Case BriefsHigh Courts

Bombay High Court: Expressing that mother and father are equally responsible to equally share the education expenses of the child, Division bench of A.S. Chandurkar and G.A. Sanap, JJ., enhanced the maintenance amount of the child.

Instant appeals arose out of the decisions passed under Section 20 of the Hindu Adoptions and Maintenance Act, 1956.

Petitioner sought enhancement on the monthly maintenance.

Background

Petitioner was the son of the respondent. It was stated that after the marriage dispute arose between the parents of the petitioner. Respondent used to demand the salary of his mother and ill-treating and torturing her.

Mother of the petitioner lodged the complaint on the basis of the crime registered under Section 498-A Penal Code, 1860. Respondent was prosecuted.

When the petitioner was born, his parents were living separately. Petitioner’s mother had given notice to the respondent for divorce by mutual consent and divorce for petition was filed. Later the marriage was dissolved amongst them.

Reason for approaching Court

Petitioner stated that the respondent did not bother to maintain him, and his mother handled his education as well as day to day expenses.

Doing the above, petitioner’s mother faced great difficulties while maintaining him with her meager salary. Respondent did not bother to inquire about the well-being of the petitioner as well as his mother.

 On what grounds respondent seeks dismissal of the petition?

 According to the respondent, the mother of the petitioner is doing service as an ‘Assistant Teacher’ and getting a monthly salary of Rs 48,000/-. The respondent has to maintain his divorcee sister and the daughter of his sister. He has also to maintain his old aged mother. On these grounds, he prayed for the dismissal of the petition.

Lower Court granted decree and awarded the maintenance of Rs 5,000.

Analysis, Law and Decision

 High Court noted the grievance that the respondent was not allowed access to the petitioner and therefore there was a dispute. But as the petitioner was a major, he could freely meet his father-respondent. Hence, the said fact would not stand in the way of petitioner from getting the maintenance from the respondent.

The Father and Mother of the petitioner had been serving as “Teachers”. Therefore, it was apparent that both were equally responsible to share the maintenance as well as the education expenses of the petitioner.

Considering his plight and needs, the petitioner was constrained to knock on the door of the Court.

Lower Court took in consideration the day to day living cost in ordinary circumstances by a person along with the skyrocketing education expenses.

Grievance of the petitioner was that the amount of maintenance was not sufficient to satisfy his bare minimum requirements.

In High Court’s opinion also the quantum of maintenance could not be said to be just and reasonable.

Bench expressed that the father was responsible and liable to make provisions for the maintenance of his son.

If the respondent fails to share the maintenance & expenses then the mother would be required to bear the unnecessary burden

Therefore, the maintenance was enhanced to Rs 7,500 and as far as education expenses were concerned, father and mother shall share it equally.[Pradeep v. Master Sakashit, 2021 SCC OnLine Bom 3575, decided on 13-10-2021]


Advocates before the Court:

R.M. Patwardhan, Advocate for the appellant in FCA No.43/2019 and for respondent in FCA No.16/2020.

Amruta Gupta, Advocate for respondent in FCA No.43/2019 and for appellant in FCA No.16/2020.

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., 2021 SCC OnLine All 751, 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

Case BriefsHigh Courts

Delhi High Court: Expressing that husband must also carry the financial burden of making certain that his children are capable of attaining a position in a society wherein they can sufficiently maintain themselves, Subramonium Prasad, J., stated that,

In households wherein the women are working and are earning sufficiently to maintain themselves, it does not automatically mean that the husband is absolved of his responsibility to provide sustenance for his children. 

“…if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities.”

Instant application under Section 482 Criminal Procedure Code had been filed seeking the review of this Court’s order, wherein this Court had granted a sum of Rs 15,000 as interim maintenance to the revisionist/Petitioner 1 till Petitioner 2 completes his graduation or starts earning, whichever is earlier.

Analysis, Law and Decision

High Court expressed that the embargo contained in Section 362 CrPC, which prohibits the Court from altering or reviewing its judgment or final order disposing of the case was inapplicable to the maintenance order passed under Section 125 CrPC.

In the Supreme Court decision of Sanjeev Kapoor v. Chandana Kapoor, (2020) 13 SCC 172, the Supreme Court had observed that the legislature was aware that there were situations where altering or reviewing of criminal court judgment were contemplates in the Code itself or any other law for the time being in force.

Noting that Section 125 CrPC was social justice legislation, the Supreme Court held that a closer look at Section 125 CrPC itself indicated that the Court after passing judgment or final order in the proceedings under Section 125 CrPC did not become functus officio, and that the Section itself contains express provisions wherein an Order passed under Section 125 CrPC could be cancelled or altered, and that this was noticeable from Sections 125(1), 125(5) and 127 CrPC. Therefore, the legislative scheme as delineated by Sections 125 and 127 CrPC clearly enumerates circumstances and incidents provided in the Code where the Court passing a judgement or final order disposing of the case can alter or review the same. The embargo as contained in Section 362 is, thus, relaxed in proceedings under Section 125 CrPC.

Bench stated that Supreme Court has consistently upheld that the conceptualization of Section 125 was meant to ameliorate the financial suffering of a woman who had left her matrimonial home; it is a means to secure the woman’s sustenance, along with that of the children, if any.

The dominant purpose of Section 125 of the Code was discussed in the Supreme Court decision of Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479.

High Court added to its analysis, that it is true that in the majority of households, women are unable to work due to sociocultural as well as structural impediments, and, thus, cannot financially support themselves. However, in households wherein the women are working and are earning sufficiently to maintain themselves, it does not automatically mean that the husband is absolved of his responsibility to provide sustenance for his children.

Father has an equal duty to provide for his children and there cannot be a situation wherein it is only the mother who has to bear the burden of expenses for raising and educating the children.

 Court cannot shut its eyes to the reality that simply attaining majority does not translate into the understanding that the major son is earning sufficiently.

To elaborate more, High Court added that,

At the age of 18, it can be safely assumed that the son is either graduating from 12th standard or is in his first year of college. More often than not, it does not place him in a position wherein he can earn to sustain or maintain himself. It further places the entire burden on the mother to bear the expenses of educating the children without any contribution from the father, and this Court cannot countenance such a situation.

It was also noted that the Supreme Court and High Courts in a slew of judgments upheld the maintenance allowance granted to a son post attaining majority on the ground that the father has a duty to finance basic education of the child and that the child cannot be deprived of his right to be educated due to his parents getting divorced.

Present Matter

In the present matter, the challenge to the maintenance granted for the education of the major son has been mounted by the respondent on the ground that it is contrary to the relevant statutory provision i.e. Section 125, and that it diametrically opposes the interpretation of Section 125 as has been laid down in Amarendra Kumar Paul v. Maya Paul, (2009) 8 SCC 359.

