Bombay HC: Kids cannot be deprived of either parent.

The judges said they were familiar with tactics used by couples to deprive either of access to child. “We know all the tricks that are used. You first comply with the order and give him access and then move this court,” Justice Kathawalla added.

Mumbai: Children cannot be deprived of the company of either parent, said Bombay High Court on Monday while hearing wife’s plea to stay a Family Court’s order allowing her husband to take their son for summer holidays.
A vacation division bench of Justice S J Kathawalla and Justice P D Kode were hearing an appeal filed by Priya Kulkarni challenging the family court’s May 9, 2012 order allowing her husband Suhas to take their son Rahul (6) for holidays between May 21- June 4, 2012. The judge also said noted that during interview Rahul expressed eagerness to spend time with his father. “The experience of the warring couples may be bad but it does not mean that the child should remain without the love and affection of the father,” the judge said.
The couple married in May 2005. Their son was born a year later. Priya left the house in 2009 and filed cases under Sections 498 A (dowry) and 326 (causing grievous hurt) of Indian Penal Code with the police alleging that he beat her badly. She then moved the Pune FC for maintenance. In April 2009, Suhas was directed to pay Rs 11,000 jointly to her and Rahul.
Pointing out that Suhas has not complied with the maintenance order, Priya’s advocate F A Pareira argued that Suhas is a criminal and had beaten her badly causing contusion on the frontal lobe of the head. He has criminal record and unless cleared of these cases he should not be allowed access to the child,” said Pareira. He also said the court has orally stayed its order till May 30, 2012.
“How do you call him a hardcore criminal on the basis of these cases?” asked Justice Kathawalla. The judges also noted that no notice was served to Suhas to enable him to appear before HC. “You’ll have to give access to the father. Children cannot be deprived of the company of either parent. As a father why should he not have access to the child?” asked Justice Kathawalla.
The judges said they were familiar with tactics used by couples to deprive either of access to child. “We know all the tricks that are used. You first comply with the order and give him access and then move this court,” Justice Kathawalla added.
The judges said they find nothing wrong with the FC’s order. They also warned that if there is no stay from the FC as claimed by Pareira, “we shall give access to the father for an entire one month.” They directed Priya to hand Rahul to Suhas at the FC on Tuesday. They posted the matter for hearing on Wednesday.
( N a m e s h ave b e e n
c h a n g e d t o p r o t e c t i d e n t i t y )

SC Judgement: Don’t deny visitation to husband default order

SUPREME COURT OF INDIA

 

Citation: 2008 AIR 471  2007(11  )SCR854   2007(12  )SCALE758

 

 

 

 

Judgement

 

CASE NO.:
Appeal (civil)  5088-5097 of 2007

PETITIONER:
Mohan Kumar Rayana

RESPONDENT:
Komal Mohan Rayana

DATE OF JUDGMENT: 01/11/2007

BENCH:
C.K.THAKKER & ALTAMAS KABIR

JUDGMENT:
J U D G M E N T 

CIVIL APPEAL NOS.5088-5097 OF 2007
(Arising out of S.L.P.( C) Nos.15167-15176 of 2007)


   Altamas Kabir, J.


1.	  Leave granted.


2	 Since both the parties to the special leave petitions 
are before us, Notice of the Appeals is waived on behalf 
of the respondent, Komal Mohan Rayana.
3	  The appeals arise out of circumstances wherein owing 
to disputes and differences between a married couple, the 
child born of the wedlock has become the object of a 
tussle for custody between the two parents.
4. The subject matter of these appeals are four orders 
passed by the Bombay High Court on 12th July 2007, 19th 
July 2007, 27th July 2007 and 6th August 2007 in two 
appeals from a petition No.D-65/2005 before the Family 
Court.  In order to appreciate the circumstances in which 
these orders came to be passed, it will be necessary to 
state a few facts leading to the commencement of the 
proceedings before the Family Court. 

5.	Admittedly, the appellant herein, who is the husband 
of the respondent, married the respondent on 2nd March 
2002. A daughter was born to them and she was named 
Anisha. Initially there were no disputes as such between 
the parties but after the daughters birth, the atmosphere 
in the marital home began to change.  We shall not go into 
the causes as alleged by the respondent since such 
allegations are not relevant for our purpose, but we can 
only observe that one of the reasons given by the 
respondent for the changed circumstances was the change in 
behaviour of the appellant towards her, on account of 
addiction to alcohol in the company of his friends. 

6.	In any event, there appears to have been some marital 
discord, which resulted in the respondent leaving the 
matrimonial house in July 2004 with her minor daughter and 
seeking shelter with her parents at Bandra.  According to 
the respondent, during the said period she continued to 
send Anisha to the Kinder Campus School at Chembur, the 
area where the appellant was residing and permitted him on 
occasions to keep back Anisha at his residence. The 
respondent has alleged that in October 2005, taking 
advantage of such a situation, the appellant kept Anisha 
back with him and did not return her to the respondents 
custody. This compelled the respondent to meet her 
daughter in the school campus, but since this arrangement 
did not also work out, in the last week of November 2005, 
she approached the Chembur police and with their help got 
back the custody of her daughter.  A series of allegations 
were thereafter made that on 30th November, 2005 the 
appellant, with the help of some of his associates, 
forcibly removed Anisha from the respondents custody and 
made her completely inaccessible to the respondent. It is 
in such compelling circumstances that she moved the Family 
Court seeking custody of her minor daughter under Section 
6 of the Hindu Minority and Guardianship Act, 1956 read 
with Ss.7 and 25 of the Guardians & Wards Act, 1890.
7.	The appellant herein also filed a Custody Petition, 
being D-66 of 2005, and both the applications were taken 
up for hearing together by the learned Family Court. By 
its judgment dated 2nd February 2007 the Family Court 
dismissed the appellants application for custody and 
allowed the application filed by the respdondent by 
passing the following order :
ORDER
The Respondent/Mohankumar Rayana is directed 
to hand over custody of the minor daughter 
Anisha to the petitioner/mother Komal Rayana 
immediately after completion of her final 
terms of the current academic session 2006-
2007.

The Respondent/father shall take all the 
steps to provide all facilities to the minor 
daughter to enjoy her extra curricular 
activities and studies.

After the child Anisha goes to the custody 
of the mother as ordered above, the 
Respondent/father would be at liberty and 
privilege to avail her access every 
alternate weekends, meet her at school at 
any time and share 50% of her school 
vacations, as per mutual arrangement with 
the petitioner/mother.

The petitioner/mother should in consultation 
with the Respondent/father decide the 
question of her further academic education 
and she should not move the child out of the 
jurisdiction of the Court without its prior 
permission and of course after due 
intimation to the Respondent/father.

The father/respondent shall meet all the 
expenses for the education, food and clothes 
etc. of the minor daughter Anisha and the 
Petitioner/mother of her own accord may 
contribute to the same for the child and she 
should not be prohibited by the 
respondent/father from giving the child 
Anisha anything for her own comfort and 
pleasant living.  This arrangement for 
custody is made on the basis of the prior 
consideration for the welfare of the minor 
Anisha and in the event of change of 
circumstances  either  of the parents shall 
be at liberty and privilege to approach this 
Court for fresh direction on the basis of 
changed circumstances.

The custody petition D-65/05 moved by the 
Respondent/father Mohan Kumar Rayana stands 
dismissed  with visitation and access rights 
as ordered above.


8. Aggrieved by the said Judgment and order of the Family 
Court, the appellant filed Family Court Appeal No. 29/2007 
before the Bombay High Court on 23.2.2007 and the same was 
admitted on 7th March, 2007 and was said to have been per-
emptorily fixed for final hearing on 26th March, 2007. On 
26th March, 2007 the respondent also filed an appeal, 
being Family Court Appeal No.61/2007, challenging the 
operation of the judgment of the Family Court dated 
2.2.2007 granting access to the appellant  to meet Anisha. 
The said appeal was also admitted on 3rd May, 2007. On the 
same day, the directions contained in the order of the 
Family Court dated 2.2.07 regarding access to the 
appellant to meet Anisha, were modified by the High Court 
by directing that the minor child would be available to 
the appellant as and when he was physically present in 
Bombay at his house.  It was also stipulated that whenever 
the appellant was not available in Bombay the child should 
remain with the respondent.  It was specifically mentioned 
that the child should not be removed by the appellant out 
of Bombay for any reason whatsoever, except in the 
circumstances mentioned in the order.

