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Child custody give to father and also Contempt of Court Charges initiated against Wife and her Advocate-Bombay High Court.
February 15, 2012
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Petitioner Wife and her Advocate charged with Contempt of Court for alleging false, fictitious charges of being Bias on the High Court Jugde. The Petitioner Wife and her Advocate where indulged in scurrilous personal attack on the Judge.
Bombay High Court
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Mrs. Hema Ravishankar vs K.R. Ravishankar on 31 October, 2003
Equivalent citations: 2004 (3) BomCR 143, 2004 CriLJ 1205, I (2004) DMC 414
Author: A Khanwilkar
Bench: A Khanwilkar
JUDGMENT
A.M. Khanwilkar, J.
1. This writ petition under Article 227 of the Constitution of India is directed against the judgment and order passed by the Family Court, No. II, Pune, dated 8th May 2003, below Exhibit 238 in Petition No. A-605 of 2000; and 17th May 2003 in Petition No. A-605 of 2000, respectively. The said proceedings have been instituted by the Respondent – husband against the Petitioner wife for divorce and custody of their minor child Shrikrishna.
2. The Petitioner and the Respondent were married on 30th June 1994 and Shrikrishna was born on 30th March 1996. It is the case of the Petitioner that the Petitioner and her child of 4 years were thrown out of the matrimonial home unceremoniously in June 2000 and since then, the Petitioner, along with her child, is staying separately. Initially, she stayed with her sister at Mumbai, and, now, has acquired her own house on monthly rent basis. The Petitioner is gainfully employed and is stated to be lecturer in South Mumbai College.
3. During the pendency of the main proceedings, being Petition No. A-605 of 2000, the Respondent filed application for interim access/custody of his minor son Shrikrishna during May Vacation, i.e., 12th April 2003 to 12th June 2003. The Court below was pleased to allow the said application by judgment and order dated 8th May 2003 and directed the Petitioner to produce the child on 17th May 2003 in the Family Court Child Care Centre, Pune, for being handed over to the Respondent for interim custody upto 2nd June 2003. The order as passed by the Family Court reads thus:
“1. The application is allowed.
2. The respondent wife should produce the child on 17-5-2003 in the Family Court Child Care Centre, Pune, as per the order dated 10-12-2001 and on that day, the minor son Shrikrishna should be handed over to the petitioner who would be entitled to retain the custody up to 2nd June 2003. He should bring the child on 2nd June 2003 in the Family Court, Pune, and to hand over the custody of the minor son to the respondent wife.”
4. The Petitioner, instead of complying with the above said order, filed application purported to be review application before the Family Court on 17th May 2003. That application has been rejected by the Family Court on the same day, i.e., 17th May 2003, by the following order:
“Heard Mr. Bhavsar Advocate for the Respondent. The order in question has been passed under Section 26 of the Hindu Marriage Act, granting interim custody from 17-05-2003 to 02-06-2003 to Petitioner father. No ground for review. Rejected.”
5. Accordingly, the aforesaid two orders are subject matter of challenge in the present writ petition.
6. This writ petition was moved before the Vacation Judge on 21st May 2003, when the Court was pleased to pass the following order:
“Heard learned Counsel for the Petitioner. None for Respondent.
2. Notice to the Respondent, returnable by 11-6-03.
3. In the meantime, ad-interim relief in terms of prayer Clause (b)
Authenticated copy of the order be given to the parties.”
7. The Respondent immediately thereafter filed Civil Application No 1061 of 2003 on 26th May 2003 for vacating ad interim order, which application was moved before the Vacation Judge on 28th May 2003. On that date, the following order came to be passed:
“Mr. Bulchandani, learned Counsel for the respondents, states that the vacation of the school is till 13th June 2003 and in view thereof, this matter could be heard on 2nd June 2003. Ms. Kataria, learned counsel for the petitioner, has no objection for listing this matter on 2nd June 2003.
Put up for admission on 2nd June 2003.”
8. The Respondent filed another application, being Civil Application No. 1103 of 2003 on 2nd June 2003. That application was moved before me after the reopening of the Court on 6th June 2003. Instead of deciding the said application, I thought it appropriate to hear the main matter and accordingly ordered the main matter to be posted on 9th June 2003. On 9th June 2003, the parties were heard for some time and having regard to the background of the matter, Counsel appearing for the parties were called upon to examine the possibility of some amicable solution in the matter, which could obviate avoidable litigation and also subserve the paramount interest of the minor child. The Counsel agreed to explore that possibility, and by consent, the matter was adjourned to 12th June, 2003. The matter was, adjourned to 12th June 2003. The mater was, however, taken up for hearing on 13th June 2003, and since the parties were not able to amicably resolve the matter, after hearing the Counsel for both sides on merits, I thought it appropriate to direct the parties to provide access of the minor child to the Respondent father on the dates specified in the said order. The order passed on 13th June 2003 was more or less on the same lines as was passed by this Court (Coram: Lodha, J.) on 9th August 2001 in the earlier round of litigation between the parties in Civil Revision Application No. 954 of 2001 on the same issue. Indeed, when I proceeded to pass the order on 13th June 2003, I was conscious of the fact that the main relief in the application, Exhibit 283, was for interim custody only during the ensuing May Vacation, i.e., 12th April 2003 to 12th June 2003. However, having regard to the background of the matter and as the same had remaining pending in this Court since 21st May 2003, the order as passed in favour of the Respondent dated 8th May 2003 by the Family Court could not be given effect to. In that sense, the object of passing the order dated 13th June 2003 was essentially to adjust the equities between the parties and also to facilitate the access between the father and the minor child. The order passed on 13th June 2003 reads thus:
“After hearing both sides at great length, to my mind, the appropriate course at the interim stage during the pendency of this writ petition is to pass the following order:
(i) The petitioner to give to the respondent access of the minor child Master Shrikrishna on 21-6-2003 between 1 P.M., and 5 P.M. at the Family Children Centre, Children Complex, Family Court, Bandra, Mumbai.
(ii) On 5-7-2003 between 1 P.M. and 6 P.M. at the Childcare Centre, Pune Family Court, Pune; and
(iii) on 19.7.2003 between 1 P.M. and 5 P.M. at the Family Children Centre, Family Court, Bandra, Mumbai and
(iv) on 20.8.2003 between 1 P.M., and 5 P.M. at the Childcare Centre, Pune, Family Court, Pune.
On each of the aforesaid dates, access be provided in the presence of the officer to be deputed by the Children Centre of the respective children complex. That officer to prepare a report regarding the behavioral aspect of the child after the meeting between the child and his father. That report be prepared in respect of each of the aforesaid meetings and be kept in a sealed cover to be presented to this Court on the next date of hearing.
2. The petitioner shall ensure the presence of the child on the appointed dates and time at the venue mentioned above and the respondent shall handover back the custody of the child on the expiry of the appointed time on each of the aforesaid dates at that venue.
3. The petitioner undertakes to comply with this order till such other or further order to be passed by this Court. The petitioner, who is personally present in Court, undertakes the above through his learned Counsel. This writ petition be posted on 6.8.2003 for further orders. The respondent undertakes to bear the travelling and other cost for the access to be provided at Pune by compensating the petitioner with a lumpsum of Rs. 1,000/= for each visit at Pune. That amount be paid over to the petitioner immediately after receiving access of the child at the appointed time and date at Pune.
4. Stand over to 6.8.2003. It is made clear that whenever the access is given, the petitioner shall not be present unless required by the concerned officer of the Children Centre.
5. In the meantime, it will be open to the parties to approach the trial Court for expediting the hearing of the main proceedings. If such a request is made, the trial Court may consider that request and dispose of the main proceedings, if possible, irrespective of the pendency of this writ petition.
6. The parties to act on an ordinary copy of the order duly authenticated by the Sheristedar of this Court.”
9. In terms of the above order, the matter was notified on 7th August 2003, when the same was adjourned to 18th August 2003. The matter was, however, taken on 19th August 2003, when my attention was invited to the fact that the reports, referred to in the order dated 13th June 2003, were still awaited. Accordingly, the matter was adjourned. The order passed on 19th August 2003 reads thus:
“Office Note indicates that the Report directed to be submitted in terms of Order dated 13th June 2003 has not been received so far.
Office to take necessary steps to ensure that the concerned report is received as per the directions in Order dated 13th June 2003 before the next date of hearing.
Post this matter on 8th September 2003.”
10. The matter was then taken up on 18th September 2003 when the reports from the Family Court, Pune, were received. It will be useful to advert to the order passed on 18th September 2003, which reads thus:
“Report has been received from the Family Court, Pune, dated 5th July 2003 and 4th August 2003. The report indicates that the child was quite friendly and comfortable with the father during their meetings on the respective dates. This report be placed on record. Copy of the report be made over to the Counsel appearing for the parties.
Since the report indicates that the child is friendly and comfortable with the father, it was suggested to the parties to work out some proper arrangement, so that the child can keep acquaintance with his father. In fact, a suggestion was also made to the Counsel appearing for the parties that they may explore the possibility of full and final settlement. In response to this suggestion, Counsel for the writ petitioner – wife submits that if the offer is received from the husband, that will be considered and the Court will be apprised about the developments on the next date of hearing.
Stand over one week for settlement.
All concerned to act on the ordinary copy duly authenticated by the Court Stenographer.”
11. It appears that after the matter was adjourned in terms of the above order, the Registry furnished copies of the reports received from the Family Court, Pune, to the Counsel appearing for the parties on 24th September, 2003. In the meantime, on 23rd September 2003, even the reports from the Family Court, Mumbai, were received by the Registry. It appears that copy of that report was not given to the Counsel for the Petitioner. Accordingly, on 24th September 2003, the Counsel appearing for the Petitioner mentioned the matter before me for production, which request was acceded to. The matter was accordingly got produced on 25th September 2003. However, on that day, when the matter was called out in the morning session, the Respondent’s Advocate was absent, for which reason the matter was kept back. Interestingly, when I retired to the Chamber during the Lunch Break, I found that one envelope addressed to me sent by the Petitioner was placed on my desk. This envelope was delivered in my Chamber to my personal staff. The communication contained in the said envelope was sent by the Petitioner addressed to the learned Chief Justice, purported to be dated 24th September 2003. It is necessary to reproduce the said communication in its entirety, which reads thus:
“MRS. HEMA RAVISHANKAR,
C-705, ‘The Great Eastern
Link’
Ram Mandir Road,
Goregaon (W),
Mumbai 400 104.
20.09.2003
WITHOUT PREJUDICE & CONFIDENTIAL
To,
THE HON’BLE CHIEF JUSTICE,
HIGH COURT,
Mumbai.
Respected Sir,
Sub: BOMBAY HIGH COURT,
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3385 OF 2003
MRS. HEMA RAVISHANKAR… PETITIONER
Vs.
K.R. RAVISHANKAR … RESPONDENT
1. With utmost responsibility but very reluctantly I am compelled to lodge my grievance against Mr. Justice A.M. Khanwilkar.
2. Brief facts of my case are:
i) I have filed the above petition against my estranged husband the Respondent abovenamed challenging the order of custody of my minor child, granted by the Learned Judge, Pune Court during the vacation period of May 2003.
ii) The Learned Vacation Judge, His Lordship Shri S.K. Shan granted ad-interim stay on 21.05.2003.
iii) After the vacation the matter was listed on Board of Justice A.M. Khanwilkar, on the application of the Learned Advocate for the Respondent.
3. My grievances are based on following reasons:
i) Though on 13.06.2003, the cause of action had become infructuous, the learned Judge was adamant in granting accesses to the Respondent. Though there being no urgency, objection of my Advocate in hearing the matter after 4.45 P.M. was recorded by the Learned Judge with a comment in the open Court that my Advocate was adopting delaying tactics. My learned Advocate therefore proceeded to argue the matter. Accordingly, on 13.06.2003, the Learned Judge by his order, as a interim arrangement, granted access to the minor child on the specified days despite the dates conflicting with the schooling and tuition classes of my minor son.
ii) In due compliance of the order of the Learned Judge, I took my child during his schooling days and at the cost of his tuition classes to Family Courts at Pune and at Mumbai as directed by the Learned Judge on the specified days.
iii) By the said order dated 13.06.2003 the Learned Judge had directed the Counsellors both at Mumbai and at Pune to submit their reports. The matter was then to be listed on Board on 06.08.2003.
iv) The matter was listed on Board of the Learned Judge on 19.08.2003 and as no reports were yet received, the Learned Judge directed the office to ensure that reports of both the Counselors are received.
v) On 18.09.2003 the Learned Judge found two reports on record and without permitting my Advocate, even after request to have the benefit of the said reports and to make submissions thereon passed the order which is at Exhibit “A” hereto.
vi) At the insistence of the Court, my Advocate has always cooperated with the Court, first for accesses to the minor child and then for putting forth the offer of settlement.
vii) When my Advocate applied to the office for the reports, only two reports of Pune Family Counsellor were handed over. No reports of the Mumbai Family Counsellor was given to my Advocate as my Advocate was informed that no such report was received.
viii) By Precipi dated 24.09.2003 my Advocate therefore moved the Learned Judge for directions to the Counsellor of Family Court, Mumbai to submit the report as the factum of non-receipt of the report of the Counsellor of Family Court has been overlooked by the Learned Judge. Hereto annexed Exhibit “B” is a copy of the said precipe dated 24.09.2003.
ix) At 11.00 A.M. on 24.09.2003, the Learned Judge on the application of my Advocate directed the production of papers at 2.45 P.M.
x) The Learned Judge refused to pass any order on the precipe of my Advocate though the Learned Counsel for the Respondent was having in her possession the report of Counsellor of Family Court, at Mumbai which significantly was not on the record of the Hon’ble court. Despite my Advocate requesting for a copy of the reports from the Respondent Advocate, the Learned Judge declined to give any directions to the Learned Counsel for the Respondent to give the copy of the report to my Advocate. The Learned Judge directed my Advocate to only talk about over all settlement as the receipt of the reports was immaterial.
xi) My Advocate thereupon informed the Learned Judge that the offer of settlement submitted by the Advocate of the Respondent was not an offer for settlement but Respondent was seeking a decree on admission with all allegations of the Respondent to be accepted and admitted by the Petitioner. Hereto annexed Exhibit “C” is a copy of the said so called offer of settlement submitted by the Advocate of the Respondent. Though my Advocate took objection at such an offer the Learned Judge is insisting upon submitting to such a settlement.
4. Sir, the Learned Judge is clearly biased against me for no reason whatsoever. Though the cause of action has become infructuous and in my respectful submission the Petition merits to be made absolute in terms of interia order since fresh application for custody in ensuing October vacation has already been made by the Respondent before the Family Court Judge at Pune, the Learned Judge is virtually threatening to pass custody orders on my Petition if settlement is not gone through.
5. Sir, I have lost faith in the Learned Judge as:
i) No copies of the reports of the Family Court, Mumbai are supplied to me despite requests.
ii) How copies of reports are with the Advocate of Respondent when they were to be submitted to the Court and the Court refuses to take cognizance of this fact.
iii) The Learned Judge is insisting on settlement and therefore states in open Court that the copies of reports are not necessary.
iv) The bare look at the so-called settlement is humiliating for me since it seeks a decree on admission in the proceedings adopted by the Respondent against me in Pune Family Court. The Learned Judge is however not inclined to hear my Advocate otherwise than on the settlement proposed by the Respondent.
6. In the light of the above facts, I therefore request you Sir to call for proceedings in the above matter and if my grievances are found correct by Your Lordship, then I pray that the above case be assigned to any other Court in the cause of justice.
Yours faithfully,
Sd/-
HEMA RAVISHANKAR
Encl. As above
I hereby confirm the above facts
Sd/-
ADVOCATE FOR THE PETITIONER
CC: THE HON’BLE SHRI JUSTICE
A.M. KHANWILKAR
HIGH COURT,
Mumbai.”
12. The matter once again appeared on Board on 26th September 2003. When the matter was called out, none appeared for the Petitioner. Since I had already received the above communication, I requested the Counsel appearing for the Respondent to inform the Counsel for the Petitioner to remain present on the next occasion. The matter was then notified and taken up on 29th September 2003, when I passed the following order:
“This matter was got produced on 24th September 2003. It was directed to be kept on the following day. Accordingly, the matter was posted on 25th September 2003. However, on 25th September 2003, the mater was required to be kept back since Counsel for the Respondent husband was not present when it was called out for hearing. The matter was then posted on 26th September 2003. However, on 25th September 2003, when I retired to the Chamber, I noticed a communication dated 24-9-2003, addressed to the Hon’ble the Chief Justice and copy whereof was marked to me in connection with this matter. This communication is sent by the Petitioner-wife and countersigned by the Advocate on record for the Petitioner confirming the facts stated in the said communication. I shall deal with the contents of the letter at the appropriate stage.
