Op EdsOP. ED.

At the beginning of 2016, the law of insolvency and bankruptcy in India could be found in a bric-a-brac of statutes.[1] They related to differing legal entities and drove parties to varying forums for their enforcement. In its seminal report, the Government appointed Bankruptcy Law Reforms Committee criticised this “highly fragmented framework”. It called for a “deeper redesign” of the entire insolvency resolution process, rather than working on strengthening any single piece of it.[2] The Insolvency and Bankruptcy Code, 2016[3] the result of the Committee’s recommendations, was, by any standards, a unique and remarkable piece of legislation.

The Code’s showpiece mechanism was the corporate insolvency resolution process (immediately reduced by lawyers to its acronym “CIRP”). The CIRP was originally intended as a direct attack on the country’s massive corporate non-performing assets (NPAs). The way it worked was simple – bids would be called for a bankrupt company, and the person making the “best” bid (invariably the largest monetarily) would, after getting the nod from the company’s creditors and the NCLT, take over its affairs, and the old management would be ousted.

One would think, given the centrality of bidders and their deep pockets to the success of the new law, that they would be lavished and fawned upon at every turn, have their every need attended to with alacrity and swiftness, and veritably sped to the point where they would open their purse strings and pay up. One would be triply wrong. Not only do resolution applicants (IBC legalese for bidders) have no legal rights till their plan for the company is approved, they also cannot leave the process once they enter it, and may in some instances even be forced into a “fight to the death” with other bidders. What follows is an appraisal of the indelicate and short-sighted handling of resolution applicants since the Code was enacted.

The enactment of Section 29-A

One of the main prejudices that the Bankruptcy Law Reforms Committee wanted to dispel was that all default involves malfeasance. The Committee thought that this thinking was the hallmark of a “weak insolvency regime”, and the new law ought to recognise that some business plans will always go wrong, and this was no reason to disincentivise risk-taking. “If default is equated to malfeasance, then this can hamper risk-taking by firms”, said the Committee, in a section titled “Drawing the line between malfeasance and business failure”.[4]

The Code was structured to give the company’s earlier management inducement to share its knowledge of the company, with the promise that if it could convince the company’s creditors, it might resolve the company’s loan default and jump back in the saddle and run its business anew.

Section 29-A[5] changed all that. In his speech to the Lok Sabha, the Finance Minister railed against the fact that “the man who created the insolvency pays a fraction of the amount and comes back into management”.[6] This, he said, was “morally unacceptable”, and so we needed Section 29-A, which disqualifies inter alia any person who has an account which is classified as an NPA from submitting a resolution plan to the committee of creditors. With the legislation of Section 29-A, the line between malfeasance and business failure was obliterated. A host of potential resolution applicants were turned away at the doorstep.

An added shortcoming of Section 29-A is that ever since it was introduced, it has been the source of torrential litigation between rival resolution applicants. In their eagerness to eliminate competitive bids, bidders spiritedly term each other as being in violation of Section 29-A. “Like wolves in long winters,” wrote Dr Samuel Johnson in an 18th-century essay, “they are forced to prey upon one another.[7]

The long winter of the IBC began with Section 29-A.

The elimination of legal rights

In Essar Steel case,[8] the Supreme Court upheld the principle that a resolution applicant has no vested right that its plan be considered. Elaborating on the consequence of such a principle, the court observed that a resolution applicant had no right to challenge the rejection of its plan by a resolution professional, or even by the Committee of Creditors when the plan does not receive 66% of the Committee’s votes.[9] This was a reasonable interpretation, and obviously intended to slice away some of the cancerous litigation that has afflicted the Code.

But in Bank of Baroda v. MBL Infrastructures Ltd.,[10] even this salutary principle was taken to an extreme. The issue was the applicability of Section 29-A to a bidder that had submitted its bid before the provision had been introduced. The Court held that this did not matter, “the concern of the Court is only from the point of view of two entities viz. corporate creditors and corporate debtors”. The bidder, the Court observed, “has no role except to facilitate the process”. “No role except to facilitate the process” is, like George Orwell’s “All animals are equal, but some are more equal than others,” a paradox that reveals more than it intends to. Surely, the entity tasked with facilitating the process has the largest role in it?

The sealing of escape routes

When a resolution applicant submits its bid, it should ordinarily expect a quick, two-step appraisal – first by the Committee of Creditors and then by the NCLT. Instead, the CIRP often gets derailed by side issues for unreasonable lengths of time, and the bidders find themselves having to pay last year’s price for a company that has depreciated rapidly since.