9.	A Special Leave Petition was filed by the appellant 
against the order of the High Court dated 3.5.07 and the 
same was disposed of on 18.6.07 with a direction upon the 
High Court to hear the Family Court appeal expeditiously.

10.	Certain circumstances intervened which prompted the 
Division Bench of the Bombay High Court to modify its 
order dated 3.5.07 on 12.7.07 by reducing the access 
granted to the appellant and limited such access only to 
the day time on the ensuing Saturday and Sunday.  The said 
order passed in the two above-mentioned appeals is one of 
the orders forming the subject matter of the appeals 
before us.

11.	Subsequently, after interviewing the parties and the 
minor child, the High Court passed a further order on 
19.7.07 directing the appellant and the respondent to 
visit a psychiatrist with the child and to obtain a report 
from him.  The access granted to the appellant on 
Saturdays and Sundays from 9 A.M. to 9 P.M. was continued. 
The said order passed in application No.81/2007 filed by 
the respondent herein in Family Court Appeal No.61/2007, 
is one of the other orders which form the subject matter 
of the present appeals before us.

12.	A third order was passed by the Bombay High Court on 
27.7.07 directing the appellant and the respondent to seek 
appointment with a psychiatrist within a week, and he was 
also directed to submit his report within 2 weeks after 
the parties were examined.  The interim arrangement made 
earlier was directed to continue. The said order is the 
third order which is impugned in the present appeals. The 
fourth order impugned in these appeals was passed on 
6.8.07 in the pending Civil Application No.81/2007, 
whereby, in view of the intervening circumstances, the 
High Court passed the following order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.61 OF 2007
ALONGWITH
CIVIL APPLICATION NO.81 OF 2007
ALONGWITH
FAMILY COURT APPEAL NO.29 OF 2007

Mr. R.T. Lalwani, Advocate for the 
applicant/wife
Mr. Kevic Settalwad Advocate i/b D.H. Law 
& Associates for Respondent/husband

CORAM :  J.N. PATEL AND A.S. SAYED, JJ
DATE  :	  AUGUST 6, 2007
P.C. (Per J.N. Patel,J):

	Heard.  We find from the conduct of 
the parties that the parties are 
repeatedly moving this Court in the matter 
on one pretext or the other. It is highly 
impossible for the Court to monitor each 
and everything.  This being matrimonial 
matter relating to access of the child, 
the Court has issued directions from time 
to time and it is expected that both the 
parties shall comply with the directions 
of this Court and facilitate each other 
and cooperate with each other in the 
matter. But it appears that the parties 
are trying to interpret the order in the 
manner they want, without being concerned 
about the welfare of the child, which is 
of paramount importance.  This Court has 
suggested to the parties to go for 
counselling and already a psychiatric of 
J.J. Hospital is appointed for the same.  
Recent development is represented by the 
counsel for the parties shows that on the 
last date of access there was some quarrel 
between the parties, which lead to 
hospitalisation of the wife, for injuries 
suffered by her and she is presently 
admitted in Lilawati Hospital and likely 
to be discharged today or tomorrow.

2.	In our considered opinion the 
respondent/wife deserves an opportunity to 
place her affidavit on record.

3.	In view of the recent development as 
brought to our notice, we are left with no 
option, but hold all our interim 
orders/relief to grant access to father, 
in abeyance till this Court  receives 
report of the psychiatrist. We make it 
clear that the parties, if fail to 
cooperate with the Court in resolving the 
issue, this Court would remove the matter 
from its board.  It is not expected from 
the parties to resolve their domestic 
quarrel in the court and ask the Court to 
adjudicate each and every issue, whether 
minor or major, relevant or irrelevant.  
We hope that the parties would maintain 
some discipline in observing the orders of 
the Court and cooperate.

4. Parties are at liberty to mention the 
matter only after they comply with the 
orders of this Court and report of the 
psychiatrist is received. Thereafter this 
Court proposes to pass the further orders. 
The matter stands adjourned for 4 weeks. 
We make it clear that on the mean time we 
would not entertain any application for 
interim relief, or for permitting the 
parties to meet the child, or to take 
matter on board, which has led this Court 
to hold all orders passed earlier in 
abeyance.

(A.A.SAYED,J)			(J.N. PATEL,J)
TRUE COPY


13. By the aforesaid order all access to the appellant was 
kept in abeyance till the Court received the report of the 
psychiatrist. The main grievance of the appellant is that 
by the order of 6.8.07 he was completely denied any access 
to the minor child. He was also aggrieved by the reduction 
of access time by the other orders as well. 

14.	 Since these appeals have been preferred against the 
interim orders passed by the Bombay High Court in the two 
pending Family Court Appeals, learned counsel for the 
appellant, submitted that in these appeals the only 
grievance of the appellant was with regard to denial of 
complete access to his child.  He prayed that the 
visitation rights which had been granted by the Family 
Court be restored during the pendency of the two appeals 
in the Bombay High Court.

15.	Since we are only called upon to decide the said 
issue, we are not required to go into any other question 
relating to the appeals pending before the Bombay High 
Court. We have met the appellant, the respondent and also 
the minor child, Anisha, separately, in chamber, to 
ascertain what each had to say regarding the making of 
interim arrangements to allow the appellant to have access 
to Anisha.

16.	After having looked through the materials on record 
and after considering the views of the parties and the 
minor girl, we are of the view that the appellant should 
not be denied complete access to his minor child, even if 
there has been a default in complying with the directions 
of the High Court and that pending the disposal of the 
appeals he should be allowed to have access to his minor 
child, at least to some extent.
17.	We, accordingly, dispose of these appeals with the 
following directions :-

i)	Since the welfare of a minor child is involved, 
the High Court is requested to try and dispose 
of the pending appeals as expeditiously as 
possible, but preferably within three months 
from the date of communication of this order;
ii)	The appellant/father of the minor, will be 
entitled to have access to Anisha on weekends on 
Saturdays and Sundays and will be entitled, if 
the child is willing, to keep her with him on 
Saturday night.  For the said purpose, the 
appellant shall receive the child from the 
respondent at 10.00 a.m. on Saturday from her 
residence at Bandra or from a mutually agreed 
upon venue and shall return the child to the 
respondent on Sunday by 2.00 p.m. In the event 
Anisha is unwilling to stay with the appellant 
overnight, the appellant will then make her over 
to the respondent on Saturday itself by 9.00 
p.m.; in that case, the appellant will be 
entitled to take Anisha out on Sunday also 
between 9.00 a.m. to 5.00 p.m.;
iii)	Both the appellant as well as the respondent 
must co-operate with each other in making the 
aforesaid arrangements work.  The respondent 
shall not prevent the appellant from having 
access to Anisha in the manner indicated above. 
Likewise, once Anisha is handed over to the 
appellant he too must honour the aforesaid 
arrangements and not keep Anisha with him beyond 
the time stipulated. In the event of either of 
the parties violating the aforesaid arrangement, 
the other party would be at liberty to pray for 
appropriate orders before the Bombay High Court 
in the pending appeals;
iv)	The aforesaid arrangement is being made so that 
the appellant can have access to his minor 
daughter and also to ensure that the childs 
education does not suffer in any way during the 
week.


18.	The appeals are, accordingly, disposed of with the 
aforesaid modifications of the interim orders passed by 
the High Court and save as aforesaid, all the other 
interim directions shall continue to remain operative.

19.	Since, in terms of our earlier directions, the 
expenses of the respondent and Anisha for coming from 
Bombay to Delhi and other litigation expenses is said to 
have been deposited by the appellant with the Registry of 
this Court, the respondent shall be entitled to withdraw 
the same. There shall be no further order as to costs in 
these appeals.

