Legal RoundUpSupreme Court Roundups


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Your cheat sheet to Supreme Court’s 545 pages long Money Laundering verdict

The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, JJ has, in 545-pages-long judgments, has dealt with various aspects of the Prevention of Money Laundering Act, 2002 and has upheld the validity of certain impugned provisions by holding that the same have reasonable nexus with the object sought be achieved i.e. combatting the menace of money laundering.

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Also read: Supreme Court holds “twin conditions” under Section 45 of PMLA reasonable: Applicability to anticipatory bail, non-cognizable offences discussed; Exception highlighted

Video Explainer: Your cheat sheet to Supreme Court’s 545 pages long Money Laundering verdict 


Abu Salem can’t be kept behind bars for more than 25 years, holds Supreme Court

In a big development, the bench of Sanjay Kishan Kaul and MM Sundresh, JJ has directed that the infamous gangster/terrorist Abu Salem be released after the completion of 25 years of his sentence in terms of the national commitment as well as the principle based on comity of courts. Salem was convicted on 12.10.2005.

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Video Explainer: Why Abu Salem can’t be kept behind bars for more than 25 years


Four months in prison; Rs. 2000 fine for Vijay Mallya for contempt; US$40 million to be deposited by him and beneficiaries at 8% interest per annum

Supreme Court observed that Vijay Mallya “never showed any remorse nor tendered any apology for his conduct” of transferring a huge sum of US$40 million to his children instead of repaying his debt of more than Rs. 9000 crores to the banks.

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Video Explainer: Vijay Mallya Guilty of Contempt of Court; To spend 4 months in prison; pay Rs. 2000 fine


Woman cannot be denied right to safe abortion only on the ground of her being unmarried

“Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom.”

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Video Explainer: Unmarried women have the right to a safe abortion


Mother, being the only natural guardian after biological father’s death, can decide child’s surname; can even give the child in adoption

“When a child takes on to be a kosher member of the adoptive family it is only logical that he takes the surname of the adoptive family and it is thus befuddling to see judicial intervention in such a matter.”

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Criminal justice machinery relentlessly employed against Zubair; process itself has become a punishment

The Court refused to bar Mohd Zubair from tweeting as it would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession.

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Also read:
Supreme Court grants bail to Mohammed Zubair in all FIRs against him; All cases from UP transferred to Delhi

Supreme Court to hear Mohd Zubair’s plea challenging multiple FIRs on July 20; “No precipitate steps” against him till then

Video Explainer: Criminal justice machinery relentlessly employed against Zubair


Supreme Court upholds pre-arrest bail of actor-producer Vijay Babu in sexual assault case; certain bail conditions modified

Vijay Babu was alleged to have committed rape on the victim, a struggling actress, with the promise of a role in a movie and also of marriage. He has allegedly even caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

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Man rapes and murders a 7-year-old physically and mentally challenged girl; kills fellow inmate after conviction. SC confirms death sentence

“We could only wonder what more of criminal activity would qualify as blemish, if not the involvement and conviction in a case of murder of a fellow jail inmate!”

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Video Explainer: Supreme Court confirms death sentence of a POCSO convict


Most Read Story


‘India needs a Bail Act’: Supreme Court asks Centre to consider the suggestion; lays down guidelines for disposal of Bail Application

The Court took note of the statistics that show that jails in India are flooded with undertrial prisoners with more than 2/3rd of the inmates of the prisons constituting undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less. They are not only poor and illiterate but also would include women. Statistics also show that more than 1000 children are living in prisons along with their mothers. Granting bail in such cases is not only in the interest of the accused, but also the children who are not expected to get exposed to the prisons.

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Video Explainer: Supreme Court observations on why India needs a Bail Act


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Twin conditions of furnishing declaration within time limit “mandatory” for exemption relief under Section 10B (8) of IT Act

Karnataka High Court and ITAT committed a “grave error” in holding that the requirement of furnishing a declaration under Section 10B (8) of the Income Tax Act, 1961 (IT Act) is mandatory, but the time limit within which the declaration is to be filed is not mandatory but is directory.

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Prophet Remark Row| Here’s why Supreme Court has stayed Nupur Sharma’s arrest for now

After politician and lawyer Nupur Sharma approached the Court claiming that there is an imminent necessity for the Court to intervene and protect her life and liberty as guaranteed under Article 21 of the Constitution, the bench of Surya Kant and JB Pardiwala, JJ has directed that no coercive action shall be taken against her pursuant to the impugned FIR(s)/complaint(s) or the FIR(s)/complaint(s) which may be registered/entertained in the future pertaining to the telecast dated 26.05.2022 on Times Now.

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IBC – Section 7(5)(a) | NCLT “may” reject Financial Creditor’s CIRP application even in case of Corporate Debtor’s default in payment of debt

“The object of the IBC is to first try and revive the company and not to spell its death knell. This objective cannot be lost sight of, when exercising powers under Section 7 of the IBC or interpreting the said Section.”

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Lack of enthusiasm of ACB, ADGP not relevant for deciding bail application of accused; SC stays Karnataka HC order against ADGP Seemant Kumar Singh

In a bail application, after the single judge Bench of Karnataka High Court criticised the Anti-Corruption Bureau (ACB) and the Additional Director General of Police (ADGP) for their lack of enthusiasm, the 3-judge bench of NV Ramana, CJ and Krishna Murari and Hima Kohli, JJ has observed that the alleged involvement of the ADGP, and the enthusiasm (or lack thereof) of the ACB officers are irrelevant and beyond the ambit of bail proceedings.

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FIR for repeated rape cannot be filed just because a long standing relationship is no longer working out; Pre-arrest bail granted

“… the complainant has willingly been staying with the appellant and had the relationship. Therefore, now if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) IPC.”

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Trial Court not a ‘mere post office’; must apply its mind while framing charges: SC unimpressed with discharge of murder accused based on postmortem report only

Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record.

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Can Court direct a husband to surrender as a condition for pre-arrest bail of his wife? Supreme Court decides

In an interesting case the Vacation Bench comprising Dinesh Maheshwari and Krishna Murari, JJ., disapproved a strange bail condition imposed by the M.P. High Court. The High Court had directed the husband to surrender as a condition for pre-arrest bail of his wife.

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‘Respect each other. Your children are watching you very closely’; Supreme Court advices parents in custody battle

The bench of AM Khanwilkar and JB Pardiwala, JJ, in a matter relating to custody of two minor children, has advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives.’

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Confessional Statements made under Section 67 of NDPS Act inadmissible

In a case relating to a drug racket spread across three States namely, U.P., Punjab and Rajasthan, the 3-Judge Bench of N. V. Ramana, CJ., and Krishna Murari, Hima Kohli, JJ., reversed the impugned order of Delhi High Court releasing the respondent-accused on post-arrest bail.  

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Supreme Court cannot entertain territorial jurisdiction related pleas under Section 25 of CPC

There is limited scope vested in the Supreme Court while exercising its jurisdiction under Section 25 of CPC and the same cannot be extended to determine the question of territorial jurisdiction of  the proceedings before it as the plea of jurisdiction or the lack of it can be prompted before the Court in which the proceedings are pending.

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IBC| Once CIRP is initiated and moratorium is ordered, proceedings under SARFAESI Act cannot continue

The bench of L. Nageswara Rao and BR Gavai*, JJ has held that the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) cannot continue once the CIRP has been initiated and the moratorium has been ordered as per the Section 14(1)(c) of the Insolvency and Bankruptcy Code, 2016 (IBC).

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Unless there is forfeiture of performance guarantee, Industrial Entrepreneur Memorandum cannot be deemed to be de-recognised

There are twin conditions to be fulfilled before formally de-recognizing the IEM:

(i) failure to set up plant and to commence production and then

(ii) the forfeiture of the performance guarantee.

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Can services rendered by a “Consulting Engineer” prior to 2005 Amendment to the Finance Act be subjected to service tax?

Supreme Court settled the issue of whether “body corporate” is excluded from the definition of “consulting engineer” under Section 65(31) of the Finance Act, 1994 prior to the amendment in 2005.

