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Posts Tagged ‘Child Custody’

Karnataka HC:- Share Parenting Judgment.

September 28, 2013 1 comment

Shared Parenting Judgement by the Hon’ble Karnataka High Court. http://on.fb.me/15AjnAl

 

Case Number:  MFA 1729/2011
Judge(s):  N.K.PATIL AND B.MANOHAR
Petitioners:  K M VINAYA
Respondents:  B R SRINIVAS
http://bit.ly/15Ajtb6

Supreme Court: Grand Parents are entitled for Visitation Rights.

January 23, 2013 Leave a comment

Supreme Court of India

I.S.Sirohi
vs
Commr.Of Police & Ors.
on 27 August, 2008
Author: ………………..J.
Bench: Altamas Kabir, Markandey Katju

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1361 OF 2008

[Arising out of SLP(Crl.)No.5919 of 2007]

I.S.SIROHI ..Petitioner(s)

VERSUS

COMMR.OF POLICE & ORS. ..Respondent(s) ORDER

 

1. Leave granted.

2. This appeal arises out of the judgment and order dated 18th September, 2007 passed by the Delhi High Court in Writ Petition(Crl.)No.1225 of 2007 filed by Shri I.S. Sirohi, the appellant herein, who is the father-in-law of Mrs. Deepti Sirohi, the respondent No.4 herein. The writ petition was disposed of by the High Court on 18/09/2007 by a non-speaking order, which reads as follows:- "In the circumstances of the case we feel that such a writ petition does not lie.

Dismissed."

2

3. Having regard to the nature of the order passed, notice was issued in the special leave petition on 12th October, 2007, and subsequently, on 7th December, 2007, after service of notice when the matter was listed, the parties were referred to mediation before the Delhi High Court Mediation Centre and the matter was directed to be listed once a report was received in respect of such mediation.

4. When the matter was listed on 25th February, 2008, it was directed to be put up for final disposal, and accordingly, the same was listed before us on 26th August, 2008. After hearing the counsel for the respective parties, we had directed the matter to appear today in Chambers, when the respondent No.4-wife was directed to produce the two children who were the subject matter of the reliefs prayed for in the writ petition. She was also directed to be personally present, and a similar direction was given with regard to the paternal grandfather.

5. Today, when the matter was taken up, we had occasion to speak to the respondent-wife, the two children, Ruchira, aged approximately 10 years, and Rajat, aged 7 years, the parents-in-law of the respondent 4-wife and their respective counsel.

6. Since we were considering the writ petition wherein a writ in the nature of habeas corpus, as far as the two children are concerned, had been prayed for and which had been dismissed by a one sentence order of the High Court, we were of the view that since the children have been separated from the paternal 3

grand-parents as well as their father for almost two years, it would be in the best interest of all concerned, and especially the children, to pass appropriate interim orders to enable the paternal grand-parents of the children, as well as the husband of the respondent No.4, to have access to the children. We are fully alive to the fact that this is not a custody proceeding, but, in the facts and circumstances of the case, we are of the view that the children should also not be alienated from the company and affection of their father or paternal grand-parents. In our view, the children require the care, love and affection, both of the father’s side of the family, as well as that of the mother, and that none of them should be denied access to the children. Accordingly, after having spoken to the children and the parties, as also their learned counsel and keeping in mind the interest of the children, we pass the following interim order:

(1)The paternal grand-parents of the children will be entitled to meet the children at the house of the respondent No.4-wife every alternate week-end, preferably on Sunday, between 9.00 A.M. and 1.00 P.M. in the presence of a member of the family of the respondent No.4-wife or a mutual friend. During such visit, the grand-parents of the children shall not be allowed to take the children out of the house of the respondent No.4-wife. However, 4

during holidays consisting of four or more consecutive holidays, the appellant before us will be at liberty to keep the children with him at least for two days during the said period. The respondent No.4- wife shall arrange to drop the children to the house of the appellant for the said purpose, and to take back the children to her custody at a day and time to be mutually fixed;

(2)Although, Dr. Niren Sirohi, the father of the children and the husband of the respondent No.4 is not a party before us, since the writ petition for a writ in the nature of habeas corpus has been filed by his father, seemingly on his behalf also, we further direct that he too will be entitled to visit the children as and when he visits India, upon prior notice to the respondent No.4-wife, who shall thereupon give proper access to him to meet the children either in her presence or in the presence of some other family member of the respondent No.4-wife or a mutual friend, at a date and time to be mutually agreed upon. In case the children agree to go out with him for an outing, he will be at liberty to take them out, but shall return them to the custody of the respondent No.4-wife by 6.00 P.M. at her residence. Dr. Niren Sirohi will under no circumstances be entitled to remove the children from the custody 5

of the respondent No.4-wife, except in the manner aforesaid, or to take them out of India without applying to this Court for such permission. Ms. Asha Nair, learned advocate appearing for the State, shall give necessary instructions in this regard to all concerned authorities and provide them with a copy of this order to ensure that the same is strictly implemented. The learned counsel appearing on behalf of Dr. Niren Sirohi in the trial court, where the proceeding under Section 498A Cr.P.C. is pending, undertakes to obtain an affidavit from Dr. Niren Sirohi to that effect and to file the same in this Court within a month from date.

(3)The visitation rights being given to the paternal grand-parents and Dr. Niren Sirohi should not in any way cause any interference with the normal school routine of the children, who are attending school in Greater Kailash-II.

7. The affidavit to be affirmed by Dr. Niren Sirohi should contain an undertaking that he will not proceed any further with the civil and criminal cases pending in the U.S.A. during the pendency of this appeal before this Court and shall not under any circumstances remove the children from India or from the custody of the respondent No.4-wife, except in the manner and to the extent indicted in this order, until further orders of this Court. Similarly, the respondent 6

No.4-wife also undertakes not to proceed with the criminal and civil proceedings filed by her, which are pending here in India.

