custody

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 BriefsForeign Courts

Supreme Court of the United Kingdom: A Full Bench of Lord Wilson, Lord Hodge, Lady Black, Lord Kitchin and Lord Sales upheld the appeal of the mother to retain her child in London and set aside the Court of Appeal’s order.

The mother and father were Israeli nationals who moved to London after marriage, with their daughter. Their marriage broke down shortly after the said moving. The father intended to go back to Israel and he insisted that the mother along with the child should also return there. However, the mother proposed to stay back in London.

The father applied for a summary order for the return of his young daughter from England to Israel under the Hague Convention on the Civil Aspects of International Child Abduction, 1980, set out in Schedule I to the Child Abduction and Custody Act, 1985. After the High Court and the Court of Appeal both ruled against the mother, she appealed in the Supreme Court.

The issue was whether the Court of Appeal was entitled to make the summary order for the child’s return to Israel under the inherent jurisdiction and if so, whether it had exercised the said jurisdiction correctly. The Court accepted the mother’s argument that the welfare of the child is the paramount consideration in the making of such an order. The mother contested the order on several grounds claiming that the father had given a relevant consent to the retention of the child in London and there was a grave risk that a return to Israel would expose the child to physical or psychological harm, pursuant to articles 13(a) and 13(b) of the Convention respectively.

The Court found the exercise of the inherent jurisdiction by the Court of Appeal flawed. The Court of Appeal did not conduct an inquiry into whether the welfare of the child required her to be the subject of a summary order for the return to Israel.

In view of the above, the Court set aside the Court of Appeal’s order and allowed the mother to retain her child in England for the child’s welfare.[NY (A Child), In Re.; [2019] 3 WLR 962; decided on 30-10-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. quashed the detention order of Masood Ahmad Bhat while directing for his release from the preventive custody.

Denetu, Masood Ahmad Bhat, sought quashing of detention order dated 22-01-2019.

The grounds of which the detention order was challenged were as follows:

  • No compelling reason or circumstance was disclosed in the order; more so on the date of the passing of the order of detention, the detenu was already in custody.
  • Material forming detenu’s order of detention not provided in order to make representation
  • Detaining authority did not prepare grounds of detention itself; which is a pre-requisite before passing any order.

On receiving the notice passed to the respondents they submitted that the order was in consonance to fact and law and they further sought the dismissal of Habeas Corpus Petition.

Counsel for the petition submitted that in light of the above-stated grounds and the fact that the detenu was already in custody leaves no possibility of detenu being implicated in the activities prejudicial to the security, sovereignty and integrity of the State. Detention Order has been passed in absence of any material and the same is therefore bad in law. He also referred to the Supreme Court case, T.V. Sravanan v. State, (2006) 2 SCC 664.

Observations of the Court

Bench stated that the only precious and valuable right guaranteed to a detenu is of making an effective representation and the same can be done only when the relevant material and grounds of the detention are made available to the detenu.

Since the material is not supplied, right of the detenu to file such representation is impinged upon. Bench relied on the following cases for the said point, Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, Khudiram Das v. State of W.B., (1975) 2 SCC 81 & Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531.

Court examined the present case on the touchstone of the above-settled position of law and perusal for the record, the detenu was not supplied the materials relied upon by the detaining authority. Therefore, the detention of the detenu is vitiated.

Court also added that detenu was involved in the substantive offence and did not apply for bail for the same, thus he can remain in custody for that unless released on bail.[Masood Ahmad Bhat v. State of J&K, 2019 SCC OnLine J&K 791, decided on 25-09-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of G.S. Sistani and Jyoti Singh, JJ. allowed an appeal filed by the appellant-wife against the order of the Family Court whereby two applications filed by her against the respondent-husband were dismissed.