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Tihar Jail Crime Syndicate| Supreme Court directs conman Sukash Chandra to reveal names of persons involved in Rs. 200 crores extortion case

In a highly controversial extortion case of about Rs. 200 crores in Delhi’s Tihar jail, the 3-judge Bench of Uday Umesh Lalit, S. Ravindra Bhat, and Sudhanshu Dhulia, JJ., has directed conman Sukash Chandra to reveal names of the persons involved in the alleged crime syndicate.

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Appeal against conviction cannot be dismissed on the ground that the accused is absconding

“The anguish expressed by the High Court about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits.”

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Formation of reasons to believe for search & seizure under Income Tax Act is an administrative function, to be tested by judicial restraint

The Division Bench of Hemant Gupta and V. Ramasubramanian, JJ., held that non-supply of satisfaction note to the assessee will not make the whole act of search and seizure contrary to Section 132(1) of the Income Tax Act,1961.  

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Supreme Court puts an end to about a century-old land dispute under U.P. Consolidation of Holdings Act

The Court held that since all the three brothers were alive when the Civil Court passed the partition decree, the Consolidation authorities were well within their powers—considering the subsequent death of two brothers—to hold that the shares of the brother who died issueless should be equally distributed among heirs of his two brothers.

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Bail applications of co-accused arising from the self-same FIR shall be listed before the same court to avoid disparity

 With a view to bringing reform in practices relating to disposal of bail applications arising from the same case, the Division Bench of Ajay Rastogi and Vikram Nath, JJ., held that where more than one bail application has been filed by co-accused of offences arising from self-same FIR, all such applications shall be listed before the same court to avoid disparity.  

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Illegal Coal Mining| Supreme Court stays Meghalaya HC’s order directing dismantling of existing coke plants

In a case concerning illegal coal mining in the State of Meghalaya, the Vacation Bench comprising Surya Kant and J.B. Pardiwala, JJ., stayed directions of the Meghalaya High Court directing the dismantling of existing coke plant(s).

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Indian Dhows sinking & hijacking by Somali Pirates| Delay in repudiating insurance claim cannot be the only factor to presume deficiency in service

“The delay in processing the claim and delay in repudiation could be one of the several factors for holding an insurer guilty of deficiency in service. But it cannot be the only factor.”

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Civil Court versus Writ Court: Breaking down the scope of jurisdiction in execution/registration of documents matters

The bench of Hemant Gupta and V. Ramasubramanian, JJ has lucidly explained the law on the jurisdiction in case of disputes relating to execution and registration of deeds and documents under the Registration Act, 1908.

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Cases Reported in SCC


2022 SCC Vol. 6 Part 1

2022 SCC Vol. 6 Part 2

2022 SCC Vol. 6 Part 3

2022 SCC Vol. 6 Part 4

2022 SCC Vol. 6 Part 5


Know Thy Judges


Explorer of the Legal Multiverse – Justice A.M. Khanwilkar retires

Justice Krishna Murari

Justice M.M. Sundresh

Supreme Court June 2022 Roundup
Legal RoundUpSupreme Court Roundups

Top Stories of the Month

Clean Chit to PM Modi in 2002 Gujarat riots case

“SIT Officials have come out with flying colours unscathed despite all odds”; SC upholds SIT’s clean chit to PM Modi in 2002 Gujarat riots

“The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State.”

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Maharashtra Political Crisis

Supreme Court refuses to stay Trust Vote; Uddhav Thakrey resigns as CM

No stay on floor test, disqualification proceedings to be kept in abeyance till July 11; Read SC’s directions on Eknath Shinde’s plea

Psychiatric & Psychological Evaluation of death row convicts

Supreme Court mandates call for mental health report before pronouncing death sentence

“Implicit in this shift is the understanding that the criminal is not a product of only their own decisions, but also a product of the state and society’s failing, which is what entitles the accused to a chance of reformation.”

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Also Read: Supreme Court allows Project 39A of NLU Delhi to conduct psychological evaluation of a death row convict to bring out mitigating factors

Insolvency and Bankruptcy

Liability in respect of a claim arising out of a Recovery Certificate is a “financial debt” under Section 5(8) of the IBC

The words “means a debt along with interest, if any, which is disbursed against the consideration for the time value of money” are followed by the words “and includes”. By employing the words “and includes”, the Legislature has only given instances, which could be included in the term “financial debt”. However, the list is not exhaustive but inclusive.

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NEET-PG 2021

“Process of admission and that too in the medical education cannot be endless”; SC says no to Stray Round of counselling for unfilled NEET-PG 2021 seats

“There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health.”

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Fact Check of this Supreme Court story from a Leading Newspaper

On June 14th 2022, a leading newspaper had published an article with the headline “Illegitimate child of cohabiting couple to get assets share: Supreme Court”. While on the face of it, it appeared to be a landmark judgement, on our correct analysis of the judgment, we found out that neither the couple was held to be cohabitating “without marriage” nor was the son considered to be “illegitimate”.

Read the Fact Check: We fact-check a leading newspaper’s misleading headline “Illegitimate child of cohabiting couple to get assets share: Supreme Court”

Read the accurate analysis by the SCC Online Blog: Long co-habiting couple’s child cannot be disentitled from family property in absence of proof against presumption of marriage

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Most Read Story of the Month

Beyond Reasonable Doubt versus Preponderance of Probabilities: Supreme Court explains why circumstances guide the Courts in deciding Right to Private Defence cases

“The underlying factor should be that such an act of private defence should have been done in good faith and without malice.”

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Dishonour of cheque| Partner cannot be held to be vicariously liable when partnership firm is not tried as primary offender

The Partnership Act, 1932 creates civil liability. Further, the guarantor’s liability under the Contract Act, 1872 is a civil liability. The Partner may have civil liability and may also be liable under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. However, vicarious liability in the criminal law in terms of Section 141 of the NI Act cannot be fastened because of the civil liability.

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No conviction based on ‘last seen together’ theory when possibility of suicidal death not ruled out; SC sets man free in a 28-year-old honour killing case

“The suspicion howsoever strong cannot take place of proof.”

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Old Age Home inmates can’t get away with causing disruption of peace of other inmates; Administration can ask them to vacate the room

“One can understand the mental trauma which the parents face in the evening of their life but the agony suffered by a parent cannot be a cause of disturbance to the other inmates or to the organizers who have resolved to take care and run the old age home.”

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Railway doubling project on Karnataka-Goa route antithesis to biodiversity and ecology; Supreme Court revokes approval for railway doubling in Western Ghats

“While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity topreserve ecology and environment should not hamper economic and other developments.”

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Income, age not enough to tilt the balance in favour of maternal aunt; Grandparents win custody battle of 5-year-old who lost parents to COVID-19

“One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson.”

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Date of dispatch/shipment: Is it when the loading commences or when the loading completes?

“The term ‘despatch’ contained in the policy implied ‘completion’ of handing over of possession of the goods to the first carrier (the ship), and not the date on which the loading ‘commenced’ such an interpretation would give rise to an absurdity.”

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Allahabad HC grants bail to a history sheeter only on the basis of parity; prompts SC to lay down illustrative circumstances for cancellation of bail

Holding that the Supreme Court has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances, the Court laid down the illustrative circumstances where the bail can be cancelled.

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More than one chargesheet is necessary for invoking provisions of Gujarat Control of Terrorism and Organised Crime Act, 2015

The Court enumerated the conditions will have to be fulfilled for invoking the provisions of the GCTOC Act.

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Pay on a par with last drawn pay on reemployment in Government Service? Not a matter of right, holds Supreme Court

In a case where the bench of MR Shah and BV Nagarathna, JJ was posed with the question as to whether on re­employment in the government service, an employee who was serving in the Indian Army/in the Armed Forces shall be entitled to his pay scales at par with his last drawn pay, it has been held that a claim for the last drawn pay in the armed forces is not a matter of right.