2. Be that as it may, on 26th September 2003, when the matter was called out, none appeared for the Petitioner – wife. Since I wanted certain facts to be ascertained, I thought it appropriate that the matter be placed today. Accordingly, the matter has been placed today under the caption “Settlement”. When the matter was called out, Mr. Shah, Advocate, appeared for the Petitioner-wife. He was asked whether he was aware of the aforesaid communication. He emphatically said “yes” and also stated that it was delivered to my Personal staff in Chamber by his Clerk on 25-09-2003. He has also acknowledged the signatures appearing on the subject document, having been signed by the Petitioner wife herself and that the other signature belongs to him. He was also asked whether the Petitioner wife was personally present in the Court on 24th September 2003, to which he responded that the was “not present”. He was then asked as to whether the Petitioner wife as well as he himself having countersigned the communication would take the responsibility of the contents of the document in question. In response, he has answered in the affirmative. (At this stage, the learned Counsel registered strong protest that I was not honestly recording the proceedings and insisted that I should record that he as Advocate was only taking the responsibility of facts as stated in the letter in question.) The learned Counsel was then asked as to whether the Petitioner and/or he himself would like to withdraw this letter, partly or fully, to which he responded that the Petitioner is not present in the Court and he would take instructions from her in that behalf. Insofar as his personal stand is concerned, he submits that he would like to take instructions from his senior.
3. The above position has been placed on record in view of the background of the case, to which I shall advert to at the appropriate stage.
4. At the request of Mr. Shah, the matter is kept on Tuesday, the 7th of October 2003 First on Board – to anable the learned Advocate to make statement for himself as well as on behalf of his client with reference to the last query, as referred to above.
5. Post on 7th October 2003. First on Board.”
13. As per the above order, the matter was notified on 7th October 2003. When the matter was called out, Counsel appearing for the Petitioner explained their position, which is reflected in my order passed on that day, which reads thus:
“Today, Mr. Bulchandani appears for the Petitioner and states that he has himself drafted the subject communication, which was caused to be delivered in my Chamber, addressed to the learned Chief Justice of this Court. He further states that the Petitioner is willing to withdraw the complaint, provided I were to disassociate myself from this case. It was made clear to him that unless a clear stand was taken and the communication was unconditionally withdrawn, the question of my disassociating from the matter will not arise. He, however, insists that there is no question of unconditional withdrawal of the communication, and further he personally takes the responsibility of the facts stated in the communication and the consequences therefore. According to him, I cannot become Judge of my own cause.
In the circumstances, reserved for orders.”
(emphasis supplied.)
14. I had reserved the matter for orders, inter alia, as dictation of the order in open Court would have taken some time, resulting in stalling the progress of the Urgent Admission Board, which was quite heavy. Accordingly, the present Judgement has been pronounced today.
15. Insofar as the issue involved in the writ petition and the accompanying two Civil Applications is concerned, there can be no doubt that going strictly by the relief as claimed by the Respondent in application, Exhibit 238, which was filed before the Family Court No. II, Pune, no further adjudication is necessary. However, it is well settled that the High Court can, and in an appropriate case should, exercise its plenary jurisdiction, so as to do complete justice between the parties,if necessary by moulding the relief. (See B.C. Chaturvedi v. Union of India, (1995) 6 S.C.C. 719, @ 762 – paras 21 to 23). Moreover, this Court could not have been oblivious to the fact that if the petition was to be merely disposed of on the ground that the relief claimed by the Respondent in the application (Exhibit 238) is worked out, that would give undeserved or unfair advantage to the Petitioner. For the Respondent had filed the subject application on 13.3.2003, which was allowed on 8.5.2003, after contest. As per that order, the Petitioner was obliged to give custody of the minor child to the Respondent on 17.5.2003. However, only on that day, the Petitioner moved Review Petition before the Family Court, which was, however, rejected on the same day. The Petitioner then chose to move this Court by way of present petition on 21.5.2003, when ad-interim relief was granted. However when the Respondent moved this Court for vacating the ex parte ad-interim order, the Counsel for the Petitioner persuaded the Vacation Judge of this Court (on 28-5-2003) to defer the hearing of the petition beyond Vacation, for 2-6-2003, on the ground that the School Vacation was till 13.6.2003. On the subsequent dates, the matter was adjourned by consent, inter alia, to explore the possibility of settlement. It is in that backdrop, I had passed order on 13-6-2003 of providing limited access of the minor child to the Respondent on the specified dates, time and place, as the parties were unable to amicably resolve that issue. That course was legitimate and appropriate to do substantial justice between the parties. (See dictum of the Apex Court in para 16 of the decision , in Ram
Krishna Verma’s case). Besides, as already mentioned hereinabove, throughout my endeavour was to persuade the parties to work out some amicable solution by way of full and final settlement, or, at least, on the issue of access/custody of the minor child. For, the approach of any Court, especially in matrimonial and custody matters, must always be to persuade the parties to find out amicable solution, so as to obviate avoidable litigation and related expenditure and stress. In a recent decision of the Apex Court in B.S. Joshi v. State of Haryana, , it is observed that it is the duty of
the Court to encourage genuine settlements of matrimonial disputes. Again, in Sharda v. Dharampal, , the Apex
Court in para 36 has observed that in matrimonial disputes, the Court has a conciliatory role to play. To my mind, even the Advocates appearing for the parties in matrimonial matters, who are first the Officers of the Court, owe duty to persuade their clients to amicably resolve the dispute as per the exigencies of the case. They should encourage settlements which would facilitate early resolution of the dispute, so as to do substantial justice between the parties. It was more so in the present case, as it is matter of record that on the issue of custody/access of the minor child, the Respondent has so far filed at least couple of applications (five) before the Family Court on different occasions during the pendency of the main proceedings since the year 2000. Moreover, the present writ petition was the fourth of litigation before this Court, as prior to this writ petition, already two Civil Revision Applications and one another writ petition have been filed by the parties challenging the interim orders passed by the Family Court, Pune. In this backdrop, it was expected that the parties should work out some amicable solution at least on the issue of access/custody of the minor child, during the pendency of the main proceedings, instead of filing repeated applications before the Family Court and challenging the orders passed therein before this Court. I was quite optimistic that the parties would see reason, because both of them are well-educated. The order passed on 13th June 2003 was also an attempt to provide an opportunity to the minor child to meet his father during the limited access on the specified dates. The concerned Family Court was directed to submit report to this Court regarding the meeting only to reassure as to whether the same was fruitful and in the interest of the minor child. The reports submitted by the Family Court, Pune, reveal that the meeting between the minor child and the Respondent was quite friendly and comfortable. In the wake of the report, the parties were once again called upon to explore the possibility of settlement, if any. Instead of exploring that possibility, the Petitioner and her advocates have indulged in scurrilous personal attack on me, as is evident from the contents of the communication sent by the Petitioner to the learned Chief Justice and which communication has been countersigned by the Petitioner’s Advocates, confirming the fats stated therein. In the circumstances, the appropriate course, to my mind, is to dispose of the main writ petition as well as the civil applications by directing the Family Court, Pune, the expedite the hearing of the main petition pending between the parties, being Petition No. A-605 of 2000. That be done pre-emptorily by the end of April 2004. The parties are directed to extend necessary cooperation to the Family Court for early disposal of the main proceedings.
16. Reverting to the communication dated 24th September 2003, which has been addressed by the Petitioner to the learned Chief Justice and countersigned by her Advocates confirming the facts stated in the said communication, I have no hesitation in observing that the same is per se mischievous, malicious and addressed with purpose. Although it is not necessary for me to refute each and every statement in the said communication, I would broadly mention that the insinuations made in the communication (particularly the underlined portion), inter alia, that I was adamant in granting access of the minor child to the Respondent and was prevailing (insisting) upon the Petitioner to only talk and submit to settlement are distorted statement of facts. If the Petitioner was unhappy with the order dated 13-6-2003, she could have well within her rights questioned the propriety of that order before the appropriate forum. That has not been done. Instead, now that order is used to suggest that I was adamant in giving access of the minor child. This cannot be countenanced at all. Indeed, during the course of hearing, the parties were repeatedly told to find out amicable solution because, as mentioned earlier, it is matter of record that already five applications for similar reliefs have been filed by the Respondent before the Family Court in the past. Besides, the parties were required to approach this Court on four different occasions. Even otherwise, in any matrimonial and custody matter, the approach of the Court should always be to call upon the parties to find out amicable resolution of the problem so as to obviate avoidable litigation and related expenditure and stress. Be that as it may, the communication further clearly alleges that I had bias against the Petitioner and that I had virtually threatened to pass custody orders if settlement was not arrived at. Those allegations are blatantly false and replete with calculated falsehood. By now, it is conceded position that the communication has been drafted by Advocate Bulchandani himself, as stated by his across the Bar on 7-10-2003. It is intriguing to note that Mr. Bulchandani claims that the said letter was drafted by him under instructions of the Petitioner nor Mr. Bulchandani, Advocate, were personally present in Court on 24-9-2003, for on that day, only Mr. Shah, Advocate, had appeared. Mr. Shah, Advocate, has conceded the fact that the Petitioner was not personally present in Court on 24-9-2003, as can be discerned from the proceedings dated 29-9-2003. It necessarily follows that source of information regarding the stated happenings on 24-9-2003 remain unexplained. Indeed, on that day, Mr. Shah was insisting for direction regarding furnishing the reports of the Family Court, Mumbai, however, I was at pains to explain him that if the parties were negotiating settlement, then no fruitful purpose would be served by insisting for those reports. He was also assured that, if required, his grievance can be looked into at a later stage. Be that as it may, non-passing of any direction on the precipe regarding the furnishing of the reports of the Family Court, Mumbai, can be no justification to allege that I was biased against the Petitioner. Moreover, at no stage, the Petitioner was ever forced to accept whatever settlement proposal is given by the Respondent, as is being suggested. Obviously, no Court would do that – as settlement can be only when both sides agree to accept a common and acceptable solution to the problem. To my mind, the Advocates for the Petitioner are the authors of the subject communication. And the Petitioner has followed and acted upon their advise. I could have, perhaps, pardoned the Petitioner if she had sent communication on her own without consulting her Advocate and without realising the consequences of such communication, being misguided litigant. However, the communication, referred to above, is a deliberate attempt of the Petitioner and her Advocates to not only impute motives to me as a Judge, but results in scandalizing the Court. In fact, an opportunity was given to the Petitioner as well as the Advocates to purge the contempt, but, instead of availing that opportunity, “they reiterated the stand taken in the above communication in open Court” and also expressed unwillingness to withdraw the allegations unconditionally, which is aggravating the insult. In fact, from the tenor of arguments of Mr. Bulchandani before me and, in particular, on 7th October 2003, as well as of Mr. J.P. Shah, Advocate, on 29th September 2003, their intention was pronounced, so as to show distrust and disrespect to the Court. I do not find it necessary to reproduce the arguments made by the Advocates for the Petitioner as it would only burden this Judgment. Suffice it to observe that a member of the Bar is an officer of the Court and owes a duty to the Court to uphold the dignity and decorum of the Court. He must not do anything to bring the Court itself into disrepute. When a legal practitioner makes imputation of unfairness or bias against the Judge in open Court, he is guilty of grave professional misconduct, for he would grossly overstep the limits of propriety. (See Lalit Mohan Das) Scandalizing the Court in such manner tantamounts to polluting the very fount of Justice; such conduct was not a matter between an individually member of the Bar and a member of the Judiciary; it has brought into disrepute the whole administration of justice (See Lalit Mohan Das, supra)
17. Insofar as the grievance made in para (v) of the communication, the same is entirely misplaced. For the proceedings of 18-9-2003 would clearly belie that grievance. Inasmuch as the office was directed to furnish copy of the reports received by this Court in sealed cover from the Family Court, Pune, to the parties. Besides, no adverse order was passed against the Petitioner at all on that day.
18. As mentioned earlier, neither the Petitioner, who was personally present in the Court on 7th October 2003, nor her Advocates, Mr. K.R. Bulchandani and Mr. J.P. Shah, expressed any regret or contriteness or remorse, but instead reiterated their stand and made it more than clear that they would withdraw the communication only if I were to disassociate myself from this case. This stand clearly amounts to forcing a Judge from withdrawing himself from hearing the case as a condition precedent. This itself is contumacious.
19. It was be apposite to advert to the dictum of the Apex Court in L.D. Jaikwal v. State of U.P., , which reads thus:
“We are sorry to say we cannot subscribe to the ‘slap-say sorry-and forget’ school of thought in administration of contempt jurisprudence. Saying ‘sorry’ does not make the slapper poorer. Nor does the check which has taken the slap smart less upon the said hypocritical word being uttered through the very lips which not long ago slandered a judicial officer without the slightest compunction.”
20. In the present case, neither the Petitioner nor her Advocates were willing to unconditionally withdraw the allegations, leave alone expressing sorry or regret. In Jaikwal’s case (supra), the Apex Court then went on to observe at page 408 (of the S.C.C.) as follows:
” … It will be rather difficult to persuade members of the Bar, who care for their self-respect to join the judiciary if they are expected to pay such a price for it. And no sitting Judge will feel free to decide any matter as per the dictates of his conscience on account of the fear of being scandalized and persecuted by an advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation were to be countenanced, advocates who can cow down the Judges, and make them fall in line with their wishes, by threats of character assassination and persecution, will be advocates who are mindful of professional ethics and believe in maintaining the decorum of courts.”
21. It will be also useful to advert to the enunciation of the Apex Court in the case of Vinay Chandra Mishra, in re, , the Court observed thus:
“The rule of law is the foundation of a democratic society. The Judiciary is the guardian of the rule of law. Hence judiciary is not only the third pillar, but the central pillar of the democratic State. In a democracy like ours, where there is a written Constitution which is above all individuals and institutions and where the power of judicial review is vested in the superior courts, the judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the dispute between the parties which is essential to peaceful and orderly development of the society. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilised life in the society. It is for this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalizing them and obstructing them from discharging their duties without fear or favour. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalized, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.”
(emphasis supplied.)
22. I have not even the slightest of doubt that the Petitioner and her Advocates have deliberately indulged in this conduct with purpose. The communication, as observed earlier, is replete with calculated falsehood and distortion of the happenings during the course of proceedings in Court.
23. Indeed, the initiation of contempt action against any one, and, especially against the Advocate, is a painful duty, which I am called upon to hereby perform to maintain the dignity and decorum of this Court, for it is necessary to protect the administration of public justice. During this Roster (between June 2003 to October 2003), I came across couple of matters and, more particularly, matrimonial and custody matters, wherein similar allegations and insinuations of bias against the Presiding Judge of the lower Court were made. In one such matter, Writ Petition No. 2917 of 2003 – Sandeep Balkrishna Jindal v. Anju Nemchand Jain, I had requested the learned Advocate-General to assist the Court. But, eventually, the Petitioner therein was well advised to unconditionally withdraw all the allegations against the Lower Court Judge. I allowed the Petitioner therein to approach the lower Court to offer unconditional apology and then participate in the pending proceedings, which he did. That matter has been kept pending to observe the conduct of the Petitioner in terms of his undertaking given to this Court. Perhaps, the litigants are carrying wrong notion that, by such method, they can avoid a particular Judge, or, cause to protract the hearing of the cause, to subserve their ulterior design. If such an impression is gaining ground, it needs to be removed at the earliest. Such conduct has direct impact on the Court’s independence, dignity and decorum, and for which reason, it cannot be tolerated, as it undermines the Court’s prestige and dignity and affects the working of the Court – for it vitiates the atmosphere in which the Court normally functions. (See Mohd. Zahir Khan v. Vijai Singh, (1992) Supp. 2 S.C.C. 72, at page 76.
24. As observed in Vinay Chandra Mishra , normally, no Judge takes action for in facie curiae contempt against the lawyer unless he is impelled to do so. In the present case, it is not the heat generated in the arguments, but the language used, the tone and the manner in which it was expressed and the intention behind using it left no manner of doubt that it was calculated to insult, show disrespect, to overbear and overawe the Court. Both the Advocates, Mr. K.R. Bulchandani and Mr. J.P. Shah, to my mind, exhibited temper and discourteousness during the course of arguments. Besides, the insinuations made in the communication and reiterated in the Court leaves no manner of doubt that the intention of the Petitioner and her Advocates was to cause aspersions on my integrity and judicial impartiality and independence. That cannot be countenanced. (See M.B. Sanghi, Advocate, and 12).
25. At one stage, the Advocates for the Petitioner were at pains to explain that they have countersigned the document only to confirm the facts stated therein. However, even when opportunity was given to them, they have maintained that position. Perhaps, they are under some misconception that their role was only of countersigning the communication, so as to confirm the facts stated in the communication, would not constitute criminal contempt of Court. The facts alleged in the communication, inter alia, are that I was adamant in granting access of the minor child to the Respondent and that I was insisting upon the Petitioner to talk and submit to the settlement suggested by the Respondent, and virtually threatened the Petitioner with passing custody orders, if the settlement was not arrived at and that I was clearly biased against the Petitioner. The above allegations are clearly one of ‘fact’ confirmed by the Advocates. The expression ‘fact’ has been defined in Section 3 of the Indian Evidence Act, 1872. To put it differently, all the allegations made in the communication, albeit by the Petitioner, by itself, constitute criminal contempt and even the Advocates are liable for that action, having confirmed those facts.
26. Moreover, the Advocates having drafted and countersigned the said letter and ventured to hand over the communication in the office of the learned Chief Justice and in my Chamber, through their Clerk, is an act which, by itself, constitutes criminal contempt. The fact that the letter is drafted and countersigned by the Advocates and caused to be delivered have been conceded by the Advocates across the Bar, as noted in my above orders (i.e. 29-9-2003 and 7-10-2003). It will be useful to advert to the decision of the Apex Court in Sanjiv Dutt’s case, . The drafting of the subject
communication on behalf of the Petitioner and, in any case, the act of causing it to be delivered to me especially when the matter was in progress constitutes criminal contempt.