8. We also stay the criminal proceedings which are now pending before the learned Magistrate in Patiala House, New Delhi, though we have been informed by learned counsel appearing on behalf of the respondent No.4-wife that the complaint against the paternal grand-parents has since been withdrawn. We have been further informed that the proceedings before the Magistrate has been stayed by the High Court and such stay is operative till 1st September, 2008. By virtue of this order, the stay shall continue until further orders.

9. In addition to the above, it has been mentioned by Ms. Indu Malhotra, learned senior counsel appearing for the respondent No.4-wife, that her client and Dr. Niren Sirohi jointly own a house property in Lexington, Massachussets, U.S.A., and that attempts are being made by Dr. Sirohi to sell off the same. Though, not denied, the said submission made by Ms. Malhotra has been explained by

learned counsel appearing for Dr. Sirohi indicating that since expenses for maintaining such a big house consisting of nine rooms, was costing him about 4000/- dollars a month, he was being compelled to sell the same, and under the prevalent laws in the U.S.A., he would have to keep aside 50% of the said proceeds in a separate account in the name of the respondent No.4-wife. We can 7

see no ground to prevent the sale from being proceeded with and completed since it cannot prejudice the respondent No.4-wife, who will be entitled to receive 50% of the sale proceeds as her share of the property. We, accordingly, see no reason to interfere with the sale of the property and Dr. Sirohi may proceed with such sale, if he so wishes, subject to depositing 50% of the sale proceeds in the name of the respondent No.4-wife in a separate account to her credit.

10. Let this matter be listed on 26th November, 2008, for further directions, with liberty to the parties to mention for variation of this order or for other orders, even before the said date, in the event it becomes necessary to do so. ………………..J.

(ALTAMAS KABIR)

………………..J.

(MARKANDEY KATJU)

NEW DELHI;

AUGUST 27, 2008.

 

http://www.indiankanoon.org/doc/1979218/

Bombay HC:- Custody of minor child given to Father.

January 21, 2013 Leave a comment

Salient points

# Husband / father has retained custody of children though some of them are female children and ALL of them are minor

# Husband has been carefully escalating the matter thru various courts and finally won custody at Bombay HC too !!

# children are either neutral or silent

# Husband has appeared PARTY IN person and NOT by advocate even at the High court

 

================== judgement =================

 

Bombay HC judgment

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.353 OF 2008

Mrs.Mary Cedric Pinto .. Petitioner versus

Mr.Cedric Francis Pinto & Anr. .. Respondents

Mr.N.P.Deshpande for the petitioner.

None for the 1st respondent.

Ms.A.T.Jhaveri, A.P.P for the respondent No.2-State.

CORAM : A.S.OKA, J.

DATE ON WHICH JUDGMENT IS RESERVED : 2nd July 2009.

DATE ON WHICH JUDGMENT IS PRONOUNCED: 10th September 2009.

JUDGMENT:

1. On 2nd July 2009 the submissions of the learned counsel appearing for the petitioner were heard. The judgment was not delivered on that day as the learned counsel appearing for the 1st respondent was not present. The judgment was reserved. The judgment could not be pronounced earlier as the file of the petition was misplaced.

2. The petitioner is the wife and the 1st respondent is the husband. An application was made by the petitioner under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the said Act) before the learned Magistrate praying for various reliefs. The dispute relates to custody of three minor children. Interim relief was granted by the learned Magistrate by order dated 21st November 2007 in exercise of powers under section 23 of the said Act by directing that the 1st respondent shall hand over temporary custody of the three minor children to the petitioner. The directions were given to the 1st respondent to desist from causing domestic violance as mentioned in the report of the Protection Officer. Under the said order an arrangement was made enabling the three minor children to stay with the 1st respondent father from 8.00 a.m of every Saturday till 9.00 a.m on the immediately following Sunday. An appeal was preferred by the 1st respondent. By the impunged order dated 19th December 2007, the learned Additional Sessions Judge modified the order of the learned Magistrate and directed that the husband and wife will be entitled to retain the custody of the minor children every alternate month. The petitioner and 1st respondent were directed to take proper physical and mental care of the children whenever the children would remain in their custody.

3. When the writ petition came up before this Court for admission on 15th September 2008, the petition was ordered to be placed in chamber. On 19th September 2008 in chamber this Court interviewed the three minor children.

Thereafter, the matter appeared before the Court on 24th September 2008.

The paragraphs 2 to 4 of the order passed on that day read thus:

“2. It must be stated here that on Friday, 19th September 2008 at 5.30 p.m the children were called to my chamber alongwith the petitioner and the 1st respondent. I had no occasion to talk to the three children. To enable me to talk to the children, I requested the parties and the advocates to wait outside the chamber. While leaving the chamber, the learned advocate holding for the advocate for the petitioner requested the Court to ensure that a cellphone is not kept with the eldest child for recording the conversation in the chamber. The first respondent categorically stated that there is no basis for such apprehension.

 3. The children were at pains to tell me that they desire that the parents should come together and they will be very happy if they are in position to stay with both the parties. Therefore, in chamber, a suggestion was given to the parents to explore the possibility of reconciliation, keeping in mind the desire expressed by the three children. 

4. I gather from Shri Deshpande, learned advocate for the petitioner that as of today, there is no possibility of reconciliation between the petitioner and the 1st respondent. “

4. On 27th April 2009 when the petition was called out, none appeared for the 1st respondent. The advocate for the petitioner was present. He stated that no progress has been made in the matter of settlement. Therefore, the petition was ordered to be fixed for final disposal.

5. The petitioner and 1st respondent married on 18th October 1989 under the provisions of the Special Marriage Act. On 27th December 1991 they again got married in church. The couple was blessed with three children. The first two are the daughters and third one is the son. The present ages of the children appear to be 16 yrs, 14 yrs and 12 yrs respectively.

6. As stated earlier, temporary custody of the minor children was granted by the learned Magistrate in favour of the petitioner. The order of temporary custody was disturbed by the Sessions Court by passing a peculiar order. The petitioner-wife and the 1st respondent husband were permitted to retain custody every alternate month. It, however, appears that after the order of the Sessions Court, the custody of the children has remained with the 1st respondent father.

