custody

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., decided an issue with regard to the habeas corpus petition for custody of a minor.

Instant petition was filed to seek custody of petitioner 2 stated to be a minor of age about 5 years and 10 months by petitioner 1 who asserted to be his father.

Factual Background

It was stated that petitioner 2 was born in January 2014 and in May 2015 the mother of the corpus committed suicide at the petitioner’s home and thereafter an FIR was lodged against petitioner 1 and other family members under Section 498-A, 304-B of Penal Code, 1860 and 3/4 of Dowry Prohibition Act and petitioner 1 was sent to jail.

Respondent 4 filed a Habeas Corpus Writ Petition and this Court, upon taking notice of the fact that the father of the corpus and other family members were in jail, passed an order granting custody of the minor child to the maternal grandfather, who was respondent 4 in the present case.

Analysis, Law and Decision

High Court opined that lower courts were duty-bound to consider the allegations against the respondent and pendency of criminal case for an offence punishable under Section 498-A IPC.

Further, the Court added that the court of law should consider the matter with regard to the “character” of the proposed guardian.

Thus, a complaint against the father alleging and attributing the death of mother, and a case under Section 498-A IPC is indeed a relevant factor and a court of law must address the said circumstance while deciding the custody of the minor in favour of such a person.

In the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, where in almost similar circumstances the father was facing a charge under Section 498-A IPC, it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.

In Rachit Pandey (minor) v. State of U.P., Habeas Corpus Writ Petition No. 193 of 2020 this Court held that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of someone else other than in whose custody the child presently is. It was held that the prerogative writ of habeas corpus, is in the nature of the extraordinary remedy, which may not be used to examine the question of custody of a child except wherein the circumstances of a particular case, it can be held that the custody of the minor is illegal or unlawful.

Senior Counsel appearing for the petitioners did not point out as to how, the custody of petitioner 2 with his maternal grandfather can be said to be illegal or unlawful so as to persuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus. He has also not disputed that any rights with regard to guardianship or custody are to be agitated before the appropriate forum.

Therefore, the petition was dismissed. [Awanish Pandey v. State of U.P., Habeas Corpus Writ Petition No. 1057 of 2019, decided on 27-9-2021]

Advocates before the Court:

Counsel for Petitioner: Sanjay Mani Tripathi, Adeel Ahmad Khan, Na

Counsel for Respondent: G.A., Anupama Tripathi, Rakesh Kumar Tripathi

Hot Off The PressNews

National Human Rights Commission, India Commission has taken suo motu cognizance of a media report alleging increasing incidents of violence among inmates in Tihar Jail of Delhi.

Reportedly, in yet another incident of inmate clash inside the prison, a 25-year-old prisoner was beaten up by another on 22 September, 2021, which was the sixth incident in this month alone.

The Commission has observed that the contents of media reports, if true, raise serious issue of human rights violations of the prisoners in custody of state. Accordingly, it has issued notices to the Chief Secretary and DG, Prisons, Govt. of NCT of Delhi calling for a detailed report with four weeks, including steps taken or proposed to be taken to address the issue of violence in Tihar jail.

Issuing the notices, the Commission has noted that such incidents of violence inside the jail indicate towards negligence by the prison authorities resulting into gross violation of human rights of the inmates in custody of the state.

According to the media report, carried on 24 September, 2021, the latest victim of violence in the Tihar jail told during investigation that he was first abused and beaten up by another inmate. The same day a Head Matron was injured during a scuffle with an inmate. Reportedly, about thirty inmates have been injured during September this year due to clashes in the jail.

National Human Rights Commission

[Press Release dt. 28-9-2021]

Case BriefsHigh Courts

Bombay High Court: Stating that the welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and availability of ample time with another, Bench of N.J. Jamadar and S.S. Shinde, JJ., expressed that,

Courts often ensure that even if custody is given to one parent, the non-custodial parent has adequate visitation rights.

Instant petition was filed for a writ of habeas corpus to produce the son of the petitioner, who had been allegedly illegally kept away from the petitioner by respondent 2 – wife of petitioner and immediate transfer of custody of son to petitioner.

Background

As per petitioner, respondent 2 was extremely busy with her professional commitments and has not been able to devote any time for parenting and development of minor son. In contrast, petitioner had decided not to accept any professional commitment and devote his entire time, effort and attention to bring up the son.

Due to marital discord, respondent 2 allegedly prevented the petitioner from meeting the son, jeopardizing the willingness and happiness of son and even the petitioner made efforts to meet the son, respondent lodged false and motivated reports against him.

Even when the son got infected with COVID-19, respondent 2 sent him to petitioner’s house who nursed him and took care of him. The son even refused to leave the house and accompany respondent 2.

Respondent 2 along with the son absconded and on several efforts of the petitioner, he couldn’t locate respondent 2.

In view of the above background, petitioner approached the Court.

Analysis, Law and Decision

High Court while analyzing the matter stated that it is not an immutable rule of law that writ of habeas corpus, at the instance of one parent, is not maintainable if the child is in the custody of another parent, unless the custody is strictly illegal or unlawful.

Further, the Court also added that the writ of habeas corpus can also be pressed into service for granting the custody of a child to a spouse if the welfare of the child so dictates.

Who should be given custody?

To determine the question as to who should be given custody of a minor child, the primary consideration is the welfare of the minor and not the legal rights of the parents, statutory or customary.

Parents at loggerheads

Parameters for determination of the proper custody for a minor, when the parents are at loggerheads are well recognized.

Legal rights of the parents yield to the paramountcy of the welfare of the child.

Bench referred to the decision of Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, wherein the Supreme Court articulated factors, which weigh-in, in determining the question of custody of a minor child.

Supreme Court’s decision of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, was also referred to, wherein the consideration for determination of the proper custody of a minor child were succinctly postulated.

In view of the above decision, Bench noted that welfare of the minor is a broad and elastic term.

 Every factor which bears upon the development of the child, must enter into the decision of the Court. Court is called upon to deal with a human problem with a humane touch.

Tender Years Rule

Bench stated that the said rule has been recognized under Section 6 of the Hindu Minority and Guardianship Act, 1956 which provides that in the case of a boy or an unmarried girl, father, and after him, the mother shall be the natural guardian; provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother.

Coming to the present facts and circumstances, Court expressed that it is imperative to note that having regard to the age of the son, tender year rules, which has statutory recognition, get attracted and thus cannot be brushed aside lightly in evaluating the “welfare principle”.

In Court’s opinion, the issue of welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and availability of ample time with another.

In view of the facts and circumstances of the case, High Court found no exceptional circumstances which warranted a departure from “tender years rule”, nor there was such material which prima face indicated that the custody with mother was detrimental to the welfare and development of the son.

Lastly, while concluding, the Court stated that the minor son needs love, affection, care and protection of both, petitioner and respondent 2.

Love and affection of both parents is considered to be the basic human right of a child. Thus, the element of the access of the child to a non-custodial parent assumes critical salience.