27. The communication as sent to the learned Chief Justice, referred to above, to my mind, would come within the sweep of the expansive definition of criminal contemp. (See Radha Mohan Lal’s case, . It will be also useful to advert to the enunciations of the Apex Court in Jaswant Singh reported in (1995) Supp 1 S.C.C. 384 para 33; Ajay Kumar Pandey ;
Chetak Construction Ltd. and 17; in Dr.
D.C. Saxena, and 40); Ajay Kumar Pandey,
; Arundhati Roy, In re, reported
.
28. Insofar as the grievance regarding the reports received from the Family Court, Mumbai, as mentioned earlier, the same were received by the Registry only on 23rd September 2003. The grievance made on behalf of the Petitioner that copy of those reports were not made available to the Petitioner, whereas the Respondent had already procured the same, is of no avail. In the first place, the hearing of the matter was deferred only to enable the parties to explore the possibility of settlement. In other words, non-furnishing of the reports could not have had any bearing on the settlement talks between the parties. Perhaps, that is only a ruse to justify the false allegations made in the communication.
29. As mentioned earlier, imputation of unfairness or bias made against me by the Advocates for the Petitioner constitutes grave professional misconduct, as is observed in the case of Lalit Mohan Das (supra). The Constitution Bench of the Apex Court in in the case of Supreme Court Bar Association v. Union of India has expressed that in a given case an advocate found guilty of committing contempt of Court may also be guilty of committing “professional misconduct”. Both these jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. In the light of the above, I am disposed to forward copy of this decision to the Bar Council of Maharashtra & Goa for taking appropriate action against the concerned Advocates in accordance with law.
30. Needless to mention that the above observations are prima facie opinion recorded by me, which has impelled me to ignite the painful action of contempt against one of the Litigant and her Advocates, as the Petitioner has consciously signed the offending communication, caused it to be delivered in the Chamber of the learned Chief Justice, as well as my Chamber, while the matter was in progress; and chose to maintain her stand, inspite of an opportunity given to her to correct the mistake. Whereas, the Advocates have drafted and are the authors of the offending communication, countersigned the same so as to confirm the facts stated therein, played active part in ensuring delivery thereof in the Chamber of the learned Chief Justice and my Chamber, while the matter was in progress, reiterated the stand in open Court to impute motives to me as an unfair and impartial Judge, insisted that I should disassociate myself from the hearing of the case, as a condition precedent, to withdraw the said communication; and inspite of opportunity given to them to take corrective measures, chose to justify their position and to take complete responsibility therefor.
31. Before parting, it will be apposite to advert to the exposition of the Constitution Bench of the Apex Court in the case of Supreme Court Bar Association (supra) para 80, which reads thus:
“In a given case it may be possible, for this Court or the High Court, to prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practise as an Advocate-on-Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however,does not amount to suspending or revoking his licence to practice as an advocate in other courts or tribunals.”
(emphasis supplied.)
The Apex Court, perhaps, had in mind Rule 8-A of Part I, Order 4, of the Supreme Court Rules, 1966. The said Rule reads thus:
“When on the complaint of any person or otherwise, the Court is of the opinion that an advocate on record, has been guilty of misconduct or of conduct unbecoming of an advocate on record, the Court may make an order removing his name from the register of advocates on record either permanently or for such period as the Court may think fit and the Registrar shall thereupon report the said fact to the Bar Council of India and to the State Bar Council concerned:”
As the Apex Court has observed that it is possible even for the High Court to prevent the contemner advocate to appear before it till he purges himself of the contempt, however, that can be done only if similar provision exists in the High Court Rules. It appears that our High Court has framed Rules under Section 34(1) of the Advocates Act, 1961, which are incorporated as Appendix VI of the Original Side rules and Schedule VII of Part III of the Appellate Side Rules, respectively. Clause 13 thereof is on the same lines as that of the Supreme Court Rules, referred to above, which reads thus:
“13. No Advocate who has been found guilty of Contempt of Court shall appear, act or plead in any Court unless he has purged himself of contempt.
The Court may in its discretion permit an Advocate who has been found guilty of Contempt of Court to appear, act or plead without purging himself of Contempt of Court.”
It is significant to note that the purport of this provision is that the Advocate on being found guilty of Contempt of Court would automatically stand disqualified to appear, act or plead not only in the High Court, but also the Courts subordinate thereto till he purges himself of the contempt, having regard to the definition of “Court” envisaged in Clause 1(b) of the said Rules. This is only to caution the members of the Bar about the serious consequences of embarking upon such adventures.
32. In the circumstances, I proceed to pass the following order.
ORDER
(1) Writ Petition as well as Civil Applications are disposed of with direction to the Family Court, Pune, to finally decide the main proceedings, being Petition No. A-605 of 2000, as expeditiously as possible, and pre-emptorily by the end of April 2004.
(2) Registry to issue show cause notice to:
(a) Mrs. Hema Ravishankar, residing at C-705, The Great Eastern Link’, Ram Mandir Road, Goregaon (West), Mumbai 400 104;
(b) Mr. K.R. Bulchandani, Advocate, having office at C/o. M/s. Kamal & Co., Advocate and Solicitors, 128, Great Western Building, 23, N.M. Road, Extension, Fort, Bombay 400 023; and
(c) Mr. J.P. Shah, Advocate, having office at C/o. M/s. Kamal & Co., Advocates and Solicitors, 128, Great Western Building, 23, N.M. Road, Extension, Fort, Bombay 400 023,
calling upon the respective notice to show cause why they should not be punished for having committed contempt of this Court within the meaning of Contempt of Courts Act, 1971; read with relevant Rules framed by this Court under the Contempt of Courts Act, 1971 (which are part of the Bombay High Court Appellate Side Rules, as amended uptodate).
(3) Copy of this Order be forwarded to the Secretary, Bar Council of Maharashtra & Goa, Mumbai, for taking appropriate action against the concerned Advocates, as may be advised and permissible by law.
(4) Office to place these papers before the learned Chief Justice for assigning hearing on show cause notice to appropriate Bench.
P.C.: Certified Copy expedited. Writ be sent to the Family Court, Pune, forthwith.
Categories: Child Custody, Judgments
Child Custody
SC- proceedings under Section 125 Cr.P.C. are civil in nature
February 14, 2012
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Supreme Court of India
Cites 17 docs - [View All] The Code Of Criminal Procedure, 1973 Section 3 in The Code Of Criminal Procedure, 1973 The Indian Penal Code, 1860 Section 126 in The Code Of Criminal Procedure, 1973 Section 4 in The Code Of Criminal Procedure, 1973 Citedby 10 docs - [View All] Sheikh Israfil Mohammad vs Anwari Begum on 12 February, 2009 F.Sheik Hussain vs Faridha Banu on 4 July, 2008 Ashok Kumar Agrawal, Pradeep ... vs The State Of Jharkhand And Dilip ... on 15 April, 2008 Firdaus Bano vs Mohammad Ashraf on 15 January, 2008 Mohammed Asan vs Smt. Asiabibi on 6 November, 2007
CASE NO.: Appeal (crl.) 795 of 2001
PETITIONER: Iqbal Bano
RESPONDENT:
State ofU.P.and Anr
DATE OF JUDGMENT: 05/06/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. In the present appeal the appellant questions correctness of the order passed by a learned Single Judge of the Allahabad High Court dismissing her revision petition (Criminal Revision No.1161 of 1995). The appellant had questioned correctness of
the order passed by learned Additional Sessions Judge,Aligarh, setting aside the order dated 7.7.1994 passed by the learned Judicial Magistrate,Aligarh. By the said order dated 7.7.1994 learned Judicial Magistrate had accepted the prayer for grant of maintenance filed by the appellant in terms of Section 125 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’). She directed respondent no.2 to pay a monthly
maintenance of Rs.450/- to the appellant.
2. Background facts in a nutshell are as follows:
The appellant had married respondent no.2 in the year 1959 and a child was born to them in 1966. Unfortunately the son died in the year 1991. Respondent no.2 who was living
separately from the appellant stopped coming to the house of the appellant where she was staying and also did not pay anything for her subsistence. Therefore, an application under
Section 125 Cr.P.C. was filed on 21.2.1992. Before that she had sent notice demanding payment of maintenance.
Respondent no.2 replied to the notice and denied his liability to pay maintenance. As noted above, on 21.2.1992 application was filed claiming maintenance of Rs.500/- p.m. It was stated that that the income of the respondent no.2 was Rs.4,000/- per month. On 28.5.1992 written statement was filed wherein it was stated that long back he had divorced his wife by utterance the word “Talaq” “Talaq” “Talaq”. It was further stated that there was severance of marital ties between them for years as the divorce was over by the utterance of the word ”Talaq” thrice and he had also paid Mehr and the Iddat period was over the claim was not acceptable. He also stated he had contacted the second marriage.
3. The learned Magistrate held that there was no material to substantiate the plea of divorce and accordingly maintenance was granted. Order was challenged by filing a revision before the learned Additional Sessions Judge. Stand of the respondent was that after enactment of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 (in short the ‘Act’), petition under Section 125 Cr.P.C. was not maintainable. It was also stated that not only in the reply to the notice, there was mention about the utterance of the word “Talaq” “Talaq” “Talaq”, there was mention in the written statement also, amounting to divorce. Learned Additional District and Sessions Judge accepted the plea. He held that after the enactment of the Act, petition by any married muslim woman
under Section 125 Cr.P.C. is not maintainable. Such woman can claim maintenance under the Act and not under the Cr.P.C. It was further held that mention was made in the written statement about the divorce purportedly 30 years back and the mentioning about this fact in law amounted to divorce. Accordingly, order of the learned Magistrate was set aside. High Court dismissed the writ petition summarily observed as follows:
“Heard learned counsel for the revisionist. The learned Additional District and Sessions Judge has committed no illegality in modifying the order passed by the Magistrate in declining the maintenance after the date of divorce.
The revision has got no force. It is dismissed accordingly.”
4. Learned counsel for the appellant submitted that the approach of the First Revisional Court was clearly erroneous. There is no bar on Muslim woman filing petition in terms of Section 125 Cr.P.C. The Act only applies to divorced woman and not the Muslim married women who are not divorced. Further, mere statement in the written statement about some divorce long back does not meet the requirement of law. The
finding of the First Revisional Court about payment of Mehr has no relevance.
5. Mr. S.W.A. Qadri, learned counsel for the State ofUttar Pradeshbrought to our notice several decision of this Court to support the stand of the appellant. Learned Counsel for the respondent no.2 on the other hand supported the order of the High Court. It was submitted that no interference is called for. The dismissal of the revision petition by the High Court in the manner done is clearly unsustainable. The absence of these
reasons has rendered the High Court’s order unsustainable.
6. The view expressed by the First Revisional Court that no Muslim woman can maintain petition under Section 125 Cr.P.C. is clearly unsustainable. The Act only applies to divorced women and not to a woman who is not divorced. The conclusions that in view of the statement in the written statement about alleged divorce 30 years by utterance of the words “Talaq” “Talaq” “Talaq” three times is sufficient in law is not sustainable. This Court in Shamim Ara v. State of U.P. and Anr. (2002 (7) SCC 518) observed:
“16. We are also of the opinion that the talaq to be effective has to be pronounced. The term “pronounce” means to proclaim, to utter formally, to utter rhetorically, to declare to
utter to articulate (see Chambers 20th Century Dictionary, New Edition, p. 1030) There is no proof of talaq having taken place on 11.7.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent 2 ought to have adduced evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by
Mulla and Dr Tahir Mahmood in their respective commentaries, wherein a mere plea
of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the
date of filing of the written statement. A plea of previous divorce taken in the written
statement cannot at all be treated as pronouncement of talaq by the husband on the wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1988, filed in some previous judicial proceedings not inter partes, containing a self-serving statement of Respondent 2, could not have been read in evidence as relevant and of any value.”
7. The conclusions about the Mehr having been paid and the Iddat period is over has no relevance. A Constitution Bench of this Court in Danial Latifi and Anr. V. Union of India (2001 (7) SCC 746) observed as follows:
“28. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word “provision” indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression “within” should be read as “during” or “for” and this cannot be done because words cannot be construed
contrary to their meaning as the word “within” would mean “on or before”, “not beyond” and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.
29. The important section in the Act is Section 3 which provides that a divorced woman is entitled to obtain from her former husband “maintenance”, “provision” and “mahr”, and to recover from his possession her wedding presents and dowry and authorizes the Magistrate to order payment or restoration of these sums or properties. The crux of the
matter is that the divorced woman shall be entitled to a reasonable and fair provision and
maintenance to be made and paid to her within the iddat period by her former husband. The wordings of Section 3 of the Act appear to indicate that the husband has two separate and distinct obligations: (1) to make a “reasonable and fair provision” for his divorced
wife; and (2) to provide “maintenance” for her.
The emphasis of this section is not on the nature or duration of any such “provision” or
“maintenance”, but on the time by which an arrangement for payment of provision and
maintenance should be concluded, namely. “within the iddat period”. If the provisions are
so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligations of both “reasonable and fair provision” and
“maintenance” by paying these amounts in a lump sum to his wife, in addition to having
paid his wife’s mahr and restored her dowry as per Sections 3(1)(c) and 3(l)(d) of the Act.
Precisely, the point that arose for consideration in Shah Bano case1 was that the husband had not made a “reasonable and fair provision” for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under Section 125 CrPC. This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are “a reasonable and fair provision and maintenance to be made and paid” as provided under Section 3(l)(a) of the Act and these expressions cover different things, firstly, by the use of two different verbs – “to be made and paid to her within the iddat period” it is clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly, Section 4 of the Act, which empowers the Magistrate to issue an order for payment of maintenance to the divorced woman against various of her relatives, contains no reference to “provision”. Obviously, the right to have “a fair and reasonable provision” in her favour is a right enforceable only against the woman’s former husband, and in addition to what he is obliged to pay as “maintenance”; thirdly, the words of The Holy Quran, as translated by Yusuf Ali of “mata” as maintenance” though may be incorrect and that other translations employed the word “provision”, this Court in Shah Bano case dismissed this aspect by holding that it is
a distinction without a difference. Indeed, whether “mata” was rendered “maintenance”
or “provision”, there could be no pretence that the husband in Shah Bano case had provided anything at all by way of “mata” to his divorced wife. The contention put forth on behalf of the other side is that a divorced Muslim woman who is entitled to “mata” is only a single or onetime transaction which does not mean payment of maintenance continuously at all.
This contention, apart from supporting the view that the word “provision” in Section
3(1)(a) of the Act incorporates “mata” as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables “a reasonable and fair provision” and “a reasonable and fair provision” as provided under Section 3(3) of the Act would be with reference to the needs of the divorced woman, the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Bano case actually codifies the very rationale contained therein.
36 While upholding the validity of the Act, we may sum up our conclusions:
(1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within
the iddat period in terms of Section 3 (i) (a) of the Act.
(2) Liability of the Muslim husband to his divorced wife arising under Section 3 (i) (a) of
the Act to pay maintenance is not confined to the iddat period.
(3) A divorced Muslim woman who is not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relative who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law for such divorced woman including her children and parents. If any of her relative being unable to pay maintenance, the Magistrate may direct the State Waqf Board established under the Act to pay Maintenance.
(4) The provisions of the Act do not offend Article 14, 15 and 21 of the Indian Constitution.”
8. The position was followed in Sabra Shamim v. Maqsood Ansari (2004 (9) SCC 616).
9. Proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court notices that there was a divorced woman in the case in question, it was open to him to treat it as a petition under the Act considering the beneficial nature of the legislation. proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same Court. In Vijay Kumar Prasad v. State of Bihar and Ors. (2004 (5) SCC 196), it
was held that proceedings under Section 125 Cr.P.C. are civil in nature. It was noted as follows:
“14. The basic distinction between Section 488 of the old Code and Section 126 of the
Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of civil nature.
Unlike clauses (b) and (c) of Section 126(1) an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives.”
10. Accordingly, we set aside the order impugned of the High Court and remit the matter for fresh consideration.
11. The High Court while deciding the matter shall keep in view the principles indicated above. Since the matter is pending since long, the High Court shall dispose of the matter within six months from the date of receipt of this order to avoid unnecessary delay. We direct the parties to appear before the High Court on 23rd July 2007. We request the Chief Justice of the High Court to list the matter before the appropriate Bench.
The appeal is disposed of accordingly.
Delhi HC quashes FIR after man agrees to pay Rs 1,000 monthly to son
February 10, 2012
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* IN THE HIGH COURT OF DELHI AT NEW DELHI*
+ CRL.M.C.457/2012
Judgment delivered on:07th February, 2012
FIRASAT & ORS ….. Petitioners Through : Mr.Javed Khan, Adv. versus STATE & ANR ….. Respondents Through : Ms. Rajdipa Behura, APP for the State Mr. D.K. Singh, Adv.for R-2
CORAM: HON’BLE MR. JUSTICE SURESH KAIT SURESH KAIT,
J. (Oral)
Crl. M.A. 1585/2012 Exemption allowed subject to all just exceptions. CRL.M.C.457/2012
1. Notice.
2. Ld. APP accepts notice on behalf of the State.
3. Ld. Counsel for respondent No.2, Mr. D.K. Singh accepts notice on behalf of respondent No.2.
4. With the consent of the parties, the matter is taken up for final hearing.
5. Vide the instant petition, the petitioners have sought to quash FIR No. 103/2009 registered at PS Welcome, Delhi under Section 406/498-A/34 of the Indian Penal Code, 1860 read with Sections 3&4 of the Dowry Prohibition Act and the proceedings pending before the trial court.