High Court noted that statutes or provisions, which are particularly for the furtherance of social welfare, must be construed liberally.

In Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 589, the Supreme Court had observed that the best textual interpretation of legislation or a statutory provision would be one that would match the contextual. Therefore, in this context, social welfare legislation cannot and should not be interpreted in a narrow manner because doing so will defeat the purpose for the enactment of such legislation and will become counterproductive.

Context of Section 125 CrPC is to ensure that the wife and the children of the husband are not left in a state of destitution after the divorce.

“Mother cannot be burdened with the entire expenditure on the education of her son just because he has completed 18 years of age, and the father cannot be absolved of all responsibilities to meet the education expenses of his son because the son may have attained the age of majority, but may not be financially independent and could be incapable of sustaining himself.”

 In view of the above, the application was dismissed. [Urvashi Aggarwal v. Inderpaul Aggarwal, 2021 SCC OnLine Del 4641, decided on 5-10-2021]


Advocates before the Court:

 For Petitioner: Praveen Suri and Komal Chhibber, Advocates

For Respondent: Digvijay Ray and Aman Yadav, Advocates

Case BriefsHigh Courts

Sikkim High Court: If a father keeps his self-acquired property for the purpose of mortgage, can his sons interfere in the same? Bhaskar Raj Pradhan, J. answered in the negative and stated that the sons did not have a right to stop the father in dealing with his self-acquired property in the manner he chose to.

Background

Petitioners in the instant matter were the adult sons of respondent 4 who was proceeded against before the Tribunal having stood as guarantor for the loan taken by respondent 2 from respondent 1.

Respondent 4 had mortgaged the landed property in dispute to respondent 1 as a guarantor. Respondent 3 wife of respondent 2 was also a guarantor. Respondent 1 was the Certificate Debtor 2 and respondent 4 was Certificate Debtor 3.

With this Court, a declaration was sought that the property involved in the auction sale shall not be sold in auction to realize the dues of respondent 1. Further, it was added that a declaration that the other landed properties of respondent 2 first be proceeded against to realize the dues of respondent 1 and a direction that the loan shall be realized from respondent 3 from her employer duly adjusting the considerable amount towards recovery loan.

Petitioners stated that the property was originally acquired by the father of respondent 4 and he got his property from his father on partition, hence the same was an ancestral property of the petitioners.

Further, it was stated that the petitioners, as well as the respondent, were Hindus governed by Mitakshara School of Hindu Law and that by virtue of their birth, they became owners of the property along with respondent 4 as coparceners.

Analysis

Whether the property was an ancestral property of the petitioners or if they had any enforceable right on the property mortgaged by respondent 4 in favour of respondent 1 as a guarantor?

According to Hindu Law by Sir Dinshaw Fardunji Mulla 23rd Edition “all property inherited by a male Hindu from his father, father’s father or father’s father father, is ancestral property.”

Supreme Court reiterated in Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646, “A property of a Hindu male devolves on his death.”

A 3-Judge Bench of the Supreme Court in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, AIR 1953 SC 495, held that

“father of a Joint Hindu Family governed by Mitakshara law has full and uncontrolled powers of disposition over his self-acquired immovable property and his male issue could not interfere with these rights in any way. The Supreme Court while examining the question as to what kind of interest a son would take in the self- acquired property of his father which he receives by gift or testamentary bequest from him, it was held that Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants. It was held that it was not possible to hold that such property bequeathed or gifted to a son must necessarily rank as ancestral property.

 “…a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor.”

 In the instant case, it was evident that respondent 4 did not get the disputed property as his share on the partition as claimed by petitioners. The property was acquired on transfer by his father who had originally acquired it.

The above facts make the property self-acquired of late Hari Prasad Sharma and thereafter, of respondent 4 consequently not ancestral property of petitioners.

Hence, respondent 4 has the right to deal and dispose of the property as he desires.

Section 58 (a) of the Transfer of Property Act, 1882 states that a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

Concluding the matter, Bench held that petitioners, sons of respondent 4 could not have any right to stop him in dealing with his self-acquired property in the manner he chose. Mortgage on the property does not create rights in favour of respondent 1.

In view of the above petition was dismissed. [Umesh Prasad Sharma v. Allahabad Bank, 2021 SCC OnLine Sikk 149, decided on 30-9-2021]


Advocates before the Court:

Mr A. Moulik, Senior Advocate with Ms K. D. Bhutia, Advocate for the petitioners.

Mr Sudesh Joshi, Advocate for Respondent 1,

Mr Pratap Khati, Advocate for Respondents 2 & 3.

None appears for respondents 4 and 5.

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

Andhra Pradesh High Court: While explaining the law on whether father is obligated to provide maintenance to his daughter irrespective of the fact that she has turned major, Joymalya Bagchi, J., refused to interfere with the decision of lower court.

Issue:

The father challenged the lower court’s decision for recovery of maintenance to the tune of Rs 22,000 for a period of 11 months on the ground that 2nd respondent, his daughter, had attained majority.

Court took note of the fact that the maintenance order passed in favour of 2nd respondent-daughter was not modified under Section 127 CrPC and she was unmarried and had no source of income.

It was argued that maintenance order would not survive as the daughter had attained the age of majority and this Court in the exercise of its inherent jurisdiction ought to set aside the order directing realization of dues payable to 2nd respondent after her attaining majority.

Crux:

Whether Magistrate was justified to order recovery of maintenance due to 2nd respondent, who was unmarried and pursuing her education, and who had had attained majority.

Supreme Court in the decision of Abhilasha v. Parkash,2020 SCC OnLine SC 736, observed that though a Family Court is entitled to grant maintenance to a major in-married girl by combining the liabilities under Section 125 CrPC and Section 20(3) of the Act of 1956, a Magistrate exercising powers under Section 125 CrPC was not authorized to do so.

Bench stated that Magistrate is entitled to entertain an application under the Protection of Women from Domestic Violence Act, 2005 and grant monetary relief to meet expenses incurred and losses suffered by an aggrieved person under Section 20 of the DV Act, in the event of domestic violence by way of economic abuse is established.

Conjoint reading of Section 2(a) and 2(f) of the DV Act would show that a daughter, who is or was living with her father in a domestic relationship by way of consanguinity, is entitled to seek reliefs including monetary relief on her own right as an aggrieved person under Section 2(a) of the DV Act irrespective of the fact whether she is a major or minor.

In the present matter, the relation between the parties as father and daughter was admitted and they both had stayed together in a shared household.

Hence, in Court’s opinion, the decision of the Magistrate directing recovery of maintenance was not illegal on the mere ground that she turned major.

Further, the Court clarified that in Abhilasha v. Parkash,2020 SCC OnLine SC 736, the power of the magistrate to grant monetary relief under the DV Act did not fall for consideration and further the Bench added citing the Supreme Court’s decision in Rajput Ruda Meha and v. State of Gujarat, that it is settled law that a judgment is not an authority for a proposition which was neither raised nor argued.