Courts often ensure that even if custody is given to one parent, non-custodial parent has adequate visitation rights.

High Court stated that for the development of the sone, it would be necessary to allow the physical access of father to son at least twice a week.

Directing for daily access through video conference for half an hour and physical access twice a week of minor son to petitioner, the present petition was disposed of. [Abhinav Kohli v. State of Maharashtra, Criminal WP No. 225 of 2021, decided on 30-9-2021]

Advocates before the Court:

Swapna P. Kode i/b Tripti R. Shetty for petitioner/applicant.

J.P. Yagnik, APP for respondent 1 – State.

Hrishikesh Mundargi i/b Subir Sarkar for respondent 2.

Read more:

Minor:

1. Means a person who has not completed his or her age of eighteen years, [Section 3(c), Hindu Adoptions and Maintenance Act, 1956 (India)].

2. Means a person who has not completed the age of eighteen years, [Section 2(1)(t), Mental Healthcare Act, 2017 (India)].

Custody:

Implies guardianship. It must be a lawful custody under provisions of a statute or under order of court, Omkar Prasad Verma v. State of M.P., (2007) 4 SCC 323: (2007) 2 SCC (Cri) 293.

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J. disposed off the petition and remarked “there is & shall be no cause of action against the foster parents in civil or criminal law concerning the alleged kidnapping of the child.”

The facts of the case involve rival claims for the custody of a toddler between a genetic mother and a foster mother; this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “Adwik”.

Counsel for the foster mother submitted that she having fostered the child all these months abundant with love, affection & care and the genetic mother already has two children whereas the foster mother has none and hence a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to the foster mother. It was further submitted that in matters of custody, interest of the child is paramount and therefore the claims founded on genealogy has no merit.

Counsel for the genetic mother submitted that between a genetic mother and a foster one, the claim of the latter should be given preference as well as the agony which the genetic parents of the child have undergone since a year or so also highlights the difficulties of a lactating mother from whom the suckling infant is kept away; thus he seeks dismissal of the opposite claim.

International Convention on the Rights of the Child, 1989; Article 3 (1) of this Convention provides:

“…in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . . .”

Similarly, Article 7(1) of the Convention says:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents”. Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.”

Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.

Article 25 (2) of the Universal Declaration of Human Rights provides:

“Motherhood and childhood are entitled to special care and assistance…”

Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family, society and the State. In October 1979 a Joint WHO/UNICEF Meeting on Infant & Young Child Feeding adopted the following statement: “Breastfeeding is an integral part of the reproductive process, the natural and ideal way of feeding the infant and unique biological and emotional basis for child development. … It is therefore a responsibility of society to promote breastfeeding and to protect pregnant and lactating mothers to many influences that would disrupt it”.

Further, Section 3(ix) of the Juvenile Justice (Care and Protection of Children) Act 2015 which enacts inter alia the above principle of paramount interest of the child reads as under:

“All decisions regarding the child shall be based on the primary consideration, that they are in the best interest of the child and to help the child to develop full potential.”

Section 2(9) of the said Act defines the term ‘the best interest of the child’ to mean – “…The basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.”

The Court thus observed that breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.

On an analogy being drawn between Yashoda Maa and Devaki Maa the Court observed that unsubstantiated episodes from some history or mythology do not much guide the decision making process; ordinarily, scriptures cannot be cited as precedents or as instruments having force of law, notwithstanding the light they throw when the path we tread is shrouded in darkness; in matters like this, scriptural texts are not treated as edicts of law, unless they are legislated expressly or by necessary implication or otherwise recognized.

The Court on the argument of the foster mother  that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with his client remarked that its ludicrous and children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle of distributive justice which intends to bridge the gap between “haves and have nots” is not invocable, at least in this case

The Court remarked that having being convinced of the legitimacy and priority of the claim of the foster mother it was held that the foster mother “gracefully delivered the custody of the child to its genetic parents; the genetic mother too, with equal grace, states that the foster mother may see the child whenever her heart so desires; such kind gestures coming from two women hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all.”[Husna Bano v. State of Karnataka, WP No. 16729 of 2021, decided on 24-09-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances

For petitioner: Mr. Sirajuddin Ahmed

For respondents: Mr. Vinod Kumar and Mr. S. Subramanya

Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Sudhanshu Dhulia, CJ., and  Manash Ranjan Pathak, J., addressed a suo motu PIL concerning the plight of a rape victim, where the victim was a child between 12-15 years of age.

The incident alleged to had happened in the State of Arunachal Pradesh where a missing report was filed by one Mr Aka Kalung alleging that his domestic help who was a child brought from Nepal, had been missing. The girl was later recovered the next day but as she was reluctant to go to the house of the informant her custody was given to the Child Care Institute, where the victim made allegations of rape and sexual abuse against the informant, stating that he had been abusing her for the last many years.

Meanwhile, on the plea of the father of the victim the Sessions Judge, Tezu, Lohit District, Arunachal Pradesh directed the CCI to hand over the custody of the child to the “local guardian”. This local guardian was none else but the sister-in-law of the accused. The impugned order was challenged in revision before the High Court and the custody was not handed over to the local guardian. Therefore, another application was moved by the father of the child in which further direction was given to hand over the child to the local guardian.

Invoking the doctrine of Parens Patriae, the High Court held that since the local guardian to whom the custody was being handed over was a close related of none else but the accused, it would not serve the interest of justice and definitely it would not be in the best interest of the victim child.

Hence, the order of the Sessions Judge was stayed with the further directions to the lower Courts not to take up any other application where the subject matter relates to the custody of the child. The custody of the Child was granted to CCI. Further, directions were issued to the Deputy Commissioner to conduct an enquiry by personally visiting the CCI and furnish the details with regard to the facilities available in the CCI, including the fact that such an institute was registered or not.

The Superintendent of Police of the concerned district, where the CCI was located was directed to ensure that the child was given every protection in the institute and she should not be allowed to be visited either by the accused or his relative or even by her father till the next date of listing. However, the Bench made an exception of the mother of the child. Who was allowed to visit the child and stay with her.

Observing the sensitivity of the matter, the Bench issued strict directions to the State to depute a team of medical officers, including a lady doctor to conduct medical examination on the victim, only for the determination of her age. The Bench emphasised strictly that the examination shall be limited to a bone ossification test and no other test be done as the victim had already been medically examined.[State of Arunachal Pradesh, In Re., PIL (Suo Moto) No. 5 of 2021, decided on 30-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by: 

For the Petitioner: U K Nair, Sr. Adv

For the Respondent: A Chandran, Addl. Sr. Ga, Ap

Case BriefsHigh Courts

Madras High Court: The Division Bench of P.N. Prakash and R. Pongiappan, JJ., addressed a contempt petition filed under Section 10 of the Contempt of Courts Act.