7. The learned counsel appearing for the petitioner submitted that there was no reason for the learned Additional Sessions Judge to disturb the order of temporary custody passed by the learned Magistrate. He submitted that the order of the learned Sessions Judge that custody of the children will be retained by the petitioner and 1st respondent every alternate month is perverse and is not in the interests of the minors. He submitted that out of the three minors two are daughters and the son is of tender age. He submitted that welfare of the minors require that their custody should be retained with the mother.

8. I have given careful consideration to the submissions. It is well settled law that while deciding an application for custody of minor children, the only paramount consideration is welfare of minor children and the legal rights of the parties or the parents are not relevant. The order of the learned Magistrate records that the minor children on their own sought audience of the learned Magistrate and in chamber when the learned Magistrate talked to the children, they expressed a desire to stay with the mother. Thereafter, the learned Magistrate passed an interim order directing that the custody of the minor children be handed over to the petitioner. However, he passed an order directing that at weekends the minor children will stay with the 1st respondent.

9. The learned Additional Sessions Judge has noted in the impugned order that he had taken interview of the minor children in his chamber and he had talked to the parties with a view to bring about settlement. He has recorded that the petitioner was not in a mood to even think of settlement.

10. In paragraph 4 of the impugned order, he has noted that both the mother and father were claiming custody. He noted that the children want both the parents to stay together and they need love and affection of both, the mother and the father. He noted that the children expressed their desire to celebrate Christmas and New Year in the company of their parents. The relevant part of the order passed by the learned Additional Sessions Judge reads thus: ” REASONS 6. The elder daughter Eleine is the studen of IX th standard. Cedrina and Edric are the students of Vth

 standard. Their welfare is of paramount consideration.
The children do not have any allegation against the
parents. Both the parties want to exercise their
parental authority to have custody of the children.
The children want both the parents and stay with them
together. They want ot celebrate Christmas and the New
Year in their company, which appear impossible,
because the respondent No.1 is not ready. It is in
this circumstances the appeal needs to be partly
allowed as the order passed by the learned Magistrate
needs some modification in the interest of the
children. Hence, the following order: ORDER

The appeal is partly allowed as under:-

1. The appellant shall give the custody of the three
children to the respondent No.1 today in the Court.

2. The respondent No.1 shall keep the children in
their custody till 19th January 2008. She shall give
the custody back to the appellant on 20th January 2008
at about 9 a.m in the office of Mahila Vikas Kendra
Pulgate, Pune and the appellant shall collect the
children therefrom.

3. Thereafter the appellant shall keep the children
in his custody till 19th February 2008 and he shall
deliver the custody of the children to the respondent
No.1 on 20th February 2008 at the same place and time
to enable the respondent No.1 to collect the children.

4. In this manner this cycle of one month shall go on
until further order.

5. The appellant and the respondent No.1 shall not
remove the children out of the municipal limits of the
Pune Cantonment and Pune Corporation without prior
permission of the learned Magistrate.”

11. It must be noted that even before this Court the three children were at pains to point out that they desire that their parents should stay together and they would be very happy if they get an opportunity to stay with both the parents. Therefore, on 19th September 2009 a suggestion was given by this Court to the parents to explore the possibility of reconciliation keeping in mind the desire expressed by the three children. The petition was adjourned thereafter from time to time. But the parties could not reconcile and come to a settlement. It is not possible at this stage to find out which of the two parties is not willing to settle the dispute. But it has to be observed that it would have been in the best interests of the minor children if the petitioner and the 1st respondent had patched up the differences and had agreed to reside under one roof only with a view to ensure that the minor children get company of both the parents. Both the parties should have given paramount importance to the wishes expressed by their children. Sadly, the petitioner and 1st respondent are not able to patch up the disputes. They could have even considered of residing under one roof atleast for few years till the children become major.

12. The three children are school going children. It must be stated here that the Sessions Court has passed a very peculiar order. The Sessions Court thought that it is in the interests of the minors that they remain in custody of their parents every alternate month. Such approach, to say the least, is shocking. The learned Sessions Judge has not at all considered the effect of this arrangement on the minors. The Act of disturbing custody of the minors after every one month will cause mental trauma to the minor children. The minor children have already suffered because of the attitude adopted by the parents of not settling the disputes atleast for the sake of children. In a case where there is a dispute between the parents over the custody of minor children, the custody has to be retained with one of the parents with visitation rights and/or right to have temporary custody for few days reserved in favour of the other parent. The arrangement which is made by the impugned order is certainly not in the interests of the minors and by such arrangement, the minors are bound to suffer. Therefore, the order impugned which is certainly not consistent with the welfare of the minors, will have to be quashed and set aside. Now the question which remains is what should be the interim arrangement during the pendency of the main application under section 12 of the said Act. For whatever reasons, for a substantially long time, the custody of the minors has remained with the 1st respondent father. Now it will not be in the interests of the minors to disturb the custody of the father till the main application is heard. The main application under section 12 of the said Act will have to be heard and disposed of expeditiously. However, the petitioner will have to be given right to meet her minor children and to remain in their company for sufficiently long time at periodical intervals. Even the minor children will need the company of their mother. However, interim arrangement will have to be worked out by the parties before the learned Magistrate as the 1st respondent has not chosen to appear before this Court at the time of final hearing.

13. Hence, I pass the following order:

: O R D E R :

(a) The impugned order dated 19th December 2007 is quashed and set aside.

(b) Considering the events which have transpired, till the disposal of the application under section 12 of the said Act, the custody of the minor children of the 1st respondent husband shall not be disturbed unless there are subsequent events warranting change in custody.

(c) The petitioner will be entitled to meet the minor children at regular intervals and to remain in their company for sufficiently long time. The learned Magistrate will pass a proper order in that behalf after hearing both the parties.

(d) The main application under section 12 of the said Act shall be decided as expeditiously as possible and preferably within a period of three months from today.

(e) All contentions of the parties in the main application are expressly kept open.

(f) The writ petition is disposed of in above terms.