The appellant had filed two applications — one under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance for herself, and the other under Section 26 seeking custody of the two minor children. Both the applications were dismissed by the Family Court. The application under Section 24 was rejected on the sole ground that maintenance of Rs 2000 per month already stood fixed in proceedings arising under Protection of Women from Domestic Violence Act, 2005.

Susmita Mahal, Advocate representing the appellant challenged the order of the Family Court. Per contra, Trilok Chand, Advocate appearing for the respondent supported the same.

The High Court, on a conjoint reading of Sections 20, 26 and 36 of the Domestic Violence Act, was of the opinion: “the provisions of DV Act dealing with maintenance are supplementary in the provisions of other laws and therefore maintenance can be granted to the aggrieved person(s) under the DV Act which would also be in addition to any order of maintenance arising out of Section 125 of CrPC.” Furthermore, “On the converse, if any order is passed by the Family Court under Section 24 HMA, the same would not debar the Court in the proceedings arising out of DV Act or proceedings under Section 125 CrPC instituted by the wife/aggrieved person claiming maintenance.”

The Court also clarified: “However, it cannot be laid down as a proposition of law that once an order of maintenance has been passed by any Court then the same cannot be re-adjudicated upon by any other Court. The legislative mandate envisages grant of maintenance to the wife under various statutes such as HMA, Hindu Adoption and Maintenance Act, 1956, Section 125 CrPC as well as Section 20 of DV Act. As such various statutes have been enacted to provide for the maintenance to the wife and it is nowhere the intention of the legislature that once any order is passed in either of the proceedings the intention of the legislature that once any order is passed in either of the proceedings, the said order would debar re-adjudication of the issue of maintenance in any other Court.”

In such view of the matter, the impugned order rejecting maintenance to the appellant under Section 24 HMA was set aside. The second part where custody of children was rejected, was also quashed. The Family Court was directed to reconsider the applicants in terms with the law. The appeal was disposed of in terms above.[RD v. BD, 2019 SCC OnLine Del 9526, decided on 31-07-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumar Phukan, J. allowed a criminal petition filed against the order of the trial court whereby the petitioner-husband was directed to hand over the custody of the minor daughter to the respondent-wife.

The parties were married to each other and a daughter was born to them — presently around 3 years old. After the birth of the daughter, the respondent developed physical ailments for which she had to undergo treatment at various places. It was an admitted fact that presently the parties were residing separately and the respondent was staying at her paternal home. The daughter resided with the father. In January 2019, the respondent was admitted to a hospital and requested the petitioner to bring the daughter to see her. The petitioner did accordingly. However, on the very next day, the respondent went to the petitioner’s house to bring back the daughter with her. She also filed a petition under Section 97 (search for persons wrongfully confined) CrPC, stating that under Section 6 of the Hindu Minority Act, she was the natural guardian of the child and therefore she should be given her custody. The trial court ordered that the custody of the daughter be handed over to the respondent. The said order was affirmed by the Sessions Judge in revision. Aggrieved thus, the petitioner filed the present petition.

A.M. Bora, Advocate made submissions on behalf of the petitioner. While the respondent was represented by Dr B.U. Ahmed, Advocate.

In hIgh Court’s opinion, for invoking the special provision of Section 97, it was to be seen whether the child had been wrongfully confined by the petitioner. In addition to the above facts, it was noted that the child was wrongfully left by the respondent in the custody of the petitioner because of her ill health since 2017. In such circumstances, it could in no way be stated as confinement. It was observed: “… strangely, the learned court treated the matter as if dealing with the custody of the child and gave the custody of the child to the respondent/wife which is beyond the jurisdiction of Section 97 CrPC. The provision of custody of the child can be decided under Section 25 of the Guardian and Wards Act and the same cannot be adjudicated in the petition under Section 97 of the Code. The only question which is to be decided while passing any such order by a court that there was certain wrongful confinement of a person while initiating the proceeding. As has been discussed above, no matter of wrongful confinement has been made out as against the petitioner, who is the natural guardian/father of the child.”

