Case BriefsHigh Courts

Gujarat High Court: Ashok Kumar C. Joshi, J., denied granting child custody to father, wherein the mother was alleged to have extra-marital affairs.

A petition was filed against an order of the Family Court by which the petitioner-applicant sought interim custody for his children, which came to be rejected by the Court’s Order.

Analysis, Law and Decision

High Court referred to the Supreme Court decision in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, wherein the Court considered in detail the scope of interference by this Court to hold and observed that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principles.

The Bench expressed that, the exercise of power under Article 227 of the Constitution of India should be with a view to keep the tribunals/Courts within the bounds of their authority, to ensure that law is followed by tribunals/Courts by exercising jurisdiction which is vested in them and/or when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

“Jurisdiction has to be very sparingly exercised.”

A petition under Article 227 of the Constitution of India cannot be given a shape of appeal in disguise.

In the present matter, the petitioner had alleged that the respondent had extramarital affair with two persons.

Petitioner had also produced an FIR copy filed by the brother of the respondent against Shrirang Dharmendra, with whom the respondent indulged in an extra-marital affair. Family Judge opined that there is nothing on record to show as to how it was unsafe for his children and as to how the life of his children is at stake with the respondent.

Further, so far as the allegations qua the character of the respondent is concerned, the Family Judge opined that same could not be believed only on the basis of the FIR, photographs and/or the chatting details.

The Family Judge had further observed that since the beginning, the children were residing with the respondent only, however, only on bare averments qua character of the respondent, sans any corroborative evidence, it was not proper to hand over the custody of the children to the petitioner.

High Court opined that the Family Judge had committed no error and did not require interference at the hands of this Court. [Shehjada Hanifbhai Patel v. Bilkis, R/Special Civil Application No. 20048 of 2021, decided on 24-3-2022]


Advocates before the Court:

MR MTM HAKIM with MR VA MANSURI(2880) for the Petitioner(s) No. 1

NOTICE SERVED BY DS for the Respondent(s) No. 1

Case BriefsHigh Courts

Bombay High Court: The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., held that Asif i.e. son has no rights in his father’s flats.

As per the petition, Fazal Khan was living in a vegetative state for the last decade and he not only had dementia but has had multiple strokes also. The crux of the petition was the appointment of Fazal’s wife, Sonia as the 1st petitioner, as the guardian of Fazal’s personal and property.

It was noted from the medical report of Fazal that he was totally dependent on his caregivers.

In the present case, the Court was concerned with a Bank Account wherein Fazal was the first holder and Sonia, i.e. his wife the joint holder. The second asset was a property which was a residential flat.

An intervention application as pointed by the Court, which was filed by Asif Fazal Khan, the “de facto” guardian of Fazal for many years and there was absolutely nothing in the said application to show that.

Further, Asif submitted that although his parents were alive, there are two flats and both are what he describes as “a shared household” therefore he, the son, had some sort of enforceable legal right or entitlement to either or both of these flats.

High Court expressed that,

“In any conceptualization of succession law for any community or faith, Asif can have no right, title or interest whatsoever in either of these flats — one in his father’s name and other in his mother’s name — so long as his parents are alive. The suggestion that Asif has a settled and enforceable share in either of the flats in the lifetimes of the real owners, his parents, is laughable.”

Therefore, the intervention application filed by the son was rejected.

High Court permitted the wife of Fazal Khan to operate the Bank account and added that she may draw amounts in the said account to meet all and any of Fazal’s expenses, though she can’t use that money for her personal expenses nor she can transfer the said amount to her personal account and once a year, the wife is required to file a statement of account.

The wife proposed to sell the flats so that the proceeds could be used to look after Fazal, hence the Court permitted the same and directed that without prior leave to this Court she can execute an MoU or an agreement for sale.

In view of the above -said the petition is kept pending. [Sonia Fazal Khan v. Union of India, 2022 SCC OnLine Bom 627, decided on 16-3-2022]


Advocates before the Court:

Mr Nikhil Wadikar, i/b Ganesh Dhonde, for the Petitioner.
Mr Maneesh Trivedi, i/b LR & Associates, for Intervenor/Applicant

in IA/2411/2021.
Mr Adavit Sethna, i/b Anusha P Amin & Tanay M Mandot, for

Respondent 1-UOI.
Mrs Uma Palsuledesai, AGP, for State.