(A.S.OKA,J)

 

http://www.indiankanoon.org/doc/88924056/

Child Access & Custody Guidelines- Approved by Bombay High Court, Courtesy “Child Rights Foundation”

November 2, 2012 Leave a comment

Download the child-access-custody-guidelines-approved-by-bombay-high-court

 

:
N.J. Jamadar,
Registrar (Inspection-II),
High Court (A.S.),
Bombay.
To :
Shri Jatin Katira,
Child Rights Foundation,
B-3-13-04, Sector 3,
Vashi, Navi Mumbai-400 703.
Subject : Child Access & Custody
Sir,
With reference to aforementioned subject, I am directed to inform
you that the Hon’ble Guardian Judges of the Family Courts in the State of
Maharashtra, have been pleased to direct the circulation of the Guidelines
amongst the Family Court Judges and the Marriage Counsellors in the
Family Courts across the State of Maharashtra.
I convey my gratitude for your kind gesture in preparing a detail
guidelines which may prove beneficial to the Judges of the Family Courts as
well as the Marriage Counsellors in determining Child access and custody
matters.
With regards,
Yours faithfully,
Registrar (Inspection – II)

Mother asked to Quit Job for upbringing the Child–Bombay High Court

In one of its Judgments, Bombay High Court’s Justice Roshan Dalvi asked the mother to quit her job and stay with her child to get the custody. The Mother is not residing with the child, as the child is in Sangli with her parents. The mother is in Lonavala for Job. Whereas the father of the child resides only 35kms from the parental house of the child’s mother. In these circumstances, if the custody is given to the mother who stays in Lonavala then the father would not get access comfortably. But if she gives undertaking that she will quit the job only then the custody would be preferable as the Father also will access the child comfortably.
pls find below the Full Judgement.

1 WP.4086.2012.sxw
mnm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.4086 OF 2012

Savita Sachin Patil …Petitioner
Vs.
Sachin Suresh Patil …Respondent
Mr. Haribhau Deshinge i/b. Mr. Vijay Killedar,
Advocate for the Petitioner
Ms. Preeti B. Walimbe, Advocate for the Respondent
CORAM : MRS. ROSHAN DALVI, J.
DATED : 18TH JULY, 2012
P.C. :

1. The Petitioner wife has challenged the order of District Judge, IV, Sangli dated 10th February 2012, which was passed upon her application for interim custody of her minor child Nikhil. The parties have been married since 2007. The child was born in 2008. The parties separated since 2010. A complaint under Section 498A came to be filed on 9th April 2010. The wife had left the matrimonial home with the child and was living with her parents in their village. She has claimed that since January 2011 the husband had forcibly taken the child. The wife claims that thereafter the husband represented
to her that the child should stay with him for some days and has
thereafter kept custody of the child with him after she delivered
the child to him. The wife accepted the plea of the husband to
avoid further controversy, but whenever she called upon him to
deliver back the child, he on some pretext or the other failed to
comply.

2. The father has applied for the custody of the child in the trial Court. This itself shows that the father did not have custody prior to the application. The child has remained with the father pending the application.

3. The mother took out the application for interim custody of the child on 20th August 2011. In the impugned order the learned Judge has not considered the merits of the matter. He has neither accepted, nor rejected her application on the ground of delay of 8 months. He has found no urgency to deal with the application for interim custody filed by the mother of the child. He has observed that the application would be heard along with the main petition and the custody of the minor son Nikhil would be continued to be with the father till the decision is taken on merits.

4. The Counsel on behalf of the Respondent has contended that the writ petition does not lie because an appeal is maintainable under Section 43 of the Guardian and Wards Act, 1890. That would be after the interim custody application is either accepted or rejected. Counsel has argued that the fact that the custody of the minor child is to be continued with the husband, shows the order of rejection.

5. I find that the contention is incorrect in view of the
observation of the learned Judge in the impugned order that the
application would be decided with the main Petition. Consequently, only a writ petition would be maintainable.

6. It is contended in the writ petition that the mother does not live with her own parents at her parental home. She lives separately in Lonawala where she has procured an employment. That aspect is admitted by the mother of the child. However, the mother claims that she is prepared to give up her job and take custody of the child by residing with her parents in her parental home. She has also stated to Court that in the alternative, her mother is prepared to live with her in Lonawala.

7. Considering an application of custody of a child of 4 years by the mother is a fragile matter. The Court requires to consider such an application with the child’s interest at the tender age. The urgency or lack of urgency in an application upon any delay may be rightly considered by any Civil Court or even a Family Court in a dispute between the parties themselves who are adults. The order of access applied for by the mother is not granted by the Court upon considering the rights of the mother.

It is granted upon considering the rights as well as the welfare of
the child to have access to his own mother and to be in custody
of the mother. A child of such tender years is even under the
statutory provision contained in Section 6 of the Hindu Minority
and Guardianship Act, 1956 required to be ordinarily given to the mother. Consequently, urgency is implicit in an application
filed by a mother, no matter whatever the previous circumstances.

8. In this case the father has contended that the mother left
the child with her own parents and has gone to another village.
The allegations of adultery are also made. The father has
contended that thereafter the parents of his wife themselves left
the child with him. It may be mentioned that the contention of
the mother stands to reason and would have to be accepted.
Considering the fact that the main Petition itself has been filed
on 3rd January 2011, the contention of the Respondent that after
filing the petition for custody the custody voluntarily came to
him is rather difficult to accept.

9. Under these circumstances I considered it appropriate to meet the child as well as the father, mother and the grandfathers of the child. The maternal grandfather has not been able to attend as he is from Sangli. The father as well as the mother have attended before the Court. The father has also brought with him the paternal grandparents of the child as also the child. The child is of too tender an age to be interviewed. The child has been allowed to meet his mother during the course of the afternoon session of this Court. Over a period of time the child has gone to the mother, played with the mother and has been comfortable with the mother despite a long lapse of 1½ years during which the child was deprived of the love or care of the mother for whatever reasons.

10. The mother of the child who is present in Court undertakes
to the Court that she will leave her employment in Lonawala and go to her parental residence to be with the child after she gets the interim custody claimed by her. The mother also states that in the alternative her own mother will come to live with her in Lonawala so that she can continue her employment.

