Case BriefsHigh Courts

Kerela High Court: The Division Bench of K. Harilal and P. Somarajan, JJ. dismissed a writ petition regarding the determining interim custody of the child of the parties. 

In the present case, the petitioner and the first respondent are the husband and wife, respectively and they were living with their child in Qatar. On the 07.10.2019, the respondent, picked the child from his school and arrived at Kochi, India, without any prior permission or knowledge of the petitioner. Thus, the child is under illegal custody of the respondent. 

Upon issuance of a notice by the present court, the mother of the first respondent, appeared before the court and submitted that the first respondent had already filled an application before the family court, Pala and had obtained an order of injunction restraining the petitioner from taking the custody of the child during the pendancy of the original petition.

High Court upon perusal of the arguments of the parties, stated that the dispute involved in the present writ petition relates to that of the custody of the child between a father and mother, hence a family court is a more competent forum for determining the custody, considering the welfare of the child. The bench also directed the family court to advance the matter and pass an interim order determining the interim custody of the child, till the final disposal of the original petition.  [Aurif Bin Thaj v. Besse Ann George,  2019 SCC OnLine Ker 3470, decided on 22-10-2019] 

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of S.N. Satyanarayana and P.G.M. Patil, JJ. allowed this appeal and remanded the matter back to the Principal Judge, Family Court.

In this instant case, the Respondent – wife in M.C. No. 268 of 2016 before the Family Court, Hubballi has appealed impugning the judgment of the Principal Judge. The petition of the aforesaid M.C. No. 268 of 2016 was filed by the husband of the Respondent (herein appellant). 

Their marriage took place on 11.05.2011 and they have a son. The appellant alleged that the husband/respondent threw her out of the matrimonial house on 01.07.2015. Thereafter, she went to her parental house in Rajasthan and filed a petition in F.C. No. 53 of 2018 under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights. Meanwhile, the husband secured a decree of divorce in M.C. No. 268 of 2016. 

The wife came to know from the certified copy of the judgment of the Principal Judge that the husband filed the matrimonial case by giving wrong address of the wife and therefore the notice never reached the wife and thereby securing a decree of divorce ex parte.

After having heard both the counsels for appellant (H.R. Gundappa) and respondent (Gurudev Gachchinamath), the Court observed that there were instances where the respondent – husband could have informed the appellant – wife about the proceedings in the Court but did not. The Husband kept it from the wife. Therefore, it is clear from the very face of it that the decree was secured with malafide intentions so as to curtail the right of his wife and maintenance of minor son. The Court also gave light to how the decree was granted. The decree was granted without appreciating the material on record and also by not following the statutory provisions which are required to be seen by the Court below while considering granting the decree of divorce. Hence, the decree was set aside.[Renu v. Kamalesh, 2019 SCC OnLine Kar 1655, decided on 29-08-2019]

Case BriefsHigh Courts

Gauhati High Court: Hitesh Kumar Sarma, J. dismissed a revision petition filed against the order of the family court whereby the petitioner was directed to pay a monthly sum of Rs 2000 each to his wife and child towards their maintenance under Section 125 CrPC.

The wife had left petitioner’s home due to alleged torture inflicted upon her and thereafter she filed an application under Section 125 claiming maintenance which was allowed by the family court in the terms above. The petitioner was a Government Servant earning a monthly salary of about Rs 22,000.

The High Court noted that while the wife was staying at her parental house, she was not provided maintenance which amounted to negligence in the sense that the petitioner was bound to maintain the wife and the child, which is a settled legal position. It was also noted that the allegation that the wife was working in a school and earning money could not be established by the petitioner and no specific evidence to that effect was laid by him. It was observed: “In the absence of any specific evidence, it cannot be held that the wife/respondent was earning sufficient amount to maintain herself. That being so, in the absence of any specific evidence as to the income of the respondent/wife, the petitioner/husband is bound to maintain his wife and the child fathered by him.”

