Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court, Srinagar: Sanjay Dhar, J., addressed a matter with regard to providing maintenance to a minor child amidst the dispute regarding the paternity of the child.

Petitioner (minor) through her mother challenged the order passed by the Judicial Magistrate in the proceedings under Section 488 of J&K CrPC whereby the Magistrate deferred the proceedings till the outcome of the civil suit in which question of paternity of the petitioner was an issue.

Factual Background

Minor petitioner through her mother filed a petition against the respondent claiming maintenance from him. It was alleged that in the year 2010, the respondent had developed a relationship with the petitioner’s mother and further the respondent converted to Islam, whereafter he entered into wedlock with the mother of the petitioner.

Later, on being posted to New Delhi the respondent shifted leaving the petitioner and her mother in lurch. On visiting the native place of the respondent the petitioner and her mother came to know that the respondent was already a married man, hence the marriage between the petitioner’s mother and the respondent got automatically dissolved.

The petitioner and her mother filed a suit for declaration and injunction against the respondent.

The respondent did remit some maintenance amount in the bank account of the petitioner, yet the same was very meager, hence the petitioner sought maintenance of Rs 30,000 from the respondent.

Analysis, Law and Decision

High Court noted that one birth certificate showed the name of the child as Riza Jan with Mr Idress Bashir Jabari as her father, whereas the other one showed the name of girl child as Raaisha with the name of the father as respondent.

Further, the petitioner’s own document, the bank statement depicted that her bank account had been opened in the name of Riza Jan. It meant that Raaisha and Riza Jan were one and the same person.

Hence, in view of the provisions contained in Section 114(e) of the Evidence Act, there is a presumption of correctness attached to the particulars entered in the said certificate.

On the other hand, the birth certificate dated 01.09.2014, on which reliance is being placed by the petitioner, appears to have been issued pursuant to the directions of the Court after more than three years of the event of birth, by taking recourse to the provisions contained in Section 13 (3) of the Registration of Births and Deaths Act, 1969

Therefore, the presumption could not be raised as regards the correctness of contents of the said certificate, unless oral and documentary evidence is led to support the same.

High Court added that, the presumption contained in Section 112 of the Evidence Act is also attracted to the facts of the instant case.

As per the aforesaid provision, the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, is conclusive proof that he is the legitimate son of that man, unless it is shown that the parties to the marriage had no access to each other.

Hence, the petition was born out of wedlock of her mother with Mr Idrees Bashir Jabari, unless it is shown that Mr Idrees Bashir Jabari had no access to the mother of the petitioner during the said period.

The Bench also observed that, the mother of the respondent could not place on record any Nikahnama or any other material to show that she entered into a wedlock with the respondent.

Merely because wife of the respondent had alleged in her divorce petition that respondent was forced to marry mother of the petitioner does not prove the said fact particularly when respondent’s wife has admittedly withdrawn the petition itself.

Thus, Magistrate had no evidence to even prima facie records a finding that the respondent was the father of the minor.

“…grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 CrPC, but when the paternity of a child is seriously disputed and there is no prima facie material to suggest that the respondent happens to be the father of the child, it would not be prudent for a Magistrate to fasten the respondent with the liability of maintaining the child.”

High Court observed that the revision petition was not maintainable and hence deserved to be dismissed. [Raaisha v. Syed Sudhanshu Panday, 2022 SCC OnLine J&K 242, decided on 27-1-2022]


Advocates before the Court:

For the Petitioner: Abdul Manan, Advocate.

For the Respondent: Anil Bhan, Advocate

Case BriefsHigh Courts

Delhi High Court: Upholding the rights of the putative father, V. Kameswar Rao, J., expressed that while determining and granting such rights, more so when the child is of less than 3 years of age, surely his well-being/welfare is of paramount importance.

The petition sought aside, the lower Court’s decision to the extent that the respondent had been granted visitation rights of the minor child for two hours every day.

Trial Court has erred in partially allowing the respondent’s application filed under Section 12 of the Guardian and Wards Act, 1890 read with Sections 6(a) and 6(b) of the Hindu Minority and Guardianship Act, 1956 read with Section 151 Civil Procedure Code, 1908.