Therefore, Court concluded by denying to interfere with the impugned order. [Menti Trinadha Venkata Ramana v. Menti Lakshmi, 2021 SCC OnLine AP 2860, decided on 9-09-2021]


Advocates before the Court:

For the Petitioner: T.V. Sridevi

For the Respondent 3: Additional Public Prosecutor

Case BriefsSupreme Court

Supreme Court: The Division Bench of Dr Dhananjaya Y Chandrachud and MR Shah, JJ., modifies the maintenance amount being to a son.

Grant of maintenance

Issue in the present appeals pertained to the grant of maintenance to the first respondent who was the minor son of appellant and second respondent.

First respondent was residing with his mother, the second respondent. Family Court had directed the appellant to pay maintenance at the rate of Rs 20,000 per month to the first respondent, further, the High Court had declined to entertain the revision.

Special Leave Petition

On 29th July, 2020, while entertaining the Special Leave Petition this Court had passed an order directing the petitioner to pay Rs 10,000 per month to his son and had added that the amount that has already been paid over shall be adjusted against the amount which is due and payable. Petitioner was also asked to filed his salary slips as on 31st March, 2016, 2017, 2018, 2019 and for the period between January 2020 to July 2020 and along with this, the petitioner shall also explain the deduction being made from his salary.

Salary Slips

Petitioner had filed his salary slips as per this Court’s order as stated above.

Principal Submission urged by the Counsel for appellant, Chinmay Deshpande was that the payment of an amount of Rs 20,000 by way of maintenance would leave the appellant with virtually no resources to meet the maintenance requirements of his family which presently consists of his spouse and two minor children.

Gaurav Agarwal, Counsel on behalf of the respondents had submitted that the appellant cannot be excused from the obligation to maintain the first respondent, his minor son.

Analysis, Law and Decision

Supreme Court decided that it was inclined to modify the order of Family Court which was affirmed by the High Court.

Bench stated that the deduction being suffered by the appellant from his salary were largely in the realm of statutory and compulsory deductions which were made from the monthly income.

“Deductions which were being suffered by the appellant from his salary were largely in the realm of statutory and compulsory deductions which were made from the monthly income.”

 Further, the appellant had shown his bona fides by paying an amount of Rs 6.64 lakhs and also made a disclosure of his salary slips. Payment of Rs 20,000 per month to the first respondent would leave no resources to maintain his other two children and family.

In view of the above, some scaling down was required. But an arrangement to provide maintenance to the first respondent until he completes his first-degree course after High School will be necessary so that the first respondent becomes self-supporting and can live in dignity.

Bench added that it is conscious of the fact that by this Order the Court is extending the period for maintenance, however in issuing the said direction, the Court has borne in mind two significant aspects:

firstly, the maintenance payable by the appellant has been reduced from rupees twenty thousand per month to rupees ten thousand per month;

and secondly the past arrears have been capped at the amount of Rs 6.64 lacs which has already been paid.

Therefore, in view of the facts and circumstances along with the needs of the minor child, Court opined that the appeals should be disposed of in terms of the following directions:

  • Amount of Rs 6.64 lakhs which has been paid by the appellant towards the arrears of maintenance of the first respondent shall be treated as a full and final payment as of 28 February 2021
  • Commencing from 1 March 2021 and for the period until 31 March 2022, the appellant shall pay a monthly maintenance of Rs 10,000 towards the expenses of the first respondent. The amount shall be paid no later than the tenth day of each succeeding month commencing from 10 March 2021. In the event that the second respondent nominates a bank account for that purpose, the appellant shall ensure a transfer of funds in the electronic mode to the nominated bank account. If this arrangement is not suitable, the money shall be paid over by Demand Draft on or before the tenth day of every succeeding month for the maintenance of the first respondent;
  • Amount of monthly maintenance shall stand increased by Rs 1000 per month commencing from 1 April 2022. For succeeding years, the amount of maintenance shall similarly stand increased by a further amount of Rs 1000 per month commencing from the first day of April; and
  • Appellant shall pay maintenance for the first respondent on the above basis for a period of six years commencing from 1 April 2021 until 31 March 2027 or until the first respondent completes his first degree course, whichever is earlier. This direction is intended to ensure that the first respondent shall be maintained by the appellant until he completes his basic education ending with a first degree course after he completes his high school education.

In view of the above directions, appeal were disposed of. [Chandrashekar v. Swapnil, 2021 SCC OnLine SC 656, decided on 4-03-2021]

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while allowing in part the revision petition filed challenging the Family Court’s maintenance order made a very crucial observation, that father’s obligation to maintain a child cannot come to an end once the child turns 18 years of age. Read more to know why.

Instant petition was directed against the Family Court’s Order declining maintenance to the petitioner 1/wife and granting maintenance only to petitioner 2 and 3.

Since the interim maintenance order was an interlocutory order, the respondent’s counsel submitted that the present application was barred under Section 397(2) CrPC.

Further, the counsel for the petitioners contended that after holding that each of the children is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent.

Analysis, Law and Decision

High Court stated that since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and fact which are to be proved by the parties.

Further, Bench elaborated with regard to other contention of children being entitled to 25% of salary earned by respondent, that, petitioner 1/wife who was earning and was equally responsible for the child can take care of the balance as respondent was married again and had a child from the second marriage.

Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage.

Petitioner 1/Wife was working as an Upper Division Clerk in Delhi Municipal Corporation earning Rs 60,000 per month and the two children were living with the mother and after the age of majority, entire expenditure of petitioner 2 was being borne by petitioner 1 as petitioner 2 turned major and was still studying but was not earning anything.

Therefore, the family court failed to appreciate that since the respondent was making no contribution towards the maintenance of petitioner 2, the salary earned by petitioner 1 was not sufficient to maintain herself.

Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner 2 is not yet over and the petitioner 2 cannot sustain himself.

Bench held that it cannot be said that the obligation of the father would come to an end as the son reached 18 years of age and the entire burden of his education and other expenses would fall only on the mother.

Adding to the above analysis, it was stated that It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.

Hence, Court granted a sum of Rs 15,000 per month as interim maintenance to petitioner 1 from the date of petitioner 2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier.

In view of the above, the revision petition was allowed in part and disposed of. [Urvashi Aggarwal v. Inderpaul Aggarwal, 2021 SCC OnLine Del 3242, decided on 14-06-2021]


Advocates before the Court:

For the Petitioners: Mr Praveen Suri and Ms. Komal Chibber, Advocates

For the Respondent: Mr Digvijay Rai and Mr. Aman Yadav, Advocates

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., while addressing the present matter expressed that:

 “…relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.”