In Ebix Singapore (P) Ltd. v. Educomp Solutions Ltd.[11] the Supreme Court simultaneously considered three cases, in each of which the resolution applicants sought to withdraw their bids after waiting for the NCLT’s consent for over a year after the Committee of Creditors granted its approval. (Incidentally, the IBC prescribes a limit of 330 days for the completion of the entire CIRP.)[12] One of the resolution plans even came with a self-imposed validity period of six months.[13] But the Supreme Court refused to release the resolution applicants, however, long they may have languished in the waiting room, maintaining that the IBC did not provide for such a procedure.[14]

The result of such a coercive process is that the resolution applicants will naturally discount the costs of delay and uncertainty when making their bids. Who would bid the full price for a company that may wither and decay for conceivably over a year before its management gets transferred? Worse still, an unascertainable number of potential resolution applicants may decide that the IBC process is not worth the bother, and never bid at all.

In conclusion

The corporate insolvency resolution process is like a Roman galley – it depends upon several arms rowing in the same direction as one. Resolution applicants sit perched at the head of the ship; on them rests the success of the journey. They cannot be made into castaways.

It is in everybody’s interest that the bidders are given every incentive to put in their bids, that their rights are respected, and that they are not made to pay for an unreasonably delayed process. As things stand, they can be forgiven for giving the IBC a pass.


Advocate, Bombay High Court. Author can be reached at adityasbapat@gmail.com.

[1] For the resolution of insolvencies in companies, the law provided two alternatives: “winding up” under the Companies Act, 1956 and reconstruction under the Sick Industrial Companies (Special Provisions)  Act, 1985 (SICA).

[2] The Report of the Bankruptcy Law Reforms Committee,  Para 3.3.1.

[3] Insolvency and Bankruptcy Code, 2016.

[4]  The Report of the Bankruptcy Law Reforms Committee, Para 3.2.3.

[5] Insolvency and Bankruptcy Code, 2016, S. 29-A.

[6] <https://www.youtube.com/watch?v=5Yujf1DJRUo> accessed on 10-5-2022.

[7] Samuel Johnson, “A Project for the Employment of Authors” in The Works of Samuel Johnson, LLD, 200, 206 (1788), Vol. XIV.

[8] Arcelormittal India (P) Ltd. v. Satish Kumar Gupta, (2019) 2 SCC 1.

[9] (2019) 2 SCC 1, pp. 86 and 87.

[10] 2022 SCC Online SC 48.

[11] (2022) 2 SCC 401.

[12] Insolvency and Bankruptcy Code, 2016, S. 12. The Supreme Court later held that this time limit was merely directory, but that the process must ordinarily be completed in this time. See Essar Steel India Ltd. v. Satish Kumar Gupta, (2020) 8 SCC 531, 628.

[13] (2020) 8 SCC 531.

[14] (2020) 8 SCC 531.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Vivek Kumar Birla and Vikas Budhwar, JJ., held that the law has been settled, that use of loudspeaker from mosque is not a fundamental right.

Petitioner’s Counsel filed the present petitioner for the following reliefs:

i) Issue a writ, order or direction in the nature of certiorari for quashing the impugned rejection letter/order dated 03.12.2021 passed by respondent 3-S.D.M. Tehsil Bisauli, District Budaun, on application dated 20.08.2021 of the petitioner, (whereby permission has been rejected for playing loudspeaker/mike on the said mosque, at the time azan.

ii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondents 2 and 3 for granting permission to the petitioner for playing loudspeaker/mike on mosque (Noori Masjid) at the time of azan, situated at Village Dhoranpur, Tehsil Bisauli, District Budaun within stipulated period.

iii) Issue any other suitable writ, order or direction, as this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.

iv) To award costs of the petition in favour of the petitioner.

Petitioner’s counsel contended that the order impugned was wholly illegal and violates the fundamental and legal rights of the petitioner to run loudspeaker from the mosque.

High Court observed that use of loudspeaker from the mosque is not a fundamental right and dismissed the petition.[Irfan v. State of U.P., Writ-C No. 12350 of 2022, decided on 4-5-2022]


Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., dismissed a PIL seeking issuance of writ of Mandamus on the Union of India, to impose restrictions to prevent Civil Servants from contesting elections to the Legislature, Central or State, on a political party ticket, immediately after retirement or resignation from service, by imposing a “Cooling off Period”.