In such view of the matter, it was held that the impugned orders were passed without jurisdiction and were therefore quashed.[Sanjeev Kumar Singh v. O. Mema Devi, 2019 SCC OnLine Gau 2874, decided on 16-07-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Abhay Chaturvedi, JJ. refused an application for temporary suspension of sentences but however directed the applicant-appellant to be released from custody for performing the last rites of his mother.

In the present case, the appellant-applicant and his brother both have been in custody and their father had expired earlier. The mother of the two individuals in custody expired and thus they being the only two major males in the family could perform their mother’s last rites.

The learned counsel representing the appellant-applicant, Dhirendra Singh filed an application for temporary suspension of sentences and had also annexed the certificate of the counsellor confirming the death of the mother of the appellant-applicant.

The High Court upon perusal of the facts and circumstances and the pieces of evidence placed, disposed of the application for temporary suspension of sentences. However, looking at the peculiarity of the circumstances, directed the appellant-applicant a day to perform the last rites of his mother and shall be taken back and lodged to the custody upon completion of the last rites. The Court also directed that the appellant-applicant shall also be accompanied with appropriate prison and police guard at all times.[Manjit Singh v. State Of Rajasthan, 2019 SCC OnLine Raj 1672, decided on 18-07-2019]

Case BriefsHigh Courts

Kerala High Court: B Sudheendra Kumar J., allowed a bail application and relieved the accused person from the custody. 

In the instant case, the accused persons were charged under Section 143 (Punishment for being member in unlawful assembly), Section 147 (Punishment for rioting), Section 148 (Rioting, armed with deadly weapon), Section 341 (Punishment for wrongful restraint), Section 120-B (Punishment for criminal conspiracy) for involving inflicting injuries on the injured person. One of the accused was involved in using a torch as a weapon to assault the injured. 

The High Court upon considering the facts and circumstances of the case stated that the incident was not pre-meditated. The court also considered the period of detention of the accused persons while granting the bail. The Court noted the fact that the other accused persons in the matter had already been granted bail and the remaining accused were in detention for an extended period of time. It granted bail on condition of executing bonds and also stated that the petitioners shall be observed if they involve themselves in a similar act during the pendency of the trial.[Karthik v. State of Kerala, 2019 SCC OnLine Ker 1990, decided on 26-06-2019]

Case BriefsForeign Courts

Malaysia Court of Appeal: A Full Bench of Mohtarudin Baki, Ahmadi Haji Asnawi, Abdul Rahman Sebli, JCA dismissed an appeal made against three incriminating offences and upheld the decision made by the High Court of Malaysia,

The appellant was interrogated by the Superintendent of Police. He and his team were directed by the appellant to a place behind a steel cupboard at the temple where the drug, the firearm and the ammunition were discovered. The information that the appellant gave under Section 27 of the Evidence Act 1950, was that he kept the three incriminating exhibits at the temple. However the appellant denied this testimony and pleaded that it was the police themselves who found all the above things, and they were not discovered as a result of information given by him. Section 27 of the Evidence Act 1950, provides that “When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.” High Court ruled that a prima facie case had been established against the appellant in respect of all the above three charges, because all the above things were found as a result of information given by the appellant. Aggrieved appellant filed the appeal before the Court in respect of conviction and sentence regarding all three charges.

Appellant denied the testimony of Superintendent of Police that he pointed towards the steel cupboard where the incriminating exhibits were found. He claimed that when the police conducted a search at the temple premises, he remained in the police car with a policeman and was brought to the temple premises only to be photographed beside the steel cupboard. He also claimed that High Court had not given a maximum evaluation to the prosecution’s evidence and his explanation and had made an error in ruling that his witnesses were not credible and had made a wrong finding on exhibits seized.