Case BriefsForeign Courts

District Court Appeal (Family Division): Debbie Ong, J., while granting joint custody of a child to mother and father held that the mother cannot unilaterally decide on the matter of the child’s citizenship.

In the present matter, the mother raised following issues:

(a) whether the Court had erred in law in dismissing the mother’s application for sole custody, care and control of the Child with restricted and supervised access to the Father;

(b) whether the Court had erred in law and in fact by refusing to make orders directing or ordering that in the event that the Child’s application for Singapore citizenship has been withdrawn or cancelled, or rendered unsuccessful by reason of any act or omission by the Father to complete the application process, that the Father be ordered to re- apply for the Child’s Singapore citizenship and to do all that is necessary to make the said application within 7 days from the date of this Order; and

(c) accordingly, whether the Court erred in law and in fact by not making the orders for relief sought for by the mother.

This Court expressed that there appeared to be some confusion with respect to the concepts of custody and care and control. The District Judge found that there were no fresh events that gave rise to a genuine or actual dispute in respect of the child’s citizenship.

As per the decision in CX v. CY,              where there is no actual dispute between the parents over any major issues relating to the child’s upbringing, the court may make a no custody order and without the said order, both the parents remain responsible for the upbringing of the child and should continue parents responsibility over the child.

Where there have been attempts by one parent to exclude the other from the child’s life, the court can also make a joint custody order that has the psychological effect of reminding parties that the other parent has an equal say in significant matters.

Further, the Court opined that there is no legal principle that a care and control order can only be made if there are disputes over the upbringing of the child.

It was noted that the parties did not agree on the matter of the Child’s citizenship – the Mother would like the Child to obtain Singapore citizenship, while the father does not wish to apply for Singapore citizenship for the Child.

In view of the above discussion, the Bench opined that a joint custody order would be appropriate in the present matter and the said will make it clear that neither parent can unilaterally decide on matters of importance in relation to their child.

Father expressed his desire at the hearing that he may pursue shared care and control or more access when he would be able to afford a lawyer in future.

Court on noting that the mother had been the main caregiver of the child since the parties separated in June 2020, mother should be given sole care and control of the Child.

Further, the Bench added that the father should have the opportunity to build a relationship with the Child and should have reasonable access to the Child.

Did the court err by refusing to direct that the father be ordered to apply for the Child’s Singapore citizenship?

The intentions and plans of an intact family before the marriage breaks down may no longer be the same after the breakdown. The relationships have changed. Many personal decisions will have to be made to cope with life after breakdown.

 Bench held that whether a child should be raised in country x or country y are personal decisions.

High Court expressed that it is not in the position to, and should not, assess and compare the sufficiency of systems and quality of life of the various countries.

“Some parents of children with Singapore citizenship relocate and give up Singapore citizenship for personal reasons, which could, for example, be a belief that the education system in Singapore is too stressful for their children. Other parents think Singapore is a safe country with an excellent education system and choose to make Singapore their home. These are personal decisions.”

Lastly, the Court held that it does not find any provision in law that accords the Child the constitutional right to an application for Singapore citizenship.  It is the parent with Singapore citizenship who can make such applications.

Hence, the DJ did not err by refusing to direct that the father be ordered to apply for Singapore citizenship for the Child.

In view of the above appeal was dismissed. [VLI v. VLJ, [2022] SGHCF 8, decided on 10-3-2022]

Case BriefsHigh Courts

Chhattisgarh High Court: In a child custody battle, the Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., reiterated the position of law in the Supreme Court’s decision of Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, wherein it was held that the court cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each, further this Court granted visitation and contact right to the father.

A father of the child had filed an instant appeal against the decision of the Family Court whereby the child’s custody had been ordered to be kept with the mother/respondent.

Factual Matrix

It was stated that at the time of the birth, the child was suffering from a certain ailment, and he had a lump on spinal cord, as such he was not able to discharge his functions including urine, etc., therefore, the child was being treated continuously.