11. It is seen that the father lives near Sangli at the distance
of only 35 Kms from the parental home of the mother. If the mother is to be given custody of the child, the father must obtain access comfortably. If the Petitioner mother lives in Lonawala that would not be possible. Hence, the mother cannot be allowed to live in Lonawala and claim even interim custody of the child. She would then only be entitled to access at the convenience of the parties and the child. Under these circumstances, the mother gives an undertaking to the Court that she would leave her employment and go to her parental
residence after she gets interim custody.

12. Her undertaking is accepted. The mother shall submit her
resignation and show the Court that fact. The mother shall also
file a written undertaking in the above terms.

13. S.O to 24th July 2012 in Chambers at 2.30 p.m. The father shall bring the child to Court on the next date of hearing.

(MRS. ROSHAN DALVI, J.)

http://bombayhighcourt.nic.in/data/civil/2012/WP1139012180712.pdf

Categories: Child Custody Tags:

Supreme Court Of India decides the custody of Two children to go to the Father.

NON- REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4308 OF 2012

(Arising out of Special Leave Petition (C) No. 13254 of 2011)

Shaleen Kabra Appellant
Vs.
Shiwani Kabra Respondent
With

CIVIL APPEAL NO.4309 OF 2012
(Arising out of Special Leave Petition (C) No. 15819 of 2011)
JUDGMENT
ANIL R. DAVE, J

1. Leave granted.

2. Being aggrieved by the judgment of the High Court of Delhi dated the 21st of February, 2011 in CM(M) 1018 of 2010, these appeals have
been filed by the parties before the High Court, who are parents of two children, whose custody is the subject matter of these appeals.

3. As the impugned order is challenged in both these appeals, both the appeals were heard together and they are being decided by this
common order. For the sake of convenience, parties to the litigation
have been referred to hereinbelow as arrayed in Civil Appeal arising
out of Special Leave petition No. 13254 of 2011.

4. The marriage of the appellant and the respondent was solemnized on
14.02.1994. From the wedlock, two sons were born, who are
approximately 15 and 9 years old. The appellant and the respondent
have been living separately since 10.04.2007, and have been involved
in various litigations since then, including a petition for divorce under Section 13(1)(i) & 1A of the Hindu Marriage Act, 1955 filed by the appellant-father and also proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated by the respondent mother.
The appellant, who is an IAS officer, stationed at Jammu at present, had sought certain modifications in the arrangement of custody of the children, and also permission to take transfer certificates of the children from Delhi and complete their admission in a school in Jammu, and in this respect, moved applications dated 25.05.2010 and 22.06.2010 before the Additional District Judge. The Learned Additional District Judge, vide order dated 19.07.2010 was pleased to allow the applications moved by the appellant-father.

5. Being aggrieved by the above-mentioned judgment delivered by the
Trial Court, the respondent preferred CM(M) No. 1018 of 2010 before
the High Court. By virtue of the impugned judgment, the High Court
partly allowed the petition filed by the respondent whereby the
respondent was permitted to have custody of the younger son, whereas
the appellant was to have custody of the elder son.

6. While coming to the above conclusion, the High Court has cited
various decisions in support of the contention that while deciding the issue about custody of children in a matrimonial dispute, the
paramount consideration is that of welfare of the child. Thereafter, on the basis of interaction with the children in the Chambers, the learned Single Judge was of the view that the elder son had a strong desire to stay with the appellant-father. He also found that there was also an admission by the respondent-mother that she would not be able to adequately handle the educational needs of the elder son without tutors. For the aforestated reasons, the learned Single Judge ordered that custody of the elder son should remain with the appellant-father.

7. In the case of the younger son, the learned Single Judge observed that he, being of a very tender age, was incapable of forming a definite preference as to with whom he wanted to stay. In the circumstances, the learned Single Judge ordered that the custody of the younger son should be given to the respondent-mother, as she would be in a better position to understand the needs of such a young child. On this basis, the custody of the younger son was directed to remain with the respondent.

8. The learned Single Judge also recorded a finding to the effect that both the children appeared to be very happy in the company of each other as there was a strong bonding between them.

9. Being aggrieved by the said judgment, both the parties have come
before this Court vide the present appeals.

10.We heard the learned counsel for the parties, and also spoke to the children at length.

11. The counsel appearing for the appellant-father, at the outset, submitted that the High Court ought not to have directed separation of two children, in view of the close relationship between them and he further submitted that there could be disastrous effect of such a separation on them. Thereafter, the learned counsel made further submissions about the poor academic performance of the younger son while in the custody of the respondent-mother, and also regarding the alleged adulterous conduct of the respondent-mother, which was said to have a severe adverse effect on the children. The learned counsel further added that the father of the appellant, i.e. grand father of the children, is staying with the appellant and he, being a very educated person, would be in a position to take good care of the children. On these grounds inter alia, the learned counsel argued that both the children ought not to have been separated, and that custody ought to have been granted to the appellant-father.

12.On the other hand, the learned counsel appearing for the respondent mother submitted that looking to the service condition and status of the appellant-father, occupying a stressful position in the state of Jammu & Kashmir, he would not have sufficient time to give adequate attention to the children and if custody of the children is given to him, the children would be taken care of only by servants and that would not be in the interest of the children. Further, the learned counsel argued that as the children were already in a very good school in Delhi, it would not be just and proper to move them to another school in Jammu & Kashmir which might be of an inferior standard. For the aforestated reasons, the learned counsel argued that custody of even the elder son ought to have been granted to the respondent-mother.

13.On hearing the learned counsel and also upon talking at length with the children, we find force in the arguments of the counsel for the appellant-father.

14.Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other.

15.If we are of the view that both the brothers should not be separated and should be kept together, the question would be as to who should be given custody of the children.

16.We are of the view that the children should be with the appellant father. The respondent-mother is not in a position to look after the
educational need of the elder son and as we do not desire to separate
both the brothers, in our opinion, looking to the peculiar facts of the case, it would be in the interest of the children that they stay with the appellant-father.