Petitioner aged 87 years old was blessed with 5 children. He was in service when his children were young and was allotted a plot by the Tamil Nadu Housing Board, wherein he built a two-storeyed house. After his retirement, he started living peacefully with his wife and 4th son viz. Laxmi Rajah on the first floor. Apart from this he also owned a few more properties in and around Chennai.

After the death of his wife, petitioners’ children started demanding their shares in the properties and two of his sons Vijay and Suraj took possession of the ground floor and after a year started giving him trouble.

Due to the fear of being dispossessed from the house, a settlement deed in favour of the 4th son was executed.

On being infuriated with the above stated, the 4th son’s wife assaulted the petitioner and the other three daughter-in-law lodged a police complaint against the petitioner based on which an enquiry was conducted and the case as closeld as the same was a ‘civil dispute’.

The disgruntled sons gave a complaint of cheating and fraudulent transaction against their father. Again, the same was closed as “family quarrel”.

Vijay and Suraj filed a suit before the VII Additional City Civil Court for partition alleging that their father the petitioner did not have any means to purchase the Anna Nagar house property and it was bought with the funds of their grandfather and hence, they have a share in it.

The above mentioned two sons also assaulted their father, after which the petitioner sought protection under the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Police filed an FIR against the two sons for the offences under Sections 294(b), 352 and 506(I) Penal Code, 1860 and Section 24 of the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Two sons pleaded to Murthi at Metropolitan Magistrate’s house to withdraw the complaint and they will vacate the premises and show the bonafide they filed a written memo of undertaking before the Metropolitan Magistrate.

Reason for filing the present petition

After earning freedom, the two sons turned turtle, reneged from their undertaking and refused to vacate the premises and therefore, Murthi/ Petitioner was before this Court with the instant contempt petition.

Analysis, Law and Decision

Whether the undertaking given by Vijay and Suraj before the Metropolitan Magistrate was under coercion when they were in police custody or they gave it voluntarily?

Bench noted that when Vijay and Suraj’s counsel submitted before the Court that if some more time would be granted, they would vacate the house, the duo refused to toe their counsel’s line as well. Mainly they stuck on to the issue that their father did not give any share to them in his property.

Order passed by the V MM stated that the advocate for the accused pleaded to the V MM not to remand the accused and only thereafter, Murthi came into the picture, resulting in the duo filing a memo of undertaking to vacate the house, followed by Murthi filing a memo accepting the undertaking given by his sons.

Court expressed that the accused were represented by an advocate at the time of remand, and he would not have been so guile to make his clients file a memo of undertaking had the V MM been disinclined to remand them in judicial custody.

In view of the above, it is limpid that the alleged contemnors had filed an undertaking into the Court, which they had no intention of honouring, and had successfully extricated themselves from remand proceedings and their contention that the undertaking was given by them under coercion defies credulity.

Power of High Court to punish for Contempt of Courts subordinate to it, is recognized in Section 10 of the Contempt of Courts Act and it is well settled that a wilful breach of an undertaking given to the Court would constitute civil contempt.

Therefore, the subsequent act of deliberately reneging from the terms of the undertaking by the alleged contemnors constitutes a serious interference in the administration of justice, and the respondents were held to be guilty of Section 2(b) of the Contempt of Courts Act, 1971.

The contempt petition was allowed.[P.S. Murthi v. P.S. Vijay, 2021 SCC OnLine Mad 2052, decided on 04-06-2021]

Advocates before the Court:

For petitioner:  Mr. T. Arun Kumar for M/s. Tamizh Law Firm

For respondents: Mr. V. Krishnamoorthy

Case BriefsHigh Courts

Punjab and Haryana High Court: In a habeas corpus case regarding custody of the child the Bench of Anupinder Singh Grewal, J., refused to consider extra-marital affair as a ground to deny custody of child to the mother. The Bench remarked,

“In a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. More often than not these allegations are made without any basis or foundation. Even assuming a woman is or has been in an extramarital relationship, the same by itself cannot lead to the conclusion that she would not be a good mother to deny her the custody of her child.”

Background

The petitioner had sought the issuance of a writ in the nature of habeas corpus for the release of her minor daughter who was alleged to be in the custody of her husband-respondent 4. Respondent 4 was an Australian citizen and the petitioner later joined him in Australia. Out of the wedlock, a girl child Jasreen Kaur Garcha was born. Later on, the petitioner and respondent 4 developed matrimonial differences which led to their separation. The parties arrived in India on 24-01-2020. It was by the petitioner that in a deep rooted conspiracy the child was taken away by respondent 4 when the petitioner had gone to her parental village. It was further contended by the petitioner that respondent 4, instead of acceding to the request of the petitioner to handover the child, started threatening her and the petitioner fearing her safety, fled back to Australia on 05-02-2020. She filed a petition for the custody of the minor child in the Federal Circuit Court, Australia and the court had passed an interim order directing respondent 4 to return the minor child to Australia.

On the other hand, respondent No.4 submitted that the petitioner was involved in a relationship with his brother-in-law which had led to marital discord between the parties. The Panchayat was convened on 04-02-2020 and it was agreed that as the petitioner had permanent residency in Australia, the custody of the child would be handed over to respondent 4. He further submitted that after her return to Australia, the petitioner had preferred an application for the custody of the child and in the application, the Australian address of respondent 4 had been mentioned although she knew that he along with their child was in India. Relying on the judgment Ranbir Singh v. Satinder Kaur Mann, 2006(3) RCR (Civil) 628, respondent 4 submitted that a decree, which had been obtained from a foreign court on the basis of a fraud would not be enforceable in India.

 Observations and Decision

Noticing that the mother is the natural guardian of the child till the age of five years in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956, the Bench stated that the child would require love, care and affection of the mother for her development in the formative years. Similarly, the support and guidance of the mother would also be imperative during adolescence. Furthermore, the petitioner had permanent residency in Australia. She was earning Rs 70,000/- Australian dollars per annum and a handsome sum would be payable to her for the maintenance of child as well by the Australian authorities. The father was an Australian citizen. He had also obtained a diploma in Hospitality Management and was employed in Australia and only recently had come to India. He had a small piece of agricultural land and was stated to have some rental income as well.

The Bench opined that the principle of comity of courts had been followed by the Courts in India to honour and to show due respect to the judgments obtained by the Courts abroad. However, the judgment of a foreign court could not be the only factor while considering the issue of custody of a child to a parent. Reliance was placed by the Court on the decision of Supreme Court in Yashita Sahu v. State of Rajasthan, wherein the Bench had held,

“In the fast shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which country’s courts will have jurisdiction. In many cases the jurisdiction may vest in two countries…Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child’s custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child’s welfare be investigated in a court in his/her own country.”

Noticeably, the respondent 4 had leveled allegations pertaining to the character of the petitioner that she was in an extra-marital relationship with a relative of the petitioner. Opining that aside of the bald assertion in the petition, no supporting material had been brought before the Court, the Bench remarked that in a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. Therefore, allegations against the petitioner being wholly unsubstantiated were not considered relevant to adjudicate the issue of custody of the minor child.