6. Ld. Counsel for the petitioners has submitted that during the pendency of the case before the trial court, the respondent No.2 has amicably settled all the issues qua the aforesaid FIR with the petitioners vide MOU dated 25.01.2012.
7. Ld. Counsel for the petitioner, on instructions, submitts that it was agreed in the aforesaid MOU that the petitioner No.1 (husband) shall pay Rs.90,000/- towards full and final settlement. The petitioner No.1 has paid the said amount to the respondent No.2. However, the petitioner No.1 has come forward to pay Rs.1,000/- p.m. for bringing up of his son Mohd. Mouz, aged 4 years. It is further submitted that the respondent no.2 is no more interested to pursue the aforesaid FIR. Therefore, the FIR mentioned above and the proceedings before the trial court be quashed.
8. Respondent No.2 is personally present in the Court with her counsel Mr. D.K. Singh.
9. On instructions, ld. Counsel for the respondent No.2 has submitted that since the matter has been settled amicably vide the aforesaid MOU dated 25.01.2012 and the petitioner No.1 has further agreed to pay Rs.1,000/- p.m. in favour of his son, therefore, she is no more interested in pursing the instant case and has no objection if the above mentioned FIR and proceedings emanating therefrom are quashed.
10. Ld. APP on the other hand submits that the State has already filed the charge sheet and the charges are yet to be framed. She has prayed that if this court is inclined to quash the FIR, heavy costs should be imposed upon the petitioners, as the government machinery has been used and precious time of the Court has been consumed.
11. I find force in the submissions of ld. APP for the State. Therefore, I direct the petitioners No.1, 4 and 5 to pay Rs.5,000/- each to be paid within six weeks from today in favor of Mohd. Mouz, son of the petitioner No.1 and the respondent No.2.
12. I, therefore, direct respondent No.2 to keep the aforesaid amount of Rs.15,000/- in the form of FDR initially for five years, to be renewed periodically, and the maturity amount shall be utilized for the welfare of the child Md. Mouz.
13. Keeping in view the above discussion and the statement of respondent No.2, in the interest of justice, I quash FIR No. 103/2009 registered at PS Welcome, Delhi and all the proceedings emanating therefrom.
14. Criminal M.C. 457/2012 is allowed.
15. I further make it clear that if the petitioner No.1 fails to pay the aforesaid amount of Rs.1,000/- p.m. even for once, he shall be liable for contempt proceedings.
16. Dasti. SURESH KAIT,
J FEBRUARY 07, 2012
RS
Categories: 498A, Under Mutual Agreement
498a
Delhi HC-Permanent alimony granted during Divorce? No further maintenance in CrPC 125
February 4, 2012
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Delhi High Court
Anita vs Rati Ram Chauhan on 4 November, 2011
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Rev. P. 726/2010 & Crl. M.A. 17479/2011 %
Reserved on: 8th August, 2011
Decided on: 4th November, 2011
ANITA ….. Petitioner Through: Mr. Ratnesh Bansal, Advocate
versus
RATI RAM CHAUHAN ….. Respondents Through: Mr. Shailender Dahiya, Advocate with Respondent in person.
Coram:
HON’BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest?
MUKTA GUPTA, J.
1. By this petition the Petitioner seeks quashing of the Judgment dated 10th September, 2010 passed in case number 95/2010 by the learned Additional Principal Judge dismissing the application of the Petitioner seeking maintenance from the Respondent under Section 125 Cr. P. C.
2. Briefly the facts are that the marriage between the parties was solemnized on 23rd February, 1996. The Petitioner claims that the Respondent and his family members were not satisfied with the dowry articles presented at the time of marriage. They started ill treating her and raised a demand of Rs. 1 Lac and a car. On 17th April, 1996 the Respondent, his father and sister pushed her down from the roof of the matrimonial home resulting in serious injuries to the Complainant. She was then removed by the neighbors to Gupta Nursing Home. The nursing home however did not admit her and referred her instead to Mata Chanan Devi Hospital. On 27th April, 1996 the Petitioner was discharged from Mata Chanan Devi Hospital and since then she has been staying in her parental home. After about 17-20 months, the Petitioner lodged a complaint with the police for the said incident and a case FIR No. 34/98 was registered under Section 498A/307/406/34 IPC. In the said trial the Respondent and his family members were acquitted by the learned Additional Session Judge. The Respondent in May, 1998 filed a petition for dissolution of marriage on the ground of cruelty and the marriage was dissolved by learned District Session Judge vide Judgment and decree dated 26th May, 2007. Vide this Judgment, the Petitioner was granted Rs. 3,000/- per month as alimony. There is however an appeal pending in this court filed by the Petitioner vide Mat. App. 46/2007. The Petitioner claims that after her injury, she is unable to move and the Respondent has not made any provision for her medical treatment or maintenance and is refusing to maintain her without any sufficient cause. Hence the present petition.
3. The learned Counsel for Petitioner contends that the learned Additional Principal Judge in the impugned Judgment has placed great reliance on the fact that the Respondent and his family members have been acquitted by the learned Additional Session Judge. According to him this acquittal was not binding on the family court and therefore the maintenance application should have been decided on its own merits de- hors the findings of the learned Additional Sessions Judge in the criminal trial.
4. It is stated that as per Section 125 Cr. P. C if a person with sufficient means neglects or refuses to maintain his wife then he is liable to pay her maintenance. Learned Counsel states that the learned Additional Principal Judge failed to appreciate the fact that during trial the Respondent admitted his liability to maintain the Petitioner but had not shown any intention to take the Petitioner back to the matrimonial home.
5. Learned Counsel for Petitioner further states that the Petitioner has appealed against the Judgment dated 26th May, 2007 passed by the learned Additional Session Judge dissolving her marriage which is still pending in this Court. Under these circumstances the alimony of Rs. 3,000/- per month granted to the Petitioner in the divorce proceedings should have been disregarded by the learned Additional Principal Judge while deciding the petition for maintenance.
6. Learned Counsel for Respondent on the other hand contends that the Respondent had never neglected to maintain the Petitioner. On the 17th April 1996, the Petitioner slipped from the stairs when the Petitioner and his father were not at home. The entire medical expenses were borne by the Respondent. The Respondent being a Government employee is entitled to all the facilities of medical treatment under CGHS and had repeatedly asked the Petitioner to get treated at any CGHS hospital. But all she did was demand money in lieu of medical expenses, trying to cause the Respondent wrongful loss. The Petitioner was never meted with cruelty. It is the Petitioner who has deserted the Respondent as she was not interested in maintaining the relations.
7. I have heard learned Counsels for the parties. While adjudicating any issue it is the responsibility of the Judge to consider all the facts and circumstances. Proceedings under Section 125 CrPC are summons trial proceedings. The Court is justified on relying upon the findings of the competent Court in a criminal trial for the offences alleged and regarding cruelty by the matrimonial Court. In Inderjit Kaur vs. Union of India (1990) 1 SCC 344 it was held that, that Section 125 CrPC provides a speedy remedy against starvation of the civil liabilities of the parties, the order made thereunder is tentative and is subject to final determination of the rights in civil court. Further in Teja Singh vs. Chhoto 1981Crl. L.J. 1467 (Punjab & Haryana) while dealing with a similar issue it was held that even if an order granting maintenance had been passed in favour of the wife and if thereafter a decision between the parties is rendered by the civil court which has a bearing on the question which came up for consideration earlier before the Court dealing with the petition under Section 125 of the Code of Criminal Procedure, it has to give effect to the civil court order by cancelling the order granting maintenance if such is the import of the judgment of the civil court. In case of Sri Jasholal Agrawala @ Jain vs. Smt. Puspabati Agrawala, 1994 Crl.LJ 185 the High Court of Orissa it was held that it has to be taken as an accepted principle that the finding of the civil court in a matrimonial proceeding is binding on the criminal court and the criminal court is not entitled to question the correctness or validity of the civil court decision.
8. The learned Additional Principal Judge was therefore justified in relying on the fact that the learned Additional District Judge by Judgment dated 26th May, 2007 had dissolved the marriage of the parties on the ground of cruelty by the Petitioner and had the Respondent actually been harassing or neglecting the Petitioner then he would have never succeeded in the divorce petition. The fact that the Respondent allowed bed ridden Petitioner to go to her parental home so that she could be looked after by her mother was also found to be convincing since the Respondent had no female member in his family.
9. It is relevant to note that the Petitioner in her statement has admitted before doctor in the Hospital that she had slipped from the stairs on the day of incident. The Petitioner has not placed anything on record to show that there was any pressure from the side of Respondent on her to give that statement. Further, the father of the Petitioner in his statement before Court admitted that when he visited his daughter in the Hospital she did not tell him anything. From a perusal of the statements of witnesses, it is clear that the claim of the Petitioner that Respondents failed to maintain her and willfully neglected her is not substantiated.
10. As per the record the Respondent had filed the medical bills of Mata Chanan Devi Hospital as evidence of making payment of the same. The father of the Petitioner in his explanation for the bills being in possession of the Respondent had stated that the respondent had stolen the bills from him. But this story is completely contradictory to his other statement wherein he had said that the Respondent never visited the Petitioner in the hospital or thereafter. Thus the Respondent had no occasion to commit the theft of the bills from the Petitioner or her father. Therefore it can be safely held that the Respondent bore the expenses of the Petitioner’s treatment in the hospital and he was not negligent in his responsibilities towards the Petitioner.
11. The Petitioner has not been able to adduce any evidence to support her contention of being neglected by the Respondent. Moreover there is no explanation rendered by the Petitioner as to why she did not inform her neighbour or any other person who allegedly removed her to the nursing home that she was thrown by the Respondent or his father. Further the fact that the Complaint under Sections 498A, 406, 307 & 34 IPC was filed by the Petitioner after about 17-20 months of the incident shows that the same was an after thought. The Respondent on the other hand has adduced evidence to show that he had not neglected to maintain the Petitioner and is even paying Rs. 3,000/- per month regularly as directed by the learned Additional District Judge vide the Judgment dated 26th May, 2007.
12. Learned Additional Principal Judge has considered all the relevant issues and scrutinize the matter. I do not find any infirmity in the Judgment dated 10th September, 2010.
The revision petition and the application are accordingly dismissed. (MUKTA GUPTA)
JUDGE
NOVEMBER 04, 2011
vkm
http://lobis.nic.in/dhc/MUG/judgement/05-11-2011/MUG04112011CRLR7262010.pdf
Not fulfilling demand of separate home is NOT cruelty. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty. -wife cannot be allowed to advantage of her own wrong-desertion cruelty not proved-Bom HC
February 3, 2012
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Not fulfilling demand of separate home is NOT cruelty. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty | wife cannot be allowed to advantage of her own wrong desertion cruelty not proved – Bombay HC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.77/2003
Mrs.Surbinder Kaur Sandeep Sood,
Age about 36 yrs.Occ.Nil
R/o C/O Shri.Sardulsingh
Re.E.G.55/4,Bhaira Nagar,
Dhanori Road,
Vishrantwadi,
Pune-422 015 Appellant/Ori.Petitioner
Vs.
Sandeep Rajkumar Sood,
Age about 40 yrs.Occ.Business,
Residing at 529/E,Kadamwadi,
Kolhapur 415 003 Respondent/Ori.Respondent
Ms.Ashwini Takalkar i/b Mr.Nitin Deshpande for Appellant
Mr.P.R.Arjunwadkar,for Respondent
Coram- A.M.Khanwilkar and Mrs.Mridula Bhatkar,JJ
Reserved On-2nd May,2011.
Pronounced On- 8th December, 2011.
J U D G M E N T (Per Mrs.Mridula Bhatkar,J.):
1 The judgment and order dated 23/6/2003 passed by the Judge of Family Court, Pune is challenged in this appeal. The appellant/original petitioner had filed petition for divorce on the ground of cruelty and desertion under section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955.
2 The appellant and the respondent got married on 12/5/1993 and stayed together for a period of three years at Kolhapur, in the joint family of respondent consisting of parents and three sisters. It is the case of the appellant that she was not given freedom in the house and was harassed in number of ways by the mother and sisters of the respondent. She was not allowed to speak to the respondent and was asked to do domestic work from morning to night. Many restrictions were imposed on her routine and she hardly could step out of the house. She was deprived of company of the respondent and had to obey the instructions/orders of her mother in law and sisters in law. For want of proper care and rest she had miscarriage. So her parents came to Kolhapur and gave her Rs.5,000/-for her own expenses. However, she was not allowed to spend that money for herself. Subsequently she again conceived and gave birth to male twins on 24/4/1996. She was not allowed to take proper rest and sisters of the respondent used to quarrel with her so the children were neglected. It is contended that in July, 1996 she was not allowed to go to the temple of goddess at Kolhapur. On that issue there was a big quarrel in the house. The respondent slapped the appellant, thereafter her sister in law Anju lodged false complaint with the police that the appellant tried to commit suicide. On enquiry police called her father and she was sent to Pune alongwith her father. She resided with her parents for 2-3 months. The respondent was supposed to come to her father’s house to take her back. However, he did not come. Therefore, in the month of January,1997 the appellant alongwith her father went to Kolhapur to reside with the respondent. However, the respondent and his family members quarreled with the appellant and she alongwith her family members was driven out of the house at odd hours of night. Since then she has been residing with her parents at Pune.It is contended that the respondent did not pay any maintenance to her and her children and did not bother to call her back. She, therefore, on the ground of cruelty and desertion filed petition for divorce in the Family Court at Pune, but it was dismissed. Hence this appeal.
3 The respondent has denied all the contentions raised and allegations made in the petition and in the appeal. He filed written statement and contested the petition that the grounds of cruelty and desertion are false and it is a cooked up story. The petition was based on false averments and petitioner had withdrawn herself from the company of the respondent without any good cause. She has taken away two children and was not interested from the beginning to live with the respondent alongwith his family members. It is contended by the respondent that the petitioner wanted to reside separately only with the respondent and was interested to enjoy the life without taking any responsibility. She is pampered child of her parents. Despite such behaviour of the appellant, the respondent being a responsible and loving husband filed petition for conjugal rights bearing no.95/97 and it was decided in his favour. The petitioner did not come to stay with him. He filed execution proceedings, however, the petitioner did not show any interest and did not come to Kolhapur to live with him. It is contended that the petition was rightly dismissed as the petitioner could not prove her case of either cruelty or desertion.
4 The petitioner examined herself and also three witnesses viz. Nandlal Amarchand Shrishrimal, Sharadsingh Banga, and Captain Deepchandra. The respondent husband offered himself as a witness and examined Shivaji Sankpal, Vijaya Toraskar and his sister Anju Rajkumar Sood.
5 Learned counsel for the appellant argued that cruelty is an aggravated form of harassment and it can be either expressly proved or it can be inferred. She submitted that the appellant in her examination in chief has stated that the respondent husband had slapped her and the family members, especially the sisters of the respondent used to torture her by not giving food and not allowing her to go out of the house. Learned counsel pointed out that the application for the Restitution of Conjugal Rights though was decreed in favour of the respondent, the appellant never stayed with the respondent, therefore, if the decree is not implemented till today then itself forms a ground for divorce. She submitted that the maintenance ordered by the Court to her was not paid by the respondent. These aspects ought to have been considered by the Family Court. In support of her submissions she relied upon (Sanghmitra Ghosh Vs.Kalalkumar Ghosh) reported in 2007(2) SCC,220. She submitted that this being a irretrievable breakdown of the marriage the prayer of divorce be granted and the appeal deserves to be allowed.
6 Learned counsel for the respondent submitted that the appellant at the time of evidence could not narrate specific instances of cruelty and failed to bring any evidence to that effect. He pointed out that in her cross examination the petitioner has admitted that she has no grievance against the respondent but she was on inimical terms and holding grudge against the mother and sisters of the respondent and this cannot be a ground for divorce. Hence the petition is rightly dismissed.
7 The points framed by the Family Court and findings given are as follows.
POINTS FINDINGS
1. Whether the petitioner proves thatthe respondent treated her with cruelty after solemnization of marriage ? No
2. Whether the petitioner proves that the respondent deserted her withoutjust and sufficient reason for a period of 2 years preceding the date of petition ?No
3. Is there any legal bar u/s 23 of H.M.Act ?Not survive
4. Is petitioner entitled to decree of divorce? No
5. What about permanent alimony of petitioner and maintenance of children ?Not survive
6. Is petitioner entitled to continue the permanent custody of children with her ?Yes,presently.
1. Whether the petitioner proves thatthe respondent treated her with cruelty after solemnization of marriage ? No
2. Whether the petitioner proves that the respondent deserted her withoutjust and sufficient reason for a period of 2 years preceding the date of petition ?No
3. Is there any legal bar u/s 23 of H.M.Act ?Not survive
4. Is petitioner entitled to decree of divorce? No
5. What about permanent alimony of petitioner and maintenance of children ?Not survive
6. Is petitioner entitled to continue the permanent custody of children with her ?Yes,presently.
7. What order ? As per final order
8 Issue nos.1 and 2 are the ground for divorce i.e. cruelty and desertion. We have carefully gone through the evidence and judgment of the Trial Court. On the point of mental and physical cruelty, following incidents are stated by the appellant.