This Court pointed out that the High Court had carefully analyzed the prosecution’s evidence and had correctly applied the law to the facts and had provided careful analysis of the appellant’s explanation and the judge was mindful of his duty under Section 182 A(1) of the Criminal Procedure Code, 1935 and had sufficiently considered the defence put up by the appellant before finding him guilty of the offences charged. Court placed reliance on the decision of Supreme Court of India in Prakash Chand v. State, (1979) 3 SCC 90 where it was held that “where an accused person pointed out the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, the same would be admissible as conduct, under Section 8 of the Evidence Act 1872.”

The Court dismissed the appellant’s appeal and affirmed the decision of the High Court and held that there was no merit in the complaint and there was absolutely no basis to find that the High Court had not seen and heard the witnesses or explanations made by the appellant.[Prabhagaran A/L Kegobalu v. Public Prosecutor, 2019 SCC OnLine MYCA 2, decided on 11-06-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of K. Harilal and T.V Anil Kumar, JJ. dismissed an appeal made by the maternal grandparents of the child after taking into consideration, the welfare of the child.

This case is related to the custody of the child. In this case, appellant – maternal grandparents of the child – submitted before the Court that their daughter Sajna was married to the respondent and she was later found dead in her matrimonial house in a suspicious condition. They further claimed that the 2-year girl child of the appellant was always taken care of by them and the respondent- father never took care of the child as if he was not interested in the child. A petition was filed by the grandparents in the Family Court for a decree of perpetual prohibitory injunction restraining the respondent from taking forcible custody of the child. The Family Court dismissed the petition. Aggrieved thereby, this appeal had been filed by the grandparents.

Learned counsels for the appellant Jacob Sebastian and K.V Winston submitted that after the suspicious death of the appellant’s daughter, the child was taken care of by them and the respondent declined to take care of her. A case was also lodged against the respondent in the police station under Sections 498-A, 304-B, 302, 201 and 149 of the Penal Code, 1860. Further, the respondent was a drunkard and spendthrift who used to ill-treat their deceased daughter and demanded dowry. His cruel conduct towards his wife resulted in her death. Respondent remarried for his pleasure, forgetting that he had a child to look after. Thus, he was unfit to seek permanent custody of the child. They also alleged respondent to have sexually harassed the child.

Learned counsels for the respondent, G. Sreekumar averred that after the death of his wife, respondent alone had maintained the child and taken care of her affairs. Appellant or her family members never took care of the child. He was not responsible for the death of his wife and as a matter of fact, her death was due to heart failure. She was an epileptic patient even before marriage which had been suppressed. It was claimed that the respondent was a driver by occupation and able to meet the financial needs of the child.

The Court observed that whenever there is a rival claim for guardianship, the court’s power to appoint the most suitable person among the contestants could be exercised only upon taking into view those considerations which weigh in favour of the welfare of the child. The Court also observed that the allegations made by the appellant were false. Also, the respondent earned well whereas the appellants were old and had less financial means. Moreover, the allegation made regarding sexual harassment was false.  The Court thus dismissed the appeal and gave permanent custody of the child to the respondent-father. However, appellants were allowed to meet the child on the premises of the Family Court every Saturday from 10:30 AM to 4:00 PM.[Suhara v. Muhammad Jaleel, 2019 SCC OnLine Ker 1237, decided on 10-04-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Anand Pathak, J. directed release of the applicant on bail with sureties in the instant application filed under Section 439 of CrPC. 

V.K. Saxena, counsel for the applicant submitted that it was the second application on behalf of the applicant, where it was requested to release him on bail, as the applicant was in the custody since 3 months. The contention narrated by the counsel was, that an FIR was lodged against the applicant for offence under Sections 27, 29, 50 of the Wildlife (Protection) Act, 1972, the charges were for the entry in a restricted area of Sanctuary and causing destruction. It was further stated by the counsel that the applicant was only the driver of the vehicle which was seized by the police officers and neither the owner nor his accomplices were arrested for the said offences. It was pleaded by the petitioner that due to his detention in the judicial custody, his family was facing financial distress;  he further submitted that any other stringent conditions may be imposed over him but his confinement was not justified on the part of his family. 