Noticing that the respondent 4 had appeared initially in the proceedings in Australia, the Bench opined, it could not be said that the order was passed by the Australian Court behind the back of respondent 4 or was not in conformity with the principles of natural justice. Accordingly, the custody of the girl child was handed over to the petitioner. However, the petitioner was directed to arrange interaction of the child with respondent 4 through video conferencing and the parties were directed to abide by the orders of the Federal/Family Court in Australia.[Mandeep Kaur v. State of Punjab, 2021 SCC OnLine P&H 1060, decided on 10-05-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. Divjyot Singh Sandhu
For the State of Punjab: DAG Dhruv Dayal
For Respondent 4: Adv. Inderpal S. Parmar

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., ordered the release of persons detained for protesting against the controversial Lakshadweep regulation. The Bench stated,

“The most important concern for us is the liberty of the persons who are in custody. They shall not be deprived of the means of access to justice.”

The instant petition was filed espousing the cause of persons detained in connection with a crime registered in Lakshadweep Island. According to the petitioners, though the case registered against them was bailable, they had been remanded by the Executive Magistrate for no reasons. On the contrary, the counsel for the Lakshadweep Island submitted that the SHO and the Executive Magistrate were prepared to release the protestors on bail but they had refused to get released on bail. However, the above submission had been refuted by the counsel for the petitioner, stating that no such attempt had been made by the SHO and the Executive Magistrate.

Opining that the most important concern before the Court was the liberty of the persons who were in custody, the Bench said the protestors should not be deprived of the means of access to justice. In the above backdrop, the Bench directed the CJM, Amini, to take up the case of protestors who were in custody pursuant to registration of the case by SHO of Kilthan Island by 3pm on the day of passing of order itself. The Bench further said that the CJM need not to ask for the physical production of the persons in custody and the same should be held through video conference. The CJM was also directed to release the detainees on execution of self. Additionally, the Executive Magistrate was directed to file a report detailing the persons who had been kept in custody pursuant to registration of the case and date from which they were in custody and the offences under the penal enactments. The Medical Officer of Kilthan Island was directed to examine all persons in regard to their health conditions.[Sayed Mohammed Koya v. U.T. of Lakshadweep, 2021 SCC OnLine Ker 2355, decided on 01-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. R.Rohith

Case BriefsSupreme Court

Supreme Court: In a major verdict, the bench of UU Lalit and KM Joseph*, JJ has held that it is open for Courts to order house arrest under Section 167 CrPC in appropriate cases. The order comes as a milestone for curbing the problem of overcrowded prisons and high cost for their maintenance.

Indicating the criteria for house arrest, the Court highlighted factors like like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody, the ability to enforce the terms of the house arrest, etc.

Upon being found guilty instead of sentencing the convict to a term in prison and in lieu of incarceration, as a condition of probation, the convict is compelled to confine himself to his place of residence. Such confinement is called House Arrest.

According to the data published by the National Crime Records Bureau (NCRB), there were a total number of 1350 prisons as of the year 2019, consisting of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School and 2 Other than the above jails.

The occupancy rate of these prisons has climbed to 118.5 percent in 2019 as on 31st December. The occupancy rate is alarming for male prisoners. In fact, during 2019, a total of 18,86,092 inmates were admitted in the jails. The figure of 4,78,600 prisoners as on 31st December, 2019 is the figure obviously after considering the number of prisoners who would have been inter alia bailed out. The number of under trial prisoners in 2019 was 3,30,487 which in fact constituted 69.05 per cent of the total no. of prisoners. Delhi had the highest occupancy rate of 174.9 percent followed by Uttar Pradesh which came second with 167.9 percent. This means that in Delhi a prison which was meant to be occupied by 100 persons, was used for accommodating 174 persons.

Also, a very large sum (Rs. 6818.1 crore) was the budget on prisons. Both aspects are relevant in the context of the possibilities that house arrest offer.

[Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382, decided on 12.05.2021]

*Judgment by: Justice KM Joseph

For Appellant: Senior Advocates Kapil Sibal and Nitya Ramakrishnan, Advocate Shadan Farasat

For Respondent: Additional Solicitor General S.V. Raju

Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Suman Shyam and Mir Alfaz Ali, JJ., heard the instant petition against the judgment and order dated 24-03-2011 rendered by Additional Sessions Judge, whereby, the appellant was convicted under Section 302 Penal Code, 1860 and sentenced to rigorous imprisonment for life.

The case of the prosecution was that on 07-11-2014, a fight took place between the deceased and the accused, both of whom were employees of one Shambu Shil. The appellant had inflicted injuries on the head of the deceased with an iron rod, which caused his death. An FIR was lodged by the employer of the deceased as well as the accused/appellant under Section 302 Penal Code, 1860. According to the doctor, the cause of death was shock and hemorrhage as a result of the injuries sustained. All the injuries were accessed to be ante mortem and homicidal in nature.

Moreover, the appellant had recorded a confession before the Judicial Magistrate, on the basis of which and testimony of the Trial Court had convicted the appellant under Section 302 IPC.

Counsel of the accused, B Bhagawati, Amicus Curiae argued that in the confessional statement, the appellant had stated that both were drunk at the time of the occurrence. Further, the confessional statement of the appellant, which was duly recorded by the Judicial Magistrate, and was corroborated by the eye witness’s accounts made it abundantly clear, that there was quarrel and fight between the appellant and the deceased and in course of the quarrel, the appellant hit the deceased with the iron rod at the heat of passion. Thus, the entirety of the evidence clearly demonstrates that there was no premeditation on the part of the appellant and the assault was made suddenly at the heat of passion in course of quarrel.

The Bench observed that, when the assault was made without premeditation, at the heat of passion in course of sudden quarrel and the appellant also did not take any undue advantage nor acted in cruelty, all the above factors had made the present case come squarely within the sweep of exception (4) to Section 300 IPC. However, said the Bench, having regard to the three injuries on the head and the weapon used, it could not be said that the appellant did not has intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, taking note of the evidence in its entirety, the Bench opined that the conviction of the appellant under Section 302 IPC was not sustainable. Therefore, the impugned order was set aside and the appellant was convicted under Section 304 Part-I instead of 302 IPC. Further observing that the appellant had been in custody for more than 14 years, his sentence was reduced to the period already undergone. Accordingly, the appellant was directed to be released.[Debaru Majhi v. State of Assam,  2021 SCC OnLine Gau 422, decided on 05-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., addressed a petition wherein petitioner is an accused of the offences lodged under Sections 498-A, 304-B Penal Code, 1860 and 3/4 of Dowry Prohibition Act, 1961 seeking custody of his children from their maternal grandparents.

