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“To turn a child against a parent is to turn a child against himself; Parental alienation is inhuman, and it is a menace to a child”, says Madras High Court

Madras High Court: In an application seeking the appointment of the applicant as a fit and proper person to be guardian of the minor children and for grant of sole and permanent custody of the minor children, Krishnan Ramasamy, J. has directed the father/respondent to hand over interim custody of the children to the mother/applicant, till the disposal of the main original petition.

In this case, the applicant and respondent got married in the year 2009 and have 2 children. Thereafter, matrimonial disputes arose between the parties, and the wife was subjected to harassment and was thrown out of the matrimonial home in 2021 by the respondent, while he retained the custody of the children. Thereafter, the applicant filed various petitions and applications, seeking dissolution of marriage, custody of minor children and visitation rights etc.

The Court noted that this Court by various orders has granted the visitation rights to the applicant to ensure that the well-being of the children be unaffected by the estranged and strained relationship of the parents, however, the respondent has failed to comply with the said orders. Further, the respondent has even indulged in parental alienation and tutored the children to act and behave contrary to the wishes of the applicant and according to the respondent. He has even updated the children about the Court proceedings, which prompted the elder son to act against the mother and to resist to stay with her, and to demand from her to withdraw the case filed against his father.

The Court observed that without parental alienation, this could not be possible for a tender aged child to insist and demand his mother to withdraw the case and impose the condition that unless she withdraws the case, he would not come to his mother.

The Court further observed that the respondent is throwing the blame on the children stating that the children themselves are not interested in going and staying with the mother and that he cannot force them, and it is beyond his hands; also, in the Court orders there is no specific role mentioned directing the respondent to act in the matter of convincing and handing over the children to the applicant. This clearly proves the aspect of parental alienation on the part of the respondent. Further, his inability to advise and persuade the children, further evidents his inability and incapability to maintain and keep the custody of the children anymore.

Moreover, the Court viewed that “to turn a child against a parent is to turn a child against himself. Parental alienation is inhuman, and it is a menace to a child, who directly needs two hands to hold, both the mother and father till he/she walks throughout the life or at least till he/she attains majority” Further, it was observed that hatred is not an emotion that comes naturally to a child against his/her mother/father unless it is taught by the person whom the child believes. A parent indulging in parental alienation means he/she is polluting the tender mind of the innocent child by portraying the mother/father as a villain, which would have a considerable impact on him/her throughout his/her life.

The Court observed that “the welfare of the child is of paramount consideration but being with the parent who is not ready to teach and persuade his children to love their own mother, cannot be accepted. Further, it is not fair on the part of the respondent in not accommodating the children to spend time with their mother despite the Court orders.

Moreover, the Court observed that “children have a fundamental right and need for an unearthened and loving relationship with their parents and denying the said right would amount to child abuse” and the respondent, without justification, has been indulging in such child abuse. It was observed that when there is healthy co-parenting, the children will lead a happier childhood instead of becoming an emotionally broken adult who will in turn become non-understanding and unsympathetic citizens.

The Court further viewed that the welfare of a child is not to be measured only by money and physical comfort, as it includes material welfare; however, they are secondary matters, the primary considerations of matters are the stability and the security, the loving and understanding, care and guidance, warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.

Further, the Court observed that it appears prima facie that the respondent poisons the minors’ minds against the mother and acted against the welfare of the minors and for the healthy growth of the children, their custody was discontinued with the respondent as there is very high probability that if the children continue to stay with him, they will be influenced to such an extent that they will never want to return to their mother, it will cause mental and physical disorders including psychological pain, anger and depression, which would certainly cause harm to the welfare of the child.

The Court also observed that it is incumbent upon a parent, having the custody of the children, to encourage co-parenting despite having personal hatred towards the spouse and allow the children to move freely with their parent, as the quality of the relationship between the co-parents have a strong influence on the mental and emotional well-being of the children.

Moreover, the Court observed that “the concept of marriage is not for mere satisfying carnal pleasure, but it is mainly for the purpose of Pro generation, which leads to the extension of the families of the two individuals, who have been united over a sacred oath, taken by both”. Further, it was observed that the law can satisfy the ego, but it can never satisfy the requirements of the child, as the framers of the law were only conscious of the welfare of the child and not on the mental turmoil that would be faced by a child in such a calamitous situation.