In the instant matter, appellant sexually abused his own daughter/victim. There are two views that is:

Whether the victim was a real daughter or a step-daughter. But the fact remains that she is victim.

Trial Court had convicted the appellant for the offence of Section 376 (2)(i), 506 IPC and under Section 4 of POCSO. A further separate sentence was imposed for the offence under Section of the said Act. Appellant had also obtained nude photographs of the victim on his mobile handset, trial court convicted him for the offence punishable under Section 67-B of the Information Technology Act 2000. Adding to this, the trial court acquitted the appellant for the offence punishable under Section 323 IPC.

In the present appeal, trial court’s judgment is challenged by the appellant.

Analysis, Law and Decision

Bench noted that the present matter was based on direct and corroborative evidence.

High Court considered the following:

Even though morally and legally Bench cannot think of a situation wherein the father has raped his minor daughter, but it is correct that Court is bound by rules of law. Even though such instances involving such a relationship are on rise, can Court take into account the evidence which is not admissible (as per existing provisions of law and on its interpretation) and convict the wrongdoer just for the purpose of sending a message in the society?

Bench stated that unfortunately, it cannot take such a view by bypassing the provisions of law.

Corroboration

Evidence given by way of corroboration cannot be said to be substantive evidence.

While elaborating on the concept of corroboration, High Court in light of the present context stated that when the trial court opined that the Section 164 statement can be utilized by way of corroboration, this Court fails to understand what the trial Court mean to say corroboration of which fact?

Trial Court failed to consider the difference and infact considered the Section 164 statement as substantive evidence itself. High Court stated that it is not permissible and hence the said observation was set aside.

Bench noted that there were image files of victim girls and video clips were pornographic. But there is a need to understand what is its evidentiary value, whether it is substantive evidence or whether it is a corroborative piece of evidence?

High Court for the above answered that the person who had seen the incident recorded or who is victim of events recorded can be the proper person and his evidence is substantive evidence. What is recorded and stored in the memory card when it is produced becomes corroborative piece of evidence.

Bench relied upon the following cases for the purpose of electronic evidence:

Bench laid down the finding that electronic evidence also needs to be proved just like any other evidence.

Further, the Court stated that it is not inclined to accept the FSL report at least for the purpose of inferring that it is the accused only who has taken those images or done recording. At the most, it can only be said that in the articles referred to in FSL report some pornographic images were found.

Bench stated that it was cautious of the relationship between the victim and accused. It was difficult to opine what compelled the victim not to state those facts which she stated before the police.

Present set of facts and circumstances warrants that there are certain materials suggesting sexual intercourse but the hands of the Court are tied due to the provisions of law.

Statement of the victim recorded under section 164 of CrPC has not been given the status of examination-in-chief in all circumstances (except in case of disability as provided in clause (b) to sub-section 5A to Section 164 of Cr.P.C.).

Supreme Court’s decision in Shivanna expressed the desire to consider the statement under Section 164 CrPC as examination in chief, amendment to that effect is not brought to Court’s notice.

Hence, with all pains, High Court had no alternative than setting aside the conviction of the appellant for the offence punishable under Section 376(2)(i) of IPC and under Section 506 of IPC, though conviction under Section 67-B of the Information and Technology Act was maintained.

Lastly, while parting with the decision, High Court opined that the authorities concerned of the State or Central Government will take some initiative in incorporating certain amendment under relevant laws as to give status to Section 164 statement as that of the examination-in-chief in all eventualities.

We hope that legislatures will also consider the practical realities of the life which the victim has to face. The trauma which victim has to undergo, after the incident does not stop there and when it comes to facing real-life issues, there may be occasion for the victim to forego all the trauma which she had undergone and to take U turn.

[Imran Shabbir Gauri v. State of Maharashtra, 2021 SCC OnLine Bom 511, decided on 31-03-2021]


Advocates before the Court:

Mr Aniket Vagal for the Appellant (Legal Aid). Mrs M. M. Deshmukh, APP for the State.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D Dhanuka and V.G. Bisht, JJ., addressed a concern wherein a daughter filed a petition seeking a declaration of her father’s marriage to be null and void on knowing that the lady concealed the fact of her being married and not divorced from her earlier marriage.

Factual Matrix 

Appellant is the married daughter of Late Navnitlal R. Shah with whom the respondent alleged to have got married after the demise of the appellant’s mother. Marriage between the appellant’s father and the respondent was solemnized before the Marriage Officer.

Appellant’s father was a successful businessman who owned various assets and properties.

Appellant alleged that the respondent was already married to someone and she concealed and suppressed the said fact deliberately from the appellant’s father and falsely portrayed herself as a divorcee but was not a divorcee at all.

The said fact of not being divorced came into light recently in front of the appellant.

Further, the appellant alleged that the respondent took undue advantage of the mental infirmities, ailments and unsoundness of mind of her father and exercised undue influence, coercion and duress with the intention of siphoning his entire properties. Respondent got executed various documents including his Will and several Gift Deeds of various valuable immovable properties and deprived the true legal heirs of their rights.

Respondent even took away the custody of the jewellery “Stridhan” of the appellant’s mother.

Appellant sought the declaration of marriage between her father and respondent to be null and void and the status of the respondent as of today continue to be the wife of the said Mansoor Hatimbhai Chherwala under Section 7(1) Explanation (b) and (d) of the Family Courts Act.

Family Court Judge held that the appellant had deemingly relinquished. Given up her portion of the claim pertaining to the declaration of the marital status of respondent and thus the bar under Order II Rule 2 of the Code shall be applicable.

Present appeal was against the impugned order.

Analysis and Decision

Family Court to provide exclusive jurisdiction

High Court stated that Family Court is intended to provide an exclusive jurisdiction of the matters relating to matrimonial relief including nullity of marriage, judicial separation, divorce, restitution of conjugal rights or declaration as to the validity of a marriage or as to the matrimonial status of any person, the property of the spouses or of either of them, declaration as to the legitimacy of any person, guardianship of a person or the custody of any minor, maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure.

Bench also confirmed that the appellant had every locus to bring into question the validity of the marriage of her father with the respondent and also the respondent’s status.

Object of Order 2 Rule 2 of CPC

The object of Order 2 Rule 2 is to avoid a multiplicity of suits.

“…no one should be vexed twice for same cause of action.”

 Question to be considered:

Whether the appellant was entitled to claim relief of declaration in the previous suit(s) on the basis of the cause of action pleaded by her in the previous suits against the respondent in relation to the validity of the marriage of her father with the respondent?

Court noted that the Family Court lost sight of the fact that Original Suit No.1018 of 2015 was instituted in the year 2015 whereas the Notice of Motion No.1622 came to be filed in the year 2016 after the appellant discovered the fraud alleged to have been played by the respondent pursuant to documents dated 10th and 12th February 2016 secured by her through Right to Information Application.