Finding the allegations of bureaucrats deviating from strict norms of political neutrality with a view to obtaining party tickets to be vague, devoid of particulars and unsupported by any materials, the Bench expressed,

“No particulars have been given of the number and/or percentage of erstwhile bureaucrats, who have contested elections on the ticket of a political party, not to speak of any act on their part, prior to their retirement, in deviation of the standards required of bureaucrats.”

Law on Mandamus

A Mandamus lies for enforcement of a fundamental right or a statutory right, or the enforcement of a fundamental duty related to enforcement of a fundamental right or a statutory right. In exceptional cases, a writ may even lie for enforcement of an equitable right. The breach or threat to breach a fundamental, statutory or may be enforceable equitable right, is the sine qua non for issuance of a writ of Mandamus. The right to compel performance of a public duty must be that of the Petitioner.

Hence, observing that there was no complaint of violation of any fundamental right of the Petitioner or any group of persons represented by the Petitioner, the Bench held that the writ petition could not be entertained; the Bench observed,

“Nobody has the fundamental right to get a mandatory order of this Court directing the appropriate Legislature to enact law or the Executive to frame rules imposing restrictions on the eligibility of civil servant to contest elections.”

The Bench clarified that the writ of Mandamus is only granted to compel performance of a public duty or to enforce private rights when duties of a public nature, affect public rights or when private rights are breached by or in collusion with public officers. The legal duty that may be enjoined by Mandamus can be one imposed by the Constitution, a statute, any law or by rules or orders having the force of law, which are capable of being judicially enforced.

Judicial Limitations on issuing Mandamus

“This Court, and/or the High Court, does not give any direction to the State to enforce an Act passed by the Legislature. Nor does the Court enforce instructions in a Departmental Manual not having statutory force, any non-statutory scheme or concession which does not give rise to any legal right in favour of the Petitioner, far less, any recommendation made by an authority such as the Election Commission.” Observing the aforesaid, the Bench held that it is for the Union of India to take a decision on the recommendation of the Election Commission, in accordance with law and that it is not for the Court to decide what should be the policy of the Government. Since, policy matters are never interfered with, unless patently arbitrary, unreasonable or violative of Article 14 of the 5 Constitution.

Observations and Conclusion

Noticeably, the petitioner had filed a similar petition in the Jharkhand High Court which had been dismissed; however the petitioner did not question the dismissal order in the Supreme Court. Therefore, the Bench held that the petition was barred by the principles of res judicata and/or principles analogous thereto. With regard to the issue raised, the Bench opined,

“There can be no doubt that law may be enacted, laying down the norms and qualifications for contesting specific elections. It is, however, for the appropriate Legislature to frame the law. There can be no doubt that civil servants should maintain the highest ethical standards of integrity and honesty; political neutrality; fairness and impartiality in the discharge of duties, courtesy, accountability and transparency.”

Integrity, impartiality, neutrality, transparency and honesty being non-negotiable for the civil servants, the Bench held that ethical standards necessarily have to be enforced and stringent action taken against the concerned officer whenever there is any breach of ethical standards as laid down in the All India Services (Conduct) Rules, 1968.

Apart from the fact that no fundamental right of the Petitioner was in issue, the Bench opined that there was no merit in the contentions raised, even otherwise.

Hence, the Bench concluded that it is not for the Court to interfere in matters relating to framing of law, rules or policy and the question, whether there should be any “Cooling off Period” for civil servants for them to contest elections or not should be best left to the concerned Legislature.

Consequently, the petition was dismissed.

[Vivek Krishna v. Union of India, W.P. (C) No. 1034 of 2021, decided on 18-04-2022]


Appearance by:

For the Petitioner: Vivek Krishna (in person)


Kamini Sharma, Editorial Assistant has put this report together

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justice, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated.

Applicants had invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure challenging the registration of FIR for an offence punishable under Sections 420, 406, 409 and 120B of the Penal Code, 1860 read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999.

It was submitted that applicants and non-applicant 3 resolved their dispute amicably and therefore, the Court proceedings were required to be set aside.

Factual Scenario


Post-dated cheques for the amount to be paid to non-applicant 3 by the applicants were handed over to Advocate Anilkumar Mulchandani. Further, it was added that, till 23-3-2022, the post-dated cheques were not handed over to non-applicant 3.

During the course of hearing, Anilkumar Mulchandani, Advocate submitted that non-applicant 3 had not demanded post-dated cheques from him.

Issue


Whether the non-applicant 3, in fact, demanded the cheques or not and whether Anilkumar Mulchandani, Advocate refused to hand over the cheques to non-applicant 3?