Physical Cruelty-
1. Slapping the petitioner in the month of July,1996 when the appellant expressed her desire to
go to the temple.
2. She was driven out of the house at night in July,1997 alongwith her father.
3. Not giving food
4. Asking her to do the domestic work
Mental Cruelty-
1. Not allowing to talk to her husband.
2. Not allowing to go out3. Husband was not accepting her wish of separate residence and not to stay with sisters.
4. Not to give her Rs.5,000/- to spend.
1. Slapping the petitioner in the month of July,1996 when the appellant expressed her desire to
go to the temple.
2. She was driven out of the house at night in July,1997 alongwith her father.
3. Not giving food
4. Asking her to do the domestic work
Mental Cruelty-
1. Not allowing to talk to her husband.
2. Not allowing to go out3. Husband was not accepting her wish of separate residence and not to stay with sisters.
4. Not to give her Rs.5,000/- to spend.
9 The petitioner in her evidence, except giving slap and not giving food did not narrate any specific incident of physical cruelty against the respondent. It is oral uncorroborated evidence. In fact she gave admission and showed readiness to stay with the respondent and his mother. She did not like the company of his sisters. House of the respondent is of 12 rooms. Thus, separate residence for the appellant and respondent could be possible, if the respondent had accepted the offer. At any rate, as the demand of separate residence cannot be considered as cause of cruelty, for the same reason, non-acceptance of such demand by the husband also cannot be a cruelty. These are choices given by the spouses to each other and expression of choice and refusal of the choice itself is not a cruelty. In the evidence of Anju, sister of the respondent, she has stated that she leaves home at 9 a.m. and returns at 6 p.m. Further, the appellant gave admission in her evidence that the mother of the respondent has taken her care during pregnancy. This shows that the appellant did not have any complaint against the mother of the respondent. It appears that the root cause of the dispute was due to stay of the sisters in the house, an ego problem.
10 On the point of cruelty one Captain Deepchandra was examined by the appellant. He is maternal uncle of the respondent. He has produced one letter, Exh.25, written by the father of the respondent to him. He deposed that in that letter father of the respondent has written that , “ Surbinder was kicked out to Pune”. On reading the said letter the words “kicked out” appear to be added subsequently. However, further it is mentioned in the letter that the family was spending Rs.30,000/- per year on the appellant. Thus, her evidence that she was not given food, cannot be believed on the basis of the letter which is proved and relied by the appellant herself.
11 On 25/7/1996 a police complaint was lodged by the sister of the respondent alleging that the appellant was trying to commit suicide by pouring kerosene on her body. This shows that the sister had diligently reported the police station so that the police would take preventive measures and no untoward incident should happen. However, the attempt of the appellant to commit suicide when she was mother of 2-3 months old infants cannot be justified. The evidence of police officer is on record which supports this and that cannot be doubted. After going through this evidence we are of the opinion that the Judge of the Family Court has properly appreciated the evidence of the witnesses of both the sides and has correctly arrived at the conclusion. It is settled position of law that a routine bickerrings or petty quarrels cannot be labelled as cruelty under the Hindu Marriage Act.
12 The respondent though denied that amount of Rs.5000/- was received from the father of the appellant, he admitted that he kept that amount in the Fix Deposit in the name of the appellant and he did not spend that money for himself. Further, the record shows that he had filed application for Restitution of Conjugal Rights which was decreed as the appellant failed to prove that she had withdrawn from the society of the husband with good and satisfactory cause. Even in those proceedings the appellant had asserted cruelly caused by the respondent and his family members. However, that plea was negatived. The said decree was not challenged by the appellant in appeal. Though the execution was taken out, she did not respond and the decree could not be executed.
13 It is admitted that on that day i.e. 25/7/1996 father of the appellant was called by the police. With a view to get the things settled she was sent to Pune at her father’s residence for 2-3 months. After two months the respondent did not bring back the appellant, so her father came to Kolhapur. The respondent told him to bring back the appellant to Kolhapur. On 25/1/1997 she came alongwith her father and some family members, out of which one is examined as a witness. There are two versions of the parties before the Family Court that she was driven out of the house and secondly the father and other member who had gone there, fought and put stringent condition which were not acceptable to the respondent, therefore, they took their daughter back to Pune. Be that as it may, the fact remains that the appellant did not go back and continued to stay away from the respondent from July,1996. Any version of either of the parties if accepted, it is not a good ground to stay away from each other and to untie a nuptial knot.
14 Considering the nature of the dispute and the reasons given by the appellant, the separation cannot be justified. It cannot be held that the respondent has deserted the appellant without any good cause. It appears that the appellant herself opted to stay with her parents at Pune and not to cohabit with the respondent. She did not respond to the decree of Restitution of Conjugal Rights and therefore, the findings given by the Family Court that animus deserendi was absent and so the divorce cannot be granted under the ground of desertion is correct. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty.
15 The respondent had filed petition for custody of children. However, it was rejected. He could not succeed in the appeal. The twins were born in 1996 and now they are around 15 years old. Since childhood they are staying with mother and taking education. So the issue of permanent custody was rightly held in favour of the appellant. Indeed, after attaining majority, it would be open to the children to stay with parent of their choice i.e., continue to stay with the mother or reside with the father (respondent)
16 A demand of permanent alimony was made by the appellant. Our attention was drawn to the orders passed by the Trial Court and this Court in the maintenance petition filed by the appellant. The appellant had filed a petition for maintenance bearing number 218/97 and maintenance of Rs.400/- p.m. to the appellant and Rs.300/- p.m. to each child was granted. It was enhanced to Rs.800/- p.m. for the appellant and Rs.500/- p.m. to each child. The respondent filed an application for cancellation of maintenance, however, it was dismissed. Again the maintenance amount was enhanced by the Family Court to Rs.1,200/-p.m. to the appellant and Rs.1,000/-p.m. to each child. The respondent preferred Revision Applications before this Court bearing nos.654/2007 and 512/2008. The Revision Applications were dismissed by this Court on 18/7/2009. The respondent preferred Special Leave to Appeal (Criminal) 7870-7871/2009 and the same was dismissed by the Supreme Court. We do not wish to interfere with finding recorded by the Family Court on issue No.5. We also agree with the Family Court that the appellant is free to resort to other legal
remedies.
17 It is necessary to note that when the appeal was taken up for hearing, we, in the first place, tried to persuade the parties to arrive at some amicable settlement. However, we found that the parties were still holding grudge against each other and were not in a mood to adjust. Instead, the learned counsel for the appellant has advanced her submission that such a long separation amounts to irretrievable break down of the marriage and so the decree of divorce be granted. In the case of Sanghmitra Ghosh (supra) the parties were residing separately since January, 2001. In a transfer petition before the Supreme Court to transfer the pending matrimonial petition to some other State; they filed joint petition for a decree of divorce praying that the Court may grant decree of divorce by mutual consent. The Supreme Court accepted the plea of irretrievable break down of marriage and exercised its extraordinary jurisdiction under Article 142 of the Constitution and granted decree of divorce. In the present matter, having recorded finding on merits on the relevant points/issues raised by the rival side and thus upheld the decree passed by the Family Court which is impugned in this Appeal, we would follow the dictum of our High Court in the case of Ravindra M.Shelar v. Kalpana R.Shelar reported in 2002 (3) MLJ 746.(http://www.indiankanoon.org/doc/1343342/) The same applies on all fours to the facts of the present case. Inasmuch as, even in this case we have found that the appellant was responsible for non-compliance of decree of restitution of conjugal rights and had committed positive wrong. She cannot be allowed to take advantage of her own wrong as the legal bar in granting the decree of divorce was not lifted.
18 We, therefore, do not wish to interfere with the judgment and order passed by the Family Court.
19. Hence the Appeal is dismissed with no order as to costs
.
(Mrs.Mridula Bhatkar,J.) (A.M.Khanwilkar,J.)
(Mrs.Mridula Bhatkar,J.) (A.M.Khanwilkar,J.)
Another misuse of PWDVA 2005- Uttarakhand HC -Domestic Violence Act is being used to settle property dispures
February 2, 2012
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Uttaranchal High Court
Rafat Araa vs Kamar Mirja on 4 January, 2012
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
CRIMINAL MISC. APPLICATION (C-482) No. 600 of 2011
Rafat Araa
W/o Jafar Khan @ Darban Singh
R/o Mohalla Katortal Nai Basti
Near Lashkhar Kashipur
District Udham Singh Nagar
………………..Applicant
Versus
Kamar Mirja
S/o Kaishar Mirja
R/o Mohalla Katortal Nai Basti
Near Lashkhar Kashipur
District Udham Singh Nagar
………………Respondent
Shri D.C.S.Rawat, Advocate, present for the petitioner. Shri Abhishek Verma, Advocate, present for the respondent.
Hon’ble Prafulla C. Pant, J.
Heard.
(2) By means of this petition, moved under section 482 of Code of Criminal Procedure, 1973, the petitioner has quashing of the judgment and order dated 16.05.2011, passed by Additional Sessions Judge, Kashipur, in Criminal Appeal No. 133 of 2010, Qamar Mirja vs. Rafat Araa, filed under section 29 of Protection of Women from Domestic Violence Act, 2005.
(3) Brief facts of the case, are that, the petitioner Rafat Araa is real aunt (BUA) of the respondent Qamar Mirja. She moved an application under Protection of Women from Domestic Violence Act, 2005, against the respondent pleading that she was being subjected to physical cruelty by the respondent to oust her from the house, they are living together. It is also pleaded by the petitioner Smt. Rafat Araa that the house was purchased by her husband through a registered sale deed from Kaisar Mirja (father of the present respondent), and allowed Qamar Mirja (nephew of the petitioner) to stay in the house as a goodwill gesture. On the other hand, the respondent pleaded before the trial court that where abouts of his father are not known, and the alleged sale deed is a forged document. The respondent further pleaded that it was he who allowed the petitioner Smt Rafat Araa as she was his aunt to stay in the house.
(4) In the above circumstances, the pleading of the parties suggest that it is a dispute of ownership of the house in question. However, what is to be seen for the purposes of this case, is whether the property is a shared household, or not.
(5) The definition of “shared household” is mentioned in clause (s) of section 2 of Protection of Women from Domestic Violence Act, 2005. It reads as under:-
” shared household ” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
The above definition makes it clear that the aggrieved must have lived in a domestic relationship with the respondent. The definition of “domestic relationship” is given in clause (f) of section 2 of the Act. Said definition reads as under :-
“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
From the above definition of domestic relationship it appears that it is necessary that the aggrieved person should have related to the respondent by consanguinity, marriage or through the relationship in the nature of marriage, adoption or as a member of joint family. It is nobody’s case that there was a joint family of the petitioner and her brother Kaisar Mirja (father of the respondent). Nor, the petitioner and respondent are related by consanguinity, marriage, or relationship in the nature of marriage, or adoption.
(6) ” Aggrieved person” is defined in clause (a) of section 2 of the Act. The same reads as under:-
” aggrieved person” means any woman who is , or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.;
(7) In the above circumstances, having gone through the definition of ” aggrieved person” given in clause (a) of section 2, and that of “domestic relationship” and ” shared household”, quoted above, this court comes to the conclusion that the aunt (BUA), and her nephew can not be said to be the persons living together in a shared household, under the domestic relationship. That being so, the appellate court has committed no illegality in allowing the appeal, and setting aside the order passed by the Magistrate in favour of the petitioner.
(8) Accordingly, this petition filed under section 482 of Cr.P.C., is dismissed.
(Prafulla C. Pant, J.)
Dt.04.01.2012
N.P
Categories: Judgments, PWDVA 2005
DV Act 2005
Delhi HC- REFUSE MAINTENANCE TO WOMEN IN DV CASE
February 2, 2012
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* IN THE HIGH COURT OF DELHI AT NEW DELHI*
+ CRL.M.C. No.2602/2010 %
Judgment reserved on : 06th January, 2012 Judgment delivered on:30th January, 2012
POONAM KHANNA ….. Petitioner Through : Petitioner in person.
versus
V P SHARMA & ANR …. Respondents Through : Respondent No.1in person. Mr.Navin Sharma,APP for State/R-2.
CORAM: HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Instant petition is being filed under Section 482 Cr.P.C. against the impugned order dated 29.07.2010 passed by learned Additional Sessions Judge, whereby the revision petition of respondent No.1 was allowed and the order dated 23.01.2010 passed by learned Magistrate granting interim maintenance to the tune of ` 5,000/- per month to the petitioner was set aside.
2. Being aggrieved, on 24.02.2010, respondent No.1 filed Revision Petition No.19/2010 under Section 397 Cr. P.C. seeking dismissal of interim order of maintenance. The same was disposed of vide impugned order dated 29.07.2010 while setting aside the interim maintenance and allowed the revision petition of respondent.
3. It is pertinent to mention that petitioner and respondent No.1 both are appearing in person.
4. Petitioner has raised the issue that as per the settled law, the interlocutory order being the interim maintenance order cannot be challenged by way of revision petition under Section 397 Cr. P.C. Secondly, she has raised the issue that learned Additional Sessions Judge, while setting aside the order passed by learned Magistrate has ignored the fact that on the presumption that respondent may be able to prove the means of petitioner in future by placing additional material on record, which is against settled law that the interim maintenance must be decided on the material available on record and not on the hypothecation that the material likely to be adduced at the time of evidence.
5. Further petitioner has submitted that in Revision Petition No.19/2010, learned Additional Sessions Judge, has not considered this fact that petitioner being the wife of respondent is unemployed and is not earning her livelihood. Learned Additional Sessions Judge, has ignored the submission made by petitioner that the respondent / husband is having rental income from the properties.
6. Vide order dated 23.01.2010, interim maintenance was awarded in favour of petitioner on the basis of the material placed on record by both the parties. However, vide the impugned order, learned Additional Sessions Judge, has set aside the award of interim maintenance on the presumptive and hypothecated ground that the respondent may placed the requisite material required to cancel the interim maintenance before learned Trial Court. She has referred to Savitri v. Govind Singh Rawat AIR 1986 SC 984 and relied upon para No.6 thereof which reads as under:-
“In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) (Vide Earl Jowitt’s Dictionary of English Law 1959 Edn. P.1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice Caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The magistrate, may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a magistrate under section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to the pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7 (2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by magistrates under section 125 of the Code to the Family Courts constituted under the said Act.”
7. The instant petition is being filed on the ground that the respondent has not placed any material on record showing the earning or employment of the petitioner. By quoting the qualification of the petitioner to earn is not contemplated under Section 125 (1) (a) Cr. P.C. and a wife, who sacrifices her lucrative career for the sake of her children besides herself being ill cannot be denied maintenance by her husband/respondent as held by various Courts in the decisions; Vijay Singh Yadav v Rajesh Yadav & Anr 2009 (III) DRJ 516 wherein para No.5 reads as under:-
“5. I have carefully considered the submissions made by counsel for the petitioner. There is no doubt that no revision is permissible under Section 397(2) Cr. P.C. against an interlocutory order. However, in appropriate cases, the High Court in exercise of its powers under Section 482 is competent enough to intervene or set aside or modify even an interlocutory order in case it has resulted in abuse of process of law or is causing grave miscarriage of justice. For this purpose, the judgments which have been relied upon by counsel for the petition in case of Krishnan & Anr. v. Krishnaveni & Anr. & in case titled Delhi Labour v. Raj (supra) are not in dispute.” 8. She also relied upon Rakhi v. Pankaj Kumar 123 (2005) DLT 262 wherein in para No.5 this Court has held as under:- “5. Looking at the matter as it stands it appears that the judgment under challenge is erroneous and that the learned Additional Sessions ought not to have interfered at a stage when the Metropolitan Magistrate fixed only the interim amount in the proceedings under Section 125 Cr. P.C.”
9. Petitioner has further pointed out that learned Additional Sessions Judge, vide the impugned order has cancelled the award of interim maintenance to the petitioner not on the basis of any material placed on record, but on the hypothecation that required material may be placed before the Court by respondent/husband later on in future. 10. On the other hand, respondent No.1 has filed his reply whereby he has taken preliminary objection about the maintainability of petition. He has submitted that the petitioner has concealed important / material facts from this Court because these facts render this petition to be non-maintainable. The said facts are as under:-
(i) The petitioner proposed a settlement deed in the Court of Smt.R.S.Nag on 27.05.2002 which envisaged that the parties will seek divorce, petitioner will not claim any maintenance and respondent will forego his lien over the DDA flat as also a shop in property No. N-15, Malviya Nagar, and property No.C-18, Shivalik, shall be sold off and sale proceeds shall be divided equally between the parties.