Thus, there was disclosure and discovery of new facts constituting the new cause of action.

Family Court erred in holding that provisions of Order 2 Rule 2 were attracted without examining the cause of action in the earlier plaints filed by the appellant.

Family Court ought to have taken into consideration — Whether in light of Sections 7, 8 and 20 of the Act, this Court has jurisdiction to grant declaration as to the validity of the marriage between the appellant’s father and the respondent sought by the appellant?

Bench after referring to the decision Full Bench of Bombay High Court in Romila Jaidev Shroff v. Jaidev Rajnikant Shroff, 2000 (3) Mh.L.J. 468 and Supreme Court decision in Balram Yadav v. Fulmaniyua Yadav, (2016) 13 SCC 308, reached an irresistible and inescapable conclusion, that,

“…High Court exercises its ordinary original civil jurisdiction in relation to the matters under the Act, it would be a District Court as understood therein. Resultantly, it would be denuded of its jurisdiction.”

Further respectfully differing from the decision of the Gauhati High Court in Smiti Nitikona Banerjee v. Ram Prasad Banerjee, 2018 SCC OnLine Gau 1577, wherein it was held that as per Section 7(b) of the Family Courts Act:

“…a third party questioning the marriage of any other party would not be entitled to maintain proceedings before the Family Court.”

The above position of the Gauhati High Court was differed by this Court for the simple reason that the same was against not only the letter and spirit of Section 7 but also against the rationale behind the Object and Reasons of the Act.

Hence, the family Court’s conclusion and reasoning cannot be sustained in the above view and the said order is set aside to the extent that the petition was barred by provision of Order 2 Rule 2 of the Code.[Nayana M. Ramani v. Fizzah Navnitlal Shah,    2021 SCC OnLine Bom 385, decided on 17-03-2021]


Advocates before the Court:

Vineet B. Naik, Senior Counsel a/w. Sheroy M. Bodhanwalla i/b. M.S.Bodhanwalla and Co., Advocate for the Appellant.

Deepti Panda a/w. Kirtida Chandarana Nandini Chittal i/b. Mahernosh Humranwala, Advocate for the Respondent.

Case BriefsHigh Courts

Bombay High Court: V.M. Deshpande, J., held that merely drinking can never be an abetment for a person to commit suicide.

The decision of Additional Sessions Judge, wherein the appellant was convicted for an offence punishable under Section 305 of the Penal Code, 1860.

It has been stated that charge was framed for the offence punishable under Section 306 IPC, appellant denied the charge. During the investigation, a suicide note was also found. During the trial, the charge was altered for the offence punishable under Section 305 IPC in view of the deceased being 16 years of age at the commission of suicide.

In the present matter, it was alleged that the appellant who was the father of deceased was a drunkard and under the influence, of liquor he used to take up quarrels with his wife and maltreat his three progeny

Question for consideration:

Whether the appellant was responsible and/or has abetted commission of suicide of deceased Pavan?

Analysis, Law and Decision

In view of the circumstances and facts of the case, Bench stated that the only difference between Section 305 and 306 of IPC is that Section 305 is a punishing section for abetting an insane or a child whereas Section 306 IPC is a punishing section for the accused who abetted any other person to commit suicide.

In the Court’s opinion, parameters for deciding the fact under Sections 305 and 306 IPC are identical.

Bench noted that the prosecution’s case was that the deceased used to prosecute his studies, there was nothing on record to show that at any point of time, the deceased was declared unsuccessful in any of his academic years.

Different persons may react differently to the same situation.

Further, the Court added that merely because the deceased by writing a note mentioning about the drinking habit of his father and committed suicide, cannot be treated as an abetment, especially when the prosecution evidence could not show that there used to be ill-treatment at the hands of the appellant under the influence of liquor to the deceased so as to drive the deceased to take the extreme step of his life.

Hence, the High Court held that the Lower Court’s Judge swayed away with the fact that the deceased boy committed suicide for an admitted position that the appellant was a drunkard.

Therefore the present appeal was allowed. [Ramrao Kisan Rathod v. State of Maharashtra, 2020 SCC OnLine Bom 29, decided on 04-01-2020]


Advocates who appeared in the case:

S.D. Chande, Advocate for the appellant

V.A. Thakare, A.P.P. for respondent

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

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

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Suryawanshi, JJ., determined the factors in regard to grant of custody of a minor child.

The instant appeal arose out of the Judgment of Family Court in proceedings filed under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 for the custody of minor daughter by the respondent (father).

The impugned judgment had allowed the application filed by the father for custody and respondent Sashanka (mother) was directed to handover the custody.

It was noted that Sameera was aged 10 years and in order to ascertain her wishes, Bench interacted with her in the Chambers. She stated that she was comfortable at her father’s place but her attachment with the mother was also explicit and hence she did show a willingness to meet her mother.

Analysis and Decision

The material point for determination:

  • Whether Family Court was legally justified in granting custody of Sameera to Prakash?

Evidence placed by Prakash revealed that Sashanka was addicted to smoking and used to drink liquor daily. She also never contributed to any household work. Even after the birth of Sameera, she never took care of the child.

Infact Prakash was the only who took care of Sameera.

One day when Prakash, Sashanka and Sameera all went together with their friends to witness a show of singer Papon, over there Sashanka got heavily intoxicated as she had consumed cocktail and she started yelling.

It was also stated that she was beyond control. After reaching home, Sashanka called her father who demanded her daughter be sent back. Though Prakash refused for the same, later Siva, Sashanka’s brother came over and Sashanka along with her daughter went to her father’s place in Rajahmundry.

Further, it was stated that Sashanka failed to take care of her daughter due to which she developed a deficiency of Vitamin-D and suffered from genu valgum/knock knee disease. In spite of this, Sashanka did not take proper care of Ku. Sameera or took her to an expert Doctor for proper treatment.

Adding to the above, it was stated that the atmosphere at the maternal home of Sashanka was not good for the upbringing of Sameera.

Sashanka further stated that Geeta wife of her brother Siva has initiated proceedings under Section 498-A IPC against Siva, her parents and herself. She further accepted that her brother Siva is charge-sheeted under Sections 420, 467, 468, 471 of IPC in the matter of huge property scam, which is sub-judice.

Trial Court, taking into consideration the fact that Sameera needed proper medical treatment for knock knee and genu valgum under the continuous supervision of Paediatrics, Paediatrics Ortho and Physiotherapist, came to the conclusion that in the interest of the welfare of Sameera, her custody was to be given to Prakash, her father.

Decision

Bench stated that it is not basing its’ conclusion only by taking into consideration the better off financial position of father Prakash but is one of the factors amongst others.

Further the Supreme Court’s decision in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, was also relied on wherein the principles in relation to the custody of minor were set out.