 

SC: Father gets the custody of minor daughter

IN The SUPREME COURT OF INDIA

Citation: 2006 AIR 1343, 2006(2   )SCR342 , 2006(3   )SCC62  , 2006(2   )SCALE388 , 2006(2   )JT482 

Judgement

CASE NO.:
Appeal (civil) 6626 of 2004

PETITIONER:
Sheila B. Das

RESPONDENT:
P.R. Sugasree

DATE OF JUDGMENT: 17/02/2006

BENCH:
B.P. Singh & Altamas Kabir

JUDGMENT:
J U D G M E N T

ALTAMAS KABIR,J.

The appellant, who is a paediatrician by profession, was married to the respondent, who is a lawyer by profession, on 29th March, 1989, at Thrissur in Kerala under the provisions of the Special Marriage Act. A girl child, Ritwika, was born of the said marriage on 20th June, 1993.
As will appear from the materials on record, the appellant, for whatever reason, left her matrimonial home at Thrissur on 26th February, 2000, alongwith the child and went to Calicut without informing the respondent.
Subsequently, on coming to learn that the appellant was staying at Calicut, the respondent moved an application in the High Court at Kerala for a writ in the nature of Habeas Corpus, which appears to have been disposed of on 24th March, 2000 upon an undertaking given by the appellant to bring the child to Thrissur.
On 24th March, 2000, the respondent, alleging that the minor child had been wrongfully removed from his custody by the appellant, filed an application before the Family Court at Thrissur under Sections 7 and 25 of the Guardians and Wards Act, 1890, and also Section 6 of the Hindu Minority& Guardianship Act, 1956, which came to be numbered as OP 193 of 2000 and OP 239 of
2000.
Before taking up the said two applications for disposal, the learned Judge of the Family Court at Thrissur took up the respondent’s application for interim
custody of the minor child and on 27th April, 2000 interviewed the minor child in order to elucidate her views with regard to the respondent’s prayer for interim custody. No order was made at that time on the respondent’s application for interim custody. On 20th March, 2001, the learned Judge of the Family Court at Thrissur took up the two applications filed by the respondent under Sections 7 and 25 of the Guardians and Wards Act and under Section 6 of the Hindu Minority and Guardianship Act for final disposal. While disposing of the matter the learned Judge had occasion to interview the minor child once again before delivering judgment and ultimately by his order of even date the
learned Judge of the Family Court at Thrissur allowed the applicati16ons filed by the respondent by passing the following order:-

“1. The respondent is directed to give custody of the child to the petitioner the father of the child, the natural guardian immediately after closing of the schools
for summer vacation.

2. The father shall take steps to continue the study of the minor child in CSM Central School Edaserry and steps to restore all the facilities to the minor child to enjoy her extra curricular activities and studies also.

3. The respondent mother is at liberty to visit the child either at the home of the
petitioner or at school at any time.

4. If the mother respondent shifts her residence to a place within 10 kms. radius of the school where the child is studying the child can reside with the mother for not less than three days in a week. The petitioner father shall not, object to taking of the child by the mother to her own house in such condition.

5. The father the petitioner shall meet all the expenses for the education, food
and cloths etc. of the minor child and the mother of her own accord contribute to the same anything for the child and the father should not prohibit the mother
from giving the child anything for her comfort and pleasant living.

6. If the mother the respondent fails to stay within 10 kms. radius of the CSM
central School, Edasserry however she is entitled to get custody of the child for 2 days in any of the weekend in a month and 10 days during the Summer vacation and 2 days during the Onam holidays excluding the Thiruvonam day.

7. This arrangement for custody is made on the basis of the prime consideration for the welfare of the minor child and in case there is any change in the situation or circumstance affecting the welfare of the minor child, both of the parties are at liberty to approach this court for fresh directions on the basis of the changed circumstance.

OP 239/2000 is partly allowed prohibiting the respondent husband by a
permanent injunction from removing or taking forcefully the “B” schedule articles mentioned in the plant. The parties in both these cases are to suffer their costs.”

Being dissatisfied with the order of the Family Court, the appellant herein filed an appeal in the High Court of Kerala, being M.F.A.No.365/01, wherein by an
order dated 21st May, 2001, the order of the Family Court was stayed. The respondent thereupon filed an application before the High Court for review of the said order and in the pending proceedings, a direction was given by the High Court to the Family Court at Calicut to interview the minor child. The report of the Family Court was duly filed before the High Court on 5th July, 2001. From the said report, a copy of which has been included in the paperbook, it is evident that the minor child preferred to stay with her father and ultimately by its order dated 25th July, 2001 the High Court vacated the stay granted by it on 21st May, 2001.

On the application of the appellant herein, one Dr. S.D. Singh, Psychiatrist, was also appointed by the High Court on 14th September, 2001, to interview the
appellant and the respondent in order to make a psychological evaluation and to submit a report. On such report being filed, the High Court by its order dated
31st May, 2002, granted custody of the minor child to the respondent till the disposal of the appeal. Soon thereafter, in June 2002, the respondent filed
an application for divorce before the Family Court at Thrissur. While the same was pending, the appellant filed a Special Leave Petition being S.L.P.( C)  C.C.No. 6954/2002 against the order of the High Court granting custody of the minor child to the respondent till the disposal of the appeal. The said Special Leave
Petition was dismissed on 9th September, 2002. The appeal filed by the appellant before the High Court against the order of the learned Judge of the Family Court allowing the respondent’s application under Sections 7 and 25 of the Guardians and Wards Act, being M.F.A. No.365/01, was also dismissed on 16th June, 2003. Immediately, thereafter, on 28th June, 2003, the Family Court granted divorce to the parties. Being aggrieved by the dismissal of her appeal, being M.F.A.No.365/01, the appellant herein filed the instant Special Leave Petition, being SLP ) No. 18961/2003, which after admission was renumbered as Civil Appeal No.6626/2004. On 20th July, 2004, the appellant herein filed a petition in the pending Special Leave Petition for interim visitation rights in respect of her minor child for the months of August and September, 2004. After considering the submissions made by the appellant, who was appearing in person, and the learned counsel for the respondent, this Court
passed the following order:-
“This petition has been filed by the mother of minor girl-Ritwika, aged about
12 years, challenging the impugned order of the High Court dated 16th June, 2003. By the impugned order the High Court confirmed the order of the Family Court holding that it is in the best interest of the child that she be in the custody of the father. The High Court, however, permitted the petitioner to visit the child at the house of the father once in a month, that is, first Sunday of every
month and spend the whole day with the child there with a further stipulation that she will not be removed from the father’s house. The petitioner and the
respondent have not been living together since February, 2000. The divorce
between them took place by order dated 26th June, 2003.

On question of interim custody, in terms of the order dated 30th April, 2003,
the Family Court Trichur, was directed to make an order regarding the visitation rights of the petitioner for the months of May, June and July, 2004 so that the petitioner may meet her daughter at the place of some neutral person and, if necessary, in the presence of a family counselor or such other person deemed just, fit and proper by the Family Court. The Family Court was directed to fix any two days, in months of May, June and July of 2004, considering the convenience of the parties, when the petitioner may be in a position to spend entire day with her child.

Pursuant to the above said order the Family Court had fixed two days in the
months of May, June and July, 2004 so that the petitioner could meet her
daughter on those days. The Family Court directed that the said meeting shall
take place in the room of family counsellor in Court precincts. According
to the petitioner the said arrangement was not satisfactory, so much so that
ultimately she made a request to the Family Court that instead of meeting her
daughter in the room of the family counsellor, the earlier arrangement of
meeting her at father’s house was may be restored. The Family Court, however, did not modify the order having regard to the orders passed by this Court on 30th April, 2004. It is, however, not necessary at this stage to delve any further on this aspect.

Ritwika is studying in 7th class in a school in Trichur. Having heard
petitioner-in-person and learned counsel for the respondent and on perusal of
record, we are of the view that without prejudice to parties’ rights and  contentions in Special Leave Petition, some interim order for visitation rights of the petitioner for the months of August and September, 2004 deserves to be
passed. Accordingly, we direct as under:
(1) The petitioner can visit the house of the respondent at Trichur on every
Sunday commencing from 1st August, 2004 and be with Ritwika from 10.00
a.m. to 5.00 p.m. During the stay of the petitioner at the house of the respondent, only the widowed sister of the respondent can remain present. The respondent shall not remain present in the house during the said period. It would be open to the petitioner to take Ritwika for outing, subject to the condition that Ritwika readily agrees for it. We also hope that when at the house of the respondent, the petitioner would be properly looked after, insofar as, normal facilities and courtesies are concerned;
(2) We are informed that the school in which Ritwika is studying shall be closed
for 7 days in the month of August, 2004 during Onam festival. It would be open
to the petitioner to take the child for outing during those holidays for a period
of three days. After the expiry of three days, it will be the responsibility of the
petitioner to leave the child at the house of the respondent.