(ii) The petitioner backtracked from the said settlement and continued with the litigation vigorously. Another settlement was executed on 02.04.2003 which was ultimately registered. Only difference between vis-a-vis previous settlement was that respondent reduced his share in the property C-18, Shivalik from 50 per cent to 45 per cent. (iii) On 03.05.2003, the divorce obtained by mutual consent in terms of settlement dated 02.04.2003 and petitioner withdrew her case in the guardianship court and petition under Section 125 Cr. P.C. on behalf of his son. The joint petition for mutual consent divorce, statement on oath as well as final order expressly stipulating that the petitioner shall not claim any maintenance through rest of the life. (iv) The petitioner filed the application under The Protection of Women from Domestic Violence Act, 2005 claiming maintenance and same was dismissed by learned Trial Court as well as Sessions Court as non-maintainable in the background of settlement dated 02.04.2003. (v) On the basis of settlement dated 02.03.2003, this Court quashed four criminal cases in Criminal M.C.No.3337/2007 a petition filed under Section 482 Cr. P.C. by respondent. The petitioner preferred to challenge the said judgment in the Supreme Court, whereupon the petitioner’s appeal was dismissed, thus adding sanctity to the settlement.
11. Respondent has further stated in the reply on question of law that learned Additional Sessions Judge cancelled the interim maintenance on the basis of material placed on record including the registered settlement deed dated 02.04.2003 and para No.30 of the Trial Court order dated 24.07.2009 reads as under:- “Thus, it is clear that grant of maintenance under Section 125 Cr. P.C. certain conditions are required to be fulfilled and it would be a matter of trial whether the respondent has refused or neglected to maintain the petitioner, whether the petitioner is unable to maintain herself and whether the respondent has sufficient means to maintain the petitioner ……”
12. It is further submitted that the question of law is not against the orders of learned Additional Sessions Judge dated 04.06.2010 as alleged and the petitioner has received most of the interim maintenance till the said order dated. Learned Additional Sessions Judge in para No.13.0 observed as under:- “It is pertinent to mention here that there is no mode of recovery, if later on it is found that respondent / wife has sufficient means to maintain herself.”
13. Respondent has also filed additional submissions and submitted that in para No.12.2 of the impugned order, learned Additional Sessions Judge has opined as under:- “I consider that in view of these peculiar fats and circumstances, parties are required to prove whether the settlement arrived into between them was only illusory and sufficient arrangement not made for the future maintenance of the respondent/ wife or that whether respondent/wife is unable to maintain herself or whether the petitioner/husband has sufficient means or not. I consider that parties are required to lead evidence in this regard.”
14. Respondent had handed over the shop in property No.N-15, Malviya Nagar, New Delhi and DDA flat in Khirki Village at the time of settlement / divorce by mutual consent. The petitioner has sold off these properties and purchased a double story 250 yards house bearing No.758, Sector 7, Punchkula and is getting rent of around ` 40,000/- per month. Proof thereof is annexed as Annexure R-1.
15. The petitioner continuously living in the same house and is maintaining the same living standard in contrast to the respondent, who has been forced to live in an unauthorised colony and that too on rent.
16. Learned Additional Sessions Judge in para No.13.0 observed that “that there is no mode of recovery, if later on it is found that respondent / wife has sufficient means to maintain herself.”
17. During her cross-examination, in the petition under Section 125 Cr. P.C. on behalf of son, petitioner while asserting that she is living on the mercy of relatives, friends, but failed to name even a single person from whom she had taken debt or loan and this fact goes to prove that she has sufficient means to maintain herself.
18. Petitioner has filed her income tax returns till the year 2007-08. And declared her income to be ` 3.31Lacs in comparison to ` 2.40Lacs of the respondent. Annexure R-3 has been placed on record in this regard.
19. It is further stated that because she initiated litigation on her income and the income of a practicing gynaecologist is always in cash, therefore, stopped filing her tax returns. Failing in her endeavour to fulfil her greed under Prevention of Domestic Violence against Women Act, because the case was ruled to be non-maintainable in the background of settlement dated 02.04.2003, she took the shelter of Section 125 Cr. P.C. and filed the petition, therein.
20. It is stated, the petitioner has concealed the fact that just before filing the petition mentioned above, she got admitted her adopted daughter to a prestigious, high end public school and is spending more than ` 30,000/- per month upon her.
21. The respondent has stated in the reply to the instant petition that the wife should maintain standard of living, comparable to the husband as per the provision enshrined under Section 125 Cr. P.C. In the instant case, the petitioner is living in partially self owned house, whose monthly rental is ` 80,000/- whereas respondent is living in a rented house in an unauthorised colony whose rental is ` 8,000/- per month. Moreover, she is running a nursing home in the basement of property No.C-18, Shivalik, New Delhi whose monthly rent is ` 25,000/- per month.
22. I note that the petitioner proposed a settlement deed in the Court of Smt.R.S.Nag on 27.05.2002 which envisaged that the parties will seek divorce, petitioner will not claim any maintenance and respondent will forego his lien over the DDA flat as also a shop in property No.N-15, Malviya Nagar, and property No.C-18, Shivalik, shall be sold off and sale proceeds shall be divided equally between the parties.
23. Another settlement was executed on 02.04.2003 which was
ultimately registered. The only difference between vis-a-vis previous settlement was that respondent reduced his share in the property C-18, Shivalik from 50 per cent to 45 per cent. On 03.05.2003, the divorce obtained by mutual consent in terms of settlement dated 02.04.2003 and petitioner withdrew her case in the guardianship court and petition under Section 125 Cr. P.C. on behalf of his son. The joint petition for mutual consent divorce, statement on oath as well as final order expressly stipulating that the petitioner shall not claim any maintenance through rest of the life.
24. Thereafter, the petitioner filed another application under The Protection of Women from Domestic Violence Act, 2005 claiming maintenance and same was dismissed by learned Trial Court as well as Sessions Court as non-maintainable in the background of settlement dated 02.04.2003.
25. It is pertinent to mention here that on the basis of the settlement dated 02.03.2003, this Court quashed four criminal cases in Criminal M.C.No.3337/2007 petition filed under Section 482 Cr. P.C. by respondent. The petitioner preferred to challenge the said judgment in the Supreme Court, whereupon the petitioner’s appeal was dismissed.
26. It is also pertinent to mention that learned Trial Court recorded in its order dated 24.07.2009 that for grant of maintenance under Section 125 Cr. P.C. certain conditions are required to be fulfilled and it would be a matter of trial whether respondent has refused or neglected to maintain the petitioner whether the petitioner is capable to maintain herself and whether the respondent has sufficient means to maintain the petitioner.
27. Moreso, in the aforesaid order, learned Additional Sessions Judge has recorded his opinion that parties are required to prove that whether the settlement arrived at between them was only illusory and sufficient arrangements not made for the future maintenance of the wife or that whatever wife is unable to maintain herself or whether the husband has sufficient means or not. To this effect, parties are required to lead evidence. The petitioner during her cross-examination in petition under Section 125 Cr. P.C. on behalf of her son deposed that she was living on the mercy of the relatives, friends, however failed to name even a single person from whom she had taken debt or loan.
28. Moreso, annexure R-3 shows that her income tax returns till the year 2007-08 and her income was ` 3.31Lacs in comparison to ` 2.40Lacs of the respondent.
29. In view of above, I find no perversity in the impugned order passed by learned Additional Sessions Judge. I conquer with the same. 30. Keeping the above discussion into view, I find no merit in the case. Accordingly, Criminal M.C. No.2602/2010 is dismissed.
31. No order as to costs.
SURESH KAIT, J JANUARY 30, 2012
Mk
Categories: Maintainace in DV Act, PWDVA 2005
DV Act 2005
CHILD ACCESS & CUSTODY GUIDELINES-Approved by Hon’ble Bombay High Court
January 23, 2012
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CHILD ACCESS & VISITATION GUIDELINES
BY
CHILD RIGHTS FOUNDATION
A serious need is felt for approaching the Hon’ble Principal Judge Family court to set proper guidelines for the Family Courts regarding access, visitation and custody, as this will help in disposing off the cases quickly in a scientific manner ensuring that the right of the child to be showered with the love and affection of both the parents is not lost or delayed.
I. Under Section 10(3) of the Family Courts Act the Principal Judge has the
powers to frame rules.
II. When making a parenting order in relation to a child, the court must apply a
presumption that it is in the best interests of the child for the child’s parents to
have equal shared parental responsibility for the child While determining the
best interests of the child:
III. The primary considerations are:
a. Ensuring benefit to the child of having spend equal or substantial or
significant time to develop a meaningful relationship with both the child’s
parents and to ensure an implement of overnight access so that the child
gets love and affection of not only both the parents but also of grandparents,
uncles , aunties, cousins etc thereby ensuring that the family heritage is
maintained; and
b. Ensuring the need to protect the child from physical or psychological harm
from being subjected to, or exposed to, abuse, neglect or family violence.
INTRODUCTION :
The recent trend in the society is seeing a paradigm change in the matrimonial
relationship. The numbers of divorce cases are rising, particularly in the last decade, more and more middle and lower-middle class couples have been approaching family court for divorce, resulting in rise of bitter child custody battles. Often, the innocent children are used as tools of vengeance by vindictive litigants who inflict severe emotional and psychological abuse on the child thereby seriously affecting the child in his/her later part of life . Failure in marriages is sometimes due to lack of awareness or realization among the litigants where often one of the partner suffers from a personality disorder and/or adjustment disorder which can be easily diagnosed through psychological evaluation.
1 A serious need is felt for approaching the Hon’ble court as well as HC to set
proper guidelines for the Family Courts, as this will help in disposing off the cases quickly in a scientific manner rather than on speculation.
In family disputes, litigants often make false and vindictive allegations against
each other, wasting & consuming enormous court’s time which can be reduced
considerably.
Further it would also help to some extent in reconciliation of marital disputes.
Presently, even the Legal system, bureaucrats, politicians, statutory agencies for child welfare, NGO’s etc., have forgotten or missed to appreciate or understand child rights as well as the immense emotional trauma that innocent children undergo in the process of custody litigation and parent separation due to lack of love and affection from both the parents.
Depriving love & affection of both parents, more particularly due to alienation of the child by the custodial parent and or denial of proper access to the non-custodial parent by the courts without realizing the serious consequences caused in the later part of the child’s life such as drug abuse, deteriorating educational achievement, premature sexuality, mental/personality disorder, chronic depression, suicidal tendency, out of wed-lock birth, and often a major force behind serious crimes.
There is an urgent need to establish well defined framework and guidelines for
family courts and the counselors to implement while deciding the custody of the children.
Delay in action or callous approach, what kind of future society/generation are we going to create.
Needless, to say today’s youth are going to be leaders & thinkers of tomorrow.
The Nation’s future depends upon today’s children. Hence, immediate intervention of higher courts must. Presently these issues are being decided in an absolutely subjective fashion by the family court seriously affecting the mental health of the tender children as well as specific violations of UN Convention on rights of the Child.
One of the fundamental rights of the children is to get love and affection from both the parents (irrespective of parent’s conflict), right to quality of life and survival, and right to be cared, right to develop a sense of belonging, right to participate fully in family, cultural and social life.
2 We would like to bring specific focus to Article 39(e) & (f), the state shall direct its Policy in such a manner that the tender age of children is not abused and children are given opportunities and facilities to develop in a healthy manner and childhood is protected against exploitation and against moral and material abandonment.
While framing guidelines a clear distinction needs to be made between the Rights of the Child versus the Rights of a Parent (which invariably ends up being interpreted as Rights of only the mother).
India and the *UNCRC The UNCRC – United Nations Convention on the Rights of the Child (UNCRC) a clarion of worldwide movement and the pinnacle of international effort to promote the basic needs of children as fundamental human rights is a remarkable and wonderful gift to the children which is given a ‘go by’ by our current legal system. (India along with 193 countries has also agreed to undertake the obligations of the Convention by ratifying to it as on December 2008).
INTERIM CHILD VISITATION GUIDELINES
Immediately within one week from the date of service of summons or the first
meeting with the counselor for mediation and conciliation parties shall draw up an interim visitation plan.
The basic principles of the courts are to ensure that the child/children get(s) to
spend equal or substantial and significant time to be showered with love and
affection from both the parents irrespective of parent’s conflict.
Efforts should be made by parties and if necessary court should direct parties to mutually agree upon a visitation schedule to be drawn up along with the Marriage Counselor within a maximum period of 60 days. Pending, finalization of mutual final overnight visitation agreement, an interim access has to be worked out immediately.
If the parties cannot agree on visitation, their first alternative is to mediate the
conflict. Visitation is for the primary benefit of the child. Visitation should not be viewed as a privilege to be exercised at the whim of either parent, but as a
responsibility that should be fulfilled as a necessary cause. The custodial parent is expected to provide access of each child at unscheduled times if requested and if to do so would not unreasonably disrupt prior planned activities of the child or the custodial parent.
REINTRODUCTION OF ABSENT PARENT: The Guidelines assume that each
parent has been a continuous presence in the children’s lives. In the event that a parent has had limited or no contact with his or her children and wishes to be
reintroduced into the children’s lives, it is up to the parents to agree on the means by which this is to be accomplished. If the parents are unable to agree, the first alternative shall be to mediate the conflict. If mediation is unsuccessful, it shall be the responsibility of the Court to adopt a schedule to ease the reintroduction.
CHAPTER 1
INTERIM VISITATION
The following visitation guidelines should balance the needs of both parent and
child, regardless of whether that child has older siblings that enjoy extended
visitation with the Non-custodial parent.
A. VISITATION (CHILDREN AGED BETWEEN 0 TO 36 MONTHS)
The following visitation guidelines should balance the needs of both parent and
child, regardless of whether that child has older siblings that enjoy extended
visitation with the Non-custodial parent.
1. WEEKENDS: The Non-custodial parent shall be entitled to weekend visitation
every weekend. For children between 0 to 36 months visitation shall be between 11.00 A.M. to 2.00 P.M. or 4.30 P.M. to 7.30 P.M. on Saturday and Sunday during the weekend and Twice (two times) during Weekday between Monday to Friday for 1½ hours (90 Minutes).
2. WEEKDAY VISITATION: The Non-custodial parent shall be entitled to visitation two (2) evenings per week during weekday between Monday to Friday for 1½ hours (90 Minutes). These shall be the same two evenings every week and varied only if the weekday visitation schedule conflicts with the holiday or vacation schedule. If the parties cannot agree, weekday visitation shall be on Monday and Wednesday.
3. HOLIDAYS: The non-custodial parent shall be entitled to spend at least 3 Three hours on the holiday or festival day including 15th August, 26th January, 1st May (Maharashtra day;) , 2nd October (Gandhi Jayanti), 14th November (Children’s day) excluding the time of travel. Only where it is not possible to share during the festival day due to reasons of distance or otherwise. In odd-numbered years, the Non-custodial parent shall be entitled to spend with the minor child; in even numbered years, the schedule shall be reversed. Aparty’s entitlement to Holiday visitation overrides the other party’s right to regularly scheduled weeknight or weekend visitation. If either or both parties celebrate other holidays, such holidays should be written down, divided and alternated each year
Note : For children aged between 0 to 36 months it shall be open for the custodial parent to remain present during visitation.
i. Visitation shall be from 11:00 a.m. until 2:00 p.m. or 4.00 p.m. to 7.00 p.m.
on the official holiday.
B. VISITATION (CHILDREN 36 MONTHS AND OLDER)
4. WEEKENDS: The Non-custodial parent shall be entitled to weekend visitation
every other weekend or every weekend one night every week. Every other
weekend Visitation shall begin Friday at 6:00 p.m. and end at 6:00 p.m. on
Sunday. If every weekend visitation is opted then every week overnight visitation shall begin either from every Friday at 6.00 p.m. and end on Saturday 6.00 pm. or from every Saturday 6.00 p.m. and end on 6.00 p.m on Sunday. It is not the responsibility of the custodial parent to provide food or shelter for the child during the Non-custodial parent parent’s visitation.
5. WEEKDAY VISITATION: If the parties reside within thirty (30) Kilometers driving distance of each other, the Non-custodial parent shall have visitation two (2) evening per week for 2 two hours between 6.00 p.m. to 8.00 p.m., but shall exercise the weekday visitation in the locale of the child’s primary residence or within the radius of 10 ten kilometers. The preceding sentence shall not preclude occasional travel beyond the thirty (30) Kilometers for special weekday events. The weekday visitation shall be on the same evening each week and varied only if it conflicts with the holiday or vacation schedule. If the parties cannot agree on the weeknight and if there are no scheduled activities for Wednesday, it shall be Wednesday evening for 2 hours. If there are activities scheduled for Wednesday, the Non-custodial parent shall have first choice of an alternate weekday for weekday visitation
6. HOLIDAYS: The non-custodial parent shall be entitled to spend at least Three (3) hours on holidays and festival day excluding the time of travel. Only where it is not possible to share during the holidays and festival day due to reasons of distance or otherwise. Aparty’s entitlement to Holiday visitation overrides the other party’s right to regularly scheduled weeknight or weekend visitation. If either or both parties celebrate other holidays, such holidays should be written down, divided and alternated. In the absence of an agreement, the court shall allocate religious holidays between the parties.
i. Visitation shall be from 11:00 a.m. until 2:00 p.m. Or from 4.00pm to 7.00pm on the official holiday.