Due to the transferrable jobs, the husband and wife were at different locations, after which the husband started alleging the wife that she was not treating the child properly. Husband filed an application for custody of the child which was decided by the impugned order whereby the father was denied the custody and hence the present appeal was filed.

Analysis, Law and Decision

High Court expressed that, in cases of custody of child, the society values are riddled with contradiction. Though the Courts have never missed the finer points of the paramount issue of welfare of the child.

As per the existing factors, the father’s job involved field work, whereas the mother’s job was of teaching and in order to take care of the child she could take him along to the school, hence the father though was a well-wisher and wanted to take care of the child, but the degree of care as was being extended by the mother were higher to hold the sway to have the custody of the child, especially considering the nature of ailment with which the child was suffering from birth.

“…when the father is working at field moving from one place to other, how it is expected that the father would be able to give the company to extend the physical support to the child?”

Hence, Family court’s decision of giving the custody of child to the mother was the correct decision.

The court observed that the “contact rights” is also important for the development of the child especially in cases where both parents live in different places the concept of contact rights in the modern age would be contact by telephone, e-mail or in fact we feel the best system of contact, if available between the parties should be video calling.

Order of the Court:

  • The appellant/ father would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday and Sunday and 5- 10 minutes on other days.
  • Both the appellant/ husband and the respondent/ mother in order to facilitate the video conferencing in between shall procure smart phones which would facilitate the inter-se video calling.
  • During long holidays/ vacation covering more than 2 weeks the child will be allowed to be in company of the father for a period of 7 days and the mother can also accompany them.
  • The period shall be fixed by the father after due intimation to the mother and she will permit the child to go with the father for the aforesaid period and the mother may also accompany them.
  • Every month preferably on 2nd Saturday and Sunday the mother shall allow the child to visit his father or father may take the child in his company and the mother may also accompany and leave him back in the evening of such day.
  • During festivals like Dusshera, Diwali, Holi, the father may join the company of the child at the place of the mother and spend the festival days with the child along with the mother.

In view of the above, appeal was disposed of.[Lalit Kumar Jatwar v. Sushma Jatwar, 2022 SCC OnLine Chh 332, decided on 3-2-2022]


Advocates before the Court:

For Appellant: Shri Manoj Paranjpe, Advocate

For Respondents: Shri A.D. Kuldeep, Advocate

Case BriefsHigh Courts

Bombay High Court: Addressing a matter wherein a child’s mother was diagnosed with cancer due to which she started living at her parental home with the child, and after the passing of the mother, a custody battle arose between the father of the child and the father and brother of wife, Division Bench of S.S. Shinde and N.J. Jamdar, JJ., noted animosity of the child towards his father, to which the Court expressed that, the same must have occurred due to ‘parental alienation syndrome’.

A petition under Article 226 of the Constitution of India was instituted for writ of habeas corpus to produce Master ‘J’, petitioner’s son who was alleged to be in the illegal custody of respondents 1 and 2, the father and brother, respectively of late Neeta, the wife of the petitioner and for direction to the respondents to hand over the custody of Master ‘J’ to the petitioner.

Analysis and Discussion

In the present matter, when Neeta, the mother of Master ‘J’ was diagnosed with cancer, at that time Master ‘J’ was just 5 years old. Neeta, as the record indicated, stayed at her parental home while she was undergoing treatment. It was quite natural that Master ‘J’ continued to be with Neeta and respondent 1.

Question

Whether respondent 1 and his family members came to have the custody of Master ‘J’ lawfully or otherwise, pales in significance.

High Court stated that, the petitioner being the father of Master ‘J’ was the natural guardian under Section 6 of the Act, 1956. There was no qualm over the natural relationship between the petitioner and Master ‘J’ and the juridical status of the petitioner.

The Bench referred to the decision of Supreme Court in Tejasvini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 wherein the child, barely three months old, came to stay with the appellants, who were the sisters and brother-in-law of the wife of the respondent as the child’s mother was diagnosed with cancer and at the same time the respondent-husband was diagnosed with Tuberculosis Meningitis and Pulmonary Tuberculosis and was required to be hospitalised. The child’s mother passed away. When the respondent-father sought custody of his infant daughter, the appellants refused to hand over the custody.