Analysis, Law and Decision


Bench in view of the clear language of the Deed of Settlement (absence of clause to withhold post-dated cheques till the release of the applicant on bail or quashing of FIR) and considering the affidavit filed by the non-applicant no. 3 denying the grant of permission to withhold cheques till the release of the applicant on bail or quashing of FIR, prima facie, it appears that Shri Anilkumar Mulchandani, Advocate, had refused to hand over the cheques in spite of demand made by non-applicant 3.

Since Anilkumar Mulchandani, Advocate was not justified in keeping the post-dated cheques with him, the Court expressed that it is constrained to refer the present case to the Bar Council of Maharashtra and Goa to hold an inquiry as to whether the act of the Advocate withholding post-dated cheques, amounts to misconduct within the meaning of Section 35 of the Advocates Act, 1961?

High Court remarked that,

“We are perturbed by the act of the Advocate to keep valuable security owned by the Client with him.”

The term misconduct means wrongful gain and not ere error of judgment.

One of the main objectives behind Section 35 of the Advocates Act is to prevent the exploitation of clients at the receiving end of the Advocate’s services and maintain the legal profession’s integrity.

The Bench also observed that, the lawyer-client relationship is a fiduciary one; any act which is detrimental to the legal rights of clients needs to be punished.

The Supreme Court explored the amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates Act in the case of Pralhad Saran Gupta v. Bar Council of India, (1997) 3 SCC 585, wherein the Supreme Court has held that retaining amount by the Advocate which is deposited with him on behalf of the decree-holder amounts to misconduct.

Elaborating further, the High Court opined that while dealing with money or any other articles or documents entrusted with the Advocate, he is expected to keep in mind the high standards of the professions and its value practised for centuries.

The Advocates owe a social obligation to the Society while discharging professional services to the litigant. The Advocate should not commit any act by which a litigant could be deprived of his statutory and constitutional rights on account of the sublime position conferred upon him under the judicial system in the country.

On noting the above, the Bench directed the Bar Council of Maharashtra and Goa to hold an inquiry into the allegations made by non-applicant 3 against Advocate Anilkumar Mulchandani.

As the applicants sought permission to withdraw the present application unconditionally, Court disposed of this application as withdrawn. [Pankaj v. State of Maharashtra, 2022 SCC OnLine Bom 771, decided on 6-4-2022]


Advocates before the Court:

Shri Anil Mardikar, Senior Advocate a/w. Shri P. V. Navlani & Shri Rommill Jain, Advocate for applicants.

Shri T. A. Mirza, APP for non-applicant nos. 1 and 2/State.

Shri Anilkumar Mulchandani, Advocate for non-applicant no. 3.

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care.

Instant habeas corpus petition was initially filed by the paternal grandparents seeking custody of the corpus a minor child stated to be of the age of 19 months at that point of time, who was said to be with her maternal grandfather.

It has been stated that despite various requests maternal grandfather was not handing over the custody of the corpus to the paternal grandparents and that the same amounted to illegal detention.

Factual Matrix 

Present habeas corpus petition principally seeks to raise claims with regard to guardianship and custody of the petitioner 1 (corpus) who is girl child stated to have been born on 04.06.2018 and presently aged about three years. It is not disputed that the mother of petitioner 1, upon being seriously ill was taken away by respondent 4 along with the minor child for medical treatment and she died on 31.07.2019 and since then the petitioner 1 is under the care and custody of the respondent 4, her maternal grand­father. The lodging of the FIR under Sections 498­A, 304­B IPC and Section 3/4 Dowry Prohibition Act, 1961, in which the petitioners 2, 3 and 4, are named as accused and the pendency of the criminal proceedings are reflected from the records.

Principal Issue

Whether from the facts of the case, it can be stated that the custody of the child is illegal?

Analysis, Law and Decision

Writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown as held in Mohammad Ikram Hussain v. State of U.P., AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate, (1973) 2 SCC 674.

Jurisdiction

The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would,  be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful.

Object and Scope of Writ of Habeas Corpus

In the case of Syed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247, it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed.

In the decision of Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, the question as to what would be dominating factors while examining the welfare of a child was considered and it was observed that while material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character, personality and talents.

Further, elaborating more it was noted that question of a claim raised by maternal grand­father for guardianship of a minor child whose mother had died after giving birth to the child was subject matter of consideration in Shyamrao Maroti Karwate v. Deepak Kisanrao Tekham, (2010) 10 SCC 314, and reiterating that in the matter of custody of a minor child, paramount consideration is welfare of minor and not rights of parents or relatives, it was held that the appointment of the maternal grand­father as guardian, was justified.

