Case BriefsHigh Courts

Bombay High Court: C.V. Bhadang, J., addressed an application regarding the transfer of Criminal Miscellaneous Application regarding the dissolution of marriage on the ground of cruelty.

Facts pertinent to the matter are that the marriage of husband and wife ran into rough weather and led to the applicant/husband to file for divorce on the ground of cruelty, pending before the Family Court.

Whereas, the respondent/wife filed a case against the applicant for various reliefs under the Protection of Women from Domestic Violence Act, 2005 which also pending before the Magistrate.

Applicant has prayed for the transfer of the said case to Family Court.

Counsels in the present matter: Abhijit D. Sarwate for the Applicant and Arvind Chavan for the Respondent.

Analysis and Decision

Bench noted that the applicant sought relief of the dissolution of marriage and permanent custody of the children. Along with said reliefs, he was also seeking partition of the property situated in Pune. Whereas, the respondent filed a Criminal M.A. under Sections 12, 17, 18, 19, 20, 22 and 23(2) of the D.V. Act seeking a residence order in the above-stated property, protection order and monetary reliefs in the form of monthly maintenance of Rs 1,50, 000 and compensation in the form of one-time lump sum payment of Rs 50 lakhs along with Rs 5 lakhs as costs.

Principle Issue:

Whether the Family Court can entertain the application, as framed and filed by the respondent, before the Magistrate?

To the said issue, Court responded that it has been covered by at least three decisions of the Single Judges :

Minoti Subhash Anand v. Subhash Manoharlal Anand, 2015 SCC OnLine Bom 6113

Sandip Mrinmoy Chakraborty v. Reshita Sandip Chakrabarty, 2018 SCC Online Bom 2709

Santosh Machindra Mulik v. Mohini Mithu Choudhari, Misc. C.A. No. 64 of 2019 decided on 15-11-2019

Bench added that this Court has consistently observed that in view of Section 7(2)(b) of the Family Courts Act read with Section 26 of the D.V. Act that the Family Court would get jurisdiction to entertain an application for relief under Sections 18 to 22 of the D.V. Act.

Respondent’s Counsel pointed that Section 26 of the D.V. Act speaks of the reliefs available under Section 18 to 22 and does not cover Section 17. To which the Court stated that the said contention is misconceived.

Section 17 of D.V. Act declares the right of the aggrieved person to reside in the shared household. The remedy to enforce any such right, is to be found in Section 19, which is included in Section 26 of the said Act.

Further, the Counsel for the respondent submitted that under Section 28(2) of the D.V. Act, the Magistrate is competent to follow his own procedure, which latitude is not available to the family court. Court negatived the said argument in the case of Santosh Machindra Mulik v. Mohini Mithu Choudhari, Misc. C.A. No. 64 of 2019 decided on 15-11-2019 in view of Section 10(3) of the Family Courts.

The decision of Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel is also misplaced in the present context as in the said decision, Supreme Court held that, under the provisions of the Domestic Violence Act the wife not only acquires a right to be maintained but also acquires a right of residence, which is a higher right. It has been held that such a right of residence extends only to joint properties, in which the husband has a share.

The above-said judgment cannot come to the aid of the respondent.

Hence the Court allowed the application in view of the above.[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLine Bom 983, decided on 28-09-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of K. Harilal and T.V Anil Kumar, JJ. dismissed an appeal made by the maternal grandparents of the child after taking into consideration, the welfare of the child.

This case is related to the custody of the child. In this case, appellant – maternal grandparents of the child – submitted before the Court that their daughter Sajna was married to the respondent and she was later found dead in her matrimonial house in a suspicious condition. They further claimed that the 2-year girl child of the appellant was always taken care of by them and the respondent- father never took care of the child as if he was not interested in the child. A petition was filed by the grandparents in the Family Court for a decree of perpetual prohibitory injunction restraining the respondent from taking forcible custody of the child. The Family Court dismissed the petition. Aggrieved thereby, this appeal had been filed by the grandparents.

Learned counsels for the appellant Jacob Sebastian and K.V Winston submitted that after the suspicious death of the appellant’s daughter, the child was taken care of by them and the respondent declined to take care of her. A case was also lodged against the respondent in the police station under Sections 498-A, 304-B, 302, 201 and 149 of the Penal Code, 1860. Further, the respondent was a drunkard and spendthrift who used to ill-treat their deceased daughter and demanded dowry. His cruel conduct towards his wife resulted in her death. Respondent remarried for his pleasure, forgetting that he had a child to look after. Thus, he was unfit to seek permanent custody of the child. They also alleged respondent to have sexually harassed the child.

Learned counsels for the respondent, G. Sreekumar averred that after the death of his wife, respondent alone had maintained the child and taken care of her affairs. Appellant or her family members never took care of the child. He was not responsible for the death of his wife and as a matter of fact, her death was due to heart failure. She was an epileptic patient even before marriage which had been suppressed. It was claimed that the respondent was a driver by occupation and able to meet the financial needs of the child.

The Court observed that whenever there is a rival claim for guardianship, the court’s power to appoint the most suitable person among the contestants could be exercised only upon taking into view those considerations which weigh in favour of the welfare of the child. The Court also observed that the allegations made by the appellant were false. Also, the respondent earned well whereas the appellants were old and had less financial means. Moreover, the allegation made regarding sexual harassment was false.  The Court thus dismissed the appeal and gave permanent custody of the child to the respondent-father. However, appellants were allowed to meet the child on the premises of the Family Court every Saturday from 10:30 AM to 4:00 PM.[Suhara v. Muhammad Jaleel, 2019 SCC OnLine Ker 1237, decided on 10-04-2019]