Petitioner submitted that the respondent, who was the father of a minor child had admitted himself to be a putative father. The visitation rights were granted on two major grounds i.e., (i) respondent has admitted the paternity of the minor child and; (ii) respondent is residing in the same premises as the minor child and the petitioner albeit on a different floor.

Whether Family Court was justified in allowing the visitation rights of respondent for having access to the minor child for two hours per day?

High Court firstly stated that it cannot be disputed that the respondent being a putative father shall be entitled to visitation rights.

“While determining and granting such rights, more so when the child is of less than three years of age, surely his well-being / welfare is of paramount importance.”

In the present matter, the child was 3 years old.

Ms Geeta Luthra, Senior Advocate submitted that the impugned order disregarded the interest and welfare of the child as it upsets the schedule of the child and the respondent had been taking the child out without following the COVID-19 norms. She added to her submissions that the visitation rights hindered the custodial rights of the petitioner.

Whereas, Ms Revecca M. John, Senior Counsel submitted that the respondent had been taking care of all the needs of the child, h had also taken a sabbatical from work and that the respondent was a primary care giver of the child.

A Coordinate Bench of this Court in the case of Pradeep Santolia v. State WP(Crl.) 3294/2018 held that the child’s ties with father should not be completely and perpetually stopped to ensure a healthy emotional quotient and a robust psychological growth of the child, for which the affection of both the parents would be necessary. 

This Court on noting the tender age of the minor child who was less than 3 years old, modified the impugned order and directed as follows:

I. The visitation hours given to the respondent by the Trial Court for 2 hours daily may not be conducive for the child of that tender age. Appropriate shall be instead of daily, the respondent shall have visitation rights on alternate weekdays i.e., Monday, Wednesday and Friday on which days he will collect the child at 6 PM and return the child to the petitioner at 8 PM on the same day.

II. On Sunday, the respondent shall collect the child from the petitioner at 11 AM and return the child at 5 PM on the same day.

III. The above visitation shall be subject to the respondent residing in the same property i.e., C-99, Defence Colony.

IV. The respondent shall ensure the safety and well-being of the child; and ensure that necessary COVID-19 protocols are maintained and the child is not exposed by non-essential outings to public places. This does not preclude the respondent from taking the child to a nearby park.

V. The respondent shall not take the child out of the territorial limits of the Courts in Delhi.

VI. The respondent shall have unsupervised visitation rights to the child, i.e., the respondent would not be supervised by a nanny, Local Commissioner, etc. However, during visitations, liberty is with the respondent to have his family members present.

VII. The respondent shall also be at liberty to speak / interact with the child through video call / audio call once a day on Tuesdays, Thursdays and Saturdays, in the evenings between 6 PM to 8 PM for not more than 10 minutes.

In view of the above petition was disposed of. [Kinri Dhir v. Veer Singh, 2022 SCC OnLine Del 816, decided on 24-3-2022]


Advocates for the Court:

For the Petitioner:

Ms. Geeta Luthra, Sr. Adv. with Ms. Shivani Luthra Lohiya, Ms. Asmita Narula, Mr. Anubhav Singh and Ms. Priyanka Prasanth, Advs.

For the Respondent:

Ms. Rebecca M. John, Sr. Adv. with Ms. Gauri Rishi, Mr. Manav Gupta, Ms. Srishti Juneja, Ms. Garima Sehgal, Mr. Sahil Garg, Mr. Ankit Gupta, Ms. Praavita Kashyp, Advs.

Case BriefsHigh Courts

Delhi High Court: Yashwant Varma, J., delved into the subject of the role of a Family Judge while deciding petitions which come before him/her. The High Court in the instant petition directed the Family Court to consider the petition filed for maintenance under Section 24 of the Hindu Marriage Act.

Background

Present petition was preferred challenging the decision of the Family Court.

First Order of the lower court had accorded visitation rights to the respondent, the second order provided for the system of the father being able to communicate with the child via a video call.

The Court was informed that on account of a medical affliction, the respondent was not in a position to take advantage of the rights of visitation physically and that the ends of justice would thus warrant the system of video calls being continued to enable the father to continue interaction with the child and thus participate in his upbringing.

In view of the above two orders, the Court had provided for fixation of an interim maintenance to be paid at a rate of Rs 15,000 and on one occasion payment of an additional sum of Rs 10,000 was also directed.