The Court further viewed that in matters relating to custody of children, primarily, the Court will consider the welfare of the children and decide which parent is suitable to look after the child in a better manner by providing them all necessary facilities and comforts, however, what the Court cannot evaluate is, whether the child feels happy only with one parent, ultimately, the child is the silent sufferer, having lost the love and affection of another parent. Thus, taking into consideration the welfare of the child, the Court granted interim custody to the mother/ applicant.

[X v. X, Application No. 2011 of 2021, decided on 16.09.2022]

Case Briefs High Courts

We Dissent!: Here’s why 2 out of 5 judges ruled against Madras High Court’s original jurisdiction in child custody cases

Madras High Court: The five-judge bench of P.N. Prakash, N. Anand Venkatesh, R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ. in a 3:2 majority decision, held that jurisdiction of the High Court on its original side over matters of child custody and guardianship is not ousted in view of the provisions of the Family Courts Act, 1984 (FCA)and the decision in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 continues to be a good law; while P.N. Prakash and N. Anand Venkatesh, JJ. disagreed with the majority opinion, and observed that the statutory jurisdiction under the Guardians and Wards Act, (GAWA)1890 is now exclusively vested with the Family Court and resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any court for redress.

The dissenting judges noted that the full bench in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 has not adverted to the actual conflict that was between Pamela Williams v Patrick Cyril Martin, 1969 SCC OnLine Mad 264 and Rajah of Vizianagaram v The Secretary of State for India (1936) 44 L.W. 904, and has not examined the provisions of the GAWA, nor have examined the object and purpose behind the Family Courts Act, 1984 (FC Act) or the scope and effect of Sections 7 and 8 of the FC Act. Further, there was absolutely no discussion about Clause 17 of the Letters Patent at all and the full bench has confined itself to the issue as to whether the High Court was a District Court under the FC Act, 1984, vis-à-vis, the definition of ‘District court’ contained in Section 2(4) of the Code of Civil procedure,1908 (CPC), further, it also overlooked the fact that resorting to Section 2(e) of the FC Act to telescope the definition of “District” into the Family Courts Act, 1984 was unnecessary, thus, the Court viewed that the decision in Mary Thomas requires reconsideration.

The Court noted that, one of the primary issues to be considered in this case is that whether the jurisdiction of the High Court under Clause 17 of the Letters Patent could be taken away by the FC Act, 1984, in respect of matters concerning guardianship, custody or access to a minor, and viewed that this line of argument is over-simplistic and it overlooks a vital distinction between two very different types of jurisdictions, viz., the statutory jurisdiction exercised by the High Court under the GAWA , and the jurisdiction of the High Court under Clause 17 of the Letters Patent.

Placing reliance on a decision in Navivahoo v. Turner, 1889 SCC OnLine PC 10 , the Court viewed that it has no application to a case concerning the exercise of inherent parens patriae jurisdiction by the High Court as according to the history of Clause 17, the jurisdiction of this Court as a parens patriae in respect of infants, mentally retarded persons in the State of Tamil Nadu is a facet of its inherent jurisdiction, inherited from the erstwhile Supreme Court of Madras. Further, it is evident from Section 9 of the GAWA, which states that a petition for appointment of a guardian for the person or property of minor shall be made to a “District Court” having jurisdiction in the place where the minor ordinarily resides. Moreover, Section 4(4) of GAWA, expressly defines the District Court as the meaning assigned to that expression in the Code of Civil Procedure,1882, and includes a High Court in the exercise of its ordinary original civil jurisdiction. Thus, as per Section 4(4), it is clear that a High Court, while exercising jurisdiction in respect of a petition under the GAWA would be a District Court within the meaning of the Act, exercising its ordinary original civil jurisdiction for the City of Madras, and not under its inherent jurisdiction under Clause 17 of the Letters Patent.

The Court took note of the ruling in S.D. Joshi v High Court of Bombay (2011) 1 SCC 252 wherein the Court held that “the Family Courts are to exercise special jurisdiction which is limited to the subject-matters spelt out under Sections 7(1)(a) and (b) of the FC Act, and is vested with all jurisdiction exercisable by any District Court or any subordinate civil court under the law”, and viewed that legislative intent envisaged the Family Court as a Court of exclusive jurisdiction in respect of certain matters concerning the family, including guardianship and custody of children It is like a Special Court constituted to hear certain types of cases following a specially devised procedure and whose orders are made subject to appeal under a special provision with a special period of limitation.