Further, the Court added that, the facts in the case of Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 have a striking resemblance to the facts of the case at hand, except the fact that the child therein was one and a half year old and Master ‘J; is nine and a half year old and in a position to indicate his preference

A fortiori, the principle applies with greater force where a natural guardian seeks the custody of a child from the relations of one of the parents. The remit of writ of habeas corpus is thus not restricted only to the cases where the custody of the child can be said to be unlawful or illegal.

Elaborating further, the Court expressed that in the case where the custody of a child is sought from the person who is not a parent/lawful guardian, the question of interest and welfare of the child is required to be delved into as the Court exercises a parens patriae jurisdiction.

Returning to the facts of the present matter, High Court noted that the unfortunate circumstances, in which Neeta and Master ‘J’ found themselves, forced them to stay with respondent 1. It was but natural that Master ‘J’ developed great liking and affection to respondent.1 and his family members, on account of the long stay and the love and affection which respondent 1 and his family members must have bestowed upon him.

With regard to jurisdiction, Court added that in child custody matters the ordinary remedy is before the Family/Civil Court. However, in exceptional circumstances, the writ Court can exercise extraordinary jurisdiction despite the existence of such an ordinary remedy.

Welfare of Master ‘J’

Stating that the expression welfare of the child is of wide connotation, Court expressed that it is not restricted to physical comfort and well-being It subsumes in its fold, inter alia, emotional, intellectual and overall holistic development of the child.

Court is called upon to deal with a human problem with a humane touch.

During the course of interaction with Master ‘J’ in Court Chambers, Bench found that the child was extremely comfortable in the company of respondent 1 and his family member and he showed a strong reluctance to speak with the petitioner. In fact, he showed a strong desire to stay with respondent 1 and his family members.

Though due weight to the child’s preference has to be attached, yet only his preference alone cannot be a decisive factor.

Further, Master ‘J’ had developed a strong bond of affection and love towards respondent 1 and his family members. The animosity towards the petitioner, thus seemed to be a learned trait. It is not impossible to unlearn, provided a conducive environment is created.

Another significant point noted by the High Court was that the petitioner and respondent 1 and his family members were at loggerheads over the custody of Master ‘J’ must have contributed to the further alienation of Master ‘J’.

Parental Alienation

The passage of time and the negative estimation of respondent 1 and his family members about the petitioner might also have played a significant role. This is recognised as a ‘parental alienation syndrome’.

High Court remarked that, the reluctance to join the company of, or animosity towards, the father does not seem to be based on the experience which Master ‘J’ have had, when the petitioner, Neeta and Master ‘J’ were residing together.

“At an impressionable age such articulation about the opposite party, in a custody battle, often affects the capacity to exercise an intelligible preference. It is quite possible that when a child spends time with a non-custodial parent, he may be disabused of such perception.”

Supreme Court in the case of Vivek Singh v. Romani Singh, (2017) 3 SCC 231, where the Supreme Court adverted to the parental alienation syndrome.

High Court coming back to the facts of the present case, stated that the Court cannot lose sight of the fact that Master ‘J’ lost his mother at a young age and he requires parental love, care, affection and protection for overall development.

Hence, it would not be appropriate to deprive Master ‘J’ of parental love, care and affection.

“…to ensure that Master ‘J’ is not suddenly uprooted from the family of respondent no.1 and the environment he is accustomed to, and the level of confidence and trust between the petitioner and Master ‘J’ is gradually built, we deem it appropriate to initially direct physical access to, and overnight stay with, the petitioner and also reasonable time to enable Master ‘J’ to acclimatize with the petitioner and the new environment.” 

In view of the above discussion, the petition was allowed. [Rakesh Tulsidas Rathod v. Jayraj Vishram Vapikar, WP No. 579 of 2021, decided on 1-2-2022]


Advocates before the Court:

Mr. Subhash Jha, i/b Law Global, for the Petitioner.

