Case BriefsSupreme Court

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 BriefsSupreme Court

Supreme Court: In a case where a portion of a joint Hindu Family was alienated ‘out of love and affection’ by way of a gift deed, the bench of SA Nazeer* and Krishna Murari, JJ has explained the scope of powers of members of Joint Hindu Family and has held that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’.

In the case at hand, a gift deed was executed by the Karta of a Joint Hindi Family in favour of the appellant, who was raised by the Karta, ‘out of love and affection’ and by virtue of which the appellant was given a portion of the joint family property.

The Court, however, held that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’ and what is understood by the term ‘pious purpose’ is a gift for charitable and/or religious purpose. Therefore, a deed of gift in regard to the ancestral property executed ‘out of love and affection’ does not come within the scope of the term ‘pious purpose’.

Observing that it is irrelevant if such gift or settlement was made by a donor in favour of a donee who was raised by the donor without any relationship, the Court held that the gift deed in the instant case was not for any charitable or religious purpose.

[KC Laxmana v. KC Chandrappa Gowda, 2022 SCC OnLine SC 471, decided on 19.04.2022]


*Judgment by: Justice SA Nazeer


Counsels

For appellant/Donee: Advocate Anand Sanjay M. Nuli

For Respondent/Plaintiff: Senior Advocate Arvind Varma

Case BriefsSupreme Court

Supreme Court: In a case where a woman had, by way of counter claim in a marriage petition filed by her husband for dissolution of the marriage, sought to declare her husband’s alleged second marriage to be “illegal, void and voidable” and son born out of the said “adulterous” relationship illegitimate, the bench of MR Shah* and AS Bopanna, JJ has held that no such relief qua the third party can be prayed as per Section 23A of the Hindu Mariage Act, 1955.

Factual background

The respondent-husband filed a Hindu Marriage Petition before the Family Court under Section 13 of the Hindu Marriage Act for dissolution of marriage, mainly on the ground that the appellant-wife is guilty of cruelty.

According to the appellant-wife, the respondent-husband deserted her and their son on 9.2.2006 and the respondent-husband refused to provide maintenance for her and their son.

It was also her case that the respondent-husband as on today is cohabiting with another woman, openly moves around with the said woman and introduces the said lady as his new wife and is travelling not only in the country but abroad with her and also has a son with her. Since the respondent-husband wants to marry the said woman, a false and fabricated story is placed before the Court.

She, hence, prayed that:

  • the marriage between the petitioner with the said woman dated 14.12.2006 is illegal, void and voidable and that the respondent-husband and the said woman are living in adultery.
  • son born through the said marriage is the illegitimate child of the petitioner.

Section 23A of the Hindu Marriage Act

23A. Relief for respondent in divorce and other proceedings – In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

Analysis

Holding that no relief can be prayed qua the third party under Section 23A of the Hindu Marriage Act, the Court explained that by way of counter claim, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for the relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act, namely,

  • Section 9 (Restitution of conjugal rights);
  • Section 10(judicial separation);
  • Sections 11 & 12(declaration of marriage between the petitioner and the respondent void)
  • Section 13 (divorce).

Therefore, the respondent to the aforesaid proceedings can pray for the aforesaid reliefs only by way of counter claim and that too between the petitioner and the respondent.

Since under the provisions of the Hindu Marriage Act, the relief of divorce, judicial separation etc. can be between the husband and the wife only and cannot extend to the third party, therefore, it was not open for the appellant-wife to seek declaration to the effect that the marriage between the respondent-husband and the third party is void. Further, no relief can be prayed by way of counter claim even against the son born out of the alleged wedlock between the respondent-husband and the third party.

The Court, however, explained that in such a situation, the only remedy available to the appellant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs.

“At the most, the appellant herein – original defendant by way of counter claim could have claimed the relief and prayed for divorce and/or judicial separation on the ground of husband’s adultery. Beyond that, no relief which cannot be granted under the provisions of the Hindu Marriage Act can be claimed by way of counter claim.”

[Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel, 2021 SCC OnLine SC 902, decided on 07.10.2021]


Counsels

For appellant-wife: Advocate Puneet Jain

For respondent-husband: Senior Advocate Mihir Thakore and Advocate Aastha Mehta


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: Holding that a testamentary court is not a court of suspicion but that of conscience, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has set aside the High Court’s order in a suit for execution of Will wherein the Court had “unnecessarily created a suspicion when there is none”, merely because it thought that was no logic in the exclusion of the sister of the beneficiary of the Will. Neither the beneficiary nor his siblings had raised any issues regarding the validity of the Will.

Asking the appellate Courts to consider the relevant materials instead of adopting an ethical reasoning, the Court explained,

“A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue.”

Brief Background

  • The Suit Property originally belonged to one Jessie Jayalakshmi, the maternal aunt of the Appellant/Plaintiff, who, being a spinster, adopted the appellant as her son and the appellant took care of her when she suffered an attack of paralysis.
  • The appellant had two siblings, a brother and a sister.
  • A registered Will under Exhibit P4 was executed by Jessie Jayalakshmi on 04.09.1985 in favour of the Appellant. The said Will was attested by the brother of the Appellant.
  • Jessie Jayalakshmi was also brought to the office of the Sub-Registrar by none other than Kantha Lakshmi, the sister of the appellant.
  • The relationship between Kantha Lakshmi and her husband, Respondent No. 1 got strained and they obtained a divorce decree on 26.03.1988.
  • Respondent No. 1, while acknowledging the factum of execution of Exhibit P4, introduced Exhibit D1, an unregistered Will, allegedly executed by Jessie Jayalakshmi in favour of the Respondent No.2 (minor son of Respondent No.1) and claimed that Exhibit P4 has been replaced by Exhibit D1.
  • Trial Court found Exhibit D1 to be forged.
  • The High Court reaffirmed the findings of the Trial Court with respect to the genuineness of Exhibit D1. However, in the absence of any specific pleading coupled with an admission of the execution of Exhibit P4, the High Court suspected that there was no logic in the exclusion of the sister of the Appellant and concluded that there was no basis to leave her out of the Will.

Analysis

The Supreme Court noticed that,

  • The High Court did not give any reasoning whatsoever for differing with the views expressed by the Trial Court.
  • The High Court has also committed an error in misconstruing the presence of the sister of the Appellant, Kantha Lakshmi. Her presence in fact adds strength to Exhibit P4 having been executed properly. It is the specific case of the Appellant and his siblings that the deceased, Ms. Jessie Jayalakshmi wanted the property to be given in his favor.

“Their participation coupled with the subsequent conduct would be sufficient enough to uphold Exhibit P4. When there are no suspicious circumstances surrounding the execution of Exhibit P4, there is no need to remove.”

  • The High Court after giving adequate reasoning for disbelieving Exhibit D1 that it is forged and fabricated should have kept in mind the conduct and attitude of the Respondent No.1.

“The factors such as the fabrication and severance of relationship between himself and his wife in pursuance of the decree for divorce, coupled with the status while squatting over the Suit Property being the relevant materials, ought to have weighed in its mind instead of questioning Exhibit P4. Had that been done, perhaps it would have come to conclusion that such an exercise is not warranted at the hands of the. Respondents, who not only accepted Exhibit P4 but it did not even question it; except by contending that it is replaced by Exhibit D1.”

Conclusion

Noticing that both the Courts have given adequate reasoning for not believing Exhibit D1, the Court concluded that

“In the absence of pleadings to the contrary, followed by issues framed, it is not open to the Appellate Court to embark upon an exercise which is not required and also not permitted under the law.”

[V. Prabhakara v. Basavaraj K., 2021 SCC OnLine SC 896, decided on 07.10.2021]


*Judgment by: Justice MM Sundresh

Counsel:

For appellant: Advocate Kiran Suri

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Bench of N.Nagresh, J., directed the Local Registrar to register the marriage of couple living in Israel through virtual mode.