The Court noted that another primary question is whether the High Court is a “District Court” for the purpose of Sections 7 and 8 & 2(e) of the FC Act, 1984, read with Section 2(4) of the CPC, and further viewed that Section 7(1) of the FC Act, 1984, invests the Family Court with all the jurisdiction over a suit or proceeding in relation to the guardianship of the person, or the custody of, or access to, any minor which jurisdiction was being exercised by a District Court under any law for the time being in force. Thus, the guardianship and custody jurisdiction statutorily vested with the High Court under the GAWA, in its capacity as a District Court, can now be exercised only by the Family Court by virtue of Section 7 of the FC Act, 1984

The Court further observed that the High Court cannot exercise its statutory or inherent jurisdiction concurrently with the Family Court while deciding matters of custody and guardianship under the GAWA, as Section 7(1) read with Explanation (g) and Section 8(a) of the FC Act, 1984, leads to this inescapable conclusion that the jurisdiction exercised by any District Court in respect of matters of custody or guardianship under the GAWA , will be exercised by the Family Court and that no District Court shall exercise such jurisdiction. Further, Explanation (g) to Section 7(1) of the FC Act, 1984, must be construed liberally to further the object of the legislation, that it would take within its fold, application for appointment of a guardian for the person and property of the minor as well.

Moreover, the inherent jurisdiction of the Madras High Court under Clause 17 of the Letters Patent, 1865, is not affected by the FC Act, 1984. However, resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any Court.

[S. Annapoorni v. K.Vijay, 2022 SCC OnLine Mad 4367, decided on 02.09.2022

Appearances

For Petitioner: Advocate B. Poongkhulali

For Respondent : Advocate A.R. Palanisaamy

Also Read:

Madras High Court’s 3:2 verdict upholds its original jurisdiction in child custody cases; holds Mary Thomas to be a good law

Case Briefs High Courts

Madras High Court’s 3:2 verdict upholds its original jurisdiction in child custody cases; holds Mary Thomas to be a good law

Madras High Court: In a case relating to the issue of concurrent jurisdiction of the High Court over matters of child custody and guardianship with the family Courts, the five-judge bench of P.N. Prakash, N. Anand Venkatesh, R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ. in a 3:2 majority decision, held that jurisdiction of the High Court on its original side over matters of child custody and guardianship is not ousted in view of the provisions of Explanation (g) to Section 7(1) read with Sections 8 and 20 of the Family Courts Act, 1984 (FCA)and the decision in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 continues to be a good law.

P.N. Prakash and N. Anand Venkatesh, JJ disagreed with the majority opinion of R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ and observed that the statutory jurisdiction under the Guardians and Wards Act, 1890 is now exclusively vested with the Family Court and resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any court for redress.

The Court observed that the jurisdiction vested upon this Court under Clause 17 of Letters Patent of 1865 would broadly fall within the Civil Jurisdiction, however, what has been vested is an inherent jurisdiction of the superior Court in the nature of ‘parens patriae’ (parent of the nation) jurisdiction to safeguard the interests of such category of persons, such as, infants, lunatics and idiots, who are incapable or not in a position to take care of themselves or to safeguard their own interests.

The Court further observed that, to view an inherent jurisdiction such as the ‘parens patriae’ jurisdiction as a residuary jurisdiction or a purely supervisory jurisdiction would be to discourage against the very nature of such jurisdiction. Further, while the power and jurisdiction available to this Court under Clause 17 are not only much broader and larger in its scope and extent, but also would encompass every situation that warrants the interference of the High Court as a superior Constitutional Court in order to safeguard the interests of infants; and the jurisdiction vested in the Family Court by statute on guardianship is only one facet of the jurisdiction which inheres in a superior Constitutional Court, like the High Court. Thus, the fields occupied by the High Court and the Family Court cannot be said to be one and the same in the matters of guardianship and custody and while the jurisdiction of the High Court is much larger, there may be very few areas of overlapping jurisdiction between them.

Placing reliance on the ruling in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 , wherein the the Court held that “Letters Patent jurisdiction has to be expressly excluded and in the absence of an express repeal, the Letters Patent may be impliedly taken away only where the special enactment is a self-contained code”, the Court viewed that the FCA,1984 is only a procedural legislation and not a self-contained code because the substantive laws continue to be the statutory provisions or the personal laws relating to marriage, maintenance etc. As such, in the absence of any express repeal, the Letters Patent cannot be taken away by a legislation.

Moreover, Article 225 of the Constitution of India expressly preserves the jurisdiction of the existing High Courts, the jurisdiction of the High Court under Clause 17 is thus constitutionally preserved and in the absence of a self-contained code that deals with guardianship, the powers of the High Court cannot be ousted. Further, in view of Article 372, Clause 17 will continue to be in force until repealed or amended by a competent legislature or by an appropriate self-contained code. Thus, it is now well established that the High Court as a superior Constitutional Court can deal with matters of guardianship and custody even in its exercise of writ jurisdiction.

