Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: The Division Bench of Alok Aradhe and J.M. Khazi, JJ. dismissed an appeal filed by a husband seeking permanent alimony from his divorced wife as she is employed as an Assistant Manager in a Co-operative Society. The Court held that the husband being an able-bodied person has the ability to earn and the salary of the wife must go in taking care of the son born out of the wedlock and thus, is not entitled to seek permanent alimony from his divorced wife.

The wife left the matrimonial home back in February 1994 prior to delivery of the child. However, despite the birth of a son, wife did not join the matrimonial home.

A petition was filed by the husband seeking dissolution of marriage and also a petition seeking permanent alimony. The Family Court by a decree dissolved the marriage but did not grant the relief with respect to permanent alimony Aggrieved by this dismissal, present appeal was filed seeking the same relief.

The husband contended that the divorced wife is currently working as an Assistant Manager in a Co-operative Society. While the husband lost his job of security guard and is currently unemployed and had no means to maintain himself. This creates an obligation upon the divorced wife to maintain the husband who is unable to maintain himself.

The wife on the other hand countered the contention of the husband that she is working as an Assistant Manager on a meagre salary of Rupees 8,000 and has a 15-year-old son to look after.

The Bench after reviewing the facts noted that the husband is an able-bodied man and has ancestral property, there are lands held by his father and he also has a share in the residential property. The Court also stated that the custody of the child is in the hands of the wife and considerable number of resources are spent for the education of the child and the burden is solely upon the wife. The Court

The Court thus upheld the judgment pronounced by the Family Court.

[T Sadananda Pai v. Sujatha S Pai, MFA No. 1797 of 2021, decided on 01-07-2022]


Advocates who appeared in this case :

Nagaraja Hegde, Advocate, for the Appellant;

Nishit Kumar Shetty, Advocate, for the Respondent.

Case BriefsSupreme Court

Supreme Court: 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.’

Stating that the two minor children, aged 13 and 9, in the case at hand are watching their parents very closely, the Court observed,

“The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between the adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children. They must not be burdened by any adult problem. Minor children do not have the coping skills or the intellectual ability to understand any issues like the financial constraints, adult relationship issues or their parents unhappiness.”

The Court also explained the Doctrine of Parental Alienation Syndrome, i.e. the efforts made by one parent to get the child to give up his/her own positive perceptions of the other parent and get him/her to agree with their own viewpoint. It has two psychological destructive effects: (1) It puts the child in the middle of a loyalty contest, which cannot possibly won by any parent; (2) It makes the child to assess the reality, thereby requiring to blame either parent who is supposedly deprived of positive traits. The Court, hence, observed that the intent of the court should be to circumvent such ill effects.

Key Facts

The Court was deciding the case where, after the relationship between the parents went sour, the father took both the minor children away from the mother. Here are some key facts necessary to understand the case:

  1. Daughter was born in India but travelled to the USA when her father got a Job there. Son was born in the USA and is hence, a natural citizen of the USA.
  2. When the father lost his job, the children stayed with the mother who worked on getting a degree. She eventually became a resident of the USA holding H1B visa and sponsorship. She has a good job and earns a handsome salary and has the resources to provide for a comfortable life to her children in the USA.
  3. Despite several interventions by Courts and Authorities, the father did not allow the mother to meet the children unsupervised. He even alleged that the mother was mentally ill and was hence, not fit to take care of the children.
  4. A shared parenting plan[1] was arrived at between the parties vide order dated 12th May 2021 passed by the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio, giving both the parties joint custody of their children. The visitation schedule was clearly laid down. The parties agreed to not relocate without the consent of the other party and without the Court’s permission by way of a 60 day prior notice and the passports of the children were to stay in alternation with the non-custodian parent while the children were in the custody of the other parent.
  5. A separation agreement was also entered upon between the parties dated 27th July 2021.
  6. On 28th July 2021, the father intimated the US Court that he would like to take his minor children on a vacation to India. Since the travel itinerary shared by him was such that the children would miss their school by a week, the mother declined to accept it and requested the father to go to India for his vacation, and during that period, the kids would stay with their mother.
  7. On 16th August 2021, the father allegedly, took the children away from her house in her absence. The mother claimed that on the same night, she received a distress call from her minor daughter who informed her that her father was taking both of them to India on the 17th August 2021. However, as per the travel itinerary, the travel was to happen on 19th August 2021.
  8. The daughter again gave a distressed call to her mother from India pleading her to take her back to the USA.
  9. The shared parenting plan ultimately came to be terminated by the Court at Ohio vide order dated 9th February 2022 at the instance of the mother.