The petitioner is the father of one Mohan Sebastian. Mr. Mohan Sebastian married Mrs. Sonia Raju on 13-01-2020 and both of them were working in Israel. Due to COVID-19 pandemic, the couple was unable to travel back to India and get their marriage registered before the Local Registrar. The couple had a child on 26-02-2021 but to obtain Birth Certificate and passport of the newborn child, Marriage Certificate from the Local Self Government Authority has to be produced before the Israeli Authorities.

Although, the couple had applied for registration before the local Registrar their application was rejected due to non-appearance of parties in person before the Registrar. The petitioner argued that due to the pandemic situation, his son and daughter-in-law were not in a position to travel from Israel to Kerala. However, they can appear before the Registrar by virtual mode. It was urged that unless the marriage is registered utilising virtual mode, the future of the newborn child will be put to difficulties and it will affect the family adversely.

Considering the facts and circumstances of the case, and also taking into account the pandemic situation prevailing and the impending lockdown, the Bench directed the Local Registrar to register the marriage of the petitioner’s son and daughter-in-law adopting video conferencing facility as expeditiously as possible. The reliance was placed by the Court on Mathew T.K. v. Secretary and Registrar of Marriages, 2020 (4) KLT 853. The petition was disposed of accordingly.

[Sebastian Thomas v. Local Self Government Department, 2021 SCC OnLine Ker 2180, decided on 04-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioner: Ajeesh S.Brite, Abhilash Augustine M., Stephy Joseph and Sereena P.A.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan. R. Subhash Reddy and MR shah, JJ has held that an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Hindu Adoptions & Maintenance Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of Act, 1956.

BACKGROUND OF THE CASE

The Court was hearing a case wherein a woman had filed an application under Section 125 CrPC against her husband, claiming maintenance for herself and her 3 children. While the Judicial Magistrate dismissed the application under Section 125 Cr.P.C. of the applicant and 2 of her children, the daughter’s application was allowed for grant of maintenance till she attains majority. The High Court dismissed the application filed under Section 482 Cr.P.C. of the appellant on the ground that since appellant has attained majority and is not suffering from any physical or mental abnormality, she is not entitled for any maintenance.

Senior Advocate Vibha Datta Makhija, appearing for the appellant submitted that even though the appellant had attained majority in 2005 but since she is unmarried, she is entitled to claim maintenance from her father. It was further contended that High Court committed error in dismissing the application filed under Section 482 Cr.P.C. of the appellant on wrong premise that since appellant has attained majority and is not suffering from any physical or mental abnormality, she is not entitled for any maintenance.

According to the respondents, as per Section 125 Cr.P.C., entitlement to claim maintenance by daughter, who has attained majority is confined to case where the person by reason of any physical or mental abnormality or injury unable to maintain herself and hence, High Court has rightly dismissed the application filed under Section 482 Cr.P.C. of the appellant since no case was made out to interfere in orders passed by the Judicial Magistrate and learned Revisional Court in exercise of jurisdiction under Section 482 Cr.P.C.

DISCUSSION ON SECTION 125 CRPC vis-à-vis SECTION 20 OF HAMA, 1956

“The maintenance as contemplated under Act, 1956 is a larger concept as compared to concept of maintenance under Section 125 Cr.P.C..”

On scope of Section 20(3) of HAMA, 1956

Hindu Law prior to enactment of HAMA, 1956 always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if she is unable to maintain herself by enforcing her right under Section 20 of HAMA, 1956. Hence, Section 20(3) of HAMA, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property.

“The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law, which can very well be enforced by her against her father.”

On scope of Section 125 CrPC

By virtue of Section 125(1)(c), an unmarried daughter even though she has attained majority is entitled for maintenance, where such unmarried daughter is by reason of any physical or mental abnormality or injury is unable to maintain itself.

“The Scheme under Section 125(1) Cr.P.C., thus, contemplate that claim of maintenance by a daughter, who has attained majority is admissible only when by reason of any physical or mental abnormality or injury, she is unable to maintain herself.”