The Court referred to the ruling in Benedict Denis Kinny v. Tulip Brian Miranda, 2019 SCC OnLine Bom 13043, and observed that the power of the Constitutional Courts in exercise of their inherent jurisdiction are inviolable as they cannot be taken away by legislation or even by a constitutional amendment if that would hamper the basic structure of the Constitution. Thus, to say that such a broad power of a constitutional court which can be taken away only by way of a constitutional amendment and not by a statute but can be limited by statute to be used only as a residuary power, is a contradiction of sorts.

Hence, the Court observed that “since the parens patriae jurisdiction of the High Court is an inherent power stated expressly in the Letters Patent and saved by Articles 225 and 372 of the Constitution, they continue to be part of the inherent powers of the superior constitutional courts and no statute much less a procedural Legislation, can place fetters on such a power”.

Further, the Court while interpreting Section 7 (1) read with Explanation (g) of the FMA, 1984 observed that the power to appoint a guardian for the property of the minor also along with the person of a minor would not be legally permissible.

It was also observed that the Parliament in its wisdom, has used the term ‘High Court’ not in one but in eight different provisions of FCA, thus, it has consciously chosen to not to use this term in Sections 7 and 8 of FCA, hence, the Court cannot read anything into a statutory provision which is plain and unambiguous .Further, reading the FCA as a whole starting from 59th Report of the Law Commission to statement of objects and reasons and provisions, it is clear that the Parliament never intended to deprive High Court of its powers in guardianship of the person or the custody of or access to any minor matters and its intention was only to create Special Courts and move these matters out of the realm of regular District Courts.

Moreover, the Court observed that the High Court does not need an appendix of either the Guardians and Wards Act,1890(GAWA) or any other statute in order to exercise its jurisdiction under Clause 17 of the Letters Patent, and if the petition has stated the provisions under the GAWA and invoked the jurisdiction of the High Court under Clause 17 it will not make the High Court a District Court for the purposes of its exercise of jurisdiction under Clause 17 of the Letter Patent,thus, the exercise of the ordinary original jurisdiction of the High Court within the meaning of Section 4(4) of the GWA when invoked along with the meaning of Clause 17 of the Letters Patent, cannot be said to be ousted by the FCA,1984.

The Court further viewed that Section 4(4) of GAWA talks about the 1882 CPC. Therefore, the definition of ‘District Court’ under GAWA is hardly a guide to conclude the reference on hand. It further noticed that under GAWA, the term ‘the Court’ has also been explained vide section 4(5) and that inter-alia talks about District Court having jurisdiction to entertain an application under GAWA for appointment of guardian. Thus, a conjoint reading of sections 4(4), 4(5) and section 3 of GAWA makes it clear that the power of the High Court is intact.

Moreover, Section 100-A of Code of Civil Procedure ,1908 (CPC) makes it clear that the Letters Patent of any High Court cannot be swept away by section 2(4) CPC and if anything contained in the Letters Patent has to be excluded it has to be done expressly.

The Court denied any reconsideration of the decision in Mary Thomas Vs. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 as the full bench in this case has appropriately dealt with the issue and the only fact that the said decision did not advert to, discuss or analyse the conflict between the decisions in Pamela Williams v Patrick Cyril Martin, 1969 SCC OnLine Mad 264 and in the Rajah of Vizianagaram v The Secretary of State for India (1936) 44 L.W. 904 alone, cannot be a reason to hold that this decision requires reconsideration as there was no apparent conflict between these two judgements. Further, these judgements have been rendered by two Division Benches at different points in time where the legal circumstances surrounding them were very different.

Further, the Court noted that the reconsideration of Mary Thomas has been sought on two grounds that the full bench did not consider Raja Soap Factory v. S.P. Shantharaj, (1965) 2 SCR 800,and Section 20 of FCA has overriding effect, and viewed that the Mysore High Court did not have original jurisdiction on the date of presentation of plaint in Raja Soap Factory. Moreover, Section 20 of FCA has no application as clause 17 of Letters Patent confers substantive power while section 20 is a procedural provision and there is nothing inconsistent.

[S. Annapoorni v. K.Vijay, 2022 SCC OnLine Mad 4367, decided on 02.09.2022]

Advocates who appeared in this case :

B. Poongkhulali, Advocate, for the Petitioner;

A.R. Palanisaamy, Advocate, for the Respondent.