In Court’s opinion, Prakash and his parents seemed to be well educated who could give a better upbringing to Sameera.

Hence, Bench stated that the health and comforts of Sameera could be better looked after by father Prakash and his parents. On the comparative assessment of the rival claims for custody of Sameera invariably points out that welfare of Sameera would be better sub-served by father Prakash.

Therefore, the family court rightly and properly appreciated the evidence and granted the custody of the minor to father keeping in mind the welfare of the child.

Additional visiting rights were granted to the mother in view of Sameera’s inclination to meet her mother frequently, for which father would bear the travel and stay expenses.[Sashanka v. Prakash, 2020 SCC OnLine Bom 3497, decided on 27-11-2020]

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., while setting aside the orders pronounced by the Courts below observed that,

“the law already gives a remedy to claim maintenance to a daughter under the provisions of Hindu Adoption and Maintenance Act even if she is a major by age and unmarried and dependent on her father.”

The instant application was moved by the applicant–father under the provision of Section 482 of the Code of Criminal Procedure, 1973 questioning the Judicial Magistrate’s Order allowing interim maintenance under Section 125 CrPC.

Applicant’s Counsel, Runwal invited the Court’s attention to Section 125 of CrPC, particularly clause (b) & (c) of sub-section 1.

According to the counsel, the father has an obligation to maintain the daughter who is not married, however, the said provision does not confer any right in major daughter to claim an interim after such daughter attains majority and if she is physically or mentally not suffering from any abnormality or injury.

Court’s attention to the provisions of Section 20 of the Hindu Adoption and Maintenance Act was also invited. Further, he relied on the decision of Supreme Court in Abhilasha v. Prakash, 2020 SCC OnLine SC 736.

Respondent — Daughter urged that the act of trial court of not deciding the application for maintenance for years together cannot be viewed or come to the help of the applicant particularly when Statute contemplates an obligation on the applicant-father to pay maintenance to a minor daughter pursuant to the provisions of Section 125(1) of CrPC.

Analysis and Decision

If the scheme of clause (c) of sub-section (1) of Section 125 of CrPC is considered, what is appreciated is, legitimate or illegitimate child (not being a married daughter) who has attained majority who by reason of any physical or mental abnormality or injury, if unable to maintain herself, can claim maintenance from father or a person who has sufficient means and who has neglected or refused to maintain.

What is required to be appreciated in the instant case is that even if the respondent — daughter who has attained majority and she is already getting expenses as was ordered in proceedings under the Hindu Marriage Act and interim maintenance.

In accordance with the Supreme Court decision in Abhilasha v. Prakash, 2020 SCC OnLine SC 736, it was made clear that under Section 20 of the Hindu Adoption and Maintenance Act, right of an unmarried daughter to claim maintenance from her father when she is unable to maintain herself is absolute. Such right is granted under the personal law which such daughter has every right in law to enforce against her father. As such, right under Sub-section 3 of Section 20 of the said provisions is recognized to be existing to claim maintenance after she attains majority till her marriage, from her father.

“Unmarried daughter is entitled to claim maintenance from her father till she is married even though she has become major which right is recognized under Section 20 (3) of the Hindu Adoption and Maintenance Act.”

Court stated that a daughter can claim maintenance under the Hindu Adoption and Maintenance Act even if she is major by age and unmarried and dependent on her father.

Magistrate failed to appreciate the above-stated intricacies of the provisions of Section 125(1)(c) of CrPC and right of a daughter under Section 20(3) of the Hindu Adoption and Maintenance Act.

Further, the Bench observed that the Courts below committed an error in awarding interim maintenance to major daughter in the exercise of powers under Section 125 CrPC.

Hence, in view of the above, the present application needs to be allowed.[Sanjay J. Phagnekar v. State of Maharashtra, 2020 SCC OnLine Bom 3382, decided on 23-11-2020]

Op EdsOP. ED.

Introduction

यत्रनार्यस्तुपूज्यन्तेरमन्तेतत्रदेवता:

यत्रैतास्तुनपूज्यन्तेसर्वास्तत्राफला: क्रिया: ।।

Where Women Are Honored, Divinity Blossoms There;

And Where They Are Dishonored, All Action Remains Unfruitful.

— Manu Smriti III.55-59

In November 2019, the Supreme Court issued notice to the Centre seeking its response to a public interest litigation filed by Sakshi Bhattacharya challenging Sections 6, 7 and 9 of the Hindu Minority and Guardianship Act, 1956.[1] The petitioner said:

The Act came into force in 1956 when men exercised more financial power and social sanction to control and dominate women and children in a family.”[2]

In this background, the authors shall revisit the law regarding the natural guardian under Section 6(a) of the Hindu Minority and Guardianship Act, 1956[3].

‘Ardhangini (अर्धांगिनी)’, the status conferred upon the wives is in glaring contrast to the discriminatory treatment meted out to them in the past. India as a progressive State has enacted special laws for granting and protecting women’s rights in different spheres of their lives. Nonetheless, there still remain several laws which need to be revisited so as to bring them in tune with the contemporary socio-economic setting of our country.

Section 6(a) of the Hindu Minority and Guardianship Act, 1956 stipulates that the father shall be the natural guardian of a boy or an unmarried girl:

6. Natural guardians of a Hindu minor.- The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are-

(a) In the case of a boy or an unmarried girl- the father, and after him, the mother:

Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother…”

It is our perspective that there is no plausible explanation as to why a father is the first to be given the status of a natural guardian, and the mother as a natural guardian is to be considered after him. We shall now refer to the relevant sources to provide substance to our perspective.

Sources of Hindu Law – Texts and Scriptures

Scrutiny of any facet of Hindu Law is not complete without referring the ancient Hindu scriptures. Mothers or wives in the scriptures have always been held in very high regard in our scriptures. Marriage is the sacrament performed by two heterosexuals where both contribute.

Ancient religious texts have always maintained that both mother and father have crucial roles in the birth and upbringing of a child. No ancient text considers the father’s contribution to the child as more important than the mother’s contribution.

In the Puranas and Manusmriti, the contribution of parents to a child is summarised:

No Deva can equal the mother and no superior can equal one’s father. Hence, no son can get relieved of the debt he owes to them.[4]

No person can repay his parents even in 100 years for all the troubles that they go through to give birth to him and raise him to adulthood. Therefore, always try to do whatever pleases your parents and your teacher, because only then does any religious worship done by you will bear any fruit.”[5]

In Mahabharata, Great Bheeshma said:

The teacher who teaches true knowledge is more important than ten instructors. The father is more important than ten such teachers of true knowledge and the mother is more important than ten such fathers. There is no greater guru than mother.[6]

In the Vedas they have been referred with different designations:

Aditi (अदिति), because she is not dependent;[7] Devī (देवी), since she is divine;[8] Kshamā (क्षमा), for she is tolerant/indulgent/patient;[9] Subhdhā (शुभदा), for she is knowledgeable;[10] Vishrutā (विश्रुता), since she is learned;[11] Yoşhā (योषा), because she is intermingled with man, she is not separate;[12] Simhī (सिम्हि), since she is courageous;[13] Menā (मीना), because she deserves respect;[14]and Idā (इदा), for she is worshipable[15] and many more.