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Consider relocating and rehabilitating 268 Jhuggi Dwellers without insisting on Ration Card proofs; Supreme Court directs Delhi Government

By the impugned order, the Delhi High Court had held that since the original cut-off date was 31-12-1998, the jhuggi dwellers were not eligible for the rehabilitation scheme at that date as they did not have ration card on the relevant date.

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Madras High Court’s decision to keep enquiry report in a sealed cover in SP Velumani graft case doesn’t sit well with Supreme Court

When the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover.

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Unless there’s a written instrument declaring land was voluntarily relinquished for no consideration, State cannot deny payment of compensation

Under the mandate of Article 300A, the State can only deprive a person of the right to property if it is for a public purpose and the right to compensation is fulfilled, thereby reiterating that the right to compensation is an inbuilt part of Article 300A.

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Can insurer rely on statutory interpretation of “acts of terrorism” to repudiate insurance claim where the policy itself defines the term?

The Court reversed National Consumer Disputes Redressal Commission’s (NCDRC) judgment by which it had held that the insurance company was justified in repudiating the claim.

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Can State deny benefits of New Pension Scheme citing delayed appointments when the delay was not attributable to employees?

In the given circumstances, when all other candidates who had participated along with the appellants were appointed on 24-09-2002 including those who were lower in the order of merit, there was no reason for withholding the names of the appellants.

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SC steps in after Orissa HC sits on a blind man’s bail plea in a Ponzi scheme case for 2 years after reserving order in 2020; Issues notice to CBI, ED

The petitioner, who suffers from a permanent disability of blindness by birth, has submitted before the Court that the prolonged detention is against the fundamental rights of the Petitioner under Article 21 of the Constitution of India.

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Supreme Court reinstates All India Chess Federation secretary Bharat Singh Chauhan till August 15 to ensure smooth holding of the prestigious Chess Olympiad-2022

The Court took the decision in the light of the fact that a prestigious Chess Olympiad is to be held in the country and the same should not be affected because of any structural anomaly in the National Sports Federation (NSF). 

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Cases Reported in SCC

2022 SCC Vol. 4 Part 2 : In 2022 SCC Volume 4 Part 2, read this very pertinent matter of the Supreme Court wherein it was decided whether culpable homicide tantamounts to murder or not. [State of Uttarakhand v. Sachendra Singh Rawat(2022) 4 SCC 227]

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2022 SCC Volume 4 Part 3: This part consists a very pertinent decision of the Supreme Court wherein it was held that it cannot be said that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property as such interpretation will be against the provisions Section 83(1) of Act. [Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414]

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2022 SCC Volume 4 Part 4: This part encapsulates, a very interesting decision, wherein while criticizing the practise of granting cryptic bail in a casual manner, the Court expressed, “It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.” [Brijmani Devi v. Pappu Kumar(2022) 4 SCC 497]

2022 SCC Vol. 5 Part 1: This part encapsulates, a very interesting decision of the Supreme Court wherein the Court while dealing with Appointment of Vice-Chancellor, held, that it cannot be made dehors the applicable UGC Regulations, even if the State Act concerned prescribes diluted eligibility criteria vis-à-vis the criteria prescribed in the applicable UGC Regulations. [Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179]

2022 SCC Vol. 5 Part 2: This part covers the decision wherein the scope of “deemed authorization” clause under S. 16 provisio of the Petroleum and Natural Gas Regulatory Board Act, 2006 has been dealt with. It has been held that if one reads S. 16 proviso in isolation, the inference undoubtedly would be that every entity which had started laying and building pipelines and networks was the recipient of the deemed authorisation clause i.e. the provision sought to retrospectively regularise activities by all entities, however, such a plain and facial construction is unacceptable. [Adani Gas Ltd. v. Union of India(2022) 5 SCC 210]

2022 SCC Vol. 5 Part 3: This part consists of an important decision on the menace of “dowry”, wherein it has been held that “Dowry” ought to be ascribed an expansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a valuable security of any nature. [State of M.P. v. Jogendra(2022) 5 SCC 401]

2022 SCC Vol. 5 Part 4: This part covers a pertinent decision on Section 29-A(h) of the Insolvency and Bankruptcy Code, 2016, wherein it has been held that existence of personal guarantee invoked by creditor is sufficient to render disqualification against the person executing guarantee, even when the application seeking initiation of insolvency resolution process is filed by some other creditor. [Bank of Baroda v. MBL Infrastructures Ltd.(2022) 5 SCC 661]

SCC Snippet

Why Reason is the Soul of Justice : The bench of GS Singhvi and AK Ganguly, JJ, in Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496, stressed upon the importance of reasoned judicial orders and elaborated on why “reason is the soul of justice.”

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States: While deciding the instant matter related to the international custody of a child which further involved the reading and interpretation of the concerned provisions of the Hague Convention on the Civil Aspects of International Child Abduction; the full bench of the Court comprising of John Roberts, C.J., and Stephen Breyer, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, Samuel Alito, Elena Kagan, Sonia Sotomayor and Amy Coney Barret, JJ., in a unanimous decision, held that, once a court has found that returning to a foreign country would expose a child to a grave risk of harm, then in such cases, a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country.   

 

Facts and Legal Trajectory: Narkis Golan [‘Petitioner’], a citizen of USA, married an Italian citizen, Issaco Saada [respondent] in Italy. A son was born to them in 2016 and in 2018 the petitioner flew with his son to the United States to attend a wedding. However, instead of returning to Italy, the petitioner moved into a domestic violence shelter with his son. The respondent filed a petition with the U. S. District Court for the Eastern District of New York, seeking an order of returning the child to Italy pursuant to the Hague Convention.  

 

It was concluded by the District Court that given the evidence of the respondent being abusive towards the petitioner and the resultant negative impact on the son; it is therefore a grave risk to send the child back to Italy. However, the Court ordered that the child be returned to Italy after it “examined the full range of options that might make possible the safe return of a child” and concluding that ‘ameliorative measures’ could reduce the risk to looming on the son sufficient enough to require his return.  

 

The Second Circuit vacated the aforementioned order finding such ‘ameliorative measures’ as insufficient and remanded the matter to the District Court to consider whether such measures, in fact, existed. After another examination over nine months, the District Court identified new ameliorative measures and again ordered the child’s return; and this time the Second Circuit affirmed. 

 

The Hague Convention on the Civil Aspects of International Child Abduction requires the judicial or administrative authority of a Contracting State to order a child returned to the child’s country of habitual residence if the authority finds that the child has been wrongfully removed to or retained in the Contracting State.  

The authority “is not bound to order the return of the child,” however, if the authority finds that return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.” 

The International Child Abduction Remedies Act (ICARA) implements the Convention in the United States, granting federal and state courts jurisdiction over Convention actions and directing those courts to decide cases in accordance with the Convention. 

 

Observations: Sonia Sotomayor, J., delivered the unanimous opinion of the Court in the matter. Some of the significant observations are as follows-  

  • Noting that “interpretation of a Treaty like the interpretation of a statute, begins with its text”, the Court observed that Art. 13(b) of the Convention leaves a court with the discretion to grant or deny return, providing that a court “is not bound to order the return of the child” if it finds that the party opposing return has established that return would expose the child to a “grave risk” of physical or psychological harm. Nothing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion. 
  • Determining whether a grave risk of harm exists necessarily requires considering whether any ameliorative measures are available- it was observed that existence of grave risk and availability of ameliorative measures are two separate questions and a court may find it appropriate to consider both questions sat once. However, the Convention does not impose a categorical requirement on a court to consider any or all ameliorative measures before denying return based on a grave-risk determination. 
  • As per the Convention and the ICARA, the courts also have discretion to determine that whether consideration of ameliorative measures could ensure the child’s safe return. It was noted by the Full Bench that the Second Circuit laid down a contrary rule which imposed a categorical requirement that courts consider all possible ameliorative measures in exercising discretion under the Convention, regardless of whether such consideration is consistent with the Convention’s objectives.  
  • It was further observed by the Court that Second Circuit’s interpretation of the Convention “improperly elevated the child’s return above the Convention’s other objectives”. The courts must remain conscious of all the Convention’s objectives and requirements, which constrain their discretion to consider ameliorative measures.  
  • As per the Convention, any consideration of ameliorative measure must prioritize a child’s physical and psychological safety; and that the consideration of ameliorative measures must accord with the Convention’s requirement that courts must act expeditiously in proceedings for the return of children. “A court therefore reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings”.    
  • Finally, the Bench observed that the District Court made the finding of a great risk upon the child’s return; however, it did not have the opportunity to inquire whether to order or deny return under the correct legal standard.  