The arrangement about meeting on every Sunday would also continue in the
month of September, 2004.
List the matter on 5th October, 2004″

The question relating to the appellant’s visitation rights pending decision of the Special Leave Petition came up for consideration before this Court again on 5th
October, 2004, when on a reference to its earlier order dated 20th July, 2004, this Court further directed that the appellant would be at liberty to move appropriate applications in M.F.A.No.365/01, which had been decided by the High Court on 16th June, 2003, and the High Court on hearing the parties or their counsel would pass such orders as it considered appropriate in respect
of the interim custody of Ritwika during the Christmas Holidays. It was also clarified that till the matter was finally decided by this Court, it would be open to the appellant to make similar applications before the High Court which would have to be considered on its own merits, since it was felt that the High Court would be in a better position to consider the local conditions and pass
interim orders including conditions, if any, required to be placed on the parties.
As mentioned hereinbefore, on leave being granted, the Special Leave Petition was renumbered as Civil Appeal No.6626/04, which has been taken up by us for
final hearing and disposal.
The appellant, who appeared in person, urged that both the Family Court and the High Court had erred in law in removing the minor child from the custody of the mother to the father’s custody, having particular regard to the fact that the minor girl was still of tender age and had attained the age when a mother’s care and counseling was paramount for the health and well-being of the minor girl child. The appellant submitted that the minor child would soon attain puberty when she would need the guidance and instructions of a woman to enable her to deal with both physical and emotional changes which take place during such period. Apart from the above, the appellant, who, as stated herein before, is a doctor by profession, claimed to be in a better position to take care of the needs of the minor in comparison to the respondent who, it was alleged, had little time at his disposal to look after the needs of the minor child.

From the evidence adduced on behalf of the parties, the appellant tried to point out that from morning till late at night, the respondent was busy in court with his own work and activities which left the minor child completely alone and uncared for. According to the appellant, the respondent who had a farm house some distance away from Thrissur, spent his week- ends and even a major part of the week days in the said farm house. The appellant urged, that as a mother, she knew what was best for the child and being a professional person herself she was in a position to provide the minor not only with all such comforts as were necessary for her proper and complete upbringing, but also with a good
education and to create in her an interest in extra-curricular activities such as music and dancing. The appellant strongly urged that the respondent had never
had any concern for the minor child since her birth and till the time when the appellant left with her for Calicut. The appellant contended that for 7 years after the birth of the minor child, the appellant had single-handedly brought up the minor since the respondent was too pre-occupied with other activities to even notice her. According to the appellant, the minor child was extremely happy to be with her till the respondent began to claim custody of the minor and soon after obtaining such custody, he was able to influence the minor to such an
extent that she even went to the extent of informing the learned Judge of the Family Court that she preferred to stay with her father.On this aspect of the matter, the appellant urged that the minor had been exposed by the respondent to what she termed as “Parental Alienation Syndrome”. She urged that such a phenomenon was noticeable in parents who had been separated and who are bent upon poisoning the mind of their minor children against the other party. According to the appellant, there could otherwise be no other explanation as to why even after being with the appellant for 7 years, the minor child had  expressed a preference to be with her father after she was placed in his custody. The appellant laid stress on her submissions that not only till the age of 8 years,
when custody of the minor child was given to him, but even thereafter the respondent had all along been an absentee father taking little or no interest in the affairs and upbringing of the minor child. According to the appellant, in view of the peculiar habits of the respondent, the minor child was left on her own much of the time, which was neither desirable nor healthy for a growing adolescent girl child. Urging that she had the best interest of the minor
child at heart, the appellant submitted that although under the provisions of Hindu Law by which the parties were governed, the father is accepted as the natural guardian of a minor, there were several instances where the courts had accepted the mother as the natural guardian of a minor in preference to the father even when he was available. Referring to Section 6 of the Hindu
Minority and Guardianship Act, 1956, which provides that the natural guardian of a Hindu minor in the case of a boy or an unmarried girl is the father and after him the mother; provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother, the appellant submitted that the aforesaid provision had recognized the mother also as the natural
guardian of a minor. It was urged that in various cases the Courts had considered the said provision and had opined that there could be cases where in spite of the father being available, the mother should be treated to be the natural guardian of a minor having regard to the incapacity of the father to act as the natural guardian of such minor.
In support of her aforesaid submission, the appellant referred to and relied on the decision of this Court in Hoshie Shavaksha Dolikuka vs. Thirty Hoshie
Dolikuka, reported in AIR 1984 SC 410, wherein having found the father of the minor to be disinterested in the child’s welfare this Court held that the father was not entitled to the custody of the child.

The appellant also referred to and relied on a Division Bench decision of the Kerala High Court in the case of Kurian C. Jose vs. Meena Jose, reported in
1992 (1) KLT 818, wherein having regard to the fact that the father was living with a concubine who was none else than the youngest sister of the mother, it was held that the father was not entitled to act as the guardian of the minor. On a consideration of the provisions of Section 17 (3) of the Guardians and Wards Act, 1890, it was also held that a minor’s preference need not necessarily be decisive but is only one of the factors to be taken into consideration by the court while considering the question of custody.
Reference was also made to another decision of this Court in the case of Kumar V. Jahgirdar vs. Chethana Ramatheertha, (2004) 2 SCC 688, wherein in consideration of the interest of the minor child, the mother, who had re-married, was given custody of the female child who was on the advent of puberty, on the ground that at such an age a female child primarily requires a mother’s care and attention. The Court was of the view that the absence of female company in the house of the father was a relevant factor in deciding the
grant of custody of the minor female child. The appellant urged that the courts in the aforesaid cases had considered the welfare of the minor to be of  paramount importance in deciding the question of grant of custody. The appellant urged that notwithstanding the fact that the minor child had expressed before the learned Judge of the Family Court that she preferred to
be with the father, keeping in mind the fact that the welfare of the minor was of paramount importance, the court should seriously consider whether the minor child should be deprived of her mother’s company during her period of adolescence when she requires her mother’s counselling and guidance. The appellant submitted that while the respondent had indulged Ritwika so as to win over her affection, the appellant had tried to instill in her mind a sense of discipline which had obviously caused a certain amount of resentment in Ritwika. The appellant submitted that the court should look behind the curtain to see what was best for the minor girl child at this very crucial period of her growing upIn support of her aforesaid submission, the appellant referred to and relied on a decision of the Bombay High Court in the case of Saraswatibai  Shripad Ved vs. Shripad Vasanji Ved, AIR 1941 Bombay 103, wherein in a similar application under the Guardians and Wards Act, it was held that since the minor’s interest is the paramount consideration, the mother was preferable to the father as a guardian. The appellant emphasized the observation made in the judgment that if the mother is a suitable person to take charge of the
child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years notwithstanding the fact that the father remains as
the natural guardian of the minor.
A similar view was expressed by this Court in the case of Rosy Jacob vs. Jacob A. Chakramakkal, AIR 1973 SC 2090, wherein in the facts and circumstance of
the case, the custody of the daughter (even though she was more than 13 years of age ) and that of the youngest minor son, was considered to be more beneficial with the wife rather than with the husband.
The appellant submitted that during the child’s growing years, she had from out of her own professional income, provided her with amenities which a growing
child needs, including admission and tuition fees for the child’s schooling in a good school and for extra-curricular activities. The appellant submitted that she had made fixed deposits for the benefit of the minor and had even taken out life insurance policies where the minor child had been made the nominee. The appellant submitted that apart from the above, she had also made various financial investments for the benefit of the minor so that the minor child would not be wanting in anything if she was allowed to remain with the appellant.
The appellant submitted that although she had been granted visitation rights by the different interim orders, since she was residing in Calicut and the  respondent was residing in Thrissur, she was unable to remain in contact with her minor daughter on account of the distance between Calicut and Thrissur. In fact, the appellant complained of the fact that on several occasions when she had gone to meet her minor child at the residence of the respondent, she had not been allowed to meet the child or to spend sufficient time with her. The appellant submitted that the interest of the minor child would be best served if her custody was given to the appellant.
The claim of custody of the minor child made by the appellant was very strongly resisted by the respondent who denied all the various allegations levelled against him regarding his alleged apathy towards the minor and her development. It was submitted on his behalf that till the age of 7 years, the child had been living with both the parents, and was well cared for and looked after during this period. The minor child was suddenly and surreptitiously removed from the respondent’s custody by the appellant who left her matrimonial home on 26th February, 2000 without informing the appellant who had gone out of Thrissur on his professional work. It was submitted that only after coming to learn that the appellant had removed the child to Calicut that the
respondent was compelled to file a Habeas Corpus Petition in the Kerala High Court which ended upon an undertaking given by the appellant to bring the minor child to Thrissur. It was only thereafter that the respondent was compelled to file the application under Sections 7 and 25 of the Guardians and Wards Act and under Section 6 of the Hindu Minority and Guardianship Act, 1956.
According to the respondent, even though the appellant had forcibly removed the minor to Calicut, thereby depriving the respondent of the minor child’s
company, the said minor during her interview by the learned Judge of the Family Court at Thrissur made her preference to be with the father known to the learned Judge.