Children will have a better future in the USA

  1. Both the minor children are residents of the USA.
  2. The son is a natural citizen and the daughter is a permanent resident of the USA.
  3. Both the children have been brought up in the social and cultural milieu of the USA. They are accustomed to the lifestyle, language, customs, rules and regulations, etc. of that country.
  4. The children are residents of the USA. One of whom is a natural citizen and will have better future prospects if goes back to the USA.
  5. The minor daughter has a remarkable high IQ. She has been identified to be a gifted child. In such circumstances, both the minor children were admitted in a special school meant for children with such remarkably high IQ in the USA. Such schools in the USA are specialized in providing education to the gifted children which, ultimately, helps in the overall development of such children. The special education ultimately enhances the potential of such children. Both the children in the present case have better prospects of getting refined education that may ultimately enhance their potential they already possess and are already accustomed to and comfortable with.
  6. It is the fundamental right of the mother to have the company of her children and not to be deprived of the same without a reasonable cause.
  7. The allegations levelled by the father that the mother suffers from some mental illness appears to be absolutely wild and reckless.

Directions

  1. Father to travel to the USA immediately along with the children, preferably within two weeks.
  2. Once the two minor children reach the USA, it will be open for the mother to take care of her children.
  3. The father can stay back in the USA if he wants and if the laws of the country permit him to do so. But if he decides to come back to India, then the mother shall make both the minor children speak to their father on-line at least once every week.
  4. The Court also left it open for the parties to go back to the Court at Ohio and revive the shared parenting plan as was arrived at vide order dated 12th May 2021.

[Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885, decided on 14.07.2022]


*Judgment by: JB Pardiwala

Counsels

For mother: Advocate Prabhjit Jauhar

For father: Senior Advocate Meenakshi Arora


[1] Shared parenting means the parents share the rights and responsibilities as provided for in a plan approved by the Court as to all or some of the aspects of the physical and legal care of their children. The mother and the father together, under a shared parenting agreement, are granted custody, care and control of the minor children until further order that may be passed by the Court subject to certain terms and conditions.

Case BriefsHigh Courts

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

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

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

Writ of Habeas Corpus

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

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

Maintainability of Habeas Corpus Petition

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

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

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

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

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

Custody with Mother: Lawful or Unlawful?

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

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

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


Advocates before the Court:

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

Counsel for Respondent :- G.A.

Case BriefsHigh Courts

Madhya Pradesh High Court: S.A.Dharmadhikari J., dismissed a writ petition which was filed invoking the jurisdiction of the Court under Article 226 of the Constitution of India.

The petitioner had alleged that his son (corpus) Ali Khan was in illegal detention of respondent 5 Yasmin Bano who was the wife of the petitioner. He contended that from the initial stage itself behavior of respondent 5 towards the petitioner was not good and she used to quarrel with his mother and other family member. The counsel for the petitioner, Mr Sushil Goswami submitted that the respondent 5 came to her maternal home in Gwalior without any intimation and refused to return back and did not even permit the petitioner to meet the son. He further submitted that as per the settled legal position father has the equal right as of the mother in respect of the son.

The Court explained that child with the mother can not be said to be in illegal confinement, the Court further explained that writ petition for habeas corpus was maintainable only if the person was in illegal confinement and in exceptional circumstances and it was not to justify or examine the legality of the custody. The court observed that in the present matter custody of the child was with the mother/respondent 5 can not be said to be illegal confinement. Remedy lies only under the Hindu Minority and Guardianship Act or the Guardianship and Wards Act as the case may be.

The Court while dismissing the appeal held that it was not inclined to exercise the jurisdiction under Article 226 of the Constitution of India and the petitioner could file an application for custody of the child under the appropriate law.[Mohd. Shakil Khan v. State of M.P., 2020 SCC OnLine MP 2825, decided on 11-12-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while observing a matrimonial application, observed that,

The plaint must be read as a whole to determine as to whether it discloses a cause of action.

In the instant matter, the husband/appellant sought to challenge the Order passed by Family Court dismissing an application filed by him under Order VII Rule 11(a) and (d) read with Order XIV Rule 2(2) of the Code of Civil Procedure.

Quick Glance — Fact of the Case

Husband and Wife had gotten married as per the Sikh rites and Hindu Vedic rites and ceremonies.