Case Briefs High Courts

Karnataka High Court | Consent of father not a prerequisite for grant of passport of minor child in exclusive custody of mother; Visitation rights not affected

Karnataka High Court: In a case filed by the petitioner-mother (‘petitioner 2') seeking acceptance on her pending passport application for her minor ward (‘petitioner 1') without any compulsion on her to mention the name of the father of the ward or his presence or signature in any form, Krishna S Dixit J., allowed the petition and directed the Regional Passport Officer to consider the subject application for passport without insisting upon the presence or consent of the father of the ward i.e., ex-spouse of petitioner as mere grant of passport does not, in anyway, threaten the rights of the respondent.

The present petition was filed in respect of a minor ward by the mother, who has been accorded exclusive custody of the ward by the Family Court. Counsel for petitioner submitted that once exclusive custody is granted by the Family Court, Regional Passport Officer is not justified in insisting upon the presence of father of the ward or for his consent and therefore, the passport must be granted sans such an insistence.

The Court noted that the Family Court has granted a Divorce Decree in the subject matrimonial cause whereby limited visitation rights have been accorded to the ex-husband of petitioner 2 i.e., father of the ward. Thus, on the apprehension of the respondent that absolute curtailment would occur, in case of visa-less travel, the Court noted that mere grant of passport would not per se result in curtailment of visitation rights as such.

Placing reliance on Master Kishan v. Union of India, in WP No. 32531 of 2017, decided on 15-02-2017, the Court directed Regional Passport Officer to consider the subject application for Passport sans insisting upon the presence or consent of the father of the ward i.e., ex-spouse of the petitioner 2.

The Court also clarified that petitioner 2 shall not travel without getting permission of Family Court.

[Divena Nayudu v. Government of India, WP No. 14716 of 2022, decided on 24-08-2022]

Advocates who appeared in this case :

Swamy MM, Advocate, for the Petitioner;

Sarojini Muthanna K, Advocate, for the Respondent.

*Arunima Bose, Editorial Assistant has put this brief together.

Case Briefs High Courts

Orissa HC decides on maintainability of writ of habeas corpus vis-à-vis custody of minor child

Orissa High Court: A Division Bench of SK Sahoo and M S Raman, JJ. disposed of the petition leaving the petitioner with liberty to seek appropriate remedy before appropriate forum in accordance with law.

The instant writ petition in the nature of Habeas Corpus was filed by the petitioner , who is the mother of a minor child, for the custody of the minor, which is currently with respondent 5, the father of the minor child.

Reliance was placed on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, wherein it was observed

“14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ Court has jurisdiction.

19. Habeas corpus proceedings do not justify or examine the legality of custody. Habeas corpus proceedings are a medium through which the custody of the child is addressed to the discretion of the Court.

The judgment also states that in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

It was also noted that in child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ Court which is summary in nature. What is important is the welfare of the child. In the writ Court, rights are determined only on the basis of affidavits. Where the Court is of the view that a detailed enquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Court. It is only in exceptional cases that the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.

The Court thus held “when the alternative efficacious remedy is available, we are not inclined to entertain the writ petition which is in the nature of habeas corpus.”

[Koushalya Das v. State of Odisha, 2022 SCC OnLine Ori 2008, decided on 07-06-2022]

Advocates who appeared in this case :

Mr PK Das, Advocate, for the petitioner;

Mr AK Sharma, Advocate, for the respondent.

*Arunima Bose, Editorial Assistant has reported this brief.

Case Briefs Supreme Court

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: SC

Supreme Court: In a case relating to the custody of a 5-year-old who had lost both his parents to COVID-19 and the Gujarat High Court had handed over the custody to his maternal aunt and not his grand parents, the bench of MR Shah* and Anirudhha Bose, JJ has held that income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents.

While handing over the custody of the minor to the maternal aunt, the following factors had weighed in with the High Court:

The paternal grandparents are old age – 71 and 63 years respectively against which the maternal aunt is aged 46 years
The maternal aunt is having a bigger family;
The grandfather is a retired government servant – depending upon the pension against which the maternal aunt is a government employee and therefore she will be in a better position to take care of the minor.

However, what the High Court failed to consider was that the child had shown his inclination to stay with the paternal grandparents. Also, the custody remained with the grandfather pursuant to the interim order passed by the High Court. Nothing was observed by the High Court that during the interim custody period, the paternal grandparents did not take proper care of the minor.