The instant petition was filed for a writ of habeas corpus with an assertion that petitioner 2 and 3 (minor children of petitioner 1 age about 8 years and 3 years, respectively) were detained by respondents 4 and 5 (maternal grandparents of the minor children).

Petitioner 1 was sent to jail for being the primary accused in respect of an incident relating to the death of the wife of petitioner 1 i.e. mother of the children, whose custody was being sought.

Additional Advocate General submitted that since petitioner 1 was the principal accused in the above-stated criminal case, granting him the custody of children would be detrimental to their interests.

In Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, it was held that:

 the paramount consideration in such matters would be the welfare of the child, and the court, exercising ‘parens patriae’ jurisdiction, must give due weightage to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values and the character of the proposed guardian is also required to be considered. It was held that the pendency of a criminal case, wherein the father has been charged of causing the death of the minor’s mother, was a relevant factor required to be considered before an appropriate order could be passed.

 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, it was held that:

though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.

Petitioner could not demonstrate as to how the custody of minor children with their maternal grandparents could be said to be illegal or unlawful so as to persuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus.

Hence, petitioner withdrew the petition stating that he would pursue other remedies available under the law with regard to the custodial rights.[Pankaj v. State of U.P.,  2021 SCC OnLine All 116, decided on 20-01-2021]

Case BriefsHigh Courts

Madhya Pradesh High Court: Bechu Kurian Thomas, J., allowed the instant appeal against the impugned order of Additional Sessions Court, whereby the Sessions Court had held the appellant guilty for the offence under Sections 8(2) and 55(a) of the Abkari Act.

On 17-07-2001, the accused was found in possession of 700 ml of arrack for sale in a hotel name “Santhosh” ran by him. The contraband was seized and the crime was registered under Sections 8(2) and 55(a) of the Abkari Act against the accused. Thereafter, the Sessions Court convicted the accused and sentenced him with imprisonment for one year and a fine of Rs 1,00,000, in default of which rigorous imprisonment for three months was awarded.

Counsel for the appellant, T. Madhu submitted that the prosecution case suffered from a fatal flaw as no forwarding note had been produced in evidence. Also, there was unexplained delay in producing the contraband alleged to be seized from the accused which suggested a further flaw, thereby, entitling the accused for acquittal.

The respondent stoutly opposed abovementioned contentions and submitted that in the instant case, the contentions raised had no bearing.

The Court observed that though the date of arrest of the accused and the date of seizure of the contraband was 17-07-2001, the contraband was produced before the Court only on 23-07-2001 after the delay of six days. The prosecution had not explained the delay in production of the contraband before the Court nor had they explained as to who was in custody of the contraband during the said period. It had been deposed by the prosecution that there was no hurdle in producing the contraband before the court. Therefore, the abovementioned irregularities had created doubt on the veracity of prosecution case. The Court cited Gopalan v. State of Kerala, 2016 (3) KLT SN 24, wherein it was held that in the absence of the forwarding note, the prosecution had failed to establish the link connecting the accused with the contraband seized and the sample analysed. The absence of the forwarding note is undoubtedly fatal to the prosecution case. Since in the instant case, the prosecution had not produced the forwarding note, the prosecution had failed to prove the guilt of the accused and accordingly the accused was held entitled to be acquitted.

In the view of above, the Court set aside the impugned judgment. [Sivadasan Pillai v. State of Kerala, CRL.A.No.642 of 2007, decided on 21-12-2020]

Case BriefsHigh Courts

In our series of 2020 wrap-ups, let’s revisit and take a dive at some of our stories on family laws and how different High Courts dealt with the same involving some very significant rulings.

We have listed down Case briefs under sub-categories, of our coverage under the Family Law and its allied provisions.

[Allahabad High Court]

Custody of Minor

In minor’s custody case, where child is below 5 years of age, mother is preferred, but is there any exception to it? All HC explains

[Meenakshi v. State of U.P., 2020 SCC OnLine All 1475, decided on 02-12-2020]

If a natural guardian faces criminal charges relating to death of spouse, can custody of children or visitation rights be granted? All HC discusses

[Shaurya Gautam v. State of U.P., 2020 SCC OnLine All 1372, decided on 10-11-2020]

Decree of Eviction against Son

Can daughter-in-law be evicted without seeking decree of eviction against the son under S. 2(s) of Domestic Violence Act? All HC answers

[Sujata Gandhi v. S.B. Gandhi, 2020 SCC OnLine All 763, decided on 12-06-2020]

 [Bombay High Court]

Alimony

If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Bom HC’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay TukaramManore, 2020 SCC OnLineBom 3925, decided on 09-12-2020]

Bigamy

Person committing offence under S. 494 IPC, must have married another woman or man during subsistence of his or her first marriage; Bom HC invokes power under S. 482 CrPC to meet ends of justice

[Rekha v. State of Maharashtra, 2020 SCC OnLineBom 291, decided on 13-02-2020]

 Cooling-off Period

Can “cooling-off period” under S. 13-B(2) of Hindu Marriage Act be waived? Legal position discussed in a case of pregnant woman

[Kovelamudi Kanika Dhillon v. Kovelamudi Surya Prakash Rao,  2020 SCC OnLineBom 2054, decided on 26-10-2020]

 Cruelty to Woman

Abuse of S. 498-A IPC by making vague allegations and roping in family members of husband: Courts to carefully scrutinize allegations

[Shabnam Sheikh v. State of Maharashtra, 2020 SCC OnLineBom 1752, decided on 15-10-2020]

“Easy to accuse somebody of ill-treatment after someone dies, but not wise to convict somebody based on general statements”: Bom HC holds every cruelty is not an offence under S. 498-A IPC

[State of Maharashtra v. Shri Balu Ravji Abhang, 2020 SCC OnLineBom 307, decided on 20-02-2020]

Family members should not be dragged without specific evidence against them, otherwise, S. 498-A IPC is unfortunately misused as a weapon, says Bom HC

[State of Maharashtra v. Ashok, 2020 SCC OnLineBom 331, decided on 26-02-2020]

 Custody of Minor

Welfare of child as paramount consideration: Bom HC gives custody to father of minor for mother not being able to take care of the child

[Sashanka v. Prakash, 2020 SCC OnLineBom 3497, decided on 27-11-2020]

Domestic Violence & Jurisdiction of Courts

Does Family Court has jurisdiction to entertain an application for relief under Ss. 18 to 22 of DV Act? Read what Bom HC held

[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLineBom 983, decided on 28-09-2020]

Second Marriage

Performing second marriage during pendency of an appeal is a breach under S. 15 of HMA, but would it amount to civil contempt? Bom HC analyses

[Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLineBom 911, decided on 08-09-2020]

 Unmarried Daughter (Maintenance)

Whether unmarried daughter who is major by age, entitled to claim maintenance from father till her marriage? Bom HC explains law in light of Hindu Adoption & Maintenance Act

[Sanjay J. Phagnekar v. State of Maharashtra, 2020 SCC OnLineBom 3382, decided on 23-11-2020]