Appellant a US citizen had moved to that country with his parents in the year 1994. After the marriage, respondent/wife applied for permanent resident status.

Petition for Divorce

Appellant/husband and respondent/wife came to India with their child, while they were in India, respondent/wife filed a divorce petition under Section 13(1)(i–a) of the Hindu Marriage Act.

Husband/appellant on returning to USA alone filed for a divorce petition in Chicago, USA. He was granted an ex parte divorce on the ground of irretrievable breakdown of marriage.

Custody of Child

Appellant/Husband also approached the Circuit Court of Cook County, Illinois, USA for the custody of the child which was granted to him ex parte.

Writ of Habeas Corpus

Further, the appellant/husband had filed a writ petition in Delhi High Court for issuance of a writ of habeas corpus for the production and custody of the minor child.

On being aggrieved with the above, wife approached the Supreme Court which was allowed with directions to the parties to appear before the Family Court for the decision in regard to the custody of a minor child.

Order VII Rule 11 CPC

Appellant/Husband had moved an application under Order VII Rule 11 CPC for seeking rejection of the said petition on the plea that the provisions of the Act would apply to persons who are outside the territory of India only if they are domiciled in India.

Since the husband/appellant was domiciled in USA, only the wife/respondent was domiciled in India, the Act is not applicable to them.

Pre-Nuptial Agreement

Husband also contended that prior to their marriage, they had entered into a pre-nuptial agreement, hence they will be governed under that.

Family Court had dismissed the application filed by the appellant/husband under Order VII Rule 11 CPC and stated that appellant/husband cannot be allowed to selectively refer to the pleadings of the respondent/wife.

Further, the family court held that it is for the Court to determine as to whether the facts of a case conclusively establish that the respondent/wife had acquired US Domicile, Family Court rejected the stand of the appellant/husband that the divorce petition filed by the respondent/wife is barred by law.

Counsel for the appellant/husband Prabhjit Jauhar and Malvika Rajkotia, Counsel for the respondent/wife.

Analysis & Decision

A meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein if taken to be correct in their entirety, would result in a decree being passed.

For the above-stated position, several Supreme Court’s Decisions were relied on including  in T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467,

Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510:

There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint.

Hardesh Ores (P) Ltd. v. Hede & Company, (2007) 5 SCC 614:

The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

Court in view of the above observed that,

A plaint cannot be rejected on the basis of allegations levelled by the defendant in the written statement or for that matter, in an application moved under Order VII Rule 11 CPC.

The Court must be mindful of the underlying object of Order VII Rule 11 CPC which is to nip in the bud, irresponsible and vexatious suits.

In the instant matter, it has to be determined as to whether the divorce petition filed by the respondent/wife deserves to be rejected or not.

Section 19 of the Hindu Marriage Act offers multiple options as to the local District Court where a Divorce petition can be presented. It includes the place where the marriage of the parties was solemnized or where the respondent resides at the time of presentation of the petition or in case the wife is the petitioner, where she is residing on the date of presentation of the petition or where the petitioner is residing at the time of presentation of a petition in a case where the respondent at that relevant point in time, is residing outside the territories to which the Act extends, as contemplated in Section 1(2).

The Supreme Court decision in Neeraja Saraph v. Jayant V. Saraph, (1994) 6 SCC 461, brought the need for legislation to protect spouses who had been deserted outside the country, wherein the issue that was highlighted was to protect the rights of women deserted by NRI husbands and faced decrees of the annulment of marriage from foreign courts.

Concept of ‘Resident’ and ‘Domicile’:

Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20:

“27. ………..The classical division of domicile is well known. There are the domicile of origin, the domicile of choice and the domicile of dependence. There has been little change in the essential concept of these three domiciles…

28. In view of the above, the concept of “domicile” as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, “Domicile” and “Residence” are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used.

(emphasis supplied)

Bench stated that under Order VII Rule 11, CPC, the court can only scrutinize the contents of the plaint taken as a whole but it cannot consider the evidence, if any, or the pleas taken in the written statement.

In the instant matter, the respondent/wife categorically stated in her petition that she wanted to reside in India. After the amendment to the Act in the year 2003 and on insertion of sub-clause (iiia) in Section 19, it cannot be said that Family Courts in Delhi are not vested with the jurisdiction to try and entertain the divorce petition filed by the respondent/wife.