The Supreme Court, hence, observed that the reasons/grounds for granting custody to the maternal aunt may be relevant but not germane.

“There cannot be any presumption that the maternal aunt being unmarried having an independent income; younger than the paternal grandparents and having a bigger family would take better care than the paternal grandparents. In our society still the paternal grandparents would always take better care of their grandson. One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson. It is said that the grandparents love the interest rather than the principle. Emotionally also the grandparents will always take care better care of their grandson. Grand Parents are more attached emotionally with grandchildren.”

The Court also considered the fact that the grandparents have also managed to get admission of the minor in a school in Ahmedabad.

Hence, the following factors weighed in with the Supreme Court while granting the custody to the grandparents:

The minor will get better education in Ahmedabad, which is a Metro City compared to the education in Dahod.
Being a retired person, the paternal grandparents would devote more time and take care of minor better than the maternal aunt who is serving in the government department.
Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents.
The High Court has not observed anything against the paternal grandparents that they have not taken proper care of the minor grandson while interim custody of the corpus was them and/or they acted detrimental to the interest of the minor.

Stating that it was a very difficult choice as it cannot be said that the maternal aunt may not take proper care of the minor son of her deceased sister, the Court said that on the facts and circumstances of the case, the High Court committed an error in not handing over and/or continuing the custody of the minor to the paternal grandparents. The Court observed that,

“if the balance is to be struck between the paternal grandparents and the maternal aunt, for the reasons stated above, the balance would certainly tilt in favour of the paternal grandparents.”

The Court, however, directed that

the maternal aunt shall have visitation right to meet the minor on regular basis preferably once in a month, subject to the convenience of the child.
during the vacation and/or holidays the grandparents may permit the minor to visit and stay with the maternal aunt, of course subject to wishes and convenience of the minor and it may not adversely affect the interest of the minor including his education and even the extra curriculum activities.
It is also expected to have video calling between the corpus and maternal aunt on regular basis.

[Swaminathan Kunchu Acharya v. State of Gujarat, 2022 SCC OnLine SC 733, decided on 09.06.2022]

*Judgment by: Justice MR Shah

Counsels

For grandparents: Advocate D.N. Ray

For Maternal Aunt: Advocate Rauf Rahim

Case Briefs High Courts

Guj HC │ Custody of the minor with the maternal grand-parents does not amount to illegal confinement; Petition by father dismissed

Gujarat High Court: The Division Bench Vipul M. Pancholi and Rajendra M. Sareen, JJ., dismissed a petition filed by the father under Article 226 of the Constitution of India praying for custody of the minor.

Respondent 4&5 were maternal grandparents and the marriage of the petitioner was solemnized in the year 2011 and out of the said wedlock, the minor corpus was born in the year 2013 and due to matrimonial dispute, wife left her matrimonial home and went to her parental home in 2015. After conciliation efforts wife had returned to her matrimonial home, however, thereafter also disputes had arisen between the husband and wife and his wife again left her matrimonial home in the year 2016 along with the minor son – corpus and started residing with her parents. Petitioner made many efforts to get custody of the minor son but in vain. In 2020, wife of the petitioner expired due to COVID.

Petitioner remarried even during the subsistence of his first marriage and out of the said second marriage, he had two children. Wife of the petitioner was residing since 2016 at her parental home and at that time the minor was aged 3 and a half years and since then the minor is with the Respondent 4 and 5 (‘Maternal grand-parents’). Thus, the instant petition was filed as last resort for custody of the minor son.

The Court inquired from the minor about his status and his daily routine. He has stated that his maternal grand-parents are taking his care and he is getting love and affection from them and he has no complain against them. He has happily stated that he is happy with his maternal grand-parents. The Court also ascertained the wish of the minor that he wanted to go and reside with his maternal grand-parents.

The Court while dismissing the petition ordered that the custody of the minor be continued with the respondent 4 and 5. Considering the overall facts of the case, the Court was of the view that, custody of the minor cannot be handed over to the petitioner herein who has remarried and has two children. It was made clear that in any way, the custody of the minor with the maternal grand-parents cannot be said to be illegal custody and it cannot be said that the minor is in illegal confinement.