Learned counsel for the respondent-State opposed the prayer and prayed for dismissal of the application because the offence had been committed against the motherland.

The Court considered the tender age of the applicant and observed that he had no criminal antecedents and granted bail to the applicant with conditions and sureties. [Vivek v. State of M.P., 2019 SCC OnLine MP 1069, decided on 30-04-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. set aside trial court’s order and remanded back the present application to decide afresh, taking into consideration the issue of whether the owner of a vehicle in police custody, can be asked only to deposit an amount or security as well, as a condition precedent to release of the seized vehicle.

The learned counsels for the petitioner, Anup Rattan, and Ritika Jassal, questioned the legality of the order passed by the lower court and put forth the law laid down by the Supreme Court in the case of Jai Prakash v. National Insurance Company Ltd., (2010) 2 SCC 607 wherein it was held that an owner of an uninsured vehicle in custody, shall be directed to offer a security or deposit the amount, adequate to satisfy the award, which will be eventually passed. They also put forth that the petitioner was running the vehicle as a taxi and hence he was not in a position to deposit the amount. The learned counsels for the respondents, Shiv Pal Manhans and Raju Ram Rahi, contended that the lower court order needed no interference as the vehicle was not insured.

The High Court took into consideration the facts that the vehicle was not insured and it had met with an accident hence it was seized. The Court relied on the judgment of Jai Prakash case and took note of the fact that the lower court erred in its order by only directing the petitioner to pay the deposit. The Court thereby remanded the application to the lower court for deciding the same afresh “taking into consideration the factum with regard to security and pass an appropriate order after taking into consideration the averment, whether furnishing of the security will meet the ends of justice, as prayed for, or not.” [Manish Kumar v. State of Himachal Pradesh, Cr. MMO No. 81 of 2019, decided on 07-05-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. partly allowed a revision petition against the order of the trial court passed under Section 125 CrPC holding that the trial court erred in equalising the effort of both parents in the upbringing of their child.

The petitioner and the respondent got divorced in 2007. The petitioner filed an application under Section 125 CrPC claiming maintenance for herself and the minor child born from the wedlock. The trial court did not grant any maintenance to the petitioner holding that she was employed with an MNC and could maintain herself. It, however, directed the respondent to pay a sum of Rs 10,000 per month towards the maintenance of the child. Aggrieved thereby, the petitioner filed for the revision of the trial court’s order.

The High Court agreed with the finding of the trial court as far as the petitioner was concerned. It held that the petitioner could maintain herself. However, in regard to the maintenance of the child, it was held that the trial court’s approach of holding both parents equally liable to pay towards the maintenance of the child was not right. It was observed: “It would be incorrect to hold that both the parents are equally responsible for the expenses of the child. A mother who has custody of a child not only spends money on the upbringing of the child but also spent substantial time and effort in bringing up the child… No doubt, mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be divided equally between the two.”

It was further held that the trial court should have awarded the maintenance from the date of filing of the application rather than the date of the order. Resultantly, the amount of maintenance to be paid by the respondent for maintenance of the child was increased to Rs 20,000 per month, payable from the date of filing of the application under Section 125 CrPC.[Lopamudra Bhuyan v. Surajit Singh, 2019 SCC OnLine Del 8267, dated 30-04-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: The Three-Judge Bench of Sisira J de Abrew, Vijith Malalgoda PC and P. Padman Surasena, JJ. dismissed an appeal filed against the Judgment of Civil Appellate High Court granting custody of a minor child to her natural parents.

Respondents herein (natural parents of a minor girl Ahingsa Sathsarani Epa) had filed an action in the District Court against appellants praying for a declaration that they are entitled to the legal and physical custody of their daughter. Their plea was dismissed by the learned District Judge, aggrieved whereby they appealed to the Civil Appellate High Court which set aside the impugned order and granted custody of the child to respondents. Hence, the present appeal.