High Court held that the appellant/husband cannot raise an objection to the respondent/wife initiating proceedings of divorce in India under the provisions of the Act only because he is a US citizen and domiciled in the USA.

In the instant case, the respondent/wife remains a citizen of India and therefore, is a domicile of India for all intents and purposes. She has chosen to approach the courts in India for obtaining a decree for divorce.

Divorce petition filed by the respondent/wife read as a whole, does disclose a valid cause of action that can be entertained by the Family Court in India.

No infirmity was found in the impugned judgment. [Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

Case BriefsHigh Courts

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

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

Brief Facts

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

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

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

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

Analysis and Decision

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

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

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

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

Decision

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

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

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

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

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ. dismissed an appeal filed by the appellant-father against the judgment of the Family Court whereby his application under Section 25 of the Guardians and Wards Act, 1890 seeking custody of his minor son was rejected.

The parties were married as per Muslim customs and rites in Delhi. A son was born to them. The respondent-mother gave birth to the child at her paternal home in Hyderabad. In less than 5 months from the date of the birth of their son, the appellant gave talaq to the respondent. Subsequently, the respondent remarried and was now living in Dubai with her second husband and her minor son born from the wedlock with the appellant. The appellant filed the application under Section 25 for custody of the child which was rejected by the Family Court as aforesaid.  Aggrieved, the appellant-father filed the instant appeal.

N.U. Ahmed, Advocate appearing for the appellant, submitted that the respondent has violated the orders of the Family Court, given a false affidavit to the passport authorities and had taken the child away to Dubai which goes to prove that she is not fit to retain his custody and the welfare of the child would be best served if his custody is handed over to the appellant. The second leg of his arguments was that the respondent has got remarried and under the said circumstances, the interest of the child is bound to suffer adversely.

At the outset, relying on Elizabeth Dinshaw v. Arvand Shaw Dinshaw, (1987) 1 SCC 42, the High Court reiterated that when the court is confronted with a question relating to the custody of a minor child, the guiding factor cannot be the legal rights of the warring parties. The sole and pre-eminent criteria that ought to weigh with the court is what would best serve the interest and welfare of the minor.

The High Court noted that after the respondent got married, she left with the child for Dubai, where her husband is working in a multinational company. This goes to show that the respondent has sufficient funds and economic resources to attend to all the needs of the child either for purposes of his schooling or for bringing him up comfortably. In Court’s opinion:

“The respondent’s remarriage can hardly be a ground for the appellant to claim that being the natural guardian of the child, he has a better right to claim his custody, over the respondent. At the end of the day, the court must examine the facts and circumstances of the case and then come to a conclusion as to whether it would be in the better interest of the minor child to remain in the custody of the father or the mother.”

It was then noted that the respondent was sent back to her paternal home in Hyderabad when she was pregnant. The child was delivered by her in Hyderabad on 11-2-2011. The appellant did not go to meet the respondent and see the newborn till the mother and child went back to Delhi on 30-3-2011. Within 1 year therefrom, the respondent and the child who was about 1 year old, returned to her paternal home on 16-3-2012. In less than 3 months, the appellant gave her talaq. It was also an admitted position that on the respondent’s complaint an FIR was registered against the appellant under Sections 498A/406/34 IPC read with Sections 3 and 4 of the Dowry Prohibition Act and the appellant could not manage to get anticipatory bail right up to the Supreme Court. A chargesheet was filed against him and the criminal case is pending.

The appellant and the child had parted company when the child was about 16 months old. The minor was about 1 year old when his mother, the respondent, had returned to her paternal home at Hyderabad. In such a situation, as per the Court, the child who would be 9 years old by now, would not be in a position to recognise the appellant as his father having remained with his mother for 8 long years. The appellant would be no more than a stranger to the child even though he is his father. In such circumstances, the Court was of the opinion that the welfare of the child would be better served if his custody remains with the mother.

Moving to the next point, the Court stated that appellant’s contention that the respondent having violated the orders of the Court, itself was sufficient reason for the custody of the child be taken back from her and handed over to the appellant, is untenable. The Court held that if the appellant was aggrieved by the conduct of the respondent, he is well entitled to take his legal remedies against her but that would not translate into an order in his favour, granting him permanent custody of the child.

Before parting with the matter, the Court also stated that the guardianship petition filed by the appellant appeared to be more a tool to even out a score with the respondent, rather than a genuine means to reach out to the child and take over his custody, purely in his best interest and for his well being.