17.We are sure that the appellant- father, who is a member of Indian
Administrative Service and is a well groomed person, with the help of
his father, who was also a professor, will be able to take very good
care of the children. Their education would not be adversely affected
even in Jammu and Kashmir as it would be possible for the appellant father to get them educated in a good school in Jammu. We do not
believe that the children would remain in company of servants as
alleged by the learned counsel appearing for the respondent-mother.
Father of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated
grandparents would not only help the children in their studies but
would also help them to imbibe cultural and moral values and good
manners.

18.So as to see that the respondent-mother is also not kept away from the children, she shall have a right to visit the children atleast once in a month. The appellant –father shall make arrangements for A.C. First Class railway ticket for the respondent-mother or shall pay the railway fare to her so as to visit the children once in a month at a weekend and the appellant-father shall also make arrangements for stay of the respondent-mother either at his own residence, if the respondent mother agrees to that, otherwise the appellant-father shall make arrangements for suitable accommodation for the respondent-mother when she comes to Jammu to visit the children.

19.During the period of vacation exceeding two weeks, the appellant father shall send the children to Delhi so that the children can stay
with the respondent-mother atleast for three days. We are sure that the appellant and the respondent shall determine the modalities as to
during which portion of the vacation, the children should visit the
respondent-mother as almost both the parents are interested in having
the company of the children.

20. For the aforestated reasons and looking to the peculiar facts of the case, we quash and set aside the impugned order passed by the High Court and restore the order of the trial court, subject to modification of conditions-arrangements, recorded hereinabove. The custody of both the children shall be given to the appellant-father before 15th May,2012 and the arrangements with regard to visit of the children etc. shall take effect from 1st June, 2012, the respondent-mother shall do the needful to send the younger son to the residence of the appellant father before 15th May, 2012.

21.The appeals are accordingly allowed with no order as to costs.

…………………………J
(D.K. JAIN)
…………………………J
(ANIL R. DAVE)
NEW DELHI
May 8 , 2012

Categories: Child Custody Tags:

Husband get divorce u/S 13(1)(ia) and (ib) of HMA but the Bombay HIgh Court set asides the order of Maintenance to the wife which was rejected by Family Court.

July 5, 2012 1 comment

A husband who won the Divorce & Maintenance battle in Family Court has to run pillar to post even after the mental cruelty from Wife…this time its from Bombay High Court. Even after the Maintenance application of Wife was rejected by Family Court u/s 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956, the Bombay High Court ordered to set aside the same and directed the Lower Court for the Re-trail of the said application.

below is the Judgement

fca28.12.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.28 OF 2012

Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401202. … Appellant
(Ori.Respondent)

Versus

Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. …. Respondent
(Ori.Petitioner)

AND

FAMILY COURT APPEAL NO.29 OF 2012
WITH
CIVIL APPLICATION NO.41 OF 2012

IN
FAMILY COURT APPEAL NO.29 OF 2012
1. Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401 202.
2.Chi.Palak Nitin Shah,
aged about 19 years, Indian Inhabitant,
residing at C/o.Champaklal Hemchand Shah,
A-204 Shelter C.H.S. Ltd. Ambadi Road,
1 of 18
SQP
fca28.12.sxw
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), District Thane-401 202. … Appellants
(Ori.Petitioners)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. …. Respondent
……
Mr.Ajit Karwande for the Appellants.
Respondent-husband present in-person.
……
CORAM: A.M. KHANWILKAR &
A.R.JOSHI, JJ.
JUDGMENT RESERVED ON : 15TH JUNE, 2012
JUDGMENT PRONOUNCED ON : 21ST JUNE, 2012
JUDGMENT (Per Khanwilkar, J.) :
1. We propose to dispose of both these Appeals together by this
common Judgment.
2. Appeal No.28/2012 is directed against the Judgment and Decree
passed in Petition No.A-1082/2007 dated 1st December, 2011 passed by
Family Court No.VII, Mumbai, whereby, the Family Court allowed the
Petition filed by the respondent-husband for dissolution of marriage and divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.
3. The other Appeal being Appeal No.29/2012 is also filed by the
wife along with daughter challenging the common Judgment dated 1st
December, 2011 passed by the Family Court No.VII, Mumbai in Petition
No.C-136/06 praying for maintenance and separate residential
accommodation for herself and minor daughter Palak Nitin Shah under
Section 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956.
4. The Family Court by the common Judgment has dismissed the
petition filed by the wife and minor daughter for maintenance and
residential accommodation but has allowed the Petition filed by the
husband for dissolution of marriage and decree of divorce. We would
first examine the challenge to the decree of divorce by the appellant wife.
5. The respondent husband in his Petition filed under Section 13(1)
(ia) and (ib) of the Hindu Marriage Act has stated that the marriage
between the parties took place on 5th February, 1990. They were blessed with one daughter named Palak. After few years, discord between the spouses took place as a result of very rude behaviour of the wife. The wife was uninterested in domestic work. She picked up quarrels on unessential matters and created unhealthy atmosphere in the house. The wife was in the habit of making false, frivolous and concocted allegations against the husband and his family members. She went to the extent of making false allegations against the husband having illicit relationship with his two real sisters. That on 1st June, 2005, the wife left her matrimonial home on her own and inspite of persuasion by the husband and his relatives, she refused to join the company of the husband. On the basis of these allegations, the husband prayed for dissolution of marriage between the parties solemnized on 5th February, 1990 at Mumbai and the decree of divorce.