Decision: Vacating the order of the Second Circuit, the Bench remanded the case to the District Court directing them to determine whether the measures considered, are adequate to order the return of the petitioner’s son, in light of the District Court’s factual findings concerning the grave risk, while bearing in mind that “the Convention sets as a primary goal the safety of the child”.    

[Golan v. Saada, 2022 SCC OnLine US SC 7, decided on 15-06-2022] 


*Sucheta Sarkar, Editorial Assistant has reported this brief. 

 

Case BriefsForeign Courts

District Court Appeal (Family Division): Debbie Ong, J., while granting joint custody of a child to mother and father held that the mother cannot unilaterally decide on the matter of the child’s citizenship.

In the present matter, the mother raised following issues:

(a) whether the Court had erred in law in dismissing the mother’s application for sole custody, care and control of the Child with restricted and supervised access to the Father;

(b) whether the Court had erred in law and in fact by refusing to make orders directing or ordering that in the event that the Child’s application for Singapore citizenship has been withdrawn or cancelled, or rendered unsuccessful by reason of any act or omission by the Father to complete the application process, that the Father be ordered to re- apply for the Child’s Singapore citizenship and to do all that is necessary to make the said application within 7 days from the date of this Order; and

(c) accordingly, whether the Court erred in law and in fact by not making the orders for relief sought for by the mother.

This Court expressed that there appeared to be some confusion with respect to the concepts of custody and care and control. The District Judge found that there were no fresh events that gave rise to a genuine or actual dispute in respect of the child’s citizenship.

As per the decision in CX v. CY,              where there is no actual dispute between the parents over any major issues relating to the child’s upbringing, the court may make a no custody order and without the said order, both the parents remain responsible for the upbringing of the child and should continue parents responsibility over the child.

Where there have been attempts by one parent to exclude the other from the child’s life, the court can also make a joint custody order that has the psychological effect of reminding parties that the other parent has an equal say in significant matters.

Further, the Court opined that there is no legal principle that a care and control order can only be made if there are disputes over the upbringing of the child.

It was noted that the parties did not agree on the matter of the Child’s citizenship – the Mother would like the Child to obtain Singapore citizenship, while the father does not wish to apply for Singapore citizenship for the Child.

In view of the above discussion, the Bench opined that a joint custody order would be appropriate in the present matter and the said will make it clear that neither parent can unilaterally decide on matters of importance in relation to their child.

Father expressed his desire at the hearing that he may pursue shared care and control or more access when he would be able to afford a lawyer in future.

Court on noting that the mother had been the main caregiver of the child since the parties separated in June 2020, mother should be given sole care and control of the Child.

Further, the Bench added that the father should have the opportunity to build a relationship with the Child and should have reasonable access to the Child.

Did the court err by refusing to direct that the father be ordered to apply for the Child’s Singapore citizenship?

The intentions and plans of an intact family before the marriage breaks down may no longer be the same after the breakdown. The relationships have changed. Many personal decisions will have to be made to cope with life after breakdown.

 Bench held that whether a child should be raised in country x or country y are personal decisions.

High Court expressed that it is not in the position to, and should not, assess and compare the sufficiency of systems and quality of life of the various countries.

“Some parents of children with Singapore citizenship relocate and give up Singapore citizenship for personal reasons, which could, for example, be a belief that the education system in Singapore is too stressful for their children. Other parents think Singapore is a safe country with an excellent education system and choose to make Singapore their home. These are personal decisions.”

Lastly, the Court held that it does not find any provision in law that accords the Child the constitutional right to an application for Singapore citizenship.  It is the parent with Singapore citizenship who can make such applications.

Hence, the DJ did not err by refusing to direct that the father be ordered to apply for Singapore citizenship for the Child.

In view of the above appeal was dismissed. [VLI v. VLJ, [2022] SGHCF 8, decided on 10-3-2022]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.Muhamed Mustaque and Sophy Thomas held that the District Court cannot entertain petition to appoint guardian of the person of the minor child, however power to appoint guardian of the property of the minor is well within the jurisdiction of the District Court. The Bench clarified, the fact that a court cannot appoint a guardian of the person, is no bar for appointing a guardian of the property.

The original petition was filed by the mother of minor girl Nivedya, against the respondent, who was the father of the minor and husband of the petitioner for declaring her as the guardian of the person and property of the minor. Plaint schedule property was owned by the maternal grandmother of the minor child, and it was settled in her favour as per a settlement deed. Due to strained marital relationship, the couple were living separately and the minor was staying with her mother.

The respondent-husband had challenged the jurisdiction of the Family Court on the ground that the District Court did not has any jurisdiction, as the entire right of the District Court, by virtue of the Guardian & Wards Act, has been taken over by the Family Court as per Section 7 (1) explanation (g) of the Family Courts Act, 1984.

The District Court, after hearing the rival contentions, found that, when custody of the property of a minor is involved, the jurisdiction is with the District Court and so, that court has jurisdiction to entertain that O.P. It was this finding of the District Court which was being challenged by the instant appeal.

The appellant-respondent submitted that prior to their divorce, his mother executed a settlement deed in favour of his minor child, reserving life interest for the appellant-respondent in the property and the house situated therein. Moreover, he had filed a petition before Family Court for getting custody of the minor child and it was still pending.

The Bench observed that Section 7 of the Family Courts Act, 1984, lays down that a family Court shall have, and exercise all jurisdiction exercisable by any District Court or any subordinate civil Court under any law in respect of suits and proceedings of the nature referred to in the Explanation which, inter alia, includes, according to clause (g), a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. Section 8 of the Act specifically says that where a family Court has been established for any area, no District Court or any subordinate civil Court referred to, shall, in relation to such area, have or exercise any jurisdiction in respect of such suits or proceedings referred to, in the Explanation which includes clause (g). However, considering the above provision, the Bench stated,

“But, when the question involved relates to appointment of guardian in respect of the property of minor, the Family Court has no jurisdiction, as that dispute is not coming under explanation (g) to Section 7(1)”.

Hence, the Bench held that since the Family Court has no jurisdiction to entertain a petition for guardianship of the property of the minor, no doubt, the jurisdictional District Court has to entertain that petition. Further, Section 7 of the Guardian & Wards Act, 1980 empowers the jurisdictional District Court to appoint a guardian of the person or property or both of a minor or to declare a person to be such a guardian, if the court is satisfied that, it is for the welfare of the minor. So, as far as the dispute between parties to an erstwhile marriage regarding guardianship of the person, or the custody of, or access to their minor child, the Bench held that the jurisdiction of the District Court is taken away by the Family Court.

Consequently, with regard to the impugned proceedings of the District Court, the Bench held that there was not illegality or impropriety to warrant the Court’s interference and the District Court can proceed with the original petition for appointing guardian for the property of the minor, and not for the person of the minor. [K.S. Narayana Elayathu v. Sandhya, 2021 SCC OnLine Ker 6231, decided on 22-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Paul K. Varghese, Advocate

For the Respondent: C.R. Reghunathan, Advocate

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while retention of custody of an Elephant named ‘Lalitha’ to her caretaker with whom she had stayed for almost 20 years and had an emotional bonding observed that

“Just solutions to legal issues may sometimes lie outside the formal statutory framework. Judges should therefore boldly think outside the box and not feel inhibited or timid.”

The above lines were quoted since the present case pertained to “Lalitha” a female elephant, and Court found light not in the provisions of the Wild Life (Protection) Act, 1972 but in the pages of Peter Wohlleben’s “The Inner Life of Animals”.