Mr. Tejash Dande, a/w Mr. Bharat Gadhavi, Mr. Vishal Navale,

Mr. Ankit Aghade, Ms. Tushna Shah, i/b Tejash Dande

& Asso., for Respondent nos.1 and 2.

Ms. Mallika Ingale, Appointed as Amicus Curie.

Mrs. S. D. Shinde, APP for the State/Respondent no.3.

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., while directing Child Welfare Committee, Jalna to hold an inquiry on an expeditious basis in respect of a girl and to find out whether she was a fit person to be declared as a child in need of care and protection as the father of the girl child had executed “Daanpatra” to give the daughter in a donation to a Baba.

Applicants were arrested for the offences punishable under Sections 376, 376(D), 341, 323 of Penal Code, 1860 and under Sections 4, 6, 8 and 12 of the Protection of Children from Sexual Offences Act (POCSO).

The victim informant who was stated to be 17 years old girl, stated that she resided with her father who was a devotee in Mahadev Temple. The applicant stopped the victim while she was proceeding on a scooter owned by one Baba near her house. After outraging her modesty, the applicants ravished her and after that, she was allowed to go.

It was stated that the Baba and his disciples used to consume Ganja, Bhaang and slowly they started collecting youth from the village for such activities. In March 2021 a Gramsabha was organized and it was decided that said Baba and other disciples along with the victim should be asked to leave the temple premises. Even the Gram Panchayat asked the Baba and others to leave.

As per the medical opinion, there were absolutely no signs on the body of the girl which would indicate that the act was forcible.

In the FIR, though the victim–informant had given her age and the date of birth, the investigating officer had not collected any documentary proof.

High Court stated that noting the investigation was over, a charge-sheet was also filed. The Court opined that, the present case would be a fit case to release the applicants on bail, however with stringent conditions.

The Bench noted that a fact which came on record was disturbing as a document styled as ‘Danpatra’ on stamp paper of Rs 100 was executed between the father of the girl and the Baba, as per which the father had given his daughter in a donation to the Baba and the said Kanyadaan was made in the presence of the god.

When the girl as per her own statement is minor, then why the father who is in all respect guardian of the girl should give the girl as Daan? A girl is not a property which can be given in donation.

 In view of the above fact, respondent 2 was asked to file an affidavit about the incident.

Interestingly, the name of the person to whom the daughter was given in adoption was the same as that of the person who had filed the affidavit i.e. affiant. The Advocate for respondent 2 had not even taken care while drafting the affidavit that it should be in the proper name. The affiant, therefore, further stated that the proper adoption deed had not been executed and the adoption process will be followed. He said that the girl was residing with him as of today.

Bench expressed that it was concerned with the future of the minor girl in view of such document coming forward, can’t shut eyes.

In Court’s opinion, the present case is fit where the directions need to be given to the Child Welfare Committee, Jalna to hold an inquiry on an expeditious basis in respect of the girl and to find out whether she was fit person to be declared as a child in need of care and protection.

At the cost of repetition, it can be said that in view of the actions taken by the father of the girl in executing “Danpatra”, this Court is required to interfere. This is in view of the future of the girl and she should not be driven to do any illegal activities.

 Therefore, bail application was allowed. [Shankeshwar v. State of Maharashtra, 2022 SCC OnLine Bom 171, decided on 3-1-2022]


Advocates before the Court:

Mr S. S. Thombre, Advocate for the applicant in BA/1366/2021. Mr P. P. More, Advocate for the applicant in BA/1345/2021.

Mr N. T. Bhagat, APP for the respondent – State in both matters. Ms Shital E. Waghmare, Advocate for respondent No.2 in both matters.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

Kanya Daan is a solemn and pious obligation of a Hindu Father, from which he cannot renege.

An unmarried daughter, even if employed and earning, cannot be assumed to have sufficient resources to meet her matrimonial expenses.

Instant appeal had been filed under Section 28(2) of the Hindu Marriage Act, 1955 read with Section 19(2) of the Family Courts Act, 1984 against the decision of Poonam Sethi v. Sanjay Sethi, HMA No. 39 of 2017.