Certainly, our texts consider the role of women or mother to be of paramount importance. Women or mother contributes to the growth of an individual and prosperity of the entire family.  When the sources of Hindu Law have regarded mother’s contribution to a child’s growth and development as important as the father’s contribution, it is untenable to give primacy to the father over mother as the natural guardian of a boy or an unmarried girl.

Judicial Interpretation

Judiciary has interpreted Section 6(a) to reconcile it with the rights and interests of a mother. The issue of natural guardian and gender discrimination was first raised in Githa Hariharan v. RBI[16] where the word “after” was interpreted in a liberal way to rule that the word “after” has no significance in the section because in  cases of custody and guardianship, the court follows the doctrine of best interest of the child . Interpreting “after” as “after the lifetime” of father would be unconstitutional as it violates the principle of gender equality enshrined in our Constitution.

The word “after” does not mean “in the physical absence of the father”. The word “after” means – “absence” of the father from the care of the children, property or person; father is indifferent to the matters of children even if he is living with the mother; father is not known; father is not mentally fit or not in a situation to take care of the child. In cases like these, father can be considered to be absent and mother can be recognised as a natural guardian.

The doctrine of best interest of the child was earlier considered in  Jijabai Vithalrao Gajre v. Pathankhan ,[17]where the mother was considered to be a natural guardian of the daughter because the father had failed in his responsibility of taking care of her daughter ever since she was born.

Undeniably, judiciary having regard to the best interest of the child has relaxed the conditions for giving status of natural guardian to the mother. However, it is only when the factors laid down in the Githa Hariharan[18] case are fulfilled that a mother will be given the status of a natural guardian.

The presumption that the father is the natural guardian under Section 6(a) still remains, though such a presumption is rebuttable with regards to the circumstances of the case.

Transgression of Constitutional Provisions

Articles 14 and  15

Article 14 bars discrimination and prohibits discriminatory laws. It only means that all persons in similar circumstances shall be treated alike both in  privilege, comfort and liability imposed by the laws  or should be applied to all in the same situation and there should be no discrimination between one person and another. As regards the subject-matter of the legislation their position is the same.[19]

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. The classification in order to be reasonable should fulfil the following tests:

  1. There must be intelligible differentia for classification which discriminates persons from others; and
  2. The differentia must have a rational or reasonable nexus with the object sought to be achieved by the Act.[20]

Clause (1) of Article 15 provides: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex and place of birth or any of them.” The word ‘discrimination’ means to make an adverse distinction or distinguish unfavourable from others.[21] Article 15 provides for a particular application of a general principle that has been enshrined under Article 14.[22] Just as the principle of classification applies to Article 14 so it does to Article 15(1) as well.[23]

The main objective of the Act is the ‘Welfare of the Minor’.[24] Section 6(a) violates Articles 14 and 15 since primacy of father over mother as the natural guardian has no reasonable nexus with the objective of the ‘Welfare of the Minor’. It is baseless to presume without any reasonable justification that ‘Welfare’ is guaranteed in under the guardianship of father.

‘Welfare’ is to be understood in its widest sense and embraces not merely the material and physical well-being of the minor and happiness, but every circumstance and bearing upon the moral and religious welfare and the education and upbringing of the minor.[25] ‘Welfare’ encompasses such a myriad range of factors that it is essential to examine in each case who is in a better position to be the natural guardian. Hence, the primacy of one parent over the other does not stand the test of reasoning.

Article 21

Right to life and personal liberty are inalienable rights which have been enshrined in Article 21. These are rights which are inseparable from a dignified human existence. The  Supreme Court has been liberal in interpretation of Article 21 to include right to live with human dignity;[26] right against illegal detention;[27] right to legal aid;[28] right against sexual harassment at workplace;[29] right to speedy trial;[30] right to die with dignity;[31] right to privacy;[32] and many other rights.

In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi,[33] the Supreme Court dealt with a matter concerning the right of the detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, to have an interview with a lawyer and the members of his family. The Supreme Court held that personal liberty also includes the right to socialise with the members of the family and friends:

There can therefore be no doubt that personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary.”

In the contemporary socio-legal background, it can be thus be argued that the Right to Guardianship of a child falls within the purview of right to life and liberty and a parent cannot be deprived of this right without any reasonable justification.

Law Commission on Section 6 of the Hindu Minority and Guardianship Act, 1956

The Law Commission of India in its 257th Report on ‘Reforms in Guardianship and Custody Laws in India[34]  had recommended amendments in Section 6 to bring it tune with the tenet of equality enshrined in Article 14 of the Constitution. While reaffirming the recommendations of its 133rd Report[35] wherein it had made a case for removal of superiority of one parent over the other, it recommended that the Doctrine of Welfare of Children should be followed and must be the paramount consideration in every circumstance, both the father and the mother should be regarded simultaneously as the natural guardians of a minor.

Jurisprudence of Natural Guardian in English Law

The Guardianship Act, 1973 which is the legislation of England and Wales is gender-neutral, in Section 1 of Part I which talks about equality in parental rights. Section 1(1) says:

1. Equality of parental rights. – (1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other.”

(emphasis supplied)

English Law is impartial and more progressive than the Indian Law. Under English Law, a mother has the same rights as the father in matters concerning the custody or upbringing which is certainly not the case under Indian Law.

Conclusion

The Hindu Minority and Guardianship Act, 1956 Act was enacted in the then prevailing existing socio-economic setting in the country. The enactment of the laws, particularly the laws affecting family affairs is always affected by existing social setting of the country. On the basis of available legislative, judicial and other authoritative material difficult, it is difficult to say if the primacy of father as the natural guardian in Section 6(a) is directly linked to the assumption that men in most cases are the bread earners of their families and are thus better equipped financially to fulfil their responsibility as the natural guardian. However, this assumption would have played a part in the drafting of Section 6(a).

Drafting of such an important section in an Act should not in any case be only linked to the economic status of the parents for two major reasons. Firstly, the assumption that only men are breadwinners of their respective families is an outdated assumption. Our country has come a long in granting women their rights in various spheres of life and increasing women participation in various areas of employment.

Secondly, while appointing the natural guardian, the ‘Welfare of the Child’ is of paramount importance for the court. ‘Welfare of the Child’ encompasses a range of factors and is not limited to the economic status of the father or the mother.