In that view of the matter, the Court did not find any reason to interfere with the order of the family court. The revision petition was accordingly dismissed. [Jotirmoy Kalita v. Jonamoni Kalita, 2019 SCC OnLine Gau 2245, Order dated 07-05-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. was hearing an application under Section 482 of the Code of Criminal Procedure, 1973 which sought quashing of Family Court’s order whereby applicant-husband was directed to pay maintenance to his wife (2nd respondent herein).

At the outset, this Court called for a report from the Family Court, in the present matter. The said report stated that the applicant, till date had not complied with Family Court’s order to pay maintenance. At this juncture, learned counsel for the applicant Mr Dineshwar Prasad Singh submitted that he may be permitted to withdraw the application.

The Court opined that the applicant could not be allowed to simply withdraw the application, when his mala fide conduct stood exposed. It was observed that strict order was required to ensure payment of maintenance to the 2nd respondent, moreso, when there was a judicial order to that effect. The Court, under its inherent power under Section 482 CrPC is also required to pass an order for securing the ends of justice.

Accordingly, the application was disposed of as withdrawn, directing the Family Court to take all coercive measures against the applicant for ensuring compliance of its order directing payment of maintenance.[Sanjay Yadav v. State of Bihar, 2019 SCC OnLine Pat 601, Order dated 03-05-2019]

Case BriefsHigh Courts

Delhi High Court: A Bench of G.S. Sistani and Jyoti Singh, JJ. dismissed an appeal filed against the order of the family court whereby the appellant’s application demanding a DNA test of the child born to her wife was rejected.

In his pleadings, the husband had submitted that the wife was not living with him at the relevant time and therefore he could not be the father of the child born to her. This fact was denied by the wife in her written statement. Pertinently, the husband did not lead any evidence to substantiate his pleading that the wife was not in the matrimonial home at the relevant time. Consequently, his demand for conducting a DNA test of the child to ascertain the paternity was rejected.

The High Court did not find any infirmity in the family court’s order. Reference was made to Section 112 of the Evidence Act which says that birth during marriage to be a conclusive proof of legitimacy unless it can be shown that the parties had no access to each-other at the time when the child could have been begotten. But as noted above, the husband did not lead any evidence to substantiate his pleading. The High Court observed: An application seeking DNA test of the child in our view has very strong repercussion on the child and such an order for conducting a DNA test should be passed in very rare cases where very strong reasons are set out and in extreme circumstances when the matter cannot be resolved by leading evidence in the matter.” In such view of the matter, the appeal was dismissed. [CKP v. MP, 2019 SCC OnLine Del 8077, dated 02-04-2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.M. Shaffique and A.M.Babu, JJ. dismissed an appeal against the judgment of Family Court directing the husband to pay an amount of Rs 2,25,000 to his wife.

In the present case, the appellant and respondent were a married couple. The grievance of the respondent-wife was that at the time of her marriage she was given 25 sovereigns of gold ornaments which was appropriated by the appellant for his business purpose. But, appellant-husband denied the allegation of having appropriated any of her gold ornaments. The Family Court decreed return of respondent’s ornaments. Aggrieved thereby, the instant appeal was filed.

The appellant submitted that being from a poor family, respondent did not have the capacity to purchase any gold ornaments. Therefore his family had purchased the ornaments from a gold merchant. But the same was returned to merchant later since they did not have enough money to pay for it. However, later he vacillated from his statement and contended that the ornaments were imitation gold. Respondent argued that if the ornaments were imitation gold, then, in that case, the appellant’s contention that the ornaments were returned to the seller, itself was wrong.

The Court noted that though specific details regarding appropriation of gold ornaments had not been given by the respondent-wife; but she had specifically stated in her petition that her gold ornaments were taken and invested for appellant’s business purpose. It was opined that as far as a wife is concerned when her husband demands gold ornaments for his business it may not be possible for her to refuse. Therefore, there was every reason to believe the version of the respondent in view of contradictory contentions taken by appellant. In view thereof, no infirmity was found in the impugned order.[Muraleedharan Pillai v. Ambili Chellappan, 2019 SCC OnLine Ker 688, Order dated 22-02-2019]

Case BriefsSupreme Court

Supreme Court: In the issue relating to custody of a child where the question was as to whether the Counsellor’s report furnished in the course of mediation proceedings or the Mediator’s report in case of mediation, when the process fails, can be used by either of the parties during trial, the bench of Abhay Manohar Sapre and UU Lalit, JJ held:

“Complete adherence to confidentiality would absolutely be correct in normal matters where the role of the court is purely of an adjudicator. But such an approach may not essentially be conducive when the court is called upon and expected to discharge its role in the capacity as parens patriae and is concerned with the welfare of a child.”