The purpose and object of Section 125 Cr.P.C. as noted above is to provide immediate relief to applicant in a summary proceedings, whereas right under Section 20 read with Section 3(b) of HAMA, 1956 contains larger right, which needs determination by a Civil Court, hence for the larger claims as enshrined under Section 20, the proceedings need to be initiated under Section 20 of the Act and the legislature never contemplated to burden the Magistrate while exercising jurisdiction under 34 Section 125 Cr.P.C. to determine the claims contemplated by Act, 1956.

CONCLUSION

On facts, the Court noticed that since the application was filed under Section 125 Cr.P.C. before Judicial Magistrate First Class, the Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956. Hence, there is no infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major.

The Court, however, gave liberty to the appellant to take recourse to Section 20(3) of the Act, 1956 for claiming any maintenance against her father.

[Abhilasha v. Prakash,  2020 SCC OnLine SC 736 , decided on 15.09.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the question as to whether a Parsi woman automatically gets converted to Hinduism after marrying a Hindu man under the Special Marriage Act, 1954 to a 5-judge Constitution bench. The Court directed the matter to be added in the list of matters which are already listed before the Constitution Bench on 10.10.2017.

The Court said that the larger bench will have to consider whether the five-judge bench judgement in the triple talaq matter can also have some bearing in the present case, apart from examining he applicability of ‘doctrine of culture’ which provides that a woman assumes the religion of her husband after marriage.

The bench was hearing a plea filed by Goolrokh Gupta challenging the Bombay High Court judgement that had held that a Parsi woman is deemed to be converted to Hinduism after marrying a Hindu man under the Special Marriage Act. [Goolrokh M. Gupta v.  Burjor Pardiwala,  Special Leave to Appeal (C) No(s).18889/2012, order dated 09.10.2017]

With inputs from The Hindu

Case BriefsHigh Courts

Delhi High Court: Reiterating the factors to be considered while considering the merits of an application for grant of interim maintenance under Section 24 of the Hindu Marriage Act, 1955 the Court held that the object behind Section 24  is to provide for maintenance, pendente lite, to a spouse in matrimonial proceedings so that during the pendency of the proceedings the spouse can maintain herself/himself and also have sufficient funds to carry on the litigation and  not unduly suffer in the conduct of the case for want of funds. A spouse unable to maintain himself/herself is entitled to maintenance on the principle of equistatus and respect that the spouse would have enjoyed if he/she continued to live with other spouse.

The Court reiterated the factors to be considered while determining the amount of maintenance as laid down in Bharat Hegde v. Saroj Hegde,  2007 SCC Online Del 622 : (2007) 140 DLT 16:

  • Status of the parties.
  • Reasonable wants of the claimant.
  • The independent income and property of the claimant
  • The number of persons, the non applicant has to maintain.
  • The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
  • Non-applicant’s liabilities, if any.
  • Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
  • Payment capacity of the non-applicant.
  • Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
  • The non-applicant to defray the cost of litigation.
  • The amount awarded under Section 125 of the Criminal Procedure Code is adjustable against the amount awarded under Section 24 of the Act.

The Division Bench of Pradeep Nandrajog and Pratibha Rani, JJ. held that the court has to necessarily arrive at prima facie determination about the earning capacity of the rival claimants. The determination cannot be made with exactitude; it is essentially interim in nature. Capacity of the other party to earn cannot be taken into consideration – it is only the actual earning of the opposite party on the basis of which relief can be granted. Permanent income and not casual income is relevant. Where there was sufficient means in the husband’s family on the strength of which the husband got married he has to share the burden of supporting his wife during the course of annulment of such marriage

The Court  further observed that “the provisions of Section 24 are beneficent in nature and the power is exercised by the court not only out of compassion but also by way of judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse. The legislature, in its discretion, has not fixed any guideline regarding ceiling limit of maintenance, pendente lite, as in the case of the Divorce Act or the Parsi Marriage Act. The word “support” in Section 24 is not to be narrowly interpreted. It does not mean bare existence. It means that the claimant spouse should have the same comfort as the other. Of course, the section is not intended to bring about arithmetical equality between the two.” [Sujit Kumar v. Vandana, 2016 SCC OnLine Del 4397, decided on August 8, 2016]