Facts

G. Thangappan had originally purchased Lalitha and the ownership certificate for the same was issued. Later the said elephant was bought by Mohammed Aslam and sold her to Kannathu Kunju Mohammed.

Petitioner purchased ‘Lalitha’ in 2000 and the applied to seek transfer of ownership.

While the petitioner awaited for the transfer ownership the said request was rejected in March 2020 with the imposition of penalties for having transported Lalitha from one place to another without permission.

Crux of filing the instant petition

Petitioner sought rejection order in regard to the transfer of ownership to be set aside.

Analysis, Law and Decision

Relevant Provisions

Section 43 (1) of the Wild Life (Protection) Act, 1972 states that no person having in his possession captive animal in respect of which he has a certificate of ownership shall transfer by way of sale or offer for sale or by any other mode of consideration of commercial nature such animal.

Section 39 (3) of the Wild Life (Protection) Act, 1972 states that no person shall, without the previous permission in writing of the Chief Wild Life Warden or the authorised officer acquire or keep in his possession, custody or control, or transfer to any person, whether by way of gift, sale or otherwise any wild animal falling within the purview of the Act.

Was the sale of Lalitha Illegal?

The significant fact noted by the Court was that there could be no dispute that the sale of Lalitha in the first place by Thiru, Thangappan was illegal and subsequent sales were also vitiated.

Since no prior permission was obtained by the petitioner for acquiring Lalitha, the said was rightly rejected and hence the bench upheld the said order to be valid.

Respondents stated that the petitioner will have to surrender possession of the animal for being shifted to the camp maintained by the Forest Department.

Bench considered the above, whether the same could be permitted or not?

Mirror Test

Court while considering the above question observed that:

Elephants are known to be sensitive and possessed of self-awareness. They have passed what is known as “mirror test”.

German naturalist Peter Wohlleben, after years of direct, personal observation, says that animals also feel the very same emotions which the humans are capable of. Feelings of love, grief and compassion are equally found in the animals.

Article 51A (g) of the Constitution of India calls upon us to have compassion for living creatures.

Supreme Court in Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547, after noting that Chapter 7.1.2 of the guidelines of World Organization of Animal Health (OIE), recognizes five internationally recognized freedoms for animals such as (i) freedom from hunger, thirst and malnutrition; (ii) freedom from fear and distress; (iii) freedom from physical and thermal discomfort; (iv) freedom from pain, injury and disease; and (v) freedom to express normal patterns of behavior declared that Sections 3 and 11 of the Prevention of Cruelty to Animals Act, 1960. 

In light of the above-cited case, High Court held that Lalitha is entitled to express her normal patterns of behaviour.

Court noted that Lalitha has been with the writ petitioner for more than twenty years. In all these years, State did not intervene and take her away.  The department was issuing directives from time to time and they were complied with by the petitioner.

Further, it was noted that a Microchip has been implanted in Lalitha’s body so that her movements could be tracked. It seemed that Lalitha developed a great bonding with her caretakers.

Forcible relocation in alien surrounding would traumatize Lalitha.

Hence, the approach to be adopted in the instant matter is to be similar as the one in child custody cases.

Surprise inspection

Bench made a surprise inspection and found that Lalitha was being sumptuously fed and the fact that pleased the most was her not being chained at all. In fact, Lalitha looked happy and healthy.

Lalitha’s Maintenance

Caretakers were questioned by the Bench in regard to Lalitha’s maintenance to which they responded that she is taken to some well-known temples and Dargas, wherein she is paid for her majestic participation, her dignity is maintained intact.

Bench in light of the above stated that there was no exploitation to which Lalitha was being subjected.

Peter Wohlleben in the chapter “In the Service of Humanity”, in his Book remarks that when the log-haulers are kind and give rest to their horses, the animals are eager to work. One can find a similar human-animal partnership with shepherds and their dogs which also follow verbal commands. This is another example of animals taking pleasure in their work, as we can clearly see if we watch sheepdogs racing around a flock of sheep to round them up (Page 251).

Further, the Court also expressed that the veterinarians appointed by the department certified that Lalitha was being maintained properly by the petitioner.

A psychological wound would be caused to Lalitha if she will be removed from petitioners’ custody. Hence the present arrangement needed to be continued.

Another significant and essential point which was noted by the Bench was that Lalitha’s usual place of stay was a coconut groove and there was an R.O. Plant as well. The said land was owned by Thiru. Pothiraj who gave in writing to the Court that the said land will not be sold during the lifetime of Lalitha.

High Court took inspiration from the following statement of law:

“The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards re-opening decision, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts’ remedial discretion and may prove decisive.”

[Passage approvingly quoted by the Supreme Court in (1994) 1 SCC 648, Malaprabha Co-Operative Sugar Factor v. Union Of India]

In light of the above passage, Court held that the administrative decision may be found to be valid in law and yet there can be no sequitur.

In the present matter,

the rights of the animal are more relevant and they determine the adjudicatory outcome and not the formal validity of the administrative order.

For the above reason, Court disposed of the petition and upheld the impugned order by directing the respondents to permit the petitioner to continue to keep the custody of Lalitha. [S.G.M. Shaa v. Principal Chief Conservator of Forests and Chief Life Warden,  2020 SCC OnLine Mad 6242, decided on 10-09-2020]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Suryawanshi, JJ., determined the factors in regard to grant of custody of a minor child.

The instant appeal arose out of the Judgment of Family Court in proceedings filed under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 for the custody of minor daughter by the respondent (father).

The impugned judgment had allowed the application filed by the father for custody and respondent Sashanka (mother) was directed to handover the custody.

It was noted that Sameera was aged 10 years and in order to ascertain her wishes, Bench interacted with her in the Chambers. She stated that she was comfortable at her father’s place but her attachment with the mother was also explicit and hence she did show a willingness to meet her mother.

Analysis and Decision

The material point for determination:

  • Whether Family Court was legally justified in granting custody of Sameera to Prakash?

Evidence placed by Prakash revealed that Sashanka was addicted to smoking and used to drink liquor daily. She also never contributed to any household work. Even after the birth of Sameera, she never took care of the child.

Infact Prakash was the only who took care of Sameera.

One day when Prakash, Sashanka and Sameera all went together with their friends to witness a show of singer Papon, over there Sashanka got heavily intoxicated as she had consumed cocktail and she started yelling.

It was also stated that she was beyond control. After reaching home, Sashanka called her father who demanded her daughter be sent back. Though Prakash refused for the same, later Siva, Sashanka’s brother came over and Sashanka along with her daughter went to her father’s place in Rajahmundry.

Further, it was stated that Sashanka failed to take care of her daughter due to which she developed a deficiency of Vitamin-D and suffered from genu valgum/knock knee disease. In spite of this, Sashanka did not take proper care of Ku. Sameera or took her to an expert Doctor for proper treatment.

Adding to the above, it was stated that the atmosphere at the maternal home of Sashanka was not good for the upbringing of Sameera.

Sashanka further stated that Geeta wife of her brother Siva has initiated proceedings under Section 498-A IPC against Siva, her parents and herself. She further accepted that her brother Siva is charge-sheeted under Sections 420, 467, 468, 471 of IPC in the matter of huge property scam, which is sub-judice.

Trial Court, taking into consideration the fact that Sameera needed proper medical treatment for knock knee and genu valgum under the continuous supervision of Paediatrics, Paediatrics Ortho and Physiotherapist, came to the conclusion that in the interest of the welfare of Sameera, her custody was to be given to Prakash, her father.

Decision

Bench stated that it is not basing its’ conclusion only by taking into consideration the better off financial position of father Prakash but is one of the factors amongst others.

Further the Supreme Court’s decision in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, was also relied on wherein the principles in relation to the custody of minor were set out.

In Court’s opinion, Prakash and his parents seemed to be well educated who could give a better upbringing to Sameera.

Hence, Bench stated that the health and comforts of Sameera could be better looked after by father Prakash and his parents. On the comparative assessment of the rival claims for custody of Sameera invariably points out that welfare of Sameera would be better sub-served by father Prakash.