On general rule of confidentiality in Mediation:

It is true that the process of mediation is founded on the element of confidentiality. In the process, the parties may make statements which they otherwise they would not have made while the matter was pending adjudication before a court of law. Such statements which are essentially made in order to see if there could be a settlement, ought not to be used against the maker of such statements in case at a later point the attempts at mediation completely fail. If the statements are allowed to be used at subsequent stages, the element of confidence which is essential for healthy mediation/conciliation would be completely lost.

On exception in issue relating to custody of a child:

The Court said that in order to reach correct conclusion, the court may interview the child or may depend upon the analysis of an expert who may spend some more time with the child and gauge the upbringing, personality, desires or mental frame of the child and render assistance to the court. It is precisely for this reason that the element of confidentiality which is otherwise the basic foundation of mediation/conciliation, to a certain extent, is departed from in Sub-Rule (viii) of Rule 8 of the Family Court Rules.

Statements made by the parents during the course of mediation may not be relied upon on the ground of confidentiality but natural responses and statements made by the minor to the Counsellor would certainly afford a chance to decide what is in the best interest of the child as a child may respond naturally and spontaneously in its interactions with the Counsellor, who is professionally trained to make the child feel comfortable. Stating that record of such interaction may afford valuable inputs to the Court in discharge of its duties in parens patriae jurisdiction, the Court said:

“The intention is clear that the normal principle of confidentiality will not apply in matters concerning custody or guardianship issues and the Court, in the best interest of the child, must be equipped with all the material touching upon relevant issues in order to render complete justice.”

[Perry Kansagra v. Smriti Madan Kansagra, 2019 SCC OnLine SC 211, decided on 15.02.2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of R.G. Ketkar, J. while deciding on a petition concerning the interim custody of a child stated that, “it is settled law that while considering the interim custody, welfare of child is paramount consideration.”

It has been stated that the learned trial judge had rejected the application made by the petitioner for the interim custody of his son, Ishan and had directed the respondent, Gauri Kulkarni to handover son, Ishan on every Sunday so that he would enjoy the company of their son.

Facts of the case are that Prasad for the betterment of son Ishan, along with his wife Gauri decided to shift from Sangli to Pune with Ishan’s grandparents, thereafter Gauri took away Ishan forcibly to Kolhapur and that is when the present petition was filed.

It was stated that, learned trial Judge observed that during the course of interaction with Ishan, he found that he is very brilliant and is able to understand right or wrong. Ishan showed his desire to pursue further education at Kolhapur itself instead of any international school at Pune and informed the learned trial Judge that he has now adjusted himself at Vibgyor School, Kolhapur. Therefore, it became clear that he was reluctant to go with his father and not willing to pursue education at Pune.

In the present petition, Prasad asserted that trial Judge did not appreciate the fact that, Ishan had told the trial Judge about not being able to cope up with the CBSE Board Curriculum at all and that he was facing a lot of mental tension along with sleepless nights.

On these assertions, the matter was fixed at the Chambers of the present High Court Bench of Bombay, wherein the interactions between the parties along with Ishan separately had taken place. During the course of interaction, Ishan empathetically made it clear that he wants to stay in Pune and join Symbiosis school so that he can pursue his hobbies in sports and more. Also on interacting with Gauri, it was noted that she had no objection if Ishan wanted to shift. Though she stated that for any ailments she should not be held responsible and the grandparents of Ishan and Prasad should take care of him during such period.

Thus the High Court held that welfare of Ishan lies in his shifting to Pune and studying there so as to pursue his hobbies. [Prasad Vilas Kulkarni v. Gauri Prasad Kulkarni, 2019 SCC OnLine Bom 238, dated 31-01-2019]

Case BriefsDistrict Court

Tis Hazari Court, Delhi (Family Court): The Bench of Reema Singh Nag, Additional Principal Judge dismissed a custody petition filed by a mother of 2 minor children against their father living in the United States of America.