Question for Consideration

Validity of two orders passed by the Family Judge and whether the issue of interim maintenance or otherwise is liable to be decided by the High Court in writ petition even before parties have had the liberty and the occasion to lead appropriate evidence in order to enable the Family Judge to arrive at what would be a just maintenance which would be payable.

Analysis, Law and Decision

With regard to the latter question as stated above, Court opined that the principal jurisdiction with regard to the above stood conferred on the family judge.

It is the primary responsibility and function of the Family Judge to consider and decide as to what would constitute a fair maintenance, interim or otherwise, which should be fixed for the upkeep and upbringing of the minor child.

Whether Family Judge was justified in law in refusing to take up the application under Section 24 of the Act in the absence of a written statement filed.

Court noted that the family judge failed to assign any valid reason or allude to any circumstance which may have impeded its ability and authority to decide the said issue irrespective of whether a written statement had been filed or not.

A written statement, as a foundational precept, is a pleading dealing with the merits of the dispute. The insistence on the filing of a written statement and an application for maintenance being taken up for consideration only thereafter cannot possibly be recognized to be an inviolable rule.

Petitioner’s assertion was that she had no source of income and that she was facing financial constraints to look after the needs of the minor. It is not the case of the respondent that he was contributing to the expenses required for the wellbeing of the minor prior to the intervention of this Court.

Bench stated that the respondent failed to weigh into consideration that he too is a parent and thus obliged in law to contribute equally to meet the needs of the child.

Role of Family Judge

The Family Judge is supposed to perform a special and unique role under the Act. That Court, unlike others in the hierarchy of the judicial system does not merely preside over adversarial litigation. It also has to proactively engage with parties and act as a facilitator and mediator.

the provisions of Order VIII Rule 1 of the Civil Procedure Code are liable to be recognised as operating in absolute terms only where a particular statute may provide for consequences of a failure to adhere to the time frame prescribed for filing of a written statement.

As per the decision of Nidhi Banga v. Mohinder Bir Singh, 2014 SCC OnLine Del 7628, establishes that the Court essentially reiterated the underlying importance of Section 24 and of the obligation placed upon the Family Court to determine the payment of maintenance.

Family Court has failed to record even rudimentary reasons in support of its ultimate decision to defer decision on the application under Section 24 in the absence of a written statement being filed.

Court opined that the impugned orders would merit being set aside and the matter being remitted to the Family Judge who may take up the application for grant of interim maintenance as made under Section 24 and dispose of the same in accordance with law and upon due consideration of all objections that may be taken and evidences led by respective parties.

The ends of justice would also warrant the interim arrangement as made out by this Court and reflected in the above two orders of family court to be continued subject to following conditions:

  1. While the respondent would continue to pay interim maintenance of Rs 15,000/- as was fixed by this Court in its initial order of 2nd February, 2021, since presently, the respondent is unable to exercise the rights of visitation physically, the arrangement of an interactive session being put in place via a video call on a daily basis is liable to be continued.
  2. The Court further reserves the right of the respondent to reassert his right of physical visitation as and when his medical condition does so permit.

Hence, the above petition stands allowed and the matter shall stand remitted to the concerned principal Judge who shall take up the application as made by the petitioner under Section 24 for consideration. [Esha Dhir v. Sparsh Dhir, 2021 SCC OnLine Del 5163, decided on 29-11-2021]


Advocates before the Court:

For Petitioner:

Mr. Yakesh Anand, Ms. Sonam Anand, Ms. Deepshikha Sansanswal, Mr. Akshay Thakur, Advs.

For Respondent:

Mr. Pratap Singh Parmar, Adv.

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

The parents together are a young child’s world. It is together that they groom him into his youth. It is together that they ensure the overall development of his personality in its myriad facets.

But marriage, like life, sometimes takes an unpleasant turn, where the spouses could turn into an estranged couple. 

It is in this situation that the Court, in the exercise of its parens patriae jurisdiction, called upon to perform the onerous task of keeping the young child’s world, as much together as can be. 

Allahabad High Court: J.J. Munir, J., observed that

What is important while deciding the issue of custody between two natural guardians, is where the minor’s welfare would be best secured. The statute indicates a preference for the mother, so far as a child below five years is concerned.