On behalf of the respondent, it was also submitted that keeping in mind the fact that the girl child was attaining the age of puberty, the respondent had
arranged with his elder sister, who was a retired headmistress of a school, to come and stay with him and to attend to the minor’s needs during her growing years when she required the guidance and counselling of a woman. It was submitted that the said aspect of the matter was duly considered by the Family Court as well as by the High Court on the basis of an affidavit filed by
the respondent’s sister expressing her willingness to stay with the respondent to look after the minor child.In addition to the above, it was submitted on behalf
of the respondent that the Court had found on evidence that he had sufficient finances to look after and provide for all the needs of the minor child. In any event, what was of paramount importance was the welfare of the minor and the court had also taken into consideration the preference expressed by the minor in terms of Section 17 (3) of the Guardians and Wards Act, 1890.

On behalf of the respondent it was submitted that the respondent was quite alive to the fact that the minor
child should not be deprived of her mother’s company and that for the said purpose, the appellant was welcome to visit the minor child either at the respondent’s house or in some neutral place and to even keep the child with
her on specified days if she was ready and willing to stay with the appellant. What was sought to be emphasized on behalf of the respondent was that in the interest oF the child she should be allowed to remain with him since he was better equipped to look after the minor, besides being her natural guardian and also having regard to the wishes of the minor herself.
Having regard to the complexities of the situation in which we have been called upon to balance the emotional confrontation of the parents of the minor child
and the welfare of the minor, we have given anxious thought to what would be in the best interest of the minor. We have ourselves spoken to the minor girl,
without either of the parents being present, in order to ascertain her preference in the matter. The child who is a little more than 12 years of age is highly intelligent, having consistently done extremely well in her studies in
school, and we were convinced that despite the tussle between her parents, she would be in a position to make an intelligent choice with regard to her custody. From our discussion with the minor, we have been able to gather that though she has no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed us that she had established a very good relationship with her paternal aunt who was now staying in her father’s house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence.We have also considered the various decisions cited by the appellant which were all rendered in the special facts of each case. In the said cases the father
on account of specific considerations was not considered
to be suitable to act as the guardian of the minor. The
said decisions were rendered by the Courts keeping in
view the fact that the paramount consideration in such
cases was the interest and well-being of the minor. In this case, we see no reason to consider the respondent ineligible to look after the minor. In fact, after having obtained custody of the minor child, the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent’s company and has also been doing consistently well in school. The respondent appears to be financially stable and is not also disqualified in any way from being the guardian of the minor child. No Allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials before us and is not sufficient to make the respondent ineligible to act as the guardian of the minor.

We, therefore, feel that the interest of the minor will be best served if she remains with the respondent but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities. We, accordingly dispose of this appeal by retaining the order passed by the learned Judge of the Family Court at Thrissur on 20.3.2001 while disposing of O.P.No.193/2000 filed by the respondent herein under Sections 7 and 25 of the Guardians and Wards Act, 1890 with the following modifications:-

1. The respondent shall make arrangements for Ritwika to continue her studies in her present school and to ensure that she is able to take part in extra-curricular activities as well.

2. The respondent shall meet all the expenses of the minor towards her education, health, care, food and clothing and in the event the appellant also wishes to contribute towards the upbringing of the child, the respondent shall not create any obstruction to and/or prevent the appellant from also making such contribution.

3. The appellant will be at liberty to visit the minor child either in the respondent’s house or in the premises of a mutual friend as may be agreed upon on every second Sunday of the month. To enable the appellant to meet the child, the respondent shall ensure the child’s presence either in his house
or in the house of the mutual friend agreed upon at 10.00 A.M. The appellant will be entitled to take the child out with her for the day, and to bring her back to the respondent’s house or the premises of the mutual friend within 7.00 P.M. in the evening.

4. In the event the appellant shifts her residence to the same city where the minor child will be staying, the appellant will, in addition to the above, be
entitled to meet the minor on every second Saturday of the month, and, if the child is willing, the appellant will also be entitled to keep the child with her overnight on such Saturday and return her to the respondent’s custody by the following Sunday evening at 7.00 P.M.

5. The appellant, upon prior intimation to the respondent, will also be entitled to meet the minor at her school once a week after school hours for about an hour.

6. The appellant will also be entitled to the custody of the minor for 10 consecutive days during the summer vacation on dates to be mutually settled
between the parties.
7. The aforesaid arrangement will continue for the present, but the parties will be at liberty to approach the Family Court at Thrissur for fresh directions should the same become necessary on account of changed circumstances.

The parties will each bear their own costs.

All About FIR

It’s always scary interacting with the police. Knowing your rights helps. This article explains the situations in which the police is required to register an FIR.

 

 FIR is an acronym for ‘First Information Report’. An FIR is a report of a crime filed with the police to initiate the investigation process. However, an FIR cannot be registered for all crimes, and so it is important for one to know the crimes and circumstances in relation to which an FIR may be registered.

Offences for which you can file an FIR

Criminal offences are classified into two categories depending on the degree of seriousness: cognizable; and non cognizable.

Cognizable literally means to take note of. A crime is classified as cognizable if it is of a serious nature, e.g. murder, rape, robbery, kidnapping, etc. In cases of cognizable offences, the police can arrest an accused or suspect without a warrant (i.e. without an order from a court).

Non cognizable offences are minor offences, e.g. defamation, intimidation, theft etc. In case of non cognizable offences, the police can neither investigate nor arrest the suspect for a crime without an order/ warrant from the court.

An FIR is filed only in cases of cognizable offences, i.e. crimes of a serious nature.Non cognizable offences may also be reported to police but the police will not file an FIR for these offences. Instead, they will register the complaint in the Daily Diary Report (DDR).

Whether an offence is cognizable or not can be found out from the 1st Schedule of Code of Criminal Procedure. As per the schedule, theft is a cognizable offence without any qualification.

Filing an FIR

When a crime of a serious nature occurs, it is natural that one would want to inform the police so that the matter can be investigated. In order to do so, it is necessary to file an FIR. How does one do this?

Who can file an FIR?

It is not necessary that only a victim of a crime can file an FIR in relation to it. The following persons may file an FIR:

1.   the victim or any person on behalf of victim;

2.   any person who has witnessed the crime or has heard of the crime. In case the person has only heard of the crime and wants to file an FIR, then he must mention the source from where he/she has heard of the crime; and

3.   an officer in-charge of a police station.

So, if you are any of 1, 2 or 3 above, then go to the police station closest to the area where the crime has occurred and ask for the person-in-charge of the police station. When you have finished narrating the events surrounding the crime, if the person in- charge of the police station (not lower than the rank of head constable) is satisfied that the crime which took place is a cognizable offence and he is duty bound to register an FIR.

You may either give a written statement or make an oral statement to the officer in charge who will then write it down in FIR register. The officer in- charge is under an obligation to read over the statement written in the FIR register to you and then you must put your thumb impression or sign the FIR register.