[Sabirbhai Gafarbhai Multani v. State of Gujarat, 2022 SCC OnLine Guj 747, decided on 09-06-2022]

Mr Harsh A Vyas, Ms Dixa U Pandya : for the Applicant 1

MR HK Patel : APP for the Respondent 1

Vasimraja A Kureshi : for the Respondent 4&5

*Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs Supreme Court

Person languishes in jail for 2 years despite being granted bail by Supreme Court; Supreme Court criticizes Trial Judge for misinterpreting bail order

Supreme Court: In a significant case, the 4-judges Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat, P.S. Narasimha and Sudhanshu Dhulia, JJ., issued directions to all the High Courts of the country to submit reports indicating status of cases where bail has been granted by the Supreme Court i.e. if any of such persons are deprived of the opportunity of being released on bail for some reason or the other.

“… where the custody of a person for 9 years was found to be sufficient to entitle him to be released on bail, is now turned into custody for 11 years. This is nothing but reincarnation of Hussainara Khatoon[1] & Motil Ram[2].”

By an order dated 28-09-2020 the Supreme Court had directed to release the petitioner on interim bail after noting that the petitioner had been in custody since 12-05-2011 and had completed more than 9 years of actual imprisonment. The Court had order that the petitioner be produced before the Trial Court within three days and the Trial Court shall release him on interim bail on such terms and conditions as the Trial Court may deem appropriate.

Despite the aforestated order the petitioner was not bailed out and was kept in custody, on being apprised of this fact the Court had sought explanation from the Police and Jail officials concerned. The Superintendent, Central Prison, revealed that the order dated 28-09-2020 was received in the Prison on 06-10-2020. However, due to Covid-19 Pandemic restrictions, the movement of the prisoner was not immediately possible and the application reached before the Court on 29-10-2022 for consideration of bail when the Trial Court passed the following order: “How the petition is maintainable after expiry of time as per orders of Supreme Court. Hence, returned.”

Hence, despite the order of the Supreme Court the petitioner continued to be in custody.

On being apprised of the fact that the order was transmitted through electronic mode immediately but the physical copy was sent in due course, which was received in the Jail on 06-10-2020, the Court expressed,

“This case portrays very sorry state of affairs.”

Disappointed by the reasoning of the Trial Court the Court clarified that the reason why stipulation was inserted in the order that “the petitioner shall be produced before the Trial Court within three days and the Trial Court shall release him on interim bail” was to expedite the process. The reason was not to put any limitation of a specified period within which time alone the bail could be availed and not thereafter. The Court remarked,

“The order was construed by the concerned Trial Court as if, after the expiry of three days, the petitioner had no right to be released on bail. We are surprised that a Judicial Officer had read the order passed by this Court, in the manner as it gets disclosed from his order.”

Hence, the Court directed the High Court to call for an explanation from the Presiding Officer concerned of the Trial Court and deal with the matter on the administrative side. At the same time, the Court expressed concerns as to whether similar kind of situations have arisen or do arise despite the order passed by the Supreme Court. Pursuant to which the Court suggested for a corrective mechanism—especially where the proceedings are initiated through the Legal Services Authority—and passed the following general directions:

All the High Courts were directed to provide details of all such orders which remain to be complied with and about the persons concerned who are still languishing in jail. The Court proposed for the High Court to maintain a register as to how many matters orders directing release of the persons on bail were issued and if out of such total number of matters, any person stood deprived of the opportunity of being released on bail for some reason or the other. The Register must indicate the reason including whether proper security etc. could be arranged by the concerned person or not. Such matters should then be listed before the concerned court in the succeeding month and the fact that the person has not yet been released on bail, be brought to the notice of the Court concerned under whose orders the relief of bail was afforded to the person(s).
The High Courts were directed to provide the details within six weeks.

With regard to the instant case, the petitioner had been released on bail. As a concluding note, the Court stated,

“We must observe that these matters be taken with utmost seriousness by the High Court and by all the concerned.”

The matter is listed on 11-07-2022 for further hearing.

[Gopisetty Harikrishna v. State of A.P., 2022 SCC OnLine SC 654, order dated 09-05-2022]

[1] (1980) 1 SCC 81

[2] (1978) 4 SCC 47

Appearance by:

For Petitioner(s): Senior Advocate Mahalakshmi Pavani, AOR Revathy Raghavan, Advocates Divya Singhvi, Neha syal and Jeyam

For Respondent(s): Senior Advocate S. Niranjan Reddy, AOR Mahfooz A. Nazki, Advocate Polanki Gowtham, Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy, Rajeswari Mukherjee, K.V.Girish Chowdary, Akhila Palem, Abhishek Sharma and Sahil Raveen

Kamini Sharma, Editorial Assistant has put this report together

Case Briefs High Courts

[Excise Act] Chh HC | Confiscation order can only be challenged when it reaches its finality and the statute does not give any space to challenge any other order except the final one

Chhattisgarh High Court: Goutam Bhaduri, J., allowed the petition and directed the vehicle to be released on certain conditions.