The primary question before the Court was as to whether the welfare of the child would be affected if her custody was given to the respondents, who were her natural parents. It was noted that the child was handed over to appellants by her natural mother, when she was 5 months old as she had a strained relationship with her husband. However, when the appellants sought to adopt the minor when she was around 1 year old, the same was objected to by respondents.

The Court noted that Probation Officer, after conducting a field investigation, had suggested that though the child was not used to the atmosphere of natural parents, they had the capacity and willingness to look after the child. Reliance was placed upon the judgment in Precla W Fernnado v. Dudley W Fernnado, 70 NLR 534 where it was held that “in all questions of custody of children the interests of the children stand paramount. Questions of matrimonial guilt or innocence of a parent would not, therefore, be the sole determining factors in questions of custody”.

It was held that mere delivery of a child by its natural parent to a third party does not invest the transaction with legal consequences; if the parent has right to hand over custody of a child then that parent would also have the undoubted right to resume custody to himself.

In view of the above, the impugned order was affirmed.[Janaka Pushpakumara Kalansooriya v. Jagath Priyantha Epa, 2019 SCC OnLine SL SC 3, decided on 03-04- 2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Division Bench of Qazi Faez Isa and Mazhar Alam Khan Miankhel, JJ. dismissed a petition challenging assailing the judgment of Peshawar High Court vide which custody of a minor girl was handed over to her mother.

Petitioner herein, father of the minor, submitted that the child did not even recognize her mother and was not ready to go with her. He also relied on the decision of a jirga, which had decided that the custody of child should remain with the petitioner-father.

The Court noted that the petitioner worked as a labourer in Dubai and her stepmother and a divorcee sister of the petitioner looked after the child. The petitioner also had three children from his second wife. However, the respondent had not married again after divorce from the petitioner.

At the outset, the Court opined that a jirga has no legal authority to decide custody of children, and in doing so, it violated the law and Islamic injunctions. A mother cannot be compelled to part with her child by a jirga. Mother cannot be called upon to barter the right to her child’s custody to secure a divorce, nor can a child be used to settle personal scores.

The Court placed reliance on Razia Bibi v. Riaz Ahmad, 2004 SCMR 821 and opined that poverty on the part of a lady is no ground to disentitle her from the custody of minor. It was held that welfare of the minor is of paramount consideration in determining custody, and principles of hizanat must be adhered to unless there are valid reasons not to do so. The dictum in Rubia Jilani v. Zahoor Akhtar Raja, 1999 SCMR 1834 was relied on in this regard.

In view of the above, the petitioner was directed to, immediately and peacefully, handover the minor girl to her mother.[Bat Khan v. Sherin Bibi, Civil Petition No. 809-P of 2018, Order dated 08-02-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Mohammad Rafiq and Goverdhan Bardhar, JJ. dismissed a habeas corpus Petition filed by the petitioner-husband praying for a direction to the respondent- wife to produce before the court the minor child who was a permanent resident of Canada and a citizen of US and cause his return along with the respondent-wife to the jurisdiction of the Court of Canada in compliance of the orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario.

The facts of the case are that the petitioner-husband had alleged that the respondent-wife had wrongly removed their son from his custody. The wife had moved from Ontario, Canada, the place where the three of them were residing at that time, to New York. She then shifted to New Jersey and finally to India along with the son, who was 4 years old at that time. The petitioner challenged this and sought for his custody and his documents like passport, etc. A habeas corpus petition was filed by the husband petitioner, demanding that the wife be directed to produce before the court their son, who was a permanent resident of Canada and was a US citizen, in compliance with orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario. The Canadian Court had also directed various law enforcement agencies including INTERPOL to enforce the custody order. A warrant was also issued against the wife, with imposition of cost of $30,000 upon her.