The instant petition was filed for a writ of habeas corpus, instituted by Master Anav’s mother, the first petitioner, asking the Court to liberate the minor from his father’s custody by entrusting the minor into hers, is about a young child’s devastating world.

Petitioner 1 states that during her stay with her husband, she was tortured physically and mentally, both. Her mother even gave dowry.

Later, petitioner 1 realised that her husband had an amorous relationship with her sister-in-law and another girl from the village to which she objected in vain. She was even forced to abandon the marriage and go back to her mother’s home.

The discord between parties was mediated by kinsmen, which resulted in what Meenakshi claims to be a mutual divorce.

Further, it was stated that Meenakshi after the above settlement went back to her mother’s home along with her young son, Anav. After some time petitioner 1 claimed that there was an unholy alliance between Meenakshi’s brother, Sunny and her estranged husband with two making it common cause to oust her minor son from her mother’s home.

While Ram Narayan wanted his son to stay with him, Sunny who is arrayed as the respondent 6 to this petition, wanted the child out of his mother’s home, where Meenakshi stays, because he thought Meenakshi may claim a share for her son in her ancestral property.

In light of the above motive, Meenakshi was beaten up and her son was snatched away, leading to locking up Meenakshi.

Later Anav was handed over to Meenkashi’s husband.

Analysis and Decision

Bench observed that the mother of the minor came up with serious allegations about her son being kidnapped by force by her brother and being delivered into her husband’s custody.

Court found no tangible evidence in regard to the child being forcibly removed from mother’s custody.

The minor is a young child of tender years. He is just four years old. The Court did not find him capable of expressing an intelligent preference between his parents, in whose custody, he would most like to be.

Amongst many things that this Court noticed is the fact that the father is not, particularly, interested in raising the minor.

A perusal of the settlement between the parties contained clause wherein it was specifically stated that the minor, Anav, then aged two and a half years, would stay in his mother’s custody.

The above-stated discloses the disinclination of the father to bear a whole-time responsibility for the minor’s custody and the complementary inclination of the mother to take that responsibility.

Mother’s right and that of the father, under Section 6(a) as to guardianship has been considered at par by the Supreme Court in Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.

So far as custody goes, as distinct from guardianship, between the two natural guardians, the mother is to be preferred by virtue of the proviso to Section 6(a) of the Act of 1956, in the case of a child below five years of age.

Bench observed the Supreme Court Decision in Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, wherein it was held that

A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.

Court added to its observation in custody matters that,

But, the general rule about custody of a child, below the age of five years, is not to be given a go-by. If the mother is to be denied custody of a child, below five years, something exceptional derogating from the child’s welfare is to be shown.

Bench noted that nothing on record was placed where it could be stated that the mother was unsuitable to raise the minor. Court found that the mother in the present case is more educated than the father.

Adding to the above, Court also stated that:

The mother, being found fit to have the minor’s custody, it cannot be the best arrangement to secure the child’s welfare, or so to speak, repair his devastated world. He must have his father’s company too, as much as can be, under the circumstances.

This Court must, therefore, devise a suitable arrangement, where the minor can meet his father in an atmosphere, that is reassuring and palliative. The father must, therefore, have sufficient visitation while the minor stays with his mother.

Hence, the habeas corpus writ petition was allowed in view of the above discussion. [Meenakshi v. State of U.P., 2020 SCC OnLine All 1475, decided on 02-12-2020]


Advocates who represented the parties in the matter:

Counsel for Petitioner:- Sushil Kumar Sharma, Mohit Kumar

Counsel for Respondent:- G.A., Amar Nath, Shravana Kumar Yadav

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., addressed a matter wherein the husband and wife reach a settlement and the wife agrees to a clause wherein her minor daughter would also not be liable to claim anything against the petitioners.

In the instant application, petitioners have been stated to be under judicial custody, Vaibhav Jaiswal was alleged under Section 376 of Penal Code, 1860 and under POCSO Act, 2012.

Other petitioners were alleged to have committed offences under Sections 498 A, 406 and 34 of IPC.