7. CHILDREN COMPLEX ROOM: Where access even though either agreed by
mutual consent or ordered by the court is not being granted to the noncustodial parent, Children’s complex room situated in the premises of the Family Courts or such other place as either mutually agreed or directed by the court such as premises made available and approved by the Hon’ble Family court shall be used for purposes of counseling the child or the parent for a specific period and thereafter access can continue as per schedule set forth.
CHAPTER – 2
FINAL CHILD VISITATION GUIDELINES PENDING CUSTODY ORDER OF THE HON’BLE COURT.
8. GENERALPROVISIONS
The parent with primary custody (parent who is having custody of child since
birth and is taking care of the day to day and hour to hour need of the child) shall be referred to herein as the custodial parent, and the other parent shall be
referred to as the Non-custodial parent.
9. ACCESS VISITATION SCHEDULE:
This visitation schedule has been approved by the Hon’ble Bombay High Court
as a model visitation schedule. Parties to any order entered before the effective
date of these guidelines may agree in writing to the provisions herein; otherwise, such parties shall continue to comply with the old order unless a modification of the order is entered by the court.
I. If the parties cannot agree on visitation, their first alternative is to mediate the conflict. Even if mediation does not work then the court can pass an
appropriate order in terms of the visitation schedule for parties to comply.
Special reasons may exist to alter this visitation schedule such as: age of the
child, health, special care needs, etc.
ii. Within a period of not more than 60 days parties shall draw up and finalize a
final schedule of visitation as per chapter 3 below.
iii.On the visitation schedule being drawn and agreed upon between the
custodial and the non-custodial parent the counselor shall have the same duly
executed by the parties and the same shall be placed on record for the
approval of the Hon’ble court. Parties shall comply with the agreement in full
and any violation shall give rise to cause of action to the aggrieved party to
seek appropriate directions from the court.
A. The no-contact or limitation-of-contact provisions of any domestic violence
case, injunction case, juvenile case, or criminal case supersede any
contact provisions set forth in these guidelines. That is, the no-contact or
limitation-of-contact provisions of any domestic violence case, injunction
case, juvenile case, or criminal case should be followed as set forth by the judge in that case. It may be necessary to seek a modification of the no contact or limitation-of-contact provisions in order to facilitate visitation.
B. The term “local” shall apply to parties residing within 200 driving kms
of each other.
C. The term “nonlocal” shall apply to parties not residing within 200 driving
Kilometers of each other.
10. ENFORCEMENT OF VISITATION SCHEDULE: If the parties cannot agree on
visitation, their first alternative is to mediate the conflict. Even if mediation does not work then the court can pass an appropriate order in terms of the visitation schedule for parties to comply.
11. MEDICATION, ILLNESS OR ACCIDENT: If medication or therapy has been
prescribed for the child, then both parents shall without fail provide the child all medical prescription dosages, treatment and/or therapy as may be prescribed for the child. The parents shall share the health care professional’s name and phone number as well as instructions for treatment. If the child becomes ill or is involved in an accident, and treatment by a medical professional is obtained, the parent who has the child at the time of the illness or accident shall notify the other parent as soon as practicable but no later than three (3) hours after the incident or diagnosis. ILLNESS OF THE CHILD SHALL NOT PREVENT VISITATION WITH THE CHILD, UNLESS THE CHILD IS HOSPITALIZED. NON CUSTODIAL PARENT CAN VISIT THE CHILD IN HOSPITAL.
12. COMMUNICATIONS. Provided that both parents have telephones in their
homes, the child shall be entitled telephone communication at least once every
day with both parents. Each parent shall immediately deliver to the child all
letters, cards, e-mails, correspondence, telephone messages, gifts, toys,
clothes and other items sent to that child by the other parent. Neither parent shall withhold, return, destroy, give away, sell or otherwise dispose of any such items. If either parent plans a vacation or trip out of town with the child for three (3) days or more, that parent must provide the other parent with a general itinerary, a phone number where the child can be reached, and the dates of departure and return. Each Parent shall provide the other Parent promptly upon being requested to do so, with information concerning the well-being of said children including, but not limited to; monthly school attendance reports, reports concerning completion of homework, copies of report cards, school meeting notices, vacation schedules, class programs, requests for conferences, results of diagnostic tests, notices of activities involving said children, samples of school work, order forms for school pictures, communications from health care providers; the names, addresses and telephone numbers of all schools, preschools, regular day care providers, all health care providers, counselors, or other activity supervisor, and friends, schoolmates and relatives.
13. SCHEDULED EVENTS: Both parents shall be entitled and are encouraged to
attend and participate in the child’s special events, such as school programs,
graduation, sports, recitals, and other extracurricular activities. When the child has extracurricular activities, the parent caring for the child when the activity is scheduled should assure the child’s attendance. Each parent shall advise the other parent of extracurricular activities in which the child participates within twenty-four (24) hours of notification of an event or activity. Each parent shall make an effort not to schedule activities for the child that interferes with the other parent’s visitation time with the child.
14. ADDITIONAL VISITATION :
a.The Non-custodial parent shall be entitled to exercise other reasonable visitation in the locale of the child’s primary residence or at other places like
club, place of worship, shop, ground, mall, upon reasonable notice subject to a
minimum of 12 hours notice to the custodial parent whenever. There may be
need where the non-custodial parent may wish and desire that the child
should be present on certain occasions such as poojas, religious functions,
birthdays, anniversary celebration, inaugurations, marriage, or emergencies
such as untimely death or hospitalization of a close relative such as
grandparent/relations etc. In such circumstances the custodial parent shall
allow access of the child immediately.
15. ADEQUATE AND CLEAN CLOTHING FOR VISITATION: Adequate and clean
clothing shall be supplied by the custodial parent and all these clothes shall be
returned in the same clean condition by the Non-custodial parent to the custodial parent after each visitation period.
16. INTENT TO RELOCATE: Neither party to the suit can relocate unless final
visitation rights agreement as set out is signed and finalized.
17. NOTICE OF INTENT TO RELOCATE: In the event that either parent intends to relocate outside of local area of residence of the non-custodial parent, he/she shall provide the other parent with ninety (90) days written notice prior to any relocation. This is a notice provision only and does not eliminate the need for court approval of such relocation if legally necessary. In the event such relocation does take place and the custodial parent is permitted to relocate and further if the non-custodial parent in order to be able to be near the child and for the sake of the child also chooses to relocate then under such circumstances the non-custodial parent on relocation shall enjoy the same access schedules as already decided and agreed without any alterations. In the event the noncustodial parent’s status changes from ‘Non-local’to ‘Local’the access schedule shall also likewise change and the non-custodial parent shall be entitled to all provisions of local access.
18.CHANGES IN ADDRESS AND PHONE NUMBERS: Neither parent shall
conceal the whereabouts of the child from the other parent. Each parent shall
advise the other parent at all times of the residence address and telephone
number where the child will be as well as the parent’s work telephone number. If a residence or telephone number changes, the parent making the change shall notify the other parent personally or by telephone within twenty-four (24) hours and in writing within seventy-two (72) hours of the change.
19. CHILD SUPPORT / MAINTENANCE: Non-payment or late payment of child
support is NOT an acceptable reason to deny or interfere with visitation.
Conversely, denial of visitation is NOT justification for nonpayment or late
payment of child support. Child support and child visitation are separate and
independent issues and are not to be manipulated by either parent to gain
leverage over the other parent with regard to visitation or child support. Child
support shall NOTstop during visitation periods, unless provided by court order.
20. FLEXIBILITY AND THE BEST INTERESTS OF THE CHILD: The parents may
agree to change this schedule to meet the needs of their child. The parents are
encouraged to put such changes in writing. If the parents do not agree to
visitation schedule changes, they must adhere to these guidelines, or a parent in violation may be held in contempt of court.
21. SHIFTOF CUSTODY: FOR REASONS OF CHILD ALIENATION / TUTORING /
MIND POISONING / BRAINWASHING / PARENTAL ALIENATION
SYNDROME : In the event it is observed or alleged by concrete substantive
evidence or material placed on record enumerating instances as listed below the court shall proceed to seriously entertain and decide that the custody of the child be shifted from the custodial parent to the non-custodial parents on their being conclusive evidence to substantiate either any one or more of the following :
A custodial parent who unjustifiably punishes her divorcing or divorced Non-
Custodial parent by:
I. Attempting to alienate their mutual child(ren) from the Non-Custodial parent.
ii. Any act, deed done or caused to be done by the custodial parent which may
lead to the infringement of the right of the non-custodial parent’s visitation.
iii. Involving others in malicious actions against the Non-Custodial parent.
iv. Engaging in excessive litigation.
v. The custodial parent specifically attempts to deny her child(ren)regular
uninterrupted visitation with the Non-Custodial parent.
vi. Uninhibited telephone access to the Non-Custodial parent.
vii. Obstructs or causes any obstruction in the Non Custodial parents
participation in the child(ren)’s school life and extracurricular activities.
viii. The pattern is pervasive and includes malicious acts towards the Non-
Custodial parent including:
ix. Lying to the children
x. Lying to others
xi. Violations of law Or Making False Complaints
xii. The disorder is not specifically due to another mental disorder although a
separate mental disorder may coexist.
22.NEW SPOUSE OR COMPANION: The parents shall not encourage the child to
call a new spouse or companion “Papa” “Mummy” “Father”, “Dad”, “Mother”,
“Mom”, or similar names, as such is detrimental to the child’s relationship with
his/her natural parents and may confuse and adversely affect the child. A
substitute name may be suggested or encouraged. Each parent shall encourage
a new spouse or companion not to confront or to interfere with the other parent’s contacts or visitation with the child and each parent is expected to prevent any such confrontation or interference. The other parent shall not be adversarial or hostile to a new spouse or companion but shall be courteous, polite, respectful, and non-threatening. Unless otherwise ordered or agreed by the parties, the parents are expected to speak directly with each other concerning all matters related to a divorce or separation judgment or order.
23.NAME OF THE CHILD & SURNAME: The custodial parent shall not be entitled to change the name or the surname of the child which has been given to the child as per either a ceremony performed for the same or the name along with the father’s surname as it appears in the birth certificate.
24.CHANGE OF SCHOOLOR DAYCARE CENTRE: The custodial parent shall not
be entitled to admit, change the school or the daycare centre of the child without written consent and/or agreement between the parties. If the issues is not being resolved then such admission, change of school/daycare centre of the child shall be as per the order of the court.
25.REMOVAL OF CHILD FROM DAYCARE OR SCHOOL: In the absence of prior
agreement between the parties and proper notification of the daycare or school - except in the event of an emergency – the Non-custodial parent shall not remove the child from daycare or school for visitation or otherwise. This paragraph shall not be applied to preclude the Noncustodial parent’s participation as a parent in school activities and access to the child at school, to the same extent as afforded the custodial parent, nor to prevent the Non-custodial parent from picking the child up after school or daycare if such pickup is pursuant to the parties’ visitation arrangement.
26. CANCELLATION BYNON-CUSTODIAL PARENT
A.Local (parties residing within 200 driving Kilometers of each other)
i. Twelve (12) hours’ notice shall be given by the parent entitled to visitation
with the child if visitation will not be exercised for the weekday or weekend.
ii. A minimum of Three (3) days notice shall be given by the parent entitled to
visitation for a holiday if visitation will not be exercised.
iii. A minimum of Fifteen (15) days’ notice shall be given in writing by the
parent entitled to visitation for a period of one week or greater if visitation
will not be exercised.
iv. The parent seeking cancellation shall arrange and pay for babysitting, child
care or other appropriate visitation of the child for the visitation period; to
the extent such expense is due to the cancellation. ANY VISITATION
CANCELLED BY THE NON-CUSTODIAL PARENT SHALL BE FORFEITED, UNLESS THE PARTIES AGREE TO SUBSTITUTE VISITATION. THE REQUIRED CANCELLATION NOTICE IS GIVEN; THE CUSTODIAL PARENT SHALL NOT UNREASONABLY WITHHOLD SUBSTITUTE VISITATION.
27. NOTICE – NONLOCAL (PARTIES NOT RESIDING WITHIN 200 DRIVING
KILOMETERS OF EACH OTHER):
i. A minimum of three days (3 days) notice shall be given by the parent
entitled to visitation for a holiday or special occasion if visitation will not be
exercised. A minimum of Fifteen (15) days’ notice shall be given in writing
by the parent entitled to visitation for Diwali, Christmas, Summer vacations
or an annual visitation period of one (1) week or greater if visitation will not
be exercised. If the cancellation is NOT agreed to by both parents, the
parent seeking cancellation must arrange and pay for child care or other
appropriate supervision of the child for the visitation period, to the extent
such expense is due to the cancellation. ANY VISITATION CANCELLED
BY THE NONCUSTODIAL PARENT SHALL BE FORFEITED, UNLESS
THE PARTIES AGREE TO SUBSTITUTE VISITATION. IF THE
REQUIRED CANCELLATION NOTICE IS GIVEN, THE CUSTODIAL
PARENT SHALL NOT UNREASONABLY WITHHOLD SUBSTITUTE
VISITATION.
ii. ADDITIONAL VISITATION: The Non-custodial parent shall be entitled to
exercise other reasonable visitation in the local of the child’s primary
residence upon reasonable notice to the custodial parent.
28. TRANSPORTATION
A.Local (parties residing within 200 driving Kilometers of each other): The Noncustodial
parent shall pick up the child for visitation and the custodial parent
shall pick up the child after visitation. A third party, agreed to by both parents,
may substitute for one of the parents in transporting the child to and from
visitation. The parties should reasonably consider a parent’s current spouse
or a family member of the child as a substitute. Aparty who moves and thereby
causes an increase of more than thirty (30) Kilometers in driving distance
between the two parents, shall bear responsibility for transportation in absence of Court intervention. The place of pick up and drop of the child shall be agreed to in writing by both the parents. However the place of pick up and drop shall either be the residence of the custodial parent or the family court children’s complex or as ordered by the Hon’ble court.
B.Nonlocal (parties not residing within 200 driving Kilometers of each other):
The court shall decide the issue of transportation on a case by case basis
absent an agreement by the parties.
29.WAITING: Achild shall be picked up or delivered within thirty (30) minutes of the scheduled time of exchange. If the Non-custodial parent is more than thirty (30) minutes late to pick up the child for visitation and creates a hardship as a result, visitation shall be forfeited for that visitation period. If legitimate reasons exist for delay in picking up the child for any weekend or longer visitation, and beginning the visitation the next day does not create a hardship on the custodial parent, the Non-custodial parent may pick up the child at a mutually agreed upon time later in the visitation period. The Non-custodial parent shall give the custodial parent as much notice as reasonably possible of any delay in picking up the child.
30. AMENDMENTS: Parties can vary; alter the interim access schedule as per
convenience within a period of one week from the date of presentation of the
petition before the Hon’ble court or within one week from the date of their
meeting with the counselor for mediation whichever is earlier. In the event
parties fail to arrive at a decision and conclude on the interim visitation schedule then the counselor shall draw up an interim visitation schedule and place the same before the Hon’ble court to be made final by an order of the court.
31.OVER NIGHT ACCESS: Court’s are under obligations to consider the child
spending equal time, or substantial and significant time, with each parent. In
making a parenting order the court ‘must consider’ making orders that the child spend equal time, or if not equal then substantial and significant time, with each parent. ‘Substantial and significant time’ is defined to mean, essentially, weekdays and overnight weekends and holidays, times that allow the parent to be involved in the child’s daily routine as well as occasions and events that are of particular significance to the child or the parent child to maintain or consolidate a secure attachment with a parent whose behavior is oriented only to ‘visiting’rather than ‘care-giving’.
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• Children have the right to know and be cared for by both their parents, regard -
less of whether their parents are married, separated, divorced, have never
married or have never lived together; and
• Children have a right to spend time on a regular basis with, and communicate
on a regular basis with, both their parents and other people significant to their
care, welfare and development (such as grandparents and other immediate
family members & relatives);and
• Children have a right to enjoy their culture (including the right to enjoy that
culture with other people who share that culture).
Over Night Access at home of the non-custodial parent should be encouraged at
an early stage so that the children have a close and continuing relationship and get
the love, affection of not only parents but also of grandparents and other immediate
family members like uncle, aunties, cousins etc. The healthy emotional
development of children depends upon their early experience of a continuous,
emotionally available care-giving relationship, through which they are able to form
an organized attachment, and to develop their human capacities for thought and
relationships essentially,
Children have their right to childhood of hopeful existence free of exploitations,
neglect. Children need consistent support system as well as love, hope and
encouragement, all these things and more are required in order to experience
childhood to the fullest and to eventually develop into a healthy, capable adult for the
full and hormonal development of his or her personality children should grow up in a
family environment in an atmosphere of happiness, love and understanding which is
very important for their overall growth and well being. The children should be fully
prepared to live life in society, in the spirit, dignity tolerance, freedom, equality and
solidarity. However young children are subjected to exploitation especially in a
broken marriage where the court has to intervene to protect the rights of the child.
Children have to be ensured that the their right to parental access, right to quality of
life, right to be cared for, and right to freedom of expression is not compromised and
children get love and affection from both parents and grandparents and immediate
family members. They should have a sense of belonging to a healthy family
environment maintaining their heritage so that the genealogy of the child is not lost
after attaining adulthood and they are able to be linked with their ancestors.