The High Court, upholding the previously settled law observed that the law has sufficiently developed to rule that despite a pre-existing order for return of a child by a foreign court, the High Court may decline relief for such return. The Court further asserted that the issue should be considered bearing in mind the welfare of the child.

The High Court dismissed the petition of the father stating that the child’s return would not be in his best interests. It observed that if he was forced to go back to Canada in the sole care of his father, it is likely to psychologically disturb him, particularly when he will be required to now adapt to an education system of that country. This would adversely affect his overall growth and grooming as in the absence of his mother.

The Court while dismissing the petition held that  the Court in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. The removal of the child from Ajmer, after he has stayed there for a few years now, would not be in his best interests, especially in view of the fact that he is suffering from chronic asthma and amblyopia. It further opined that it cannot hold the wife guilty of contempt as she cannot be solely held responsible for violation of the settlement terms. The Court gave directions allowing the father to maintain contact with his son. Till the time the child attains majority he shall be kept in the custody of his mother in India. [Naveen Sharma v. State of Rajasthan, 2019 SCC OnLine Raj 63, Order dated 11-01-2019]

Case BriefsForeign Courts

Eswatini High Court: This matter was brought before a Bench of M. Langwenya, J. for judgment on sentence.

Facts of the case were such that accused was found guilty of murder with extenuating circumstances. The accused was found to have been drinking alcohol at the time when the deceased was stabbed. Pieces of evidence were present showing that the accused was provoked by deceased which reduced the moral blameworthiness due to its effect on the state of mind of accused.

Accused defended by submitting mitigating factors such as his young age, his remorsefulness towards the crime, that he is a first-time offender and that he had already been in the custody for five years, five months and two days. Court referred the case of Samkeliso Madati Tsela v. Rex, (2010) [2011] SZSC 13 in order to decide on the sentence of accused which is an authority setting out the appropriate range of sentences in cases of murder in the country.

High Court was of the view that murder was a serious offence but considering the personal circumstances of the accused and his young age, Court was inclined to sentence him to twelve years of imprisonment, where the time period already spent in custody would be adjusted. [Rex v. Lwazi Tshepo Kubheka, Case No. 43 of 2016, decided on 15-11-2018]

Case BriefsHigh Courts

Madras High Court: A Single Judge Bench comprising of N. Seshasayee, J., allowed an appeal on the ground that the respondent gave up his interest in the Order that he had obtained in his favour. 

The facts of this case are that respondent is the biological father of the child and the appellant is the maternal grand father of the child. Seeking custody of the minor child, the respondent filed a petition before the Additional District Court, and the same was ordered in his favour. Challenging the order of the lower Court, the appellant preferred the present appeal.

The counsel for petitioner, Advocate R.Shivakumar, argued that the respondent had gotten married and settled down and did not turn up to see his daughter. It was also reported that the child was 17 years and she does not remember to have seen her father.

The counsel for the respondent, Advocate N.U. Prasanna submitted that the respondent had no interest to take immediate custody of the child since the child was only few months to attain majority and that she had not been in his care through out the duration of this litigation.

This Court allowed the appeal on the ground that the respondent gave up his interest in the order that he had obtained in his favour. [R. Venkatesan v. J. Gunasekaran, 2017 SCC OnLine Mad 35492, Decided on 10-11-2017]

Case BriefsHigh Courts

Gujarat High Court: A Single Judge Bench of R.P. Dholaria, J., allowed a petition filed against the order of the lower courts, whereby petitioner’s application for granting custody of his vehicle which was involved in an offence under the provision of Gujarat Prohibition Act, 1949, was dismissed.

The main issue that arose before the Court was whether the lower courts were justified in rejecting the application of petitioner for the release of his vehicle, pending investigation.