Court stated that considering the facts of the case in particular the allegations against the respondent and pendency of a criminal case for an offence punishable under Section 498­A IPC, it was observed in the decision in the case of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, that one of the matters which is required to be considered by a court of law is ‘character’ of the proposed guardian and that the same would be a relevant factor.

In an earlier decision 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 498­A 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 the children to hand over their custody to the father.

Therefore, 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 the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is.

Power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

 High Court observed that,

A writ of habeas corpus, is employed in certain cases, to enable a party to enforce a ‘right to control’ – arising out of a domestic relationship, especially to enable a parent to get custody and control of a child, alleged to be detained by some other person.

 Guardianship v. Welfare of the Child

 Bench expressed that while examining the competing rights with regard to guardianship vis-à-vis welfare of the child, the predominant test for consideration would be – what would best serve the welfare and interest of the child.

The interest of the child would prevail over legal rights of the parties while deciding matters relating to custody.

In Court’s opinion, the custody of a minor child with her maternal grandfather was not in any manner illegal and improper detention.

Reasoning out the above opinion, Court stated that the child from her infancy, when she was of a tender age, appears to be living with her maternal grand­ father. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor.

“…in deciding questions relating to custody of a minor child, as in the present case, the paramount consideration would be welfare of the minor and not the competing rights with regard to guardianship agitated by the parties for which the proper remedy would be before the appropriate statutory forum.”

In view of the above petition was dismissed. [Reshu v. State of U.P., Habeas Corpus WP No. 9 of 2020, decided on 22-10-2021]


Advocates before the Court:

Counsel for Petitioner:­ Rajeev Sawhney, Rajiv Lochan Shukla, Ramanuj Yadav, Virendra Kumar Yadav

Counsel for Respondent:­ G.A., Abhinav Gaur, Ankur Verma, Manoj Kumar Rajvanshi, Prakash Chandra Yadav

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.

IDIA

Bask into the Glory of this IDIA Scholar — Sheetal Kumari

Early Years

My name is Sheetal Kumari. I come from a tribal community and belong to a lower-middle-class family. I live in a small village in Kanke, Ranchi. I live with my mother and father and have 2 sisters. I passed my tenth exam from Cambrian Public School and my twelfth from Ursuline Intermediate College, Ranchi.

Background

I come from a community that is socially and economically backward. There is lack of awareness amongst the community members about the basic rights and duties of the citizens. This is the reason I wanted to pursue legal education so that I can work towards ensuring that all members can exercise their legal rights better by spreading awareness. There are very few girl children in my community who are getting a higher education and they are usually married at a very early age. I witnessed this kind of situation in my own village where girls are married at a very young age.

Legal Education

Thus, I want to get a legal education to fight for their rights. I know that our government provides many facilities for the betterment of our community but very few people get these benefits as they are not aware and also not very educated. So I want to spread awareness and make the people aware of their rights.

Preparation for CLAT

My father, Rajan Ram is a security guard in NUSRL, Ranchi and through the students of this college my father got to know about IDIA and he told me about this. Later I used to come to NUSRL as a trainee and many of the students helped me in preparing for CLAT. They used to give me the study material of CLAT free of cost through which I have gained a lot of knowledge about this exam. When exams were coming soon they also sent me to CLAT coaching without any fees which help me a lot in cracking CLAT.

Initially, I was very nervous on giving law entrance exam but because of the hard work of my teachers and IDIA trainees, they gave me the confidence to crack this. They taught me how to manage time and accuracy in the exam and by following their guidance, I cracked the exam and when I received the results of the exam I was very happy and satisfied. My parents were also happy with my results. All my relatives came to congratulate me and gave their blessings for my bright and better future. But I was worried about studying in a national law university where students come from high-class backgrounds. Through IDIA I got admission to NUSRL.

College Life

When I got admitted to the University I felt very lucky to get this opportunity to study in this college. The college campus is very good and the food is also very tasty. I have made 4-5 friends and they are very helpful in nature. My classmates are also very helpful. Faculty members are also very helpful and cooperative in nature. They help us in developing our overall personality. I am very enthusiastic about the coming five years and I want to get the best education and lots of good experience and opportunities in the coming years. This college has given me excellent facilities and an environment to study – exactly what I need to succeed in life.