In the above-said impugned judgment, the Family Court had allowed the petition filed by the appellant wife under Section 13(1)(ia) of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce on the ground of cruelty and had dissolved the marriage between the parties.

Appellant was aggrieved by the non-grant of maintenance allowance for herself and two major daughters of the parties.

Appellant’s Counsel argued that the appellant-wife had been supporting all three children for more than a decade, taking care of all their expenses and needs, further he submitted that under the Hindu Adoption and Maintenance Act, 1956 it is the obligation of the husband to maintain his wife and unmarried daughters. Since the appellant-wife had been maintaining the daughters, she was entitled to claim maintenance for herself and her unmarried daughters.

Question for Consideration:

Whether unmarried daughters who have attained majority and are earning their own income are entitled for maintenance and expenses towards their marriage?

Analysis, Law and Decision

High Court noted that under Section 20 of the Hindu Adoption and Maintenance Act, maintenance will only be paid to children or infirm parents if they are unable to maintain themselves.

There is no section which states that the inability to maintain themselves (both with regard to children and parents) is equivalent to not earning an income.

Court added that an individual could be earning an income, but still not necessarily be able to maintain herself/himself.

As per catena of decisions, Bench observed that be it under Section 24 of the HMA Act, 1955 or Section 20(3) of the Hindu Adoption and Maintenance Act, 1956, a father cannot abdicate his responsibility of looking after his unmarried daughters.

A father has a duty and an obligation to maintain his daughters and to take care of their expenses, including towards their education and marriage.

 The above-said is a legal obligation and absolute in character and arises from the very existence of the relationship between the parties.

Family Court without adverting to the evidence and documents on record, in a cryptic manner held that Section 20 of the Hindu Adoption and Maintenance Act, 1956 cannot be used to expand the provisions of Section 26 and hence major daughters of the parties were not entitled to maintenance. Regarding maintenance to son, Family Court had granted maintenance at the rate of Rs 25,000 per month from 19.03.2015 till 11.07.2015, i.e., the date of attaining majority by the son.

The purpose of Section 24 and 26 is not to equalize the incomes of the parties.

Family Court observed that the petitioner herself was not entitled to any maintenance allowance or permanent alimony, as she was doing well professionally and earning substantial sums of money. As far as the finding vis-à-vis the appellant wife was concerned, Bench upheld the decision of Family Court and was of the view that there was sufficient material on record as well as income affidavit of the appellant which showed her to be engaged in the profession of tarot reading.

In Court’s opinion, the Family Court’s observation that as the daughters were majors on the date of filing the application, they were not entitled to any maintenance. High Court held that the daughters may be of majority age today, however, the respondent was still their father. It was added that he cannot simply resile from that relationship and the accompanying legal and moral obligation, and state that he will not take care of them.

Father’s duty to maintain his unmarried daughters, including his duty to provide for their marriage is clearly recognized by the law.

To analyse the provisions of the Hindu Adoption and Maintenance Act, Court relied on the Bombay High Court decision on Kusum v. Krishnaji, 2008 SCC OnLine Bom 28 and Jasmeet Kaur Talwar v. Gurjit Singh Talwar, 2014 SCC OnLine Del 6576.

In light of the above decisions, Court noted that the two daughters – who have attained majority, are also entitled to maintenance amount for their wedding expenditures.

Quantum of Maintenance

The simple fact that the respondent could travel, drive expensive cars, place expensive advertisements to promote his business, amongst others, and make no expenditure on his 3 children who were being raised solely by the Appellant-wife, shows his poor conduct and role as a father.

Simply stating that the daughters are major and earning an income, without adducing how, and how much, is a non sequitur.

High Court elaborated stating that for the last 11 odd years, the Appellant-wife had been providing for the children. Simply because she has done so and is presently also presumably doing so, cannot relieve the Respondent- husband from his obligations as a father.

Therefore, Bench directed that an amount of Rs 35 lakhs be paid towards marriage expenses of the elder daughter, 50 lakhs for the marriage of younger daughter as she was not earning any income and was dependent on her parents for the expenses of her marriage, that was already scheduled.