Three carbon copies of an FIR are made, one copy each is sent to the Magistrate and the Superintendent of police and the third will be handed over to you. The original is retained, for record, in the police station.

Things one must consider while registering an FIR

There are a few things you should keep in mind if you are filing an FIR:

1. An FIR is recorded in first person, e.g. I was present on the scene of crime, I saw him taking out his gun.

2.The FIR should be registered immediately after the happening of crime. If there is any delay in registering an FIR, the reasons for the delay must be explained. Try to give a detailed description of the accused and other witnesses so that they can be easily identified.

3. Try to give as much information as possible about the scene of crime, e.g. the kind of weapon used, any physical damage caused to property, the date, time and place of the incident the question.

4. Ensure that you use simple language and not ambiguous, i.e., the meaning should be clear and obvious. Also make sure that you have not left out any relevant facts as FIR once registered cannot be modified again. Do not lie regarding any fact as it is a punishable offence under section 177 and 182 of Indian Penal Code.

In the FIR itself, make sure you mention:

1.      the date and time of reporting of the FIR by you.

2.      the date and time of the occurrence of the crime.

3.      that a signed and stamped copy of the FIR is given to you.

The police makes three copies of an FIR. The original is always kept as record in the police station and one carbon copy of original FIR is handed over to the informant. This carbon copy is also stamped and signed by the officer who has registered the FIR. The person filing the FIR must sign on the original and the 3 copies of the FIR.

What if the police refuse to file an FIR?

The person in- charge of a police station cannot refuse to register an FIR. It does not matter whether or not the information given is genuine. It is the statutory duty of a police officer to register an FIR whenever any information pertains to ant cognizable offence is reported to him/her.

In case the person in charge of a police station fails to register your FIR, you can approach superintendent of police who will either himself or through any other officer get the FIR registered.

You may inform the Superintendent of such non registration via a written complaint which may be sent to the Superintendent of Police through post. Note: This is an effective method of ensuring that your plea is heard – do mention in your letter the name of the police officer who refused to file an FIR.

Reporting of non-cognizable offence

As mentioned above, a non cognizable offence can also be reported to the police. This is registered in the DDR (daily diary register). After the crime has been so recorded, a signed and stamped copy of the DDR will be handed over to you.

However, the police will not take any action on the matter without the direction of a magistrate. In case you would like the police to investigate a matter, you must obtain an order from the magistrate directing the police to investigate in the matter. Generally you will have to go to the appropriate court in whose jurisdiction the matter falls and obtain the permission from the appropriate magistrate (who is competent to hear the matter) and ask him to pass an order for police to investigate the matter.

 

Courtesy:- RAJESH VAKHARIA NAGPUR

Police cannot call accuse to question or inquiry in Police Station

Section 160 Cr.P.C. applies to Witness and not to Accused

 

 

 

 

2004 AIR 2282, 2004(2   )Suppl.SCR71  , 2004(5   )SCC729 , 2004(5   )

 

CASE NO.:

 

Appeal (crl.)  575-576 of 2004

 

 

PETITIONER:

 

State Rep. by Inspector of Police & Ors.

 

 

RESPONDENT:

 

N.M.T. Joy Immaculate

 

 

DATE OF JUDGMENT: 05/05/2004

 

 

BENCH:

 

Dr. AR. Lakshmanan.

 

 

JUDGMENT:

 

J U D G M E N T

 

 

(Arising out of S.L.P.(Crl.) Nos. 3143-3144 of  2002)

 

 

Dr. AR. Lakshmanan, J.

 

 

I have had the privilege of perusing the judgment proposed by my learned

 

brother Hon’ble Mr. Justice G.P. Mathur.  I respectfully agree with the opinion

 

expressed by him.  However, I would like to add the following few lines.

 

 

Section 160 of the Code of Criminal Procedure deals with police officer’s power

 

to require attendance of witnesses.  This Section aims at securing the attendance of

 

persons who would supply the necessary information in respect of the commission of

 

an offence and would be examined as witnesses in the inquiry or trial therefor.  This

 

Section applies only to the cases of persons who appear to be acquainted with the

 

circumstances of the case, i.e. the witnesses or possible witnesses only.  An order

 

under this Section cannot be made requiring the attendance of an accused person with

 

a view to his answering the charge made against him.  The intention of the legislature

 

seems to have been only to provide a facility for obtaining evidence and not for

 

procuring the attendance of the accused, who may be arrested at any time, if

 

necessary.  In other words, this Section has reference to the persons to be examined

 

as witnesses in the trial or inquiry to be held after the completion of the investigation.

 

As an accused cannot be examined as a witness either for or against himself, he

 

cannot be included in the class of persons referred to in the Section.  But the police

 

officers are fully authorised to require the personal attendance of the suspects during

 

the investigation.

 

 

In the instant case, the High Court, by an impugned order has given a direction

 

to the State Government to issue circulars to all the police stations instructing the police

 

officials that the woman accused/witness should not be summoned or required to attend

 

at any police station under Section 160 Cr.P.C. but they must be enquired only by

 

women police or in the presence of a women police, at the places where they reside.

 

The High Court has issued a further direction to the Government to ensure that this

 

instruction is strictly followed by the police in future.

 

 

In our opinion, the High Court has committed a serious error in giving such a

 

direction contrary to the statutory provisions under Section 160 of the Cr.P.C. which is

 

applicable only to the witnesses and not the accused.  The High Court has also

 

committed a grave error in giving a finding as to the confession and recovery of a nylon

 

rope alleged to have been used in the commission of murder, thereby

 

stifling/foreclosing the investigation into an offence of murder even before a final report

 

in the case as contemplated under Section 173(2) of the Cr.P.C. is filed.

 

 

The High Court, in the present case, while dealing with the revision has not only

 

set aside the order granting police custody, but has held that the consequent

 

confession and the alleged recovery have no evidentiary value in the case.  In other

 

words, what has got to be decided in a full-fledged trial, the High Court merely on the

 

pleadings of the parties has given a finding that the order granting police custody and

 

the consequent confession and the alleged recovery had no evidentiary value

 

whatsoever in the case.  The learned single Judge has also given a finding that records

 

were created to implicate the respondent-Joy Immaculate in the case.  Needless to

 

state that any further investigation in the case permitted by the learned Judge would be

 

an exercise in futility in the context of such finding which could be given only during the

 

course of a full-fledged trial.  The High Court, while disposing of the criminal revision,

 

has given several findings/directions in para 40 of the judgment/order.  In our opinion,

 

the learned Judge has miserably erred in allowing the criminal revision petition against

 

the order of the lower Court in criminal M.P. No. 5171/2001, as the order passed by the

 

lower Court was acted upon, i.e., one day police custody was granted, the accused was

 

taken into custody and surrendered back, and thus the petition to set aside that order

 

has become infructuous.  Further, the learned Judge has erred in directing the State

 

Government to issue a circular to all the police stations instructing the police officials

 

that the woman accused/witness should not be brought to the police station and that

 

they must be enquired only by women police or in the presence of women police at the

 

places where they reside.  The learned Judge has failed to note that the

 

aforementioned findings is contrary to the statutory provisions contained in Section 160

 

of the Cr.P.C.  In fact, the learned Judge has erred in expanding the scope of Section

 

160 Cr.P.C. to the accused as well, which might lead to hardship to an investigating

 

agency.  If the directions of the learned single Judge is accepted, no purposeful

 

investigation into any serious offence involving women accused could be conducted

 

successfully.

 

 

Above all, the learned Judge has committed a grave error in awarding a

 

compensation of Rs. 1 lakh on the ground that the police personnel committed acts of

 

obscene violation, teasing the respondent herein.  The learned Judge has relied upon

 

only on the basis of the affidavit filed in the case for coming to the conclusion and also

 

on the basis of the assumption that the respondent was not involved in the incident

 

which will foreclose the further enquiry ordered by the learned Judge in the matter.

 

There is no justification for awarding compensation to a person who is facing

 

prosecution for a serious offence like murder even before the trial has started.