Widowed Daughter-in-Law (Maintenance)

Can a widowed daughter-in-law claim maintenance from the estate inherited by her father-in-law? Law explained

[Sardool Singh Sucha Singh Mathroo v. Harneet Kaur, 2020 SCC OnLineBom 927, decided on 07-09-2020]

 Wife having Independent Source of Income (Maintenance)

[S. 125 CrPC] Wife cannot be denied maintenance on ground of having a source of income: Restated by Bom HC

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLineBom 694, decided on 26-05-2020]

[Calcutta High Court]

Child Marriages

Alarming rise of child marriages during lockdown has given a strong impression that they may be in garb of child trafficking; Police to investigate

[Contagion of COVID-19 Virus in Children, In Re., 2020 SCC OnLine Cal 1066, decided on 25-06-2020]

 Harassment over Complexion

Harassment by in-laws for woman’s black complexion is cruelty under S. 498-A IPC; Husband convicted for murdering wife over her black complexion

[Mazidul Miah v. State of W.B., 2020 SCC OnLine Cal 1077, decided on 25-06-2020]

[Chhattisgarh High Court]

Alienation of Property by Alleged Wife

Whether alienation of property by an alleged wife of a deceased is void? Chh HC analyses position in light of ‘Customs’ under Hindu Marriage Act

[Anirudh Prasad Kamal Sen v. Dashmat Bai Suryavanshi, Second Appeal No. 93 of 2009, decided on 28-08-2020]

Cause of Action

In a matrimonial dispute, cause of action can arise several times, even if the dispute is settled and case has been withdrawn

[Harsha Dewani v. Ashutosh Gupta, 2020 SCC OnLineChh 149, decided on 10-08-2020]

[Delhi High Court]

Adultery

Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery; Divorce petition dismissed

[Vishal Singh v. Priya, 2020 SCC OnLine Del 638, decided on 12-06-2020]

Affidavit of Assets, Income and Expenditure

Del HC updates Affidavit of Assets, Income & Expenditure to be filed at threshold of matrimonial disputes; Issues modified directions [Detailed Report: Read Directions]

[Kusum Sharma (5) v. Mahinder Kumar Sharma, 2020 SCC OnLine Del 931, decided on 6-8-2020]

Cruelty & Desertion

Del HC analyses “A typical case that showcases as to what would amount to cruel behaviour on part of one spouse to utter detriment of other”

[Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571, decided on 01-05-2020]

Divorce Proceedings

Husband citizen and domicile of USA, Can he raise objections on divorce proceedings filed by wife in India? Del HC decrypts the law in light of catena of SC decisions

[Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

 Impotency

Is making false allegation of impotency by wife against husband a ground for decree of divorce? Del HC determines

[Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]

Maintenance

If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Del HC answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]

Matrimonial Disputes

Del HC reiterates SC’s position on “duty of the Courts to encourage genuine settlements of matrimonial disputes”

[Harish Kumar v. State, 2020 SCC OnLine Del 1635, decided on 04-12-2020]

 Remedy against Custody Orders

“No exception to remedy against orders of custody under Domestic Violence Act”: Del HC dismisses S. 482 CrPC petition in view of S. 29 DV Act

[Srisha Dinav Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764, decided on 20-07-2020]

Right to Privacy versus Right to Fair Trial

[S. 14 of Family Courts Act] In a contest between right to privacy and right to fair trial, both of which arise under expansive Art. 21, right to privacy may have to yield to right to fair trial

[Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672, decided on 30-06-2020]

Second Marriage & Custody of Children

Second marriage of a mother is by itself not sufficient to deprive her of custody of her biological child

[Faisal Khan v. Humera,  2020 SCC OnLine Del 572, decided on 1-5-2020]

Settlement Deed affecting Children’s Right to Maintenance

Is it lawful for a wife to agree to a settlement deed in the process of dissolution of marriage wherein she settles that her minor children will not claim maintenance in future? Court explains

[Vashno Jaishwal v. State (NCT of Delhi), 2020 SCC OnLine Del 1504, decided on 20-11-2020]

[Gauhati High Court]

 Conjugal Life

Refusal to wear “sakha and sindoor” is clear intention that a hindu wife is unwilling to continue conjugal life: Divorce decreed to husband

[Bhaskar Das v. Renu Das, 2020 SCC OnLineGau 2954, decided on 19-06-2020]

 Maintenance

If a woman is divorced, will her status as a wife entitling her to maintenance under S. 125 CrPC change? Read Gau HC’s position

[Bijoy Seal v. Sefali Seal, 2020 SCC OnLineGau 4024, decided on 30-09-2020]

Special Marriage Act

If a marriage is first solemnised under the Special Marriage Act and later upon conversion to Islam, marriage is again solemnised under Mohammedan Law: Which law will prevail for dissolution of marriage? Gau HC to consider

[Md Makfur Rahman v. Malina Deb Barman, 2020 SCC OnLineGau 4645, decided on 23-04-2020]

[Gujarat High Court]

Permanent Alimony to a Muslim Woman

Will permanent alimony granted to a Muslim woman be conditional to her remarriage? Detailed report untangling significance of ‘Permanent Alimony’ & ‘Periodical Maintenance’

[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLineGuj 711, decided on 19-03-2020]

Special Marriage Act

If marriage is registered under Special Marriage Act, is it necessary for the couple to take recourse of same law to sever ties permanently? Guj HC elucidates in a custody matter

[Chavda Twinkle v. State of Gujarat, 2020 SCC OnLineGuj 1167, decided on 17-07-2020]

[Himachal Pradesh High Court]

Ancestral Property

Can wife claim maintenance under S. 12 of the Protection of Women from Domestic Violence Act, 2005 over ‘ancestral property’ of the husband? HP HC explains

[Kubja Devi v. Chhape Ram,  2020 SCC OnLine HP 1829, decided on 05-10-2020]

[Jharkhand High Court]

Desertion

‘Desertion’ has to be wilful and voluntary for a valid ground for divorce under S. 13 of Hindu Marriage Act, 1955; Legal principle “No one can take a benefit of his own fault” applied

[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLineJhar 773, decided on 08-09-2020]

[Karnataka High Court]

Cruelty to First Wife

Though Shariat permits a Muslim man to practise polygamy, but would that amount to cruelty to first wife? Kar HC explains concept of Marital Cruelty

[Yusufpatel v. Ramjanbi, MFA No. 201154 of 2018 (FC), decided on 17-08-2020]

 [Kerala High Court]

Convenience & Welfare of Children over Wife

In matrimonial matters preference is to be given to convenience and welfare of children over wife: Ker HC dismisses application for transfer of case

[Nimi v. Ajith M.T., 2020 SCC OnLine Ker 4313, decided on 09-10-2020]

Cruelty

Wife’s persistent effort to separate husband from family amounts to cruelty: Divorce granted in favour of husband