Therefore, the family court rightly and properly appreciated the evidence and granted the custody of the minor to father keeping in mind the welfare of the child.

Additional visiting rights were granted to the mother in view of Sameera’s inclination to meet her mother frequently, for which father would bear the travel and stay expenses.[Sashanka v. Prakash, 2020 SCC OnLine Bom 3497, decided on 27-11-2020]

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit, Indu Malhotra and Hemant Gupta, JJ, explaining the concept of a mirror order, has said,

“The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired.”

Mirror orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time and has conducted an elaborate enquiry on the issue of custody. The court may direct the parties to obtain a “mirror order” from the court where the custody of the child is being shifted. Such an order is ancillary or auxiliary in character, and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child.In international family law, it is necessary that jurisdiction is exercised by only one court at a time. These orders are passed keeping in mind the principle of comity of courts and public policy.

The judgment of the court which had exercised primary jurisdiction of the custody of the minor child is however not a matter of binding obligation to be followed by the court where the child is being transferred, which has passed the mirror order. The judgment of the court exercising primary jurisdiction would however have great persuasive value.

The said explanation came in a 2:1 verdict, where Indu Malhotra, J, writing the majority judgment for herself and UU Lalit, J, transferred the custody of an 11-year-old child to his father, an Indian-origin business tycoon living in Kenya, from his mother with whom he has been living since birth.

The decision was taken based on an overall consideration of the holistic growth of the child determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life. However, to safeguard the rights and interest of the mother, the Court directed the father to obtain a mirror order from the concerned court in Nairobi, which would reflect the directions contained in this Judgment.

Disagreeing with Justice Malhotra’s opinion, Justice Gupta held that the child should be given liberty to choose his destination after he comes out of age.

[Smriti Madan Kansagra v. Perry Kansagra,  2020 SCC OnLine SC 887, decided on 28.10.2020]


Read the full report on why the custody of the child was transferred to his father and why Justice Gupta disagreed with the majority opinion here.

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit, Indu Malhotra and Hemant Gupta, JJ has, in a 2:1 verdict, has transferred the custody of an 11-year-old child to his father, an Indian-origin business tycoon living in Kenya, from his mother with whom he has been living since birth.

The decision was taken based on an overall consideration of the holistic growth of the child determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life.

However, to safeguard the rights and interest of the mother, the Court directed the father to obtain a mirror order from the concerned court in Nairobi, which would reflect the directions contained in this Judgment.

What is a mirror order?

Mirror orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time and has conducted an elaborate enquiry on the issue of custody. The court may direct the parties to obtain a “mirror order” from the court where the custody of the child is being shifted. Such an order is ancillary or auxiliary in character, and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child.In international family law, it is necessary that jurisdiction is exercised by only one court at a time. These orders are passed keeping in mind the principle of comity of courts and public policy.

“The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired.”

The judgment of the court which had exercised primary jurisdiction of the custody of the minor child is however not a matter of binding obligation to be followed by the court where the child is being transferred, which has passed the mirror order. The judgment of the court exercising primary jurisdiction would however have great persuasive value.


Indu Malhotra, J (for herself and UU Lalit, J)


As per Section 17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will.

Hence, in view of the various personal interactions which the courts have had at different stages of the proceedings, from the age of 6 years, till the present when he is now almost 11 years old, the Court arrived at the conclusion that it would be in his best interest to transfer the custody to his father.

The Court found the child to be bright and articulate for his age, who was quite confident, and expressed with clarity about his inclinations and aspirations. The child was deeply attached to his mother and maternal grandmother, with whom he lives, and at the same time exhibited a strong and deep bond with his father, which had evidently grown by the regular visitations of his father and grand-parents every month during the past 8 years. He expressed a strong interest for going to Kenya for his education, and for higher studies to the U.K. He expressed a keen interest to travel overseas, for which he had got no opportunity so far. The Court, hence, noticed,

“If his preferences are not given due regard to, it could have an adverse psychological impact on the child.”

The court also noticed that the child is the heir apparent of a vast family business established by the paternal family in Kenya and U.K. Since the businesses of the paternal family are primarily established in Kenya and the U.K., it would be necessary for the child to imbibe and assimilate the culture and traditions of the country where he would live as an adult, learn the local and adapt himself to the living conditions and surroundings of the country.

“Since the child is still in his formative years of growth, it would be much easier for him to imbibe and get acclimatized to the new environment.”

The Court, hence, held that the minor child has been in the exclusive custody of his mother from birth till adolescence, which is the most crucial formative period in a person’s life and having completed almost 11 years in her exclusive custody, he is now entitled to enjoy the protection and care of his father, for his holistic growth and development. However, mother’s continued participation in the growth and development of the child would be crucial.


Hemant Gupta, J (Dissenting)


Disagreeing with Justice Malhotra’s opinion, Justice Gupta held that the child should be given liberty to choose his destination after he comes out of age.

He noticed that the question of where the welfare of the child lies narrows down to the mother who has stopped practicing law to nurture child as against the father who travels quite substantially every month.

“In the absence of the father, the child will be in the custody of nannies, maids and servants. The grandparents would not be able to take care of the growing needs of a young child. All things being equal, the presence of grandparents can tilt in balance but where a mother who is available 24/7 for guiding, caring and nurturing a growing child as against a father who needs to travel outside his normal place of stay frequently, I find that the mother is more suitable in whose hands the welfare of the child is secured.”

In his judgment, Justice Gupta also highlighted the aspect that the conduct of the father and his parents was inclined towards pampering the child inasmuch as an iPhone was given to the child when he was of six years of age. They have pampered the child by giving him 4-5 iPads. The mother had also deposed that child had once broken one newly purchased iPad but the father bought another iPad for the child immediately without any counselling to value the things purchased.

“These are instances which suggests pampering the child. From the controlled and supervised household of the mother, if the custody is given to the father, the sudden exposure to the materialistic things have the potency to derail the studies and wellbeing of the growing child.”

He, hence, held that that considering that the child has grown up in India in the last 11 years, the child would be exposed to physical and psychological harm, if he is shifted to Kenya amongst fellow students and teachers but without any friends. He would be taken care of by nannies, maids with pampering by the grandparents and the father. Hence, the child should remain with the mother.

[Smriti Madan Kansagra v. Perry Kansagra,  2020 SCC OnLine SC 887, decided on 28.10.2020]

Case BriefsSupreme Court

Supreme Court: In a case dealing with the custody of a 7-year-old, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ has said that mere fact that a mother is looking after the child with the assistance of her parents, does not detract from her role and responsibility as a mother.

In the present case, ever since the appellant and the respondent started living apart in 2016, the child has been in the care and custody of the appellant, his mother who was living in Bengaluru. The appellant, upon being temporarily transferred to Singapore by her employer, she sought for the child’s passport which was in possession of the respondent, the father. This is when the respondent filed an application for restraining the appellant from taking the child out of Bengaluru.

The respondent contended that the child is in the custody of the parents of the appellant in Bengaluru and should remain with them. Alternatively, he submitted that he would take charge of the child.

On this the Court noticed that while the parents of the appellant may have volunteered at least temporarily to relocate from NOIDA to Bengaluru to help the appellant in looking after the child, the respondent cannot be heard to assert that the child must continue to remain in Bengaluru with the maternal grand-parents.

“For the respondent to insist that the court should direct the continued presence of the child under the care of the maternal grand-parents who have come to Bengaluru and stay in a rented accommodation obtained by the appellant, does not appear to be fair.”

The Court was of the opinion that the fact that the parents of the appellant have moved to Bengaluru to help their daughter, does not transfer the custody of the child, either as a matter of law or fact, from the appellant to the maternal grand-parents.

It also said that there was no sufficient material to indicate that the respondent was in a position to look after the child on his own, by disturbing a position which has held the field since 2016. When the spouses were together, the child lived and grew up in the care of both the parents. Since 2016, the appellant has taken the responsibility for the welfare of the child.