As per the factual matrix of the case, the petitioner (mother) and the respondent (father) are both citizens of USA. They married in the year 2006 in New York as per US Civil Laws. The matrimonial home of the couple is in Connecticut. Both are dentists and have their joint dental practice in Stamford, Connecticut. Two children were born to the couple from the wedlock, both of whom are US citizens. There was a matrimonial discord between the couple. The petitioner alleged various counts of mental and physical harassment against the respondent; while the respondent denied the same and contra-alleged that the petitioner suffered from borderline personality disorder. The couple visited India in January 2016 to attend a wedding; they were scheduled to return in March 2016 but the petitioner refused to return. Subsequently, the respondent obtained a custody order from the US courts for both the kids and also filed a writ of habeas corpus before the Delhi High Court which was allowed. The habeas corpus order was challenged by the petitioner in the Supreme Court which matter is pending awaiting the decision on the instant petition.

The Family Court on detailed appreciation of the evidence and the law on the subject decided the issues in favour of the respondent and dismissed the petition. While so adjudicating, the Court discussed and made observations on various issues. The observations so made (inter alia) are delineated,  hereinafter:

  • Simply by taking oath of allegiance to the Constitution of India and applying for Indian citizenship, the petitioner could not invoke jurisdiction of the instant Court.
  • Court could not assist in breach of immigration law by the petitioner, the Court lacked jurisdiction under Section 9 of Guardian and Wards Act, 1956.
  • It was for the petitioner to prove that the respondent was an unfit person for custody of the children, she failed to do so.
  • The parties need to go for periodical expert counselling to learn to behave in presence of kids, for their healthy and natural growth.
  • The civil marriage under US law had its legal consequence and cannot be dissolved under Hindu Marriage Act, 1955 unless approved by the USA through judicial verdict.
  • K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1  does not deal with the guardianship issue. It cannot be extended to imply that a parent subsumes autonomy of the child in the form of guardianship.
  • Every child fits in the definition of best interest of the child as stipulated under Section 2(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015 since any decision in derogation of this definition would be harmful for the child.
  • Convention on Rights of Child requires that best interest of the child has to be primary consideration in all actions concerning him (Article 3); State is to ensure that no child is separated from parents accept under law (Article 9); and hearing is to be given to the child for weighing his wish according to his age and maturity (Article 12).
  • It is imperative that a child is exposed to nurture by both mother and father equally for his holistic development.
  • Personal development during cognitive ages of a child is sustained upon the bedrock of strong unit of sustained co-operative parenthood.

In the facts and circumstances of the case, the Court was of the view that the paramount welfare of the kids lies in shared parenting in the United States of America. It was held that the petitioner was not entitled to permanent and sole custody of the children. In view of the above, the custody petition was dismissed by the Court. [Jasmeet Kaur v. Navtej Singh,2018 SCC OnLine Fam Ct (Del) 1, dated 20-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of J.R. Midha, J. allowed a petition filed against the order of family court whereby opportunity of the petitioner to cross-examine the respondent was closed.

The family court, by its impugned judgment also dismissed the petitioner’s application for waiver of costs of Rs 10,000. Learned counsel for the petitioner sought an opportunity to cross-examine the respondent on payment of costs as imposed by the family court. Learned counsel for the respondent opposed the prayer.

The High Court relied on A. v. T., 2018 SCC OnLine Del 9395, wherein it was observed that it is very difficult to find the truth if the right of cross-examination of any witness is closed in undue haste. Further, cross-examination is a powerful weapon by which the defence can separate the truth from falsehood by piercing through the evidence given by a witness. In view of these categorical observations, the High Court held that one opportunity should be granted to the petitioner to cross-examine the respondent. The date for cross-examination before the family court was fixed, and orders made accordingly. [P. v. R.,2018 SCC OnLine Del 10052, dated 19-07-2018]

 

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench comprising of M.M.S. Bedi and Hari Pal Verma, JJ. allowed an appeal filed by the wife against the judgment of the family court, which declined her petition for divorce.