In such view of the matter, the High Court upheld the order of the Family Court and dismissed the appeal, [Faisal Khan v. Humera,  2020 SCC OnLine Del 572 , decided on 1-5-2020]

Kerala High Court
Case BriefsHigh Courts

Kerela High Court: The Division Bench of K. Harilal and P. Somarajan, JJ. dismissed a writ petition regarding the determining interim custody of the child of the parties. 

In the present case, the petitioner and the first respondent are the husband and wife, respectively and they were living with their child in Qatar. On the 07.10.2019, the respondent, picked the child from his school and arrived at Kochi, India, without any prior permission or knowledge of the petitioner. Thus, the child is under illegal custody of the respondent. 

Upon issuance of a notice by the present court, the mother of the first respondent, appeared before the court and submitted that the first respondent had already filled an application before the family court, Pala and had obtained an order of injunction restraining the petitioner from taking the custody of the child during the pendancy of the original petition.

High Court upon perusal of the arguments of the parties, stated that the dispute involved in the present writ petition relates to that of the custody of the child between a father and mother, hence a family court is a more competent forum for determining the custody, considering the welfare of the child. The bench also directed the family court to advance the matter and pass an interim order determining the interim custody of the child, till the final disposal of the original petition.  [Aurif Bin Thaj v. Besse Ann George,  2019 SCC OnLine Ker 3470, decided on 22-10-2019] 

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Sudhanshu Dhulia, J. dismissed a writ of habeas corpus filed by the petitioner-mother for the custody of her 5 year old son.

Petitioner’s case was that she was married to Respondent 4 and they had a son born out of the wedlock. The respondent harassed her for dowry, and she left the matrimonial home along with her son and started living at her parent’s home. One day her husband and mother-in-law came to her parent’s home and requested her to send the child with them only for ten days. However, the child had not been returned to her since. Moreover, she is not even allowed to talk to her son. According to the petitioner, Respondent 4 was a businessman, remained out of the house, there was no one to take care of the child.

The High Court was not inclined to grant prayer as prayed for by the petitioner. Petitioner’s counsel was asked how the custody of the child with his father could said to be unlawful. The Court held that the child was in custody of his father who was a natural guardian (as was his mother). Further, the petitioner was not able to show that the child was under illegal detention or in illegal custody. Under such circumstances, the Court held that the prayer of the petitioner could not be granted, accordingly, the petition was dismissed. [Akansha Budhiraja v. State of Uttarakhand,2018 SCC OnLine Utt 598, dated 25-06-2018]

Hot Off The PressNews

Supreme Court: In the case where Kerala High Court annulled the marriage of a Hindu Girl to a Muslim Boy after her conversion to Islam calling it a case of Love Jihad, the bench headed by Dipak Misra, CJ questioned the Kerala High Court order and asked how can a High Court, in exercise of Article 226 of the Constitution, annul the marriage of a 24 year old girl and force her to live with her father. CJI said:

“Either we will appoint loco parentis or we will send her somewhere safe. Father can’t insist on her custody.”

Earlier, on 16.08.2017, the bench of the then Chief Justice of India, Justice JS Khehar and Dr. DY Chandrachud, J had ordered a probe by the National Investigation Agency (NIA) after the NIA had told the Court that there is a possibility of this being a case of Love Jihad as many cases have come up where the Muslim boys have converted Hindu girls and have married them. The Court had directed NIA to look into the matter in order to facilitate the Court in determining the extent of the ramifications of the issue and said that it will take a decision only after considering all the aspects i.e. NIA report, Kerala Police report and the views of the girl.

Appearing for Shafin Jahan, whose marriage with Hadiya was annulled by the Kerala High Court, Senior Advocate Dushyant Dave argued that the order directing NIA Probe struck at the very foundation of this multi-religious society and was sending terrible signals across the world.  Rejecting his contention that the Court could not have travelled beyond the prayers made in the petition and ordered an NIA investigation, the Court held that it had the power to do so depending on the facts of each case. The Court will, however, observed that Hadiya’s father could not claim custody to her as she was an adult.

The issue reached the Supreme court after Kerala-native Shafin Jahan challenged the annulment of his marriage by the Kerala High Court which ordered the State police to probe such cases. It was alleged that the girl, a Hindu, who had converted to Islam and later married Jahan, was recruited by Islamic State’s mission in Syria and Jahan was only a stooge.

The Court will now hear the matter on 09.10.2017.

Source: Indian Express