Further, during the course of the interaction on the video-conferencing platform, the child indicated his desire to reside with his mother in Singapore. The Court, hence, noticed

“While the child is attached to the respondent, he has indicated, in no uncertain terms, his desire to live with his mother. The appellant is gainfully employed in Singapore and her desire that she should be allowed to take the child with her is not an artifice. The appellant, as the mother of the child, has been continuously with the child since his birth, despite the demands of her employment.”

Noticing that the interests of the child are best subserved by ensuring that both the parents have a presence in his upbringing, the Court said that the respondent, as the father, is entitled to have adequate rights of access and visitation as a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security.

[Ritika Sharan v. Sujoy Ghosh,  2020 SCC OnLine SC 878, decided on 28.10.2020]

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 BriefsSupreme Court

Supreme Court: Showing dismay over a case where two minors were forced to stay in a Boarding School due to an ongoing marital dispute between their parents, the bench of AM Khanwilkar and Ajay Rastogi, JJ has said,

“the rights of the child need to be respected as he/she is entitled to the love of both the parents. Even if there is a breakdown of marriage, it does not signify the end of parental responsibility. It is the child who suffers the most in a matrimonial dispute.”

The Court as hearing a custody battle involving 2 children wherein the Court was asked to decide if custody should be given the father and paternal grandparents of the children, the Court noticed that  because of a warpath of the couple, both the paternal grandparents died during pendency of the proceedings. Urging the litigating parties to introspect and take stock of their deeds and to find out a reasonable amicable solution of the on­going matrimonial discord to secure peace and of their better future, the Court said,

“It is an ideal situation where the grandparents remain in the company of their children and also of their grandchildren, but very few are fortunate to have this pleasure in the fag end of their life. In the instant case, the grandparents were not only deprived of love and affection of their children but also of their grandchildren and because of this matrimonial tussle between the parties, they have lost their lives.”

In the present case, the High Court of Delhi, in the first instance, made effort after holding a separate and joint session with the parents along with the children but nothing fruitful came forward and when the litigation came to the Supreme Court, tireless efforts were made by it keeping in view the paramount interest of the children. However, the efforts made by this Court could not bring any congeniality between the spouse and the Court was constrained to pass an Order keeping in view the paramount interest of the children to place both the children in boarding school as it was not in their best interest to continue with either parent. On the 2017 order, the Court said that,

“it would always remain in the interest of the parties to resolve these disputes amicably sitting across the table but unfortunately the ego of the warring parents come forward and the sufferings of the children are shadowed over it.”

The father of the children submitted before the Court that the guardianship of both the minor children be handed over to him as they are living separately from both the parents for quite some time and if he is unable to persuade this Court in taking the custody of the minor children, liberty may be granted to him to file a separate guardianship petition before the competent authority and the interim arrangement made by this Court may remain subject to the outcome of the stated petition, if any, being filed by either party regarding custody of the minor children.

The mother, on the other hand, argued that both the paternal grandparents of the children have recently passed away and there is no one who may have a positive influence on the children and who may contribute and ensure their well­being and cultural growth.Further, there is no female member in the house to look after the growing daughter at present and at least she may be permitted by the school administration to have a glimpse of her beloved children to which she is entitled for under the law as their mother.

After taking note of all the submissions and the facts of the case, the Court held that the interim arrangement which has been made by this Court vide its Order dated 7th September, 2017 and orders passed thereafter shall continue with a liberty to the parties to file independent proceedings for the custody or guardianship of the minor children before the competent Court of jurisdiction which, if instituted, may be decided independently in accordance with law and that alone would be in the best interest of the children.

The Court, further, clarified that

“if such an application is filed by either of the party, that may be decided by the Court independently without being influenced/inhibited by the observations made in   the instant proceedings expeditiously in accordance with law.”

[Saumitra Kumar Nahar v. Parul Nahar, CIVIL APPEAL NO(S).1670 OF 2020,

Case BriefsSupreme Court

Supreme Court: In the issue relating to custody of a child where the question was as to whether the Counsellor’s report furnished in the course of mediation proceedings or the Mediator’s report in case of mediation, when the process fails, can be used by either of the parties during trial, the bench of Abhay Manohar Sapre and UU Lalit, JJ held:

“Complete adherence to confidentiality would absolutely be correct in normal matters where the role of the court is purely of an adjudicator. But such an approach may not essentially be conducive when the court is called upon and expected to discharge its role in the capacity as parens patriae and is concerned with the welfare of a child.”

On general rule of confidentiality in Mediation:

It is true that the process of mediation is founded on the element of confidentiality. In the process, the parties may make statements which they otherwise they would not have made while the matter was pending adjudication before a court of law. Such statements which are essentially made in order to see if there could be a settlement, ought not to be used against the maker of such statements in case at a later point the attempts at mediation completely fail. If the statements are allowed to be used at subsequent stages, the element of confidence which is essential for healthy mediation/conciliation would be completely lost.

On exception in issue relating to custody of a child:

The Court said that in order to reach correct conclusion, the court may interview the child or may depend upon the analysis of an expert who may spend some more time with the child and gauge the upbringing, personality, desires or mental frame of the child and render assistance to the court. It is precisely for this reason that the element of confidentiality which is otherwise the basic foundation of mediation/conciliation, to a certain extent, is departed from in Sub-Rule (viii) of Rule 8 of the Family Court Rules.

Statements made by the parents during the course of mediation may not be relied upon on the ground of confidentiality but natural responses and statements made by the minor to the Counsellor would certainly afford a chance to decide what is in the best interest of the child as a child may respond naturally and spontaneously in its interactions with the Counsellor, who is professionally trained to make the child feel comfortable. Stating that record of such interaction may afford valuable inputs to the Court in discharge of its duties in parens patriae jurisdiction, the Court said:

“The intention is clear that the normal principle of confidentiality will not apply in matters concerning custody or guardianship issues and the Court, in the best interest of the child, must be equipped with all the material touching upon relevant issues in order to render complete justice.”

[Perry Kansagra v. Smriti Madan Kansagra, 2019 SCC OnLine SC 211, decided on 15.02.2019]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Sahidullah Munshi, J. allowed an application under Section 24 CPC for transfer of a child custody case arising out of Section 7, 8 and 25 of the Guardians and Wards Act, 1890.

The application was filed by the mother of the child for transfer of the case from the Court of District Judge, Alipore to the Court of District Judge, Paschim Medinipur. The petitioner was married to the respondent. In 2016, she filed a complaint against the petitioner under Section 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act. The respondent filed an application for custody of the child born from the wedlock under Sections 7, 8, and 25 of the Guardians and Wards Act. Subsequently, the petitioner filed the present petition.

The High Court perused Section 9 of the Act of 1890 and observed that territorial jurisdiction of the court in matters of guardianship applications lie where the child ordinarily resides. In the present case, based on the facts, it was clear that the child ordinarily resided with the mother at Paschim Medinipur. The Court was of the view that the child could not be expected to travel 100 km to Alipore on every date of hearing. In such circumstances and in view of Section 9, the Court held that it would be appropriate to transfer the proceedings from the Court of District Judge, Alipore to the Court of District Judge, Paschim Medinipur. Orders were made accordingly. The petition was, thus, allowed. [Ruhi Sahina v. Syed Masidur Rahman, 2018 SCC OnLine Cal 5758, dated 28-08-2018]

Tis-hazari
Case BriefsDistrict Court

Tis Hazari Court, Delhi (Family Court): The Bench of Reema Singh Nag, Additional Principal Judge dismissed a custody petition filed by a mother of 2 minor children against their father living in the United States of America.

As per the factual matrix of the case, the petitioner (mother) and the respondent (father) are both citizens of USA. They married in the year 2006 in New York as per US Civil Laws. The matrimonial home of the couple is in Connecticut. Both are dentists and have their joint dental practice in Stamford, Connecticut. Two children were born to the couple from the wedlock, both of whom are US citizens. There was a matrimonial discord between the couple. The petitioner alleged various counts of mental and physical harassment against the respondent; while the respondent denied the same and contra-alleged that the petitioner suffered from borderline personality disorder. The couple visited India in January 2016 to attend a wedding; they were scheduled to return in March 2016 but the petitioner refused to return. Subsequently, the respondent obtained a custody order from the US courts for both the kids and also filed a writ of habeas corpus before the Delhi High Court which was allowed. The habeas corpus order was challenged by the petitioner in the Supreme Court which matter is pending awaiting the decision on the instant petition.