6. The appellant wife filed written statement to oppose the said
Petition. The parties adduced evidence in support of their respective
claim. The Family Court adverting to the relevant evidence and placing emphasis on the admissions given by the appellant wife in her crossexamination, accepted the claim of the respondent husband. The Family Court in the common Judgment has highlighted the admissions of
appellant in her cross-examination wherein she has admitted that she did not lodge any complaint before police against respondents or his family members. Further, she does not have any evidence to show that she was tortured mentally as well as physically. She admitted that she got her daughter admitted in Nazareth School without consent of her husband and she had never discussed with husband about the same. She has also admitted that the husband and his family members approached her and tried to convince her to come back to her matrimonial home on two occasions. She has admitted in the cross-examination that she saw the illicit relations between her husband and his real sisters. The Family Court has then considered the admission of appellant’s witness PW 2 i.e. daughter Palak. It has then noted that besides the oral admissions of the appellant and her witness, even the documentary evidence goes against the appellant. It took into account the pleadings and oral evidence of the parties, more particularly, in respect of the allegation about the illicit relations of husband with his sisters. The appellant had made those allegations in her letters sent to the husband and reiterated the same in the pleading and also in the oral evidence and justified the same on the ground that that was her inner feeling. The Family Court,
therefore, opined that the allegations by the appellant wife about illicit relation between husband and his sister were unsubstantiated and frivolous. The Family Court has noticed the letters Exhibit 62 and Exhibit 63, in addition to the stand taken in the written statement as well as oral evidence of the appellant. The Family Court on analysis of the above material then proceeded to authoritatively hold that the wild allegations made by the wife against the husband about illicit relations between him and his sisters, coupled with the fact that inspite of attempt made by the husband and his family members to persuade the appellant wife to come back to her matrimonial home and resume cohabitation/conjugal rights, she failed to do so, answered the issue against the appellant wife and therefore, dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1) (ia) and Section 13(1)(ib) of the Hindu Marriage Act. This is the sum and substance of the finding and the conclusion reached by the Family Court to answer the matter in issue.
7. We have heard Mr.Karwande for the appellant wife and the
respondent husband who has appeared in-person. No doubt,
Mr.Karwande made strenuous effort to persuade us to take the view that the common Judgment of the Family Court is completely unsustainable as it fails to analyse the evidence properly and to record finding of fact in the context of the separate issue that was required to be answered before concluding that the petition filed by husband for dissolution of marriage and divorce deserves to be allowed. The argument is attractive at the first blush. However, as aforesaid, the Family Court has adverted to the substance of the pleading and oral and documentary evidence adduced by the parties. The Family Court has deduced its conclusion on that basis.
After having perused the relevant pleadings and the evidence on record, which this Court in appeal is expected to do, the conclusion reached by the Family Court in dissolving the marriage between the parties and passing decree of divorce is inevitable. We are inclined to uphold the order of dissolution of marriage and the decree of divorce.
8. We would first deal with the ground ascribable to Section 13(1)
(ia) of the Hindu Marriage Act. The Family Court has adverted to
different allegations found in the petition filed by the husband. In our opinion, the decree passed by the Family Court ought to be upheld on the ground of cruelty considering the fact that the appellant wife in her communication dated 11th May, 2006 in response to the letters sent by the respondent husband dated 5th December, 2005 and 11th January, 2006 has stated about the incidents she had personally noticed indicative of illicit relations between the respondent husband and his sisters. We refrain from reproducing those allegations in this Judgment. Suffice it to mention that the same are serious and disparaging remarks. The respondent husband in his petition has pointedly referred to the said communication, being one of the acts committed by the appellant wife which had caused immense mental agony and cruelty to him. The appellant wife in the written statement went on to reiterate those allegations and gave justification that the letters sent by her on 11th May, 2006 was a privileged communication between the husband and wife. She has further justified her stand on the ground that she had stated those
facts in the said letter on the basis of “her inner feelings”. This defence is found in paragraph XIV of the written statement. The husband in his evidence has reiterated the position that making of such malafide, reckless and frivolous allegations by the wife constituted severe mental cruelty to him. Nevertheless, the appellant wife in her oral evidence (cross-examination) went on to assert that she personally saw the illicit relations between the respondent husband and his real sisters and she had written about the same in her communication dated 11th May, 2006 sent to respondent husband on the basis of her inner feelings. Admittedly, no contemporaneous evidence has been produced by the appellant wife to
corroborate her version. The facts stated by her in her communication
dated 11th May, 2006 on which she has placed reliance have not been
substantiated by the appellant at all, except her bare words. The making of such false, frivolous and unsubstantiated allegations against the husband in the communication as well as reiterating the same in the written statement and also in the oral evidence given by the wife before the Court was bound to cause mental cruelty to the husband. It was clearly an attempt to sully the reputation not only of the respondent husband but also of the two sisters who were in the profession of Medicine and Law respectively. That, by itself, is a good and germane ground to dissolve the marriage between the parties and to grant decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. We need not deal with the other allegations concerning ground of cruelty. Even the Family Court has not touched upon those allegations but in substance has opined that this ground established from the record was sufficient to grant decree of divorce. In other words, the decree of divorce under Section 13(1)(ia) deserves to be upheld in the fact situation of the present case.

9. The Family Court has also dissolved the marriage between the
parties and granted decree of divorce on the ground under Section 13(1)(ib) i.e. desertion. As an appellate Court, having upheld the decree of divorce on one count, which is formidable one and unassailable on any count, it may not be necessary to dilate on other grounds to sustain the decree. Be that as it may, we find that even though the Family Court has not thoroughly analysed the pleadings and evidence on record in the context of Section 13(1)(ib), but has certainly referred to the substance of the pleadings and the evidence. The Family Court has noted that appellant wife left the matrimonial house on her own on 1st June, 2005 and that inspite of persuasion by the respondent husband and his family members on two different occasions, she refused to resume cohabitation/conjugal rights. The fact that she left her matrimonial home on 1st June, 2005 is admitted by the wife. She has also admitted that after leaving the matrimonial home, she stayed with her father. Further, she took away her daughter along with her and got her admitted in Nazareth School without consulting her husband or informing him about the same.
She has also admitted that the husband and his family members had come to her on two occasions to convince her to resume cohabitation/conjugal rights, but she did not go back to her matrimonial house. On the basis of these admitted facts, the Family Court has granted decree of divorce also on the ground of desertion under Section 13(1)(ib).
10. As aforesaid, on reading the impugned Judgment, it may appear
that it has straightway jumped to conclusion against the appellant wife.
Notably, the Court has rightly noted the essential factors to constitute the
ground of “desertion”. Such as, factum of separation, intention to bring
cohabitation permanently to an end, the element of persuasion. In the
10 of 18
fca28.12.sxw
communication sent by the wife to the husband and more so in her
pleading and oral evidence before the Court, the appellant wife has given
admission on the above aspects. The fact that the parties separated on 1st
June, 2005 is indisputable. The husband having approached appellant
wife as also his family members on two occasions to persuade the
appellant to resume cohabitation/conjugal rights has been admitted by the
appellant wife. However, she refused to go back. It necessarily follows
that the appellant wife had shown intention to bring cohabitation
permanently to an end. Even persuasion by respondent husband and his
family members did not work with the appellant. She steadfastly refused
to join the matrimonial home. In this backdrop, the finding as well as the
conclusion reached by the Family Court of dissolving the marriage
between the parties and granting decree of divorce under Section 13(1)
(ib) is also unexceptionable.
11. As aforesaid, no interference is warranted with the final order
passed by the Family Court in dissolving the marriage between the parties
and granting decree of divorce on the ground of cruelty and desertion
under Section 13(1)(ia) and 13(1)(ib) in favour of respondent husband
and against the appellant wife.
11 of 18
fca28.12.sxw
12. That takes us to the other Appeal arising out of the dismissal of
Petition filed by the appellant wife, for maintenance and separate residential
accommodation, by the common judgment and decree. Indeed, this Petition
was filed by the appellant wife in earlier point of time. The Petition for
dissolution of marriage and divorce was filed by the husband, during the
pendency of the maintenance petition. The claim in the maintenance petition
was founded on the ground under Section 18(1) and 18(2) (a), (e) and (g). In
other words, appellant wife claimed separate residential accommodation from
her husband without forfeiting her claim of maintenance, on the ground of
desertion by the husband and of abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her. The second
ground was that she was treated with such cruelty as to cause reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband and, thirdly, that there are other causes justifying living separately. The
Trial Court has examined the subject issues while considering the question of
awarding maintenance amount to the wife and the daughter as well as of
separate residence to the wife, together. Indubitably, these issues were distinct
and were required to be analysed and decided separately. Further, the same
have been disposed of together by cryptic judgment, in the following words:
12 of 18
fca28.12.sxw
“Issue Nos. 1 to 4 (in Petition No. C-136/2006)
22. The evidence is already discussed above. To avoid
repetitions and the issues involved in this case, it is sufficient to
mention that Bhavna(wife) left the matrimonial home on her own.
She took with her minor daughter, who has attained majority today.
She even failed to inform the husband. She admits that she has no
proof of physical or mental cruelty. She has not proved reasonable
cause to reside separately.
23. There is sufficient evidence on record to show that
Nitin(husband) was willing to continue matrimonial relations. He has
made request in writing (Exh 62 and Exh 63) Bhavana (wife) has not
bothered to reply it. Palak (P. W. No. 2) admits that sister of
respondent had come to convince her and mother to come to reside
with them. Bhavana(wife) also admits that on two occasions the
husband and his family members came to bring her back. Sec. 18(1)
of Hindu Adoption and Maintenance Act, 1956 provides wife shall
shall be entitled to be maintained by her husband during her life time.
Sub-clause (2) provides – a Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to
maintenance:-
a) If he is guilty of desertion,
b) If he has treated her with cruelty,
c) If he is suffering from a virulent from of leprosy,
d) If he has any other wife living,
e) If he keeps a concubine in the same house,
f) If he ceased to be a Hindu by conversion, if there is any other
cause justifying her living separately.
24. The rights and liabilities are co-relative. If any one want
rights, then he has to perform liability. No doubt, the wife is entitled
to live separately for any of the just grounds as provided under sec.
18(2) of The Hindu Adoptions and Maintenance Act, 1956. The
entire evidence on record shows that Bhavana(wife) is at fault. She
herself treated the husband with cruelty. She has deserted him
without reasonable cause. She has failed to prove her claim.
25. The argument (Exh. 86) advanced by wife is mainly
relating to properties or without any factual or legal support. Hence,
need no reply. Therefore, I answer point nos. 3 to 4 in the negative.”
13. In substance, the Family Court was influenced by the fact that, in the
accompanying Petition, it was already found that appellant wife had left the
13 of 18
fca28.12.sxw
matrimonial home on her own, along with her minor daughter and was not
willing to return back, even though the respondent husband was willing to
continue with the matrimonial relation. Thus, the Family Court held that the
appellant wife is dis-entitled from claiming maintenance from her husband. As
regards the maintenance amount payable to daughter Palak, the Family Court
noted that she has attained majority. The fact that she was still unmarried, has
not been reckoned at all. Be that as it may, we are of the considered opinion
that the manner in which the Petition for maintenance and separate residence,
filed by the appellant, has been decided, is undesirable. The Family Court
ought to have analysed the pleadings and evidence in the context of the claim
of maintenance by wife and unmarried daughter, though attained adulthood.
14. The respondent has placed emphasis on the decision of the Rajasthan
High Court in Shimla Devi vs. Kuldeep Sharma AIR 1999 Rajasthan 181. In
that case, the Court proceeded on the finding that the wife was unwilling to
reconcile and resume cohabitation. Notably, the said judgment considered the
correctness of the decision of the Family Court by which the marriage between
the parties came to be dissolved and decree of divorce was passed. The
observations found in Paragraph 7 and 8 of the said decision, on which
emphasis has been placed, will be relevant in the context of the issue of
dissolution of marriage and passing of decree of divorce. Reliance was then
placed on the decision in the case of Deb Narayan Halder vs. Smt. Anushree
14 of 18
fca28.12.sxw
Halder AIR 2003 SC 3174. The Court found that the reasons given by the
wife, about her ill treatment, were non existent and unsubstantiated. The Court
then proceeded to hold that the wife left the matrimonial home without any
justification. On that basis, the Court answered the issue of maintenance under
Section 125 of the Code of Criminal Procedure, which is attracted when the
person, having sufficient means, neglects or refuses to maintain his wife and
unmarried daughter, though they are not able to maintain