Overnight access should therefore be encouraged at an early stage.
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CHAPTER – 3
LOCAL GUIDELINES
(PARTIES RESIDING WITHIN 200 DRIVING KILOMETERS OF EACH OTHER)
C. FINALVISITATION (CHILDREN BETWEEN AGE 0–TO-36 MONTHS)
The following visitation guidelines should balance the needs of both parent and
child, regardless of whether that child has older siblings that enjoy extended
visitation with the Non-custodial parent.
32. WEEKENDS: The Non-custodial parent shall be entitled to overnight weekend
visitation every weekend. For children between 0 to 36 months visitation shall be
between 11.00 A.M. to 2.00 P.M. or 4.30 P.M. to 7.30 P.M. on Saturday and
Sunday and Twice (two times) during weekday between Monday to Friday for
1½ hours (90 Minutes). One of the most important considerations is for
attachment with both parents. It is important for visitation to provide
opportunities to establish a bond between the child and the parent. Generally,
frequency of visitation is given more consideration than duration of visitation.
Making up for less frequent visits by increasing the length of time of visits is not
recommended for infants recommended daily visits, but if this is impractical,
then visits should be spaced no more than two days apart. There is research,
however, to show that overnight visits with the parent can occur, provided that
the parent has been a significant caretaker and a primary attachment figure.
33. WEEKDAY VISITATION: The Non-custodial parent shall be entitled to visitation
two (2) evenings per week during weekday between Monday to Friday for 1½
hours (90 Minutes). These shall be the same two evenings every week and
varied only if the weekday visitation schedule conflicts with the holiday or
vacation schedule. If the parties cannot agree, weekday visitation shall be on
Monday and Wednesday.
34. HOLIDAYS: The non-custodial parent shall be entitled to spend at least 3 Three
hours on the holiday or festival day including 15th August, 26the January, 1st
May (Maharashtra day;) , 2nd October (Gandhi Jayanti), 14th November
(Children’s day) excluding the time of travel. Only where it is not possible to
share during the festival day due to reasons of distance or otherwise. In oddnumbered
years, the Non-custodial parent shall be entitled to spend with the
minor child; in even numbered years, the schedule shall be reversed. A party’s
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entitlement to Holiday visitation overrides the other party’s right to regularly
scheduled weeknight or weekend visitation. If either or both parties celebrate
other holidays, such holidays should be written down, divided and alternated
each year.
Note : For children aged between 0 to 36 months it shall be open for the custodial
parent to remain present during visitation.
i. Visitation shall be from 11:00 a.m. until 2:00 p.m. or from 4:00pm to 7:00pm on
the official holiday.
ii. Mother’s day Shall be spent with the mother every year with priority over any
other visitation schedule; visitation hours shall be from 11:00 a.m. until 2:00
pm or 4:00 pm to 7:00 pm.
iii.Father’s day shall be spent with the father every year with priority over any
other visitation schedule; visitation hours shall be from 11:00 am. until 2:00
p.m. or 4:00 pm to 7:00 pm
iv.Diwali / Eid / Moharram / Makarsakaranti / Janmashtmi/Mahavir Jayanti /
Mahashivratri / Ramnavi / Parsi New Year / Dussera / Laxmipoojan / Bhau
Bheej / Gurunanak Jayanti / Raksha Bandhan / Navratri / Ganesh Chaturthi /
Anant Chaturthi / Holi visitation to the non-custodial parent shall be for a period
of 3 three hours excluding travelling time and timings shall be decided
between the parties mutually.
35. FESTIVALS WEEKEND OVERNIGHTACCESS : Festivals which last for more
than seven days especially Navratri, Ganpati and Ramzan and for which long
holidays are not available to the child the non-custodial parent shall be entitled to
one weekend overnight stay during this stretch of festival. Aparty’s entitlement to
this festival weekend overnight stay overrides the other party’s right to regularly
scheduled weeknight or weekend visitation .
36. MOTHER’S BIRTHDAY: shall be spent with the mother every year. If the mother
is the Non-custodial parent and the mother’s birthday is on Sunday, Monday,
Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the mother’s birthday is on Saturday or Sunday, visitation shall be
from 11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.
37. FATHER’S BIRTHDAY: shall be spent with the father every year. If the father is
the Non-custodial parent and the father’s birthday is on Sunday, Monday,
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Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the father’s birthday is on Saturday or Sunday, visitation shall be from
11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.
38. CHILD’S BIRTHDAY: The child shall celebrate his or her birthday with the Noncustodial
parent in odd-numbered years and the custodial parent in evennumbered
years. In years that the child spends his or her birthday with the Noncustodial
parent, if the child’s birthday falls on Sunday, Monday, Tuesday,
Wednesday, or Thursday, visitation shall be from 5:00 p.m. until 8:00 p.m.; if the
child’s birthday falls on Saturday or Sunday, visitation shall be from 11:00 a.m. to
4.00 p.m.. The parent holding a birthday party for the child may wish to consider
inviting the other parent.
39. ANNUAL VISITATION FOR CHILDREN (UNDER AGED 0-TO-36 MONTHS):
Unless otherwise agreed to by the parties, regular weekend and weekday
visitation shall be maintained year round in lieu of a designated annual visitation
period.
D. FINALVISITATION (CHILDREN 36 MONTHS AND OLDER)
40. WEEKENDS: The Non-custodial parent shall be entitled to weekend visitation
every other weekend. Visitation shall begin Friday at 6:00 p.m. and end at 6:00
p.m. on Sunday. If parties wish to avail continuous every week access then every
weekend access shall begin from Friday at 6.00 p.m. and end on Saturday 6.00
p.m. or Saturday 6.00 p.m. to Sunday 6.00 p.m. It is not the responsibility of the
custodial parent to provide food or shelter for the child during the Non-custodial
parent’s visitation.
41. WEEKDAY VISITATION: If the parties reside within thirty (30) Kilometers driving
distance of each other, the Non-custodial parent shall have visitation two (2)
evening per week for 2 two hours between 6.00 p.m. to 8.00 p.m., but shall
exercise the weekday visitation in the locale of the child’s primary residence or
within the radius of 10 ten kilometers. The preceding sentence shall not preclude
occasional travel beyond the thirty (30) Kilometers for special weekday events.
The weekday visitation shall be on the same evening each week and varied only
if it conflicts with the holiday or vacation schedule. If the parties cannot agree on
the weeknight and if there are no scheduled activities for Wednesday, it shall be
Wednesday evening. If there are activities scheduled for Wednesday, the Noncustodial
parent shall have first choice of an alternate weekday for weekday
visitation.
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42. HOLIDAYS: The non-custodial parent shall be entitled to spend at least 4 Four
hours on the holiday or festival day including 15th August, 26the January, 1st
May (Maharashtra day ) , 2nd October (Gandhi Jayanti), 14th November
(Children’s day) excluding the time of travel. Only where it is not possible to
share during the festival day due to reasons of distance or otherwise. In oddnumbered
years, the Non-custodial parent shall be entitled to spend with the
minor child; in even numbered years, the schedule shall be reversed. A party’s
entitlement to Holiday visitation overrides the other party’s right to regularly
scheduled weeknight or weekend visitation. If the parties celebrate religious
holidays other than those defined in sections A and B below, those religious
holidays shall be mutually agreed upon in writing, divided, and alternated each
year. In the absence of an agreement, the court shall allocate those religious
holidays between the parties..
i. Visitation shall be from 11:00 a.m. until 3:00 p.m. or 4.00 p.m. to 8.00 p.m. on
the official holiday.
ii. Mother’s day Shall be spent with the mother every year with priority over any
other visitation schedule; visitation hours shall be from 11:00 a.m. until 3:00
p.m. or 4.00 p.m. to 8.00 p.m. Father’s day shall be spent with the father every
year with priority over any other visitation schedule; visitation hours shall be
from 11:00 a.m. until 3:00 p.m. or 4.00 p.m. to 8.00 p.m.
iii.Diwali / EId / Moharram / Makarsakaranti / Janmashtmi / Mahavir Jayanti /
Mahashivratri / Ramnavi / Parsi New Year / Dussera / Laxmi poojan / Bhau
Bheej / Gurunanak Jayanti / Raksha Bandhan / Navratri / Ganesh Chaturthi /
Anant Chaturthi / Holi visitation to the non-custodial parent shall be for a
period of 4 Four hours excluding travelling time and timings shall be decided
between the parties mutually.
NOTE : Non-custodial parent shall be entitled to take the child at his residence
during this period of access.
43. FESTIVALS WEEKEND OVERNIGHTACCESS : Festivals which last for more
than seven days especially Navratri, Ganpati and Ramzan and for which long
holidays are not available to the child the non-custodial parent shall be entitled to
one weekend overnight stay during this stretch of festival. Aparty’s entitlement to
this festival weekend overnight stay overrides the other party’s right to regularly
scheduled weeknight or weekend visitation.
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44. FIFTY% VACATION: The non custodial parent shall be entitled to 50% of each
vacation during the year the child has vacations for Diwali, Christmas and
Summer.
45. MOTHER’S BIRTHDAY: shall be spent with the mother every year. If the mother
is the Non-custodial parent and the mother’s birthday is on Sunday, Monday,
Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the mother’s birthday is on Saturday or Sunday, visitation shall be
from 11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.
46. FATHER’S BIRTHDAY: shall be spent with the father every year. If the father is
the Non-custodial parent and the father’s birthday is on Sunday, Monday,
Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the father’s birthday is on Saturday or Sunday, visitation shall be from
11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.
47. CHILD’S BIRTHDAY: The child shall celebrate his or her birthday with the Noncustodial
parent in odd-numbered years and the custodial parent in evennumbered
years. In years that the child spends his or her birthday with the Noncustodial
parent, if the child’s birthday falls on Sunday, Monday, Tuesday,
Wednesday, or Thursday, visitation shall be from 5:00 p.m. until 8:00 p.m.; if the
child’s birthday falls on Saturday or Sunday, visitation shall be from 11:00 a.m. to
4.00 p.m.. The parent holding a birthday party for the child may wish to consider
inviting the other parent.
E.CHILDREN IN DIFFERENTAGE GROUPINGS:
i. If there are two (2) or more children whose ages span different age
groupings entitling the children to different visitation periods with the Noncustodial
parent, then the younger children shall get the benefit of the
oldest child’s visitation schedule.
ii. THIS PROVISION DOES NOTAPPLYTO CHILDREN AGED BETWEEN 0
TO 36 MONTHS. PARENTS OF A CHILD AGED BETWEEN 0 TO 36
MONTHS MUST FOLLOW THE VISITATION SCHEDULE FOR THAT
CHILD REGARDLESS OF WHETHER OR NOTTHE CHILD HAS OLDER
SIBLINGS ON ADIFFERENTSCHEDULE.
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48. SCHEDULING ANNUALVACATION :
i. The Non-custodial parent shall have first choice of annual vacation visitation
and shall designate such choice in writing no later than March 1 of each year.
Subject to the Non-custodial parent parent’s designated choice on or before
March 1, the custodial parent shall designate in writing his or her choice for
annual vacation by March 15th of each year.
ii. The custodial parent’s annual vacation shall be scheduled around the Noncustodial
parent’s annual vacation and may override no more than one (1)
weekend and three (3) weeknight regularly scheduled visitation periods of
the Non-custodial parent.
iii. A parent’s first choice of annual vacation shall not interfere with the other
parent’s entitlement to the child’s birthday or the Diwali Holiday.
iv. Unless specifically prohibited by Court order, either parent may temporarily
remove the child from the jurisdiction of the court for purposes of annual
visitation only if the parent travelling with the child provides the other parent
with a written general itinerary and phone numbers where the child can be
contacted during the vacation.
v. Annual vacation shall not conflict with the school calendar.
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CHAPTER – 4
NON-LOCAL GUIDELINES
(PARTIES NOT RESIDING WITHIN 200 DRIVING KILOMETERS OF EACH
OTHER)
49. VISITATION (CHILDREN AGED BETWEEN 0 TO 36 MONTHS) Visitation for
children under 36 months old shall be established by the court on a case-bycase
basis.
50. ADDITIONAL VISITATION: The Non-custodial parent shall be entitled to
exercise other reasonable visitation in the local of the child’s primary residence
upon reasonable notice to the custodial parent.
51. VISITATION (CHILDREN AGED 36 MONTHS & OLDER)
52. WEEKENDS: The Non-custodial parent shall be entitled to at least one weekend
visitation every week. Visitation shall begin either on Saturday and / or Sunday at
11:00 a.m. and end at 6:00 p.m. It shall be open for the parties to work out more
than one visitation per week as per mutual agreement.
53. HOLIDAYS: If the parties celebrate religious holidays other than those defined in
sections 41 above, those religious holidays shall be mutually agreed upon in
writing, divided, and alternated each year. In the absence of an agreement, the
court shall allocate those religious holidays between the parties.
54. FIFTY% VACATION: The non custodial parent shall be entitled to 50% of each
vacation during the year the child has such as Diwali, Christmas and Summer
vacation.
Note : In case non-custodial parent is unable to avail vacation access during a
particular year he/she shall be entitled to be compensated by full vacation
sharing during the subsequent year.
55. ANNUALSUMMER VACATION: Visitation shall be as follows:
A. CHILDREN IN DIFFERENTAGE GROUPINGS: If there are two (2) or more
children whose ages span different age groupings entitling the children to
different visitation periods with the Non-custodial parent, the younger children
get the benefit of the oldest child’s visitation schedule. THIS PROVISION
DOES NOT APPLY TO CHILDREN UNDER AGED BETWEEN 0 TO 36
Categories: Child Custody
Child Custody
Government plans to make rape law gender neutral-TOI
January 20, 2012
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The proposal to widen the definition of rape to make it gender neutral is welcome. It serves to bridge a long-felt gap in the statute books which made it difficult to deal with sexual abuse, in particular, of young boys. We also hope that the government and lawmakers will realize that this is not the only law that’s out-dated. It’s time for a comprehensive review of all laws to weed out those which are obsolete, update those which need to be brought in sync with the times and introduce fresh ones that changing technology and societal norms make necessary.
NEW DELHI: The government has proposed that the offence of rape be made “gender neutral” by amending the law so that sexual assault on men can also be proceeded against under the same statute. It also plans to make specific laws on stalking and acid attacks on women.
The change in the rape law is being drafted by the ministry of women and child development(WCD) as part of the criminal law (amendment) bill, 2011. The bill will replace the word `rape’ with sexual assault, and also propose suitable amendments to make the law gender neutral.
The bill can prove to be path-breaking as sodomy is punishable under Section 377 of the penal code. The section was struck down by the Delhi High Court in 2009 while dealing with a petition filed by an NGO fighting for gay rights, but the court also held that non-consensual sexual acts remain an offence.
The amendments come in the light of increasing number of sexual crimes reported against women as well as men. The National Crime Records Bureau recorded an increase of 4.8% of crime against women, with 2.13 lakh cases reported in 2010.
The ministry has recommended that a new Section 326A (hurt by acid attack) and Section 326B (attempt to throw or administer acid) that deals with offenders who burn or disables a person or causes grievous hurt be made punishable with imprisonment of 10 years, extendable to life term and a fine up to Rs 10 lakh. Similarly, attempt to throw acid can attract imprisonment of five-seven years.
These amendments are likely to be widely welcomed given the incidence of women being targeted by acid attacks by persons whose advances have been rejected. Courts have often expressed anguish over the brutal and vengeful nature of the crime and called for exemplary punishment for offenders.
Fines collected shall be given to victims of acid attacks. The provision is expected to compensate the victim for mental and physical trauma as well as medical expenses. It is felt that such measures can augment state assistance.
Amendments have been proposed to IPC sections to replace the word `rape’ with `sexual assault’. The bill also proposes to introduce a new Section 509B in the penal code to make stalking punishable with maximum imprisonment of seven years. Stalking will include following a woman repeatedly, contacting her through phone, mail or any other form of communication or loitering or watching the place where she works or lives.
“The government has proposed that the offence of rape be made “gender neutral” by amending the law so that sexual assault on men can also be proceeded against under the same statute.”
The ministry is planning significant changes in Section 375 dealing with sexual intercourse between husband and wife. The current provision says the age of the wife should not be below 15 years. It has been recommended that this be increased to 16 years. The legal age of marriage is 18, but courts have dealt with “age of consent” in cases where a man is accused of statutory rape. The conflict arises when the girl has consented, although below marriageable age, but her relatives have filed charges of rape.
The bill also provides for higher penalties for molestation, increasing punishment from one to three years in jail and a fine of at least Rs 1,000 for “outraging the modesty of a woman”. The ministry has recommended retaining Section 377 of the IPC since the HC judgment for decriminalizing same gender sexual intercourse has been challenged in the Supreme Court.
Other provisions include stressing that evidence not take into account character and previous sexual experience of a person with the issue of consent or quality of consent. If recommendations are accepted it will mean a victim cannot be allowed to be cross-examined in case of sexual offence nor will s/he be confronted with the accused.
The changes are part of a proposal moved by the ministry of home affairs to amend the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act on provisions pertaining to sexual assault. A high-power committee that included representatives’ from home, women and child development and law ministries and National Commission for Women (NCW) examined the amendments.
The draft Cabinet note was circulated to ministries for their comments in December, and put before the Union Cabinet for its approval.
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