 

The learned Judge has also directed to take immediate departmental action

 

against P-1 Inspector of Police and P-4 Inspector of Police and other Police Personnel

 

who were responsible for the detention and other alleged acts committed on the

 

respondent at P-4 police station.  This direction, in our opinion, is not warranted in view

 

of the fact of our allowing the criminal appeal and setting aside the judgment of the

 

learned single Judge.  The said direction issued by the learned Judge is set aside.

 

 

We, therefore, set aside the order in the criminal revision to prevent abuse of

 

process of court or otherwise to secure the ends of justice.  It is a principle of cardinal

 

importance in the administration of justice that the proper freedom and independence of

 

Judges and Magistrates must be maintained and they must be allowed to perform their

 

functions freely and fearlessly and without undue interference by anybody.  At the same

 

time, it is equally necessary that in expressing their opinions, Judges and Magistrates

 

must be guided by considerations of justice fair play and restraint.  It is not infrequent

 

that sweeping generalization defeat the very purpose for which they are made.  It has

 

been recognised that judicial pronouncements must be judicial in nature, and should not

 

normally depart from sobriety, moderation and reserve, as observed by this Court in

 

The State of Uttar Pradesh vs. Mohd. Naim AIR 1964 SC 703.  It is also very apt to

 

quote para 13 of the judgment in A.M. Mathur vs. Pramod Kumar Gupta AIR 1990 SC

 

1737 which reads thus:

 

“Judicial restraint and discipline are as necessary to the orderly

 

administration of justice as they are to the effectiveness of the army.  The

 

duty of restraint, this humility of function should be a constant theme of our

 

Judges.  This quality in decision making is as much necessary for Judges to

 

command respect as to protect the independence of the judiciary.  Judicial

 

restraint in this regard might better be called judicial respect; that is, respect

 

by the judiciary.  Respect to those who come before the Court as well to

 

other coordinate branches of the State, the Executive and Legislature.

 

There must be mutual respect.  When these qualities fail or when litigants

 

and public believe that the judge has failed in these qualities, it will be

 

neither good for the judge nor for the judicial process.”

 

 

This Court, in a number of other decisions, has also observed that the Courts

 

should not make unjustifiable observations and directions beyond the scope and ambit

 

of the lis pending before it and that such a direction and observation issued will only

 

hamper the free-flow of justice and cause lot of inconvenience to the litigants who come

 

before the Court for redressal of their genuine grievances.

 

 

It is also apt to quote hereinbelow the observations made by this Court in Kashi

 

Nath Roy vs. State of Bihar [(1996) 4 SCC 539] wherein this Court held that granting

 

of bail on the ground of an infirmity in evidence in the criminal trial was not a glaring

 

mistake or impropriety so as to attract adverse remarks and suggestion for initiation of

 

action against the Judge-Subordinate from the High Court Judge.  While stating the

 

proper course to be adopted in such a case, this Court held as follows:

 

“The courts exercising bail jurisdiction normally do and should refrain from

 

indulging in elaborate reasoning in their orders in justification of grant or

 

non-grant of bail.  For, in that manner, the principle of “presumption of

 

innocence of an accused” gets jeopardized; and the structural principle of

 

“not guilty till proved guilty” gets destroyed, even though all sane elements

 

have always understood that such views are tentative and not final, so as to

 

affect the merit of the matter.  Here, the appellant has been caught and

 

exposed to a certain adverse comment and action solely because in

 

reasoning he had disclosed his mind while granting bail.  This may have

 

been avoidable on his part, but in terms not such a glaring mistake or

 

impropriety so as to visit the remarks that the High Court has chosen to

 

pass on him as well as to initiate action against him, as proposed.

 

 

Whenever any such intolerable error is detected by or pointed out to

 

a superior court, it is functionally required to correct that error and may, here

 

and there, in an appropriate case, and in a manner befitting, maintaining the

 

dignity of the court and independence of judiciary, convey its message in its

 

judgment to the officer concerned through a process of reasoning,

 

essentially persuasive, reasonable, mellow but clear, and result-orienting,

 

but rarely as a rebuke.  The premise that a Judge committed a mistake or

 

an error beyond the limits of tolerance, is no ground to inflict condemnation

 

on the Judge-Subordinate, unless there existed something else and for

 

exceptional grounds.”

 

 

 

I respectfully agree with all other directions and the observations made by

 

brother G.P. Mathur, J. in allowing the criminal appeal and setting aside the impugned

 

judgment of the High Court dated 11.04.2002.

Maintenance Denial

Cases where maintenance pendente lite is denied to a wife on ground of misconduct

Friends, believe me this is not given to me by any Advocate, but has practically read lot of books and searched in internet.

Colleagues to quote and use this wherever possible i.e. section 18 HAMA, or interim alimony of CRPC 125, or in HMA section 24 itself.. Seven case laws on whether the misconduct of an applicant should be considered while deciding the interim alimony -:

1.Patna High Court case of Sadhana Devi V/s. Bijendra Kumar & others of 3rd March 1998 in para 6 and 7 court has not accepted the saying of wife for not staying with her husband as he is not working, because even at the time of marriage he was not working and pursuing his studies. Thus conduct of wife was wrong and Court has argued it in detailed and refuse her interim alimony.

2. Shrichand V/s. IV Additional dist. Judge, Allahabad, Santosh Kumari,I(1986) DMC 91 All, Narendra Kumar Mehta V/s. Suraj Mehta,I(1982) AP 100 etc – The grant of maintenance pendent elite and expenses under section 24 is discretionary with the court though such discretion has to be judicially exercised. The guiding principle would appear to be that if the applicant has no independent means he or she is entitled to maintenance and expenses, unless good cause to shown to deprive the applicant of it. The order exhausts itself with the conclusion of the main proceedings including the appeal filed if any. (Shashi kiran – law of maintenance – page 49).

3. Dwarkadas Gurumukhdas Agrawal V/s. Bhanuben,I(1987) DMC 46 Gujarat – There is nothing in section 24 to prevent a Court from taking into consideration the conduct of the parties. But that is too spacious a contention since at least in the original proceedings if this point is conceded, it would require the Court to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and if such as exercise is permitted the Court’s discretion would be fettered merely by the nature of the allegations made in the petition and would be compelled to examine the merits of the same at least prima facie. (Shashi kiran – law of maintenance – page 49)

4. Even in Balbir Singh V/s. Swarna Kanta AIR 1981 Raj 266; 1980 Raj LW 654 – L It is within the discretion of the court to make an order for maintenance pendent elite, and merely because two of the conditions, namely, the wife or the husband, as the case may be, has no indepdendent income sufficient for her/his support and necessary expenses of the proceedings, and the other spouse has sufficient means, are satisfied, then it is not necessary for the Court to order payment of maintenance pendente lite and expenses of the proceedings. Therefore, though it is not specifically provided that the conduct of the applicant for maintenance pendent elite and expenses of the proceedings is to be taken into consideration, but the fact that the discretion of the Court to make an order or not to make an order goes to show that the Court has to taken the conduct and the other circumstances also into consideration while disposing of the application u/sec. 24 l ong back in 1986 it was held that though this section does not refer to the conduct of parties as in sect.25, the Court can take into account the conduct of parties. (Shashi kiran – law of maintenance – page 61)

5. Vinod Kumar V/s. kaushalya, I (1996) DMc 603 Raj – It is true that if suit for divorce is decreed after trial on the ground of adultery then wife will not be entitled to get permanent alimony and maintenance u/sec 25 of HMa because adultery alleged against her is proved. But at the stage of the proceeding u/sec 24 if the HMA adultery is only alleged. There is large gap between “adultery alleged” at the stage of proceeding under section 24 of the aforesaid Act and adultery found to be proved by court trial at the stage of proceeding u/sec 25 of the said Act. (Shashi kiran – law of maintenance – page 50)

6. Munnibai V/s. Jagdish Rathore, 1999 (2) CCC 6 (MP) – There may be cases where the character and gravity of the conduct is such which may be found repugnant to the concept and the institution of marriage and it may be wholly unjust to ignore them while considering the question of releasing or withholding the benefit contemplated u/sec 24 of the Act, but it all depends on the facts of each case and cogent reasons have to be recorded for withholding the grant of the benefit u/sec 24 of the Act. (Shashi kiran – law of maintenance – page 54)

7. Sulochanabai v/s. Tikaram, I (1986) DMC 351 MP – The court normally consider it predent to adhere to the principle of a marriage de facto carries the right of alimony pendent elite; but this principle of matrimonial law has necessarily to be considered in the light of the attending circumstances, when the court exercise its discretion as to whether the wife should be granted or not alimony. The conduct of the parties can not be ignored by the court while passing the orders u/sec 24 of HMA. In a case where the wife has brought cohabitation to an end by such misconduct for which the husband is not be blamed, the Court may well refuse to grant alimony and expenses for litigation pendent lite. (wife was having extramarital affair with Dhanraj Hirkane. It was hled that the misconduct on the part of the wife, having thus been established, she has obviously no case for her claim for alimony and litigation expenses pendent elite. Friends, believe me this is not given to me by any Advocate, but has practically read lot of books and searched in internet.