The Family Court on detailed appreciation of the evidence and the law on the subject decided the issues in favour of the respondent and dismissed the petition. While so adjudicating, the Court discussed and made observations on various issues. The observations so made (inter alia) are delineated,  hereinafter:

  • Simply by taking oath of allegiance to the Constitution of India and applying for Indian citizenship, the petitioner could not invoke jurisdiction of the instant Court.
  • Court could not assist in breach of immigration law by the petitioner, the Court lacked jurisdiction under Section 9 of Guardian and Wards Act, 1956.
  • It was for the petitioner to prove that the respondent was an unfit person for custody of the children, she failed to do so.
  • The parties need to go for periodical expert counselling to learn to behave in presence of kids, for their healthy and natural growth.
  • The civil marriage under US law had its legal consequence and cannot be dissolved under Hindu Marriage Act, 1955 unless approved by the USA through judicial verdict.
  • K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1  does not deal with the guardianship issue. It cannot be extended to imply that a parent subsumes autonomy of the child in the form of guardianship.
  • Every child fits in the definition of best interest of the child as stipulated under Section 2(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015 since any decision in derogation of this definition would be harmful for the child.
  • Convention on Rights of Child requires that best interest of the child has to be primary consideration in all actions concerning him (Article 3); State is to ensure that no child is separated from parents accept under law (Article 9); and hearing is to be given to the child for weighing his wish according to his age and maturity (Article 12).
  • It is imperative that a child is exposed to nurture by both mother and father equally for his holistic development.
  • Personal development during cognitive ages of a child is sustained upon the bedrock of strong unit of sustained co-operative parenthood.

In the facts and circumstances of the case, the Court was of the view that the paramount welfare of the kids lies in shared parenting in the United States of America. It was held that the petitioner was not entitled to permanent and sole custody of the children. In view of the above, the custody petition was dismissed by the Court. [Jasmeet Kaur v. Navtej Singh,2018 SCC OnLine Fam Ct (Del) 1, dated 20-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ. dismissed an appeal filed against the order of the Family Court whereby interim custody of a minor child was refused to his father.

The appellants were the father and paternal grandparents of the minor child, aged 8 years, concerned in this matter.  The appellant was married to the deceased. A son was born to them within the wedlock. The deceased committed suicide by hanging and an FIR was registered against the appellants. In a petition filed by the respondent – maternal grandparents of the child, interim custody of the minor child was handed over to them. Further, the Family Court, vide the order impugned, declined the interim custody of the child to the appellants. The present appeal was filed under Section 19 of the Family Courts Act.

The High Court carefully examined the order impugned and found no infirmity in it. The Court took into account the fact recorded by the Family Court that the child was not comfortable with the appellants and had refused to meet or talk to them. He even started to weep after seeing his father. The Family Court further recorded that respondents were looking properly after the child and providing him good education. Furthermore, the Family Court recognized that if the child continues to meet with his father under the supervision of family counsellor, it would remove bad feelings in mind of the child against his father. The High Court was of the view that the Family Court made all efforts so that the child may become comfortable with his father before a final review in the matter is taken up. Accordingly, the appeal filed was held to be sans merit and it was, thus, dismissed. [Vijay Kumar Jha v. Shailender Kumar Jha, 2018 SCC OnLine Del 10721, dated 31-07-2018]

Case BriefsSupreme Court

Supreme Court: Setting aside the Delhi High Court order where a father was directed to hand over the custody of his 5-year-old son to his mother, the bench of Dipak Misra, CJ and Amitava Roy, J held that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being.

Considering the facts of the case where the child was barely 2½ years old when he came over to India and had stayed with his father since then, the Court said that since he has stayed in US in his infant years, the duration is too little for the required integration of his with the social, physical, psychological, cultural and academic environment of US to get totally upturned by his transition to this country, so much so that unless he is immediately repatriated, his inherent potentials and faculties would suffer an immeasurable set back.

Hence, the verdict that was penned by Roy, J said:

“a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set-back if subjected to frequent and unnecessary translocation in its formative years.”

The Court also took note of the fact that no material was brought on record, persuasive and convincing enough, to take a view that immediate restoration of the custody of the child to the mother in the native country is obligatorily called for in its interest and welfare.

The Court noticed that the child is growing in a congenial environment in the loving company of his grand-parents and other relatives and has been admitted to a reputed school and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.

The Court, hence, directed that the child, till he attains majority, ought to continue in the custody, charge and care of his father. [Prateek Gupta v. Shilpi Gupta, 2017 SCC OnLine SC 1421, decided on 06.12.2017]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattigarh High Court: A Division Bench of the High Court recently decided a case filed under Section 47 of the Guardians and Wards Act, 1890 read with Section 19(1) of the Family Courts Act, 1984 against the order of the Family Court allowing the respondent wife’s application for custody of minor girl child of both the parties.

The parties married 7 years ago and 2 girls, Ashtha and Sakshi were born during the wedlock and on account of giving birth to two girls, wife was being harassed by her in-laws and one day, was kicked out of her matrimonial home with only Ashtha and Sakshi was left with the husband. The husband denied giving the custody of Sakshi to wife alleging that if the child stays with her mother, she too would become characterless like her. However, no such allegation could be proved in the Family Court.

The respondent contended that her father had enough money to teach both her daughters and the elder daughter was being brought up quite well. During this course, the Family Court interacted with the younger daughter and found out that the young girl was intelligent and communicative and further observed that a child should not suffer for the fault of parents as she is not an inanimate object who can be handed over from one parent to another and said a child must not suffer when parents are fighting. The lower court ordered that child would be able to meet the mother occasionally to which as the wife states, the husband did not comply and later on, the the custody was handed over to mother i.e. respondent.

It was informed to the Court that he had already filed a divorce petition and wife apprehended that he might remarry after divorce and the, the minor girl would be left at the mercy of step-mother. The Supreme Court observed that in dispute pertaining to custody of minor, Courts should keep in mind the paramount interest of the minor and referred to a recent judgment of Apex Court in Purvi Mukesh Gada v. Mukesh Popatlal Gada, (2017) 8 SCC 819 stating that the High Court must ascertain about the welfare of the child before passing the order regarding custody of a child.

The Bench comprising Prashant Kumar Mishra and Arvind Singh Chandel, JJ. noted that it is important to bear in mind a very germane biological aspect of the matter concerning puberty, privacy and care needed to a girl child at age between 10 to 15 years and at this stage of life, a girl child would need her natural mother the most. Finally, the Court held that the appeal is liable to be dismissed the trial court is fully justified in directing handing over custody of the girl child to mother. [Balram v. Sushma, 2017 SCC OnLine Chh 1247, decided on 08.11.2017]

Case BriefsHigh Courts

Bombay High Court: While deciding a matter concerning the custody of minor girl where it was contended by the petitioner father that he should be given custody of the child as her mother was not financially sound enough to raise the child,  the Divisional Bench of Anuja Prabha Desai and A.S. Oka, JJ. held that there was no evidence that the mother neglected the child or deprived her of necessities and physical comforts in absence of which only on the basis of strong financial position the father cannot get the custody of the child.

In the said case it was also contended by the petitioner that the mother’s home was not conducive for child’s upbringing, as the conduct of child`s mother who had taken divorce twice was unsuitable for minor child. The Court did not find this issue as a detrimental factor in deciding the issue of entrustment of child.

The Court also observed that there was no elderly female member in the house of petitioner father or other children in the age group of the child to take care of the child or to provide her company, under such circumstances disturbing custody of child would cause mental stress and psychological trauma to child. [Shrirang Purushottam Deshmukh v. Radhika Shrirang Deshmukh, 2016 SCC OnLine Bom 10582, decided on 14-12-2016]