The above-stated FIR was sought to be quashed in light of a settlement arrived between the petitioners and respondent 2 and that the marriage between the petitioner 1 and respondent 2 has been dissolved.

Respondent 2 affirmed the factum of the settlement arrived between her and petitioner 1.

Bench stated that in view of the above there appears no reason to disbelieve that the statement made by respondent 2 that she has arrived at a settlement with petitioners was made of her own accord.

Hence, all the proceedings against the petitioners are quashed.

However, in regard to the settlement deed, it was observed that under clause 7 states as follows:

“It is agreed between the parties that the above settlement is with respect to all claims of wife past, present, future, alimony, stridhan, maintenance, executions, articles property etc. and neither she nor her relatives shall claim anything from husband or from his family members in future for herself or on behalf of Child/children.”

Court stated that it is essential to observe that respondent 2 gave up all the rights of the minor child Vaishanvi qua the petitioners.

But the above could not have been done so in light of the Supreme court decision in Ganesh v. Sudhi Kumar Shrivastava, Civil Appeal Nos. 4031-4032/2019 arising out of SLP (C)  Nos. 32868-32869/2018, a verdict dated 22.4.2019 adhered to by this Court in Rakesh Jain  v. State, Crl. MC No. 2935 of 2019.

Hence, the minor child would be entitled to seek her claims against the petitioners and respondent 2 qua maintenance or otherwise in accordance with the law. [Vashno Jaishwal v. State (NCT of Delhi), 2020 SCC OnLine Del 1504, decided on 20-11-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court, Gwalior Bench: S.A. Dharmadhikari, J., while addressing an issue with regard to the custody of a child held that the welfare of child is of paramount importance.

The instant petition was filed to seek habeas corpus direction respondents 1 to 5 to produce the corpus Yatharth before the Court who is alleged to be in illegal detention of respondents 6 to 8.

Brief Facts

Matrimonial dispute between the petitioner and respondent 6 was going on. Respondent 6 used to harass and beat the petitioner and demanded a dowry of Rs 5 lakhs from the petitioner.

Due to some altercation between the husband and wife, respondent 6 had locked the petitioner in a room and took away the minor child Yatharth along with him.

Corpus Yatharth is 15 months old child and has been illegally snatched by the respondent 6/husband and her in-laws from the possession of the petitioner, who is living in her parental house.

When the petitioner requested her husband to hand over the corpus to her, the respondent 6/husband beat the petitioner along with her brother and mother and had tied them with rope. In these circumstances, the petitioner was left with no other option, but to file an FIR.

Analysis and Decision

First Issue: Whether the Habeas Corpus petition is maintainable or not in respect of custody of a minor child, who is in the custody of the father and grandparents at Gwalior?

Court referred to the decision of the Supreme Court in Dushyant Somal v. Sushma Somal, (1981) 2 SCC 277 which dealt with the jurisdictional aspect with regard to the issuance of Habeas Corpus writ in respect of illegal custody of a child.

In view of the above decision, High Court is of the opinion that a writ petition for issuance of a writ in nature of Habeas Corpus under Article 226 in the peculiar facts and circumstances of the case is certainly maintainable.

Further, keeping in view the welfare of the child and other factors, the Court opined that the child has to be in the custody of the mother.

Decision

In the present case, the child is aged about 15 months and this Court keeping in view Section 6 of the Hindu Minority and Guardianship Act, 1956 is of the opinion that the child has to be given in the custody of the mother.

Bench is of the opinion that the welfare of a child is of paramount importance and the mother/petitioner, who has nurtured the child for 9 months in the womb, is certainly entitled to custody of the child keeping in view the statutory provisions governing the field.

Hence, the Court directed the respondent 6 to 8 to handover the custody of the child to the petitioner.

Accordingly, the instant petition stands allowed. [Madhavi Rathore v. State of M.P., 2020 SCC OnLine MP 1992, decided on 05-09-2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: The Three-Judge Bench of Sisira J de Abrew, Vijith Malalgoda PC and P. Padman Surasena, JJ. dismissed an appeal filed against the Judgment of Civil Appellate High Court granting custody of a minor child to her natural parents.