Court’s interaction with the Respondent in Chamber:

Bench observed that he carried within himself some amount of hurt and anger in relation to his daughters. During our interaction, he also claimed that he did not receive the respect that he was entitled to as a father. We could observe that his reluctance to provide for his unmarried daughters stemmed from his anger and ego, more than anything else.

High Court sincerely hoped that the Respondent and his daughters would make the required effort to restore their relationship, even if their parents have fallen apart.

We are hopeful that the appellant would also play a positive role in bridging the gap between the Respondent and his daughters – who are now grown-up, and there is no reason for her to come in the way of the relationship of his daughters and their father. We, therefore, expect that as and when the daughters of the parties get married, the Respondent would happily participate in the functions, and the appellant, the children and other family members would respectfully and gracefully, with love & affection, welcome him to the functions and facilitate his participation in the functions wholeheartedly.

[Poonam Sethi v. Sanjay Sethi, 2022 SCC OnLine Del 69, decided on 7-1-2022]


Advocates before the Court:

For the appellant: Bhuvan Mishra, Advocate with Appellant-in-person

For the respondent: Anshul Narayan and Sourabh Pahwa, Advocates with respondent-in-person

Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., while addressing a matter of a daughter alleging rape by her father expressed the significance of ‘sterling witness’.

Instant appeal was directed against the decision by which the appellant was convicted for offences under Section 376(2)(f) and 506 of the Penal Code, 1860 and under Section 5(n) read with Section 6 of Protection of Children from Sexual Offences Act (POCSO).

Father (accused) of the prosecutrix (PW2). PW 2 informed the Child Welfare Committee that the accused had subjected her to sexual abuse, hence police was directed to record the statement of PW 2, pursuant to which an FIR was registered for offences under Section 376 (1)(ii), 506 of IPC and Section 6 of POCSO Act.

Additional Sessions Judge held that the evidence of the prosecutrix amply proved that the accused had subjected her to rape. Therefore, relying upon the sole testimony of the prosecutrix, Judge held the accused guilty of the above-stated offences.

Analysis, Law and Decision

High Court expressed that the conviction can be based on the sole testimony of the prosecutrix provided the evidence of the prosecutrix is found to be worthy of credence and reliable and is of sterling quality.

In the Supreme Court’s decision of Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, it was held that

the “sterling witness” should be of a very high quality and calibre whose version should be unassailable. The Court considering the version of such witness should be in a positing to accept it for its face value without any hesitation. To test the quality of such witness, what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to with stand the cross examination of any length and howsoever strenuous it may be, and under no circumstance should be roomed for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it.

 What led to the prosecutrix stating that she was raped by her father?

The evidence of PW2 revealed that she was housed in Bal Sudhar Griha for theft of a laptop. About a month later, the accused brought her home. She had deposed that the accused did not allow her to leave the house and used to beat her. She, therefore, ran away from the house, but the accused brought her back and assaulted her and cut her hair.

One day under the influence of alcohol, the accused touched PW2 inappropriately and when she resisted, he offered her money. Thereafter, he removed her clothes and had forcible sexual intercourse with her. She could not inform earlier about the said incident, since the accused used to threaten her.

High Court observed that this witness had not stated in her statement under 161 of CrPC that the accused had touched various parts of her body and offered her money and tried to have forcible sexual intercourse with her. This was a material omission that casts a doubt on the credibility of this witness.

It was noted that the room in which PW 2 used to sleep several other family members also used to sleep in the said room and accused used to sleep in the vehicle outside for want of sufficient space in the room. Hence, in such circumstances, it is highly improbable that the accused would rape his daughter without any of his family members coming to know about the incident.

The Bench stated that PW2 had admitted that after the accused had brought her back from Bal Sudhar Griha, he prevented her from leaving the house and whenever she did not listen to him, he would beat her and that he had even cut her hair. Her evidence also indicated that she was annoyed with the accused of beating her and putting several restrictions on her.

The Court opined that in the above-stated circumstances, the possibility of PW2 falsely implicating the accused in the rape case could not be ruled out and the evidence of PW. 2 was not reliable and trustworthy.

Bench added that PW 2 did not pass the test of a ‘sterling witness’ and hence no conviction could be based on the uncorroborated testimony of PW 2.