[Ranjith P.C. v. Asha Nair. P, 2020 SCC OnLine Ker 1751 , decided on 20-05-2020]

 Dowry

Is there a limitation period for wife to claim property entrusted to in-laws given in form of dowry? Ker HC answers

[Sheela K.K. v. N.G. Suresh, 2020 SCC OnLine Ker 4240, decided on 24-09-2020]

 Suppressing Material Facts & Marriage

If a wife obtains husband’s consent for marriage by suppressing material facts like cardiac ailments, would that amount to fraud? Ker HC explains whether marriage can be declared null & void

[Ajitha v. Harshan, Mat. Appeal No. 734 of 2012, decided on 25-09-2020]

 Transfer Petitions related to Matrimonial Disputes

While considering transfer petitions related to matrimonial disputes, the convenience of wife is to be preferred over the convenience of husband; Ker HC reiterates

[Kavitha v. Gopakumar, 2020 SCC OnLine Ker 6098, decided on 30-11-2020]

[Madras High Court]

Customary Divorce

Can plea of customary divorce be considered as a valid defence while departmental proceeding for bigamy is initiated? Madras HC considers scope of defence under Service Rules

[Sudalaimai v. Deputy Inspector General of Police, WP (MD) No. 17504 of 2014, decided on 09-09-2020]

 Illegitimate Child [Maintenance]

Is an illegitimate child entitled to maintenance under S. 125 CrPC? Madras HC reiterates legal position

[Pachaimuthu v. Minor Vishanthini, 2020 SCC OnLine Mad 2677, decided on 01-10-2020]

Limitation Period for Domestic Violence Complaints

Limitation provided under CrPC is applicable to complaints under Domestic Violence Act: Madras HC rejects complaint filed after lapse of 1 yr 10 months

[N. Prasad v. Harithalakshmi, 2020 SCC OnLine Mad 1767, decided on 20-07-2020]

 Void Marriage

What is the essential condition for validity of any marriage? Detailed Report highlighting legality of marriage of a girl below 18 years of age

[Prakash v. State, Crl. A. No. 334 of 2014, decided on 30-11-2020]

[Orissa High Court]

Rights of a “lady” in Same-sex Couple Relationship

Same-sex couple have a right to live together outside wedlock; Rights of a woman enshrined in Protection of Women from Domestic Violence Act, 2005 to apply on the “lady” in the relationship

[Chinmayee Jena v. State of Odisha, 2020 SCC OnLine Ori 602, decided on 24-08-2020]

[Punjab & Haryana High Court]

Sapinda Prohibition

Whether partners falling in sapinda prohibition under HMA can stay in a live-in relationship? Parties argue while hearing in anticipatory bail

[Akhilesh v. State of Punjab,  2020 SCC OnLine P&H 2058, decided on 19-11-2020]

Section 498-A IPC, a weapon?

Disgruntled wives use provisions of S. 498-A IPC as a weapon rather than shield: P&H HC

[Amarjit Kaur v. Jaswinder Kaur, 2020 SCC OnLine P&H 577, decided on 15-05-2020]

 Voidable Marriage

In case a marriage is solemnized in violation of age restriction, marriage is only voidable

[Deepak Kumar v. State of Haryana, 2020 SCC OnLine P&H 759 , decided on 15-06-2020]

[Rajasthan High Court]

Theory of Homicidal Death

Allegation of woman set ablaze in view of dowry demand dismissed; Prosecution theory of homicidal death sheer exaggeration; finds Raj HC

[Gopal v. State of Rajasthan, DB Criminal Appeal No. 799 of 2014, decided on 06-08-2020]

 [Telangana High Court]

Harassment or Cruelty

For invoking S. 304-B IPC, harassment or cruelty caused to a woman should have happened “soon before her death”

[Surender Singh v. State of A.P., 2020 SCC OnLine TS 874, decided on 06-07-2020]

[Tripura High Court]

Dissolution of Marriage of ST Couple

Will Hindu Marriage Act have application on a couple belonging to Scheduled Tribe notified under the Constitution for purpose of dissolution of marriage? Tripura HC explains

[Rupa Debbarma v. Tapash Debbarma, 2020 SCC OnLine Tri 425, decided on 09-09-2020]

Irretrievable Breakdown of Marriage

What amounts to irretrievable breakdown of marriage? Tripura HC discusses in a case where the couple lived apart for 13 continuous years

[Aparna Dey v. Alok Dey, 2020 SCC OnLine Tri 411, decided on 09-09-2020]

Lived like a Wife [Maintenance]

“Woman who lived like wife, cannot be deprived of maintenance”: Tripura HC grants maintenance to woman who “lived like wife” for 10 yrs

[Sri Bibhuti Ranjan Das v. Gouri Das, 2020 SCC OnLine Tri 280, decided on 07-07-2020]

[Uttaranchal High Court]

Medical Examination of Wife in Divorce Proceedings

Wife not eligible for medical examination of whether she can conceive or not during Divorce proceedings; Utt HC allows appeal

[Rashmi Gupta v. YogeshBabu, 2020 SCC OnLineUtt 339, decided on 01-07-2020]

 Mental Cruelty

Mental cruelty is no less than physical cruelty, wife causing mental cruelty to husband valid ground for dissolution of marriage; Utt HC dismisses appeal

[Anita Gaur v. Rajesh Gaur, 2020 SCC OnLineUtt 503, decided on 24-08-2020]

Also Read:

2020 Wrap Up — Flashback of Stories on Consumer Cases

Case BriefsHigh Courts

The parents together are a young child’s world. It is together that they groom him into his youth. It is together that they ensure the overall development of his personality in its myriad facets.

But marriage, like life, sometimes takes an unpleasant turn, where the spouses could turn into an estranged couple. 

It is in this situation that the Court, in the exercise of its parens patriae jurisdiction, called upon to perform the onerous task of keeping the young child’s world, as much together as can be. 

Allahabad High Court: J.J. Munir, J., observed that

What is important while deciding the issue of custody between two natural guardians, is where the minor’s welfare would be best secured. The statute indicates a preference for the mother, so far as a child below five years is concerned.

The instant petition was filed for a writ of habeas corpus, instituted by Master Anav’s mother, the first petitioner, asking the Court to liberate the minor from his father’s custody by entrusting the minor into hers, is about a young child’s devastating world.

Petitioner 1 states that during her stay with her husband, she was tortured physically and mentally, both. Her mother even gave dowry.

Later, petitioner 1 realised that her husband had an amorous relationship with her sister-in-law and another girl from the village to which she objected in vain. She was even forced to abandon the marriage and go back to her mother’s home.

The discord between parties was mediated by kinsmen, which resulted in what Meenakshi claims to be a mutual divorce.

Further, it was stated that Meenakshi after the above settlement went back to her mother’s home along with her young son, Anav. After some time petitioner 1 claimed that there was an unholy alliance between Meenakshi’s brother, Sunny and her estranged husband with two making it common cause to oust her minor son from her mother’s home.