Respondents herein (natural parents of a minor girl Ahingsa Sathsarani Epa) had filed an action in the District Court against appellants praying for a declaration that they are entitled to the legal and physical custody of their daughter. Their plea was dismissed by the learned District Judge, aggrieved whereby they appealed to the Civil Appellate High Court which set aside the impugned order and granted custody of the child to respondents. Hence, the present appeal.

The primary question before the Court was as to whether the welfare of the child would be affected if her custody was given to the respondents, who were her natural parents. It was noted that the child was handed over to appellants by her natural mother, when she was 5 months old as she had a strained relationship with her husband. However, when the appellants sought to adopt the minor when she was around 1 year old, the same was objected to by respondents.

The Court noted that Probation Officer, after conducting a field investigation, had suggested that though the child was not used to the atmosphere of natural parents, they had the capacity and willingness to look after the child. Reliance was placed upon the judgment in Precla W Fernnado v. Dudley W Fernnado, 70 NLR 534 where it was held that “in all questions of custody of children the interests of the children stand paramount. Questions of matrimonial guilt or innocence of a parent would not, therefore, be the sole determining factors in questions of custody”.

It was held that mere delivery of a child by its natural parent to a third party does not invest the transaction with legal consequences; if the parent has right to hand over custody of a child then that parent would also have the undoubted right to resume custody to himself.

In view of the above, the impugned order was affirmed.[Janaka Pushpakumara Kalansooriya v. Jagath Priyantha Epa, 2019 SCC OnLine SL SC 3, decided on 03-04- 2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ. dismissed an appeal seeking review of the family court order directing the custody of girl child to be given to her mother.

The family court had granted custody of the girl child, aged 4 years, to her mother. The appellant-father filed the instant appeal under Section 19 of the Family Courts Act. He submitted that the respondent was mentally sick and behaved abnormally. Her violent behavior may have an adverse impact on well-being of the child. On the other hand, the respondent alleged that the appellant was a drunkard. She was often beaten by him and thrown out of the matrimonial home.

The High Court, on a careful reading of the order impugned, noted that the family court had carefully analysed the submissions made and passed the order. The respondent was a commerce graduate with additional qualification in Computer Applications. She was working as a Senior Manager with a private firm on a monthly salary of Rs 25,000. The High Court perused Section 6 of the Hindu Minority and Guardianship Act, 1956 which provides that custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Referring to decisions of the Supreme Court in Gayatri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 and Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 the High Court reiterated that while dealing with the application of custody of a minor child, the interest and welfare of the minor should be of paramount importance. Conducive and appropriate environment along with the desirability of the child are some of the relevant factors that have to be kept in mind. In the instant case, the child was 4-years old. It was also an established fact that she was comfortable around the respondent. Additionally, the respondent-mother was in a better position to look after her as she would require special attention and guidance in her childhood for her psychological and biological needs. Accordingly, no infirmity was found in the order impugned and the appeal was dismissed. [Tarun Pullani v. Shilpa Pullani,2018 SCC OnLine Del 11520, decided on 27-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ. dismissed an appeal filed against the order of the Family Court whereby interim custody of a minor child was refused to his father.

The appellants were the father and paternal grandparents of the minor child, aged 8 years, concerned in this matter.  The appellant was married to the deceased. A son was born to them within the wedlock. The deceased committed suicide by hanging and an FIR was registered against the appellants. In a petition filed by the respondent – maternal grandparents of the child, interim custody of the minor child was handed over to them. Further, the Family Court, vide the order impugned, declined the interim custody of the child to the appellants. The present appeal was filed under Section 19 of the Family Courts Act.

The High Court carefully examined the order impugned and found no infirmity in it. The Court took into account the fact recorded by the Family Court that the child was not comfortable with the appellants and had refused to meet or talk to them. He even started to weep after seeing his father. The Family Court further recorded that respondents were looking properly after the child and providing him good education. Furthermore, the Family Court recognized that if the child continues to meet with his father under the supervision of family counsellor, it would remove bad feelings in mind of the child against his father. The High Court was of the view that the Family Court made all efforts so that the child may become comfortable with his father before a final review in the matter is taken up. Accordingly, the appeal filed was held to be sans merit and it was, thus, dismissed. [Vijay Kumar Jha v. Shailender Kumar Jha, 2018 SCC OnLine Del 10721, dated 31-07-2018]