Therefore, the appeal was allowed, and the accused was acquitted of offences under Section 376(2)(f) and 506 of IPC under Section 5(n) read with Section 6 of POCSO Act. [X v. State of Maharashtra, Criminal Appeal No. 1704 of 2019, decided on 1-12-2021]


Advocates before the Court:

Mr. Aniket Vagal for the Appellant.

Mr. S.V. Gavand APP for the Respondent-State.

Mr. S. R. Nargolkar a/w. Arjun Kadam for the Respondent No.2.

Case BriefsHigh Courts

Bombay High Court: Noting in case after case, complaints from senior citizens that their own sons and daughters are harassing them, Division Bench of G.S. Patel and Madhav J Jamdar, JJ., expressed that,

“…the harassment is an attempt to somehow grab the senior citizen’s property in his or her lifetime without thought spared to the mental or physical health well-being or happiness of these seniors.”

Instant petition challenged an order passed by the Welfare Tribunal and Deputy Collector Mumbai City on a complaint made to that tribunal by 2nd respondent (Mr Shetty). 2nd respondent was the father of four daughters.

Mr Shetty stated that he does not want his daughter petitioner Shweta to remain, occupy or reside in Flat No. 2A, Giriraj CHSL, 11 Altamont Road, Mumbai.

Controversy

There was no doubt that Mr Shetty was the sole and absolute owner of the above-stated flat and Shweta has no right of any kind in the said flat. She has not even canvassed any independent right to the flat at all.

Background

Mr Shetty, aged 94 years old was a widower with several age-related health ailments and he was being continuously harassed and mistreated by Shweta.

He submitted that, Shweta contributed nothing to the house and was rude, aggressive and with time her conduct deteriorated. She began to badger Mr Shetty “for her share of the property” and said that she would leave the flat only after she was given “her share”. Shweta even caused physical distress to the domestic help and damaged the household as well.

In view of the above, Mr Shetty sought Shweta’s eviction from a Tribunal.

Analysis, Law and Decision

To constitute eviction, or to invoke any prohibition against eviction, it must be shown that some legally enforceable civil right of the appellant in the property itself has been determined and that the appellant has been denied that right. Removal of a person with no right in the premises is not eviction so as to attract any such prohibition.

 Agreeing with the various decisions of the Courts, Bench expressed that,

“…it is our experience that in this city, and particularly or most especially amongst the wealthy of this city, senior citizens and elderly parents are being subjected to all kinds of harassment and deprivation in their twilight years.”

 In the instant matter, the daughter has been demanding her share from her father’s property but what is her ‘share’ while he is alive? Well, none. As long as Mr Shetty is alive, Shweta has no ‘share’ in his property.

Bench added to the above that,

“…this is not an isolated experience at all. It is, in fact, a widely noticed trend and it is to address this evil – we will not even call it mischief – that the 2007 Act was brought into force.”

When the Court spoke to Mr Shetty he was completely unambiguous and indeed emphatic in his statement to the Court that he did not want Shweta in his house for one minute longer. He repeatedly asked that she be made to leave his flat and that he be left in peace.

With respect to the argument of Mr Thorat that the Act does not contemplate the removal of any person from immovable property, Court found the said proposition to be incorrect.

Court agreed with the views of this Court in Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246 along with the decision of Delhi High Court in Sunny Paul v. State of NCT of Delhi, 2018 SCC OnLine Del 11640.

Bench lastly, added that if the Delhi rules provide for eviction of a person with no right in the property to protect the interests and welfare of a senior citizen, this necessarily means that the right to order removal of a claimant exists in the statute itself.

In view of the above petition was rejected. [Shweta Shetty v. State of Maharashtra, 2021 SCC OnLine Bom 4575, decided on 25-11-2021]


Advocates before the Court:

For the Petitioner: Mr Pradeep Thorat, i/b Manoj Agiwal.

For the Respondent 2: Dr Sujay Kantawala, with Aditya Iyer.

For Respondents 3,4 and 5: Ms Aishwarya Kantawala.

For the State: Mr Kedar Dighe, AGP.

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