Strategy to fight RCR cases

• HRA section 9 can be filed even if she is staying WITH YOU.
• Desertion is NOT a mandatory condition.
• If she stops talking to you -> you can file RCR
• If she sleeps on different bed -> you can file RCR
• If she refuses to attend any marriage party -> you can file RCR
• If she refuses to welcome your guests -> you can file RCR
• Restitution of conjugal rights (RCR) is a civil case. It is a legal way of showing your interest in getting your wife back.
• Normally, a wife will not come back once you have filed RCR. If she does, it’ll only be to fabricate evidence against you. Therefore, in your RCR, never mention your parents’ address as your current address. Hire an accommodation of a room and a toilet and give the address of the rented accommodation in your RCR. Even if she comes back, she is likely to run away from the rented accommodation within in a few days. Meantime, use technology to expose her.
• Now note during the initial petition for RCR do not mention any conditions in it come what may – you bring up these conditions only on the final stages when you think its going to backfire and she is going to join you against your wishes and for her ulterior motives.
• By not mentioning the conditions initially you are just showing the court that you are unconditionally ready to take her back again trying to paint a good picture.

Strategy to fight Divorce cases

• Remember as a policy and principle our suggestion and advice is that divorce should only be used as a last resort when you feel that marriage has broken down irretrievably and in spite of your best efforts there is no chance of survival of marriage.

• Even otherwise remember that in Indian legal system it is very difficult to get divorce. If you go to court and ask for divorce against your spouse then the onus of proving the facts will be on you.

• First of all let us discuss the points on which you can get divorce. You can ask court to grant divorce if you feel that you have been subjected to . .

• Mental cruelty
• Harassment
• false 498a case
• marriage non-consummated
• Mutual consent

• The courts can grant you divorce if they satisfied with one or more of the above conditions. The courts can also grant you divorce in case they feel that marriage between husband and wife has broken down irretrievably and no pint will be served by keeping the marriage alive in the eyes of law.

• But do remember the harsh fact that courts almost always demoralize the husband when he wants divorce on merit. What they want is ‘settlement’ and mutual divorcewhere you agree to pay lump sum amount to wife. Almost all the judges of lower courts, HC, SC take their commission from permanent alimony. SIF has been fighting against such biases.

• It is not possible for me or anyone else to predict what HC or SC will decide in your case .Are they deciding cases on the basis of evidence, merit or justice any way? I can only give you some tips regarding divorce case. For the benefit of all, I am sending it to the saveindianfamily yahoo group also:
  • Never show your desperation for divorce. Be mentally prepared to live without divorce or remarriage. If your vicious wife can live this way, why can’t you? Unfortunately, you will have to learn to live this way. Create such circumstances that the woman herself wants divorce.
  • You may also have to forget the custody of your children, if any. When you also go for custody, the court makes every effort that the marriage does not break. They will discourage you by protracting the case or dismissing the same.
  • Making false allegations is cruelty .I have also read somewhere that filing dowry case, whether true or false, is cruelty against the husband. Unfortunately, I do not remember the case name.
  • SC has made it clear that divorce should not be disallowed in case of broken marriage as it would encourage immoral activities. Make use of it..
  • Generally wives do not say they are ready to live with husband but make counter allegations in their reply to divorce petitions. This is not proper way of pleading. Also it makes clear that wife also does not want to keep marriage and the marriage has been irretrievably broken.
  • Make it clear to the court that you are not going to keep your wife even if divorce is not granted. Also you are not going pay her huge compensation.
  • Sometimes you will have to make complaints against the judge. I suggest send your complaints to SC, President of India etc. that court is unnecessarily protracting the case of irretrievably broken marriage. What is the judge’s interest in the case? He wants commission or interested in the woman or encouraging prostitution?
  • Mental cruelty is the worst form of cruelty and a strong ground of divorce.
  • Standard of proof required in civil cases is not as strict as for criminal cases.
  • Study the law of Torts for compensation. Take care of the limitations. Law of evidence is also very important.

Strategy for fighting DV Act 2005

• Read DV ACT.  Click Here

• The main attraction for girls is to claim the Right to Residence (RTR) from Husband/Male partner. So make sure you do not own a house or flat in your name. Even though wife/female partner can claim RTR only against Husband/Male partner but nothing stops the wife/female partner from filing a petition under DV act and come and sit inside the house.

• Another important point is wife/female partner can claim maintenance under the DV act. This is in addition to other maintenance ordered under CrPC 125 or HMA section 24. So in case your wife is granted maintenance under CrPC 125 or HMA section 24, then your lawyer has to forcefully argue to the court that basic need of the wife is taken care by other maintenance and hence there is no need of any additional maintenance.

• Please note DV act cannot be filed against a female but if you are a victim of the DV act then make sure your mother files a DV case against your father-in-law/brother-in-law.

• Your wife/female partner can be provided with protection order from local SHO. So you should be in good relation with your local SHO else your wife/female partner can create enough trouble for you.

• Please remember that from various judgments of the various high courts, now it is very clear that DV act is retrospective. That means even though DV act came into existence only in September 2006 but a husband/male partner can be booked for incidents which had occurred before DV act came into existence.

• Please note DV act cannot be filed against a female but if you are a victim of the DV act then make sure your mother files a DV case against your father-in-law/brother-in-law.

• Even though there is no mention of arrest in DV act but non-compliance of order by magistrate can lead to issuance of non-bailable-warrant.

• There was a case booked in Madya-Pradesh where even though divorce was granted in 2003 but wife restored to DV act in 2007 and that subsequently lead to non-bailable-warrant.

• The basic difference between 498a and DV act is in 498a husband is liable for punishment but wife does not get any financial relief but in DV wife/female partner gets lots of relief but there is no punishment/arrest (unless husband violate court order). Another difference is 498a can be booked against husband or his relatives but DV can be booked only against male members of a family.

• Another point to remember is that as per supreme court judgment in batra vs batra any relief to the wife cannot be granted to wife against the property of mother-in law. So it may be wise to transfer the immovable property to mother’s name.

• Please remember that under DV act Magistrate is having sweeping powers. So make sure not to keep much cash in the known bank accounts.

• There is a recent Chennai high court judgment where even though the husband has transferred the property to the mothers name but high court did not like this and they passed the RTR in favor of wife. So I guess the safest way out is to sell the property and park the funds in investments which wife cannot track down.

• We are in the process of consolidating all the useful judgment related to DV act and putting them on the website.

• General Guidelines for DV victims.  Click Here

General Strategy

Our sister concern CRISP based in Bangalore is helping in fighting child custody cases.

They provide straggly, advice, useful judgments and counseling in these type of cases.

We can put you in touch with CRISP counselors.

Following are some of the counter cases you can put

• Defamation
• TEP
• DOWRY PROHIBITION ACT SECTION 3
• RTI’s
• Perjury under CrPC 340
• http://groups.yahoo.com/group/saveindianfamily/message/89099
• http://groups.yahoo.com/group/saveindianfamily/message/88282
• http://groups.yahoo.com/group/saveindianfamily/message/88334

Mobile Code Locator

• http://www.informationmadness.com/cms/index.php?option=com_content&task=view&id=40&Itemid=53
• http://trace.bharatiyamobile.com/index. php
• http://phonebook.bol.net.in/
• http://www.bsnl.co.in/onlinedirectory.htm