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] 

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]

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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