About IDIA:

IDIA is a pan-India movement to train underprivileged students and help transform them into leading lawyers and community advocates. IDIA is premised on the notion that access to premier legal education empowers marginalized communities and helps them help themselves. IDIA selects and trains students from underprivileged backgrounds (IDIA Trainees) to crack top law entrance examinations in India. Once they are admitted to top law colleges, it provides a scholarship to these students (IDIA Scholars) that comprises financial support, training and mentorship among other things.

Read more about IDIA here: https://www.idialaw.org/

Get in touch with them here: info@idialaw.org


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Case BriefsHigh Courts

Bombay High Court: While deciding the instant custody matter, S.C. Gupte, J., held that as per the provisions of Section 6 of Hindu Minority and Guardianship Act, 1956, it is a mother who is the natural guardian of an illegitimate child (whether boy or girl) and a father’s claim only comes in second to mother’s.

As per the facts of the instant case, the dispute revolved around the custody of a minor son of the petitioner and the respondent, born out of wedlock. The petitioner (biological father) via his counsel Aditya Pratap, challenged the Order passed by the Family Court, Pune which had awarded the custody to the respondent (biological mother). The petitioner contended that the respondent has cut-off his access to the child and that she is mentally and emotionally unfit to take custody of the child. The petitioner further submitted that the respondent intends to take away the boy to New Zealand; hence she has applied for visa. The respondent via her counsel Abhishek Pungliya, contended that the petitioner had abandoned her during her pregnancy; refused to acknowledge their marriage which allegedly took place in 2009. The respondent also claimed that the petitioner inflicted physical and mental torture upon her so that the child may get miscarried. The respondent further submitted that since his birth and till date, it is the respondent alone who has brought up the child. It was pointed out that the child suffers from autism spectrum disorder; hence he has always been under exclusive care of the respondent whereas the petitioner never had any affection or association with the child. Regarding the respondent’s relocation to New Zealand, it was submitted that both the mother and the child are the citizens of New Zealand and since the country is free from the current Covid-19 pandemic, hence it is a safe haven for her son.

Perusing the contentions of the parties and the Order given by the Family Court, the Court observed that the petitioner could not sufficiently establish the mental instability of the respondent, as the materials presented by him does not establish the respondent’s unsoundness of mind, prima facie. Deliberating upon the validity of the Order passed by the Family Court, the Bench noted that the Family Court had correctly taken into account all the relevant circumstances and materials on record; its view is certainly a possible view, which a Court of law might well take.

The impugned Order has fairly and adequately addressed prima facie merits of the case as also the question of balance of convenience. Regarding the petitioner’s claims, the Court noted that he denied any matrimonial relationship between himself and the respondent, and thereby, legitimacy to the minor child. The child, who is a special child, has been taken care of and looked after by the respondent mother ever since his birth. It is therefore the mother who has an indefeasible legal right to his natural guardianship over the petitioner. [Dharmesh Vasantrai Shah v. Renuka Prakash Tiwari, 2020 SCC OnLine Bom 697 , decided on 09-06-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): A Single-member Bench comprising of Bimal Julka, Information Commissioner, disposed of an appeal directing the appellant to approach the appropriate forum for her grievance redressal while holding that jurisdiction of the Commission was restricted to the function of ruling on the matters pertaining to right to information.

The appellant who was not present before the Commission, vide RTI application, sought information regarding the action taken by the respondent- Life Insurance Corporation, on the representation made by her claiming insurance under policy number as mentioned in the RTI application. The CPIO (LIC) forwarded appellant’s application to the Manager, Health Insurance, for necessary action. Dissatisfied, the appellant approached the first Appellate Authority (FAA). The FAA provided a point wise response to appellant’s query. Aggrieved by the action taken by the respondent Corporation, the appellant preferred the instant appeal.

The Commission perused the record and held that FAA had provided a proper response to the query raised by the appellant in her RTI application. As for the redressal of appellant’s grievance that the action taken by the Corporation was not satisfactory, the Commission observed that the framework of the Right to Information Act 2005, restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access to/ right to information. The Act does not allow the Commission to venture into the merits of the grievance. The Commission referred to a plethora of precedents to hold that proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished. Further, the Commission does not decide the dispute between two parties concerning their legal rights other than their right to get information in possession of a public authority. Since the appellant was not present, the Commission went on to hold that in view of the facts of the case and submission made by the respondent, no further intervention of the Commission was required. For redressal of her grievance, the appellant was directed to approach the appropriate forum. The appeal was accordingly disposed of. [M. Meenatchi v. CPIO (LIC) ,2018 SCC OnLine CIC 750, dated 11-06-2018]