While Ram Narayan wanted his son to stay with him, Sunny who is arrayed as the respondent 6 to this petition, wanted the child out of his mother’s home, where Meenakshi stays, because he thought Meenakshi may claim a share for her son in her ancestral property.

In light of the above motive, Meenakshi was beaten up and her son was snatched away, leading to locking up Meenakshi.

Later Anav was handed over to Meenkashi’s husband.

Analysis and Decision

Bench observed that the mother of the minor came up with serious allegations about her son being kidnapped by force by her brother and being delivered into her husband’s custody.

Court found no tangible evidence in regard to the child being forcibly removed from mother’s custody.

The minor is a young child of tender years. He is just four years old. The Court did not find him capable of expressing an intelligent preference between his parents, in whose custody, he would most like to be.

Amongst many things that this Court noticed is the fact that the father is not, particularly, interested in raising the minor.

A perusal of the settlement between the parties contained clause wherein it was specifically stated that the minor, Anav, then aged two and a half years, would stay in his mother’s custody.

The above-stated discloses the disinclination of the father to bear a whole-time responsibility for the minor’s custody and the complementary inclination of the mother to take that responsibility.

Mother’s right and that of the father, under Section 6(a) as to guardianship has been considered at par by the Supreme Court in Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.

So far as custody goes, as distinct from guardianship, between the two natural guardians, the mother is to be preferred by virtue of the proviso to Section 6(a) of the Act of 1956, in the case of a child below five years of age.

Bench observed the Supreme Court Decision in Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, wherein it was held that

A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.

Court added to its observation in custody matters that,

But, the general rule about custody of a child, below the age of five years, is not to be given a go-by. If the mother is to be denied custody of a child, below five years, something exceptional derogating from the child’s welfare is to be shown.

Bench noted that nothing on record was placed where it could be stated that the mother was unsuitable to raise the minor. Court found that the mother in the present case is more educated than the father.

Adding to the above, Court also stated that:

The mother, being found fit to have the minor’s custody, it cannot be the best arrangement to secure the child’s welfare, or so to speak, repair his devastated world. He must have his father’s company too, as much as can be, under the circumstances.

This Court must, therefore, devise a suitable arrangement, where the minor can meet his father in an atmosphere, that is reassuring and palliative. The father must, therefore, have sufficient visitation while the minor stays with his mother.

Hence, the habeas corpus writ petition was allowed in view of the above discussion. [Meenakshi v. State of U.P., 2020 SCC OnLine All 1475, decided on 02-12-2020]

Advocates who represented the parties in the matter:

Counsel for Petitioner:- Sushil Kumar Sharma, Mohit Kumar

Counsel for Respondent:- G.A., Amar Nath, Shravana Kumar Yadav

Case BriefsHigh Courts

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

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

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

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

Suchita Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Division Bench of Ali Mohammad Magray and Sanjay Dhar, JJ. rejected the bail plea and upheld the order of the Special Judge.

The present appeal was under the National Investigation Agency Act was directed against an order of the Special Judge Designated under the NIA Act, whereby petition of the appellants/accused of grant of bail by default was rejected.

It is averred in the appeal that the appellant 1 was arrested for offences under Section 302, 307 RPC, 7/27 Arms Act and ULA(P) Act. It is further averred that one of the appellant’s had completed 177 days in custody whereas the other two had completed 170 days in custody in connection with the said offences. It is also averred that, the appellants/accused were admitted to bail but in spite of that, they were not released from the custody. It was further contended that the appellants were taken into preventive custody under Public Safety Act and under preventive custody in terms of Section 107 of CrPC respectively.

Briefly stated case of the prosecution against the appellants/accused was that they had transported three militants from Rawalpora to the BSF Camp located at Gogoland and these three militants launched a suicide attack on the BSF camp leading to the death of ASI B. K. Yadav.

The Court pointed out that in cases relating to the investigation of offences under the provisions of ULA(P) Act, even if it is not possible to complete the investigation in such cases within a period of ninety days, the Court, if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the reasons for the detention of the accused beyond the period of ninety days, can extend the said period up to 180 days. It means that the right to claim bail in default will accrue to the accused facing investigation relating to offences under ULA(P) Act only upon expiry of 180 days from the date of his first arrest.

The Court looked at a decision wherein the question whether custody in a particular case for investigation can be treated as custody in another case, came up for consideration before the Supreme Court in the case of CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141 wherein it was held that if one case is registered against the accused in which during the course of the investigation it is found that he has committed more than one offence then it will be treated to be one investigation and for each offence a separate police remand cannot be sought. But in case it is a different offence which has been committed by him then it will be a separate case registered and a separate investigation will be taken up and for that, the detention by the accused in the previous case cannot be counted towards a new case or different case registered against the accused.

Applying the aforesaid ratio of the law laid down by the Supreme Court to the facts of the instant case, the Court held that the period of custody undergone by the appellants cannot be added to the period of custody which they have undergone in. Furthermore, the appellants/accused did not undergo custody of 180 days. Therefore, their right to claim default bail in terms of Proviso (a) to Section 167(2) of the Code of Criminal Procedure read with Section 43D of ULA(P) Act in the eyes of the Court did not accrue to them. [Mohammad Amin Illahie v. J&K,  2020 SCC OnLine J&K 456, decided on 09-09-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel, J., allowed a bail petition to the petitioner who was in custody since 2014 in consonance with the FIR No. 59 of 2014, dated 20-05-2014, registered under Sections 498A, 302 and 201 of the Penal Code, 1860.

The accusation against the petitioner was that he was guilty of murdering Ms Vandana in the month of February, 2010, whom he had married in the month of February, 2009.

The Counsel for the petitioner, N.S. Chandel and Vinod Kumar Gupta, argued that the trial was at the stage of final arguments which presently stands deferred on account of COVID-19, as the statement of the petitioner under Section 313 CrPC stands recorded and that no purpose shall be served by detaining the petitioner at that point as he has already suffered a lot on account of his being in custody for almost six years. They further submitted that the evidence that had come on record demonstrated that the petitioner was not guilty of the offence alleged against him and there was every possibility of him being acquitted on merit. The Counsel for the respondent opposed the bail petition stating the gravity of the alleged offence and contended that the evidence that had come up during the course of trial, duly establishes the guilt of the petitioner and it would be desirable if the petition be dismissed.

The Court while allowing the petition explained that there was no doubt that the petitioner was facing trial under Sections 498A, 302 and 201 of the Penal Code, yet it remains a fact that he was in police custody since the year 2014 and that the contention of the counsel of petitioner that the custody of the petitioner now would not be serving any purpose as statement of the petitioner had also been recorded under Section 313 CrPC has merit and thus the petitioner should be enlarged on bail. [Ashok Rana v. State of Himachal Pradesh, 2020 SCC OnLine HP 1113 , decided on 31-07-2020]

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]