The brief facts of this case are that on receiving information, a vehicle was intercepted and from the vehicle illicit liquor to the extent of 34.54 bulk litres was seized. Thus, the case was registered under Section 34(2) of the Chhattisgarh Excise Act, and the liquor as also the vehicle were seized by the police allegedly for transporting illicit liquor, as such proceeding under Section 47-A(3) of the Act was drawn for confiscation of the vehicle. Further, the Collector, who is authorised under Section 47-A(3) started a confiscation proceeding for the vehicle. During such a confiscation proceeding, an application was filed by the petitioner who is the owner of the vehicle to release the vehicle and interim custody of the vehicle were sought for, which was dismissed. Therefore, the instant petition.

Counsel for the petitioner submitted that the confiscation proceeding though having been commenced does not put any bar to release the vehicles into interim custody. He further submitted that till the confiscation proceeding is concluded, the vehicle should have been handed over to the applicant. It is submitted that no necessary useful purpose would be served by keeping the vehicle in the custody except the loss caused to it.

The Court observed that the confiscation proceeding under the Act is governed by Section 47-A(3) of the Act and Section 47-A(2) of the Act regulates the power and procedure to be adopted for confiscation.

The Court further observed that perusal of Section 47-A(2) would show that power has been given to the District Magistrate (Collector) upon production of the article and on having satisfied that offence covered under clause (a) or clause (b) of sub-section (1) of Section 34 has been committed and if liquor is more than 5 bulk litres he may order for confiscation of articles, intoxicants, implements, utensils including the conveyance so seized. The Court records that during pendency of the proceeding he may pass an order of interim nature for custody, disposal etc. of the confiscated intoxicants, articles, implements, conveyance as may appear to be necessary in the facts of this case. Section 47-B of the Act provides for appeal against the order of confiscation. Therefore, it necessarily leads that order of confiscation can only be challenged when it reaches its finality and the statute do not give any space to challenge any other order except the final one. It is a settled proposition of jurisprudence that every wrong will have a remedy. So if the order is found to be wrong then certainly the High Court would have all the power to correct the same.

The Court relied on judgment Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283 and observed that no reasons have been assigned for rejection in the impugned order and only it is stated that since vehicle was found in transporting illicit liquor as such it is not feasible to hand over the vehicle to the petitioner. So for all practical purposes vehicle is lying at the disposal of authorities or at police station. Thus, if it is kept in the police station it must be occupying space or is prone to cause natural decay and may lose its road worthiness when kept in a stationary position.

The Court thus held “vehicle be released in favour of petitioner by way of interim measure, if the confiscation proceedings have not been concluded till date of production of this order”[Shyam Bihari Yadav v. State of Chhattisgarh, WPCR No. 372 of 2022, decided on 26-04-2022]

Appearances:

For Petitioner: Shri T.K. Jha

For Respondent/State: Shri Ajay Kubrani

Arunima Bose, Editorial Assistant has reported this brief.

High Court Round Up Legal RoundUp Tribunals/Regulatory Bodies/Commissions Monthly Roundup

Political clearance for Judges to visit abroad, Duty of Law Officers, Extra-marital affair of mother and more | Read 7 interesting legal stories of the week

7 Interesting Picks of the Week Gone by.

Under Muslim Personal law, can Family Court dissolve the marriage of a couple? Bom HC elaborates

The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

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*Arunima Bose, Editorial Assistant has reported this brief.

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*Judgment by: Justice MR Shah

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*Suchita Shukla, Editorial Assistant has reported this brief.

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Arunima Bose, Editorial Assistant has reported this brief.

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7 Interesting Picks of the Week Gone by.

Under Muslim Personal law, can Family Court dissolve the marriage of a couple? Bom HC elaborates

Judges required to seek political clearance qua private visits abroad: Did Del HC strike down Ministry of External Affairs’ Office Memorandum requiring the same? Read decision

Signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard for want of expert opinion under S. 45 Evidence Act

Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice: Madras HC

Mother alleged to have extra-marital affair, will father be granted custody of children? Guj HC decides

If a girl runs away voluntarily without any persuasion, can boy with whom she eloped be held responsible for abducting the girl? Chh HC explains

Promotional activity for IPL not covered under ‘Business Auxillary Service’; Anil Kumble not liable to pay Service Tax

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Analysis, Law and Decision

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