The appellant claimed that her husband was addicted to the vice of drinking, gambling and taking medical intoxicants. He used to spend all his income on these addictions. He used to beat the appellant and demanded her to bring money from her parent’s home. He pressurized her to bring Rs. 8 lakhs, and when she showed her disability, the appellant was beaten after which she was forced to leave her matrimonial home. She filed a divorce petition on grounds of cruelty, which was dismissed by the family court. Feeling aggrieved, the petitioner approached the High Court.

The High Court perused the record and found that no rebuttal evidence was produced by the respondent-husband against the pleadings of the appellant. Considering the statements of the appellant and other witnesses, and in absence of a rebuttal by the respondent, the Court held that the facts as alleged by the appellant in divorce petition were established. Furthermore, the Court was informed that the respondent was settled in Australia and had no intention to contest the matter. In such circumstances, holding the factum of cruelty as established against the respondent, the High Court allowed the appeal and granted divorce to the appellant. [Yogita v. Sandeep Kumar,2018 SCC OnLine P&H 726, dated 01-06-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Raghvendra S. Chauhan, J. decided a writ petition filed under Articles 226 and 227 of the Constitution, wherein the Court upheld the order of the Family Court whereby the petitioner was to pay an amount of Rs. 32,114 as travelling expenses to the respondent.

The parties were husband and wife. The petitioner filed a divorce petition against the respondent on the ground of cruelty and desertion. The petition was filed in Bangalore, Karnataka, while the respondent was living in Meerut, U.P. The respondent filed a transfer petition before the Family Court which was dismissed while directing the petitioner to pay the above-mentioned amount as traveling expenditure to the respondent. This order was challenged by the petitioner contending that the respondent was only a housewife and she was free to travel via train and there was no need for her to travel via flight. He was ready to pay the fare for train tickets as against the ‘requisite travelling expenditure’.

The Court condemned, in strong words, the argument made on behalf of the petitioner as misplaced an untenable. Rejecting the contention of the petitioner that the housewife was free to travel by train, the Court said that, “…said plea terms the housewife as “free”. Such a contention merely shows the lack of understanding about the work being carried out by “the housewife.” It also reveals the lack of gender justice, where a large number of persons continue to carry a misnomer that a housewife is “free”. Needless to say, a housewife is as busy as a professional person. After all, she is responsible for looking after the members of the family, and for running the house.” Further, the term ‘requisite expenditure’ is not limited to merely train travel. It is not for the petitioner to decide as to what mode of transportation the respondent should take in order to attend the hearing. If the respondent decides to travel by air, and not by train, even then the petitioner cannot escape his liability to pay the requisite travelling expenditure. Therefore, the petition was dismissed, upholding the order impugned herein. [Gaurav Raj Jain v. Shweta Jain,2018 SCC OnLine Kar 639, order dated 26-04-2018]

Case BriefsHigh Courts

High Court of Kerala: The Division Bench comprising of V. Chitambaresh and Sathish Ninnan, JJ., recently dealt with a writ petition filed by the mother for presenting the child in question to the Court since he had allegedly been removed from her custody without any orders from a court of law.

The petitioner contended that following her separation from her husband, despite her having full custody of the child, he was taken away by his paternal grand parents from his maternal aunt’s house while she was away working and was never returned back. The paternal grand parents refuted the claims and instead alleged that he was found abandoned in a store nearby the school. They also contended that by virtue of their son, the father of the child, being the natural guardian and since he was living abroad, they would have custody of the child.

The Court referred to Section 352 of Mulla’s Principles of Mahomedan Law wherein it has been laid down that a mother is entitled to the custody of her male child until he has completed 7 years of age or her girl child until she has attained puberty. The only exception to the rule arises if the mother has remarried, in which case, the father gets custody of the child. In the present case, since the child has not completed 7 years, the mother gets the custody.