The Court observed that the lower courts have not handed over the interim custody of the vehicle to petitioner in view of Section 98 of the Gujarat Prohibition Act, 1949, which provides embargo for handing over the custody of the vehicle used in the offence pending the trial. The respondent’s contention with regard to the lower courts and revisional courts having no jurisdiction to hand over custody of the vehicle used in the offence as per the provisions of Section 451 of the Code of Criminal Procedure 1973, was rejected by the Court.

The Court held that this instant case was covered by the judgment delivered in Hardikbhai Mukeshbhai Chauhan v. State of Gujarat, Special Criminal Application No. 7642 of 2018 and subsequently allowed the petition filed by the petitioner. The Court directed the lower court to immediately release the vehicle owned by the petitioner after due verification and following the procedure of recording such evidence as it thinks necessary as provided under Section 451 of the Code of Criminal Procedure 1973. [Rangrej Shokatbhai Noormohammed v. State of Gujarat, R/Special Criminal Application No. 9528 of 2018, Order dated 30-10-2018]

Case BriefsHigh Courts

Punjab & Haryana High Court: A Single Judge Bench of Amol Rattan Singh, J., dismissed a petition filed against the order of the lower court whereby the application of the petitioner under Order VII, Rule 11 of CPC was dismissed.

The main issue that arose before the Court was whether the lower court had the territorial jurisdiction to hear the petition under Section 25 of the Guardian and Wards Act, 1990 read with Section 10 of the Hindu Minority and Guardianship Act, 1956 and Section 26 of the Hindu Marriage Act, 1955.

The Court observed that the application in respect of the guardianship of the minor is to be made to the District Court having jurisdiction in the place where minor ordinarily resides. The Court referred to the case of Sunita Jain v. Mittar Sain Jain, 2002 SCC OnLine P&H 869, wherein it was held that the place of residence of a minor child below 5 years of age would be the place of residence of the mother. The custody of a child below 5 years of age (especially a female child), would naturally lie with the mother, and therefore the deemed custody would be with the mother even if actual custody was with the father.

The Court held that in the instant case the age of the child was 11 months and hence applying the rule laid down in Sunita Jain’s case, the natural custody of such child would lie with the mother. Hence, the petition for the guardianship of the child was rightly instituted before the District Court of Khadur Sahib. Resultantly, the petition of the petitioner was dismissed and the order of lower court was upheld. [Tejbir Singh v. Baljit Kaur, 2018 SCC OnLine P&H 1682, order dated 02-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ. dismissed an appeal seeking review of the family court order directing the custody of girl child to be given to her mother.

The family court had granted custody of the girl child, aged 4 years, to her mother. The appellant-father filed the instant appeal under Section 19 of the Family Courts Act. He submitted that the respondent was mentally sick and behaved abnormally. Her violent behavior may have an adverse impact on well-being of the child. On the other hand, the respondent alleged that the appellant was a drunkard. She was often beaten by him and thrown out of the matrimonial home.

The High Court, on a careful reading of the order impugned, noted that the family court had carefully analysed the submissions made and passed the order. The respondent was a commerce graduate with additional qualification in Computer Applications. She was working as a Senior Manager with a private firm on a monthly salary of Rs 25,000. The High Court perused Section 6 of the Hindu Minority and Guardianship Act, 1956 which provides that custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Referring to decisions of the Supreme Court in Gayatri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 and Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 the High Court reiterated that while dealing with the application of custody of a minor child, the interest and welfare of the minor should be of paramount importance. Conducive and appropriate environment along with the desirability of the child are some of the relevant factors that have to be kept in mind. In the instant case, the child was 4-years old. It was also an established fact that she was comfortable around the respondent. Additionally, the respondent-mother was in a better position to look after her as she would require special attention and guidance in her childhood for her psychological and biological needs. Accordingly, no infirmity was found in the order impugned and the appeal was dismissed. [Tarun Pullani v. Shilpa Pullani,2018 SCC OnLine Del 11520, decided on 27-08-2018]