From the constitutional perspective, it is expected that the Supreme Court in its role as the guardian of fundamental rights shall declare Section 6(a) unconstitutional pursuant to the PIL filed by Sakshi Bhattacharya.


Palak Maheshwari, 3rd Year, BA LLB (Hons.), Maharashtra National Law University, Nagpur.

††Aniket Pandey, 4th Year, B.ALLB (Hons.), Maharashtra National Law University, Nagpur.

[1] Sakshi Bhattacharya v. Union of India, WP (Civil) No. 1290 of 2019, order dated 13-11-2019

[2] Times of India, “Why Guardianship Act prefers father as natural guardian: PIL”, available at

https://timesofindia.indiatimes.com/india/why-guardianship-act-prefers-father-as-natural-guardian-pil/articleshow/72047088.cms.

[3] The Hindu Minority and Guardianship Act, 1956

http://www.scconline.com/DocumentLink/64flHLFr

[4]KūrmaPurāņa 2.12.36.

[5]Manusmṛti 2.227-228

[6]Mahabharata, Shantiparva, 30.9.

[7]Nirukta, 4/22.

[8]Atharva Veda 14/1/45, Yajur Veda 4/23.

[9]Atharva Veda 12/1/29.

[10]Atharva Veda 14/2.75.

[11]Yajur Veda 8/43.

[12]Nirukta 3/15/1.

[13]Yajur Veda 5/12.

[14]Nirukta 3/21/2.

[15]Yajur Veda 8/43.

[16]Githa Hariharan v. RBI, (1999)2 SCC 228.

[17]Jijabai Vithalrao Gajre v. Pathankhan, (1970) 2 SCC 717.

[18] (1999)2 SCC 228

[19] State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284.

[20]Laxmi Khandsari v. State of Uttar Pradesh, (1981) 2 SCC 600.

[21] Srinivasa Aiyer v. Saraswathi Ammal, 1951 SCC OnLine Mad 272.

[22] M.P. Jain, Indian Constitutional Law 987 (Justice Ruma Pal & Samaraditya Pal eds., 6th Edn., 2013).

[23] M.P. Jain, Indian Constitutional Law 988 (Justice Ruma Pal & Samaraditya Pal eds., 6th Edn., 2013).

[24] Mohini v. Virendra Kumar, (1977)3 SCC 513

Gaurav Nagpal v. Sumedha Nagpal, (2009)1 SCC 42.

See also Sir Dinshaw Fardunji Mulla, Mulla Hindu Law 1300 (23rd Edn., 2017).

[25]In re McGrath, [1893] 1 Ch 143. See also Sir Dinshaw Fardunji Mulla, Mulla Hindu Law 1300 (23rd Edn., 2017).

[26]Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[27] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

[28]Hussainara Khatoon v.  State of Bihar, (1980) 1 SCC 98.

[29]Vishakha v. State of Rajasthan, (1997) 6 SCC 241.

[30]Hussainara Khatoon v.  State of Bihar, (1980) 1 SCC 98.

[31] Common Cause  v. Union of India, (2018) 5 SCC 1.

[32]  K.S. Puttuswamy  v. Union of India, (2019)1 SCC 1.

[33]Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981) 1 SCC 608.

[34]257th Report of Law Commission of India on Reforms in Guardianship and Custody Laws in India

[35] 133rd Report of Law Commission of India on Removal of Discrimination against Women in Matters Relating to Guardianship and Custody of Minor Children and Elaboration of the Welfare Principle

Case BriefsHigh Courts

Delhi High Court: Observing that the trial court, in the present case, did not seem to be alive to realities, Sanjeev Sachdeva, J. quashed an order whereby the accused-respondent (father of the prosecutrix) was discharged of the offence punishable under Sections 354 (outraging modesty of a woman) and 376(2)(f) (punishment for rape committed by a relative, guardian, teacher or person in position of trust or authority of a woman) IPC.

The trial court discharged the accused as he was blind and the allegations made against him were not specific. Also, the prosecutrix did not raise alarm when she had opportunities and did not file any complaint all this while. It is pertinent to note that the parents of the prosecutrix were divorced and as per the prosecutrix, she did not even remember as to when sexual assaults started to be committed upon her by her father. In the present complaint, she mentioned about incidents which happened when she was the age of 6 years old upto the age of 13-14 years old. She was 18 years old at the time of filing of the complaint. She mentioned that it was only when she was taught sex-education in her hostel, that she came to realise that she was being sexually assaulted. She then talked about it to her friend, who advised her about her options and thereafter they got in touch with an NGO.

The High Court noted that the prosecutrix had given a detailed description of the manner in which she was assaulted by the accused. It was observed: “A child who is subjected to sexual abuse and assault from a tender age of 6 and which assault continues till she is 14 years of age, would not even be aware that she is being abused or any offence is happening. The prosecutrix in her statement has stated that she was not aware of the abuse and became aware only when she grew up.”

Commenting on the flawed approach of the trial court, it was stated: “Trial court has erred in not appreciating that the accused is the father of the prosecutrix and was in a dominating position and keeping in the view the relationship, it would not be abnormal for the prosecutrix not to make a complaint against her own father. The reasoning given by the Trial Court is completely perverse and contrary to record.”

Satisfied that the allegations raised gave suspicion against the accused of having committed the alleged offence, the High Court allowed the present petition of the State which was filed after elucidating opinions from the Additional Public Prosecutor, the Chief Prosecutor, the Director of Prosecution, the Principal Secretary (Law and Justice) and also the Law Minister. The matter was remitted to the trial court for framing of appropriate charges against the appellant. [State (NCT of Delhi) v. X, 2019 SCC OnLine Del 7913, decided on 02-04-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Sudhanshu Dhulia, J. dismissed a writ of habeas corpus filed by the petitioner-mother for the custody of her 5 year old son.

Petitioner’s case was that she was married to Respondent 4 and they had a son born out of the wedlock. The respondent harassed her for dowry, and she left the matrimonial home along with her son and started living at her parent’s home. One day her husband and mother-in-law came to her parent’s home and requested her to send the child with them only for ten days. However, the child had not been returned to her since. Moreover, she is not even allowed to talk to her son. According to the petitioner, Respondent 4 was a businessman, remained out of the house, there was no one to take care of the child.

The High Court was not inclined to grant prayer as prayed for by the petitioner. Petitioner’s counsel was asked how the custody of the child with his father could said to be unlawful. The Court held that the child was in custody of his father who was a natural guardian (as was his mother). Further, the petitioner was not able to show that the child was under illegal detention or in illegal custody. Under such circumstances, the Court held that the prayer of the petitioner could not be granted, accordingly, the petition was dismissed. [Akansha Budhiraja v. State of Uttarakhand,2018 SCC OnLine Utt 598, dated 25-06-2018]