The Court also acknowledged that the question of guardianship is separate from that of custody as was held in Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654. The Court also referred to Nithya Anand Raghavan v. State (NCT of Delhi),  (2017) 8 SCC 454 wherein it was held that at the threshold the High Court is only supposed to examine whether “the minor is in lawful custody” of the respondent or not and a natural guardian would constitute as one by default. The biological mother is one such natural guardian. Once such a factor has been ascertained, only in exceptional cases can writ petitions for removal of guardianship of the child from the mother be entertained by the High Courts.

The Court thus ordered for the custody of the child to be returned to the mother and the parties to move the Family Court for further remedies if needed. It quoted Cardinal Mermillod’s famous quote, “A mother is she who can take the place of all others, but whose place no one else can take”. [Ancy A. v. Station House Officer, WP(Crl). No. 42 of 2018, order dated 7-2-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of A.S. Bopanna, J., decided a set of writ petitions filed under Articles 226 and 227 of the Constitution, wherein the petitioner husband; residing abroad, was granted permission to appear in the Court through Skype.

The matter related to a marriage dispute between the petitioner-husband and the respondent-wife. The matter was initially filed before the Family Court by the wife against the husband. The petitioner-husband in the instant petition prayed to quash the order of the Family Court whereby the petitioner was directed to appear in person before the Court in Bangalore. The petitioner submitted that he was residing in the USA and had difficulties in traveling to India and appearing before the Family Court. During the pendency of instant petition, a compromise petition was filed by both the parties before the Court whereby they had agreed to dissolve the marriage. The said petition was signed by father of the petitioner-husband as his power of attorney. Hence for reaching finality in the matter, petitioner’s appearance before the Court was necessary to ascertain that the joint petition was filed with his concurrence.

The High Court referred to an earlier decided writ petition, wherein a detailed consideration regarding leave to be granted to appear through Skype had already been adverted to. The Court observed that in appropriate circumstances where both the parties agreed on a compromise and when it is only for the purpose of satisfaction of the Family Court that the compromise has been entered, it is permissible that such appearance through Skype would be sufficient. The Court found that in the instant case, the respondent-wife had no objection to such prayer and hence considering that the petitioner-husband was in the USA, the Court thought it fit to grant permission to appear through Skype. Accordingly, the petition was allowed and the impugned order of the Family Court directing the petitioner to appear in person was set aside. [Rahul Chandra Kone v. Jahanvi, WP Nos. 24580 of 2015, order dated 30.01.2018]

Supreme Court

Supreme Court: Addressing the serious issue of delay in adjudication by the family courts for provision of maintenance to a wife in need, the Court, lashing out sternly on the laxity, observed that such delays defeat not only the legislative command but also creates unimaginable hardships for the wife and children whose only hope depends upon the maintenance they are rightfully entitled to. Referring many of its earlier decisions on the point of maintenance, the Court stated that Section 125 CrPC and Section 7 of Family Court Act, 1984 are social legislation aimed at providing speedy relief to the wife by way of maintenance to sustain herself and her children.

Expressing severe disappointment on the way the instant case for maintenance stretched for 9 yrs due to routine adjournments by the family court thereby presenting a picture of complete disdain of the principle embodied in Section 125 CrPC and Section 7 of Family Court Act, 1984 the Court directed that the family courts should remain alert and decide such matters expeditiously keeping in mind the objects and reasons of Section 125 CrPC and Section 7 of Family Court Act, 1984

The stern reaction of the Court resulted from the instant case where the case for maintenance was filed in 2002 and finally decided by the Family Court, Jaipur in 2011 ordering the maintenance to be given from the date of order which was reversed by the Rajasthan HC by ordering the maintenance to be paid from the date of the application The Appellant counsel Jay Kishor Singh termed the HC order as unjust which was refuted by Ruchi Kohli, the respondent counsel, who contended that due to repeated adjournments resulting in delay the wife sustained herself and her son with great difficulty. The Court, observing the laxity of the Family Court and the resultant delay of 9 years, upheld the decision of the High Court and ordered the payment of maintenance along with arrears. Bhuwan Mohan Singh v. Meena, Criminal Appeal No. 1331 of 2014, decided on 15.07.2014

To read the full judgment, refer SCCOnLine