishes, found that the allegations and statements of mother were completely false and directed that the corpus-daughter was free to live with her husband without interference from anyone.

The instant petition was filed praying for corpus of petitioner’s daughter – Ms Suraiya Khan – who was alleged to be abducted by one Mr Noor Hasan (respondent 5 herein). The petitioner further stated that her daughter was mentally retarded and of unsound mind.

Police recovered the corpus and produced her before this Court, on which date she stated that she had entered into nikah with respondent 5 Abrarul Hasan Mansoori alias Noor Hasan. She further stated that she was living with him as his wife and had no problems. The corpus raised suspicions that her parents and family members could create problems for her and her husband and thus sought police protection for both of them.

The Court noted that no medical report of the missing corpus, filed by the petitioner, even remotely reflected her to be mentally retarded or of unsound mind. After speaking to the corpus and noting her statements as mentioned above, this Court held that the allegations as to her mental health were completely false. It was observed that the corpus appeared to be of sound mind and health and she had answered the questions put forth to her by this Court very clearly.

In view of the above, the petition was disposed of holding that the corpus Suraiya and her husband Noor Hasan were free to lead their own lives wherever they wanted to, and it was directed that they shall not be disturbed by petitioner or anyone from their family in this regard.[Jaitun Nisha v. State of Madhya Pradesh, 2019 SCC OnLine MP 675, Order dated 08-04-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Petitioner had filed the Criminal writ petition before a Bench of Inderjit Singh, J. under Article 226 of the Constitution of India seeking relief in the nature of habeas corpus for the release of detenue along with a truck which was alleged to be illegally detained by respondents.

Facts of the case were that by an order of this Court, Warrant Officer was appointed. The officer was directed to visit the place where the detenue was alleged to be detained illegally and if he finds the custody to be illegal the detenue was to be released. In consequence of the order, a report was submitted by the Warrant Officer stating that the detenue was not found in the police custody when the raid was done. But the truck was taken by the police as the registration certificate was fake and FIR under Sections 420, 467, 468, 471 and 120-B of the Penal Code was registered at Police Station Sanaur.

High Court in view of the above-submitted report, found no reason to interfere in this matter. [Gurmit Kaur v. State of Punjab, 2019 SCC OnLine P&H 76, decided on 30-01-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of C.K. Abdul Rehim and T.V. Anil Kumar, JJ. dismissed a petition seeking a writ of habeas corpus for production of petitioner’s friend – one Sumayya – ruling that there was no basis for allegations of illegal detention.

It was alleged that as per Sumayya’s facebook posts, she had been confined at a hospital by her mother and was being given unnecessary medications. When the petition came for admission, the Court directed the police to conduct a discreet enquiry into allegations of the petitioner, obtain a detailed medical report from the hospital regarding the mental status of Sumayya and also the details of treatment administered to her. Accordingly, a medical report, medical certificate and statements recorded from Sumayya were submitted to the Court.

It was diagnosed that Sumayya had a manic episode in the context of bipolar affective disorder and she was unlikely to receive treatment outside a hospital as she believed that her hospitalization was masterminded by her mother and hospital authorities were siding with her mother to “make her mentally ill”. At the time of the admission, Sumayya lacked the capacity to take an intelligent decision and faced a risk of untreated illness. However, after hospitalization, she had stabilized and regained her capacity for mental healthcare decisions. She was taking medication and had agreed to continue the same and also get psychological help.

She also stated that she has not been confined in the hospital by anyone and that she had only instructed the petitioner to file the instant petition as she intended to lead an independent life.

After interaction with Sumayya in Chambers, the Court opined that she was mentally stable and comfortable with her mother as well as with the atmosphere of the hospital where she was staying.

In view of the above, the petition was dismissed.[Manoj Joseph v. State of Kerala, 2018 SCC OnLine Ker 5265, decided on 11-12-2018]

Case BriefsHigh Courts

Patna High Court: A Division Bench comprising of Ravi Ranjan and Madhuresh Prasad, JJ. while hearing a criminal writ petition filed by husband seeking habeas corpus for his wife, ruled that the writ could not be issued if the wife did not want to go back to her matrimonial home.

In the instant case, the petitioner-husband filed a writ seeking habeas corpus for his wife who had left him. On the date of hearing, the petitioner’s wife entered an appearance before the court along with her parents and submitted that the petitioner had assaulted due to which she had left her matrimonial home. She further submitted that she did not wish to go back to her matrimonial house along with the petitioner.

The Court noted the submissions of petitioner’s wife and held that since petitioner’s wife had already been produced before the Court, a writ of habeas corpus could not be issued to the petitioner. On that holding, the writ petition was dismissed.[Virat Arya v. State of Bihar,2018 SCC OnLine Pat 1987, decided on 01-11-2018] 

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. while hearing a habeas corpus petition filed by the partner of a lesbian held that persons of the same gender are entitled to be in a live-in relationship.

The present petition seeking a writ of habeas corpus was filed by the petitioner alleging that her lesbian partner, Ms Aruna, had been illegally confined by her parents against her free will. The detenue had informed the petitioner that her parents had admitted her in a mental hospital. When the petitioner went to meet her in the said hospital, she was ready and willing to come along with her but the hospital authorities insisted for production of a court order to release the detenue.

The question before the court was whether the detenue could be permitted to go along with the petitioner to lead a live-in relationship because both of them belonged to the same gender and could not solemnize a valid marriage between them.

At the outset, the Bench relied on the judgment of Apex Court in Soni Gerry v. Gerry Douglas, (2018) 2 SCC 197 and observed that the court cannot assume the role of parens patriae and curtail the liberty of a person who has attained the age of majority.

Shafin Jahan v. Asokan, 2018 SCC OnLine SC 343 was relied on to note that in habeas corpus petitions the role of Court is to find out the independent choice of detenue and in exercising its jurisdiction, caution must be exercised to not transgress into the area of determining the suitability of partners to a marital life.

The Bench observed that the Apex Court in the case of Nandakumar v. State of Kerala, 2018 SCC OnLine SC 492 had clearly held that even if parties are not competent to enter into wedlock, they have the right to live together even outside the wedlock.

Lastly, the Bench noted down observations in the case of Navtej Singh Johar v. Union of India, 2018 SCC OnLine SC 1350stating that discrimination on the basis of one’s sexual orientation is violative of the fundamental right to freedom of expression and constitutional morality cannot be martyred at the altar of social morality.

On the strength of principles enumerated in the aforesaid pronouncements of Supreme Court, the Bench held that live-in relationship between petitioner and the detenue would not offend any provision of the law and directed the detenue to be set at liberty to go along with the petitioner, as desired by her. [Sreeja S. v. Commissioner of Police, 2018 SCC OnLine Ker 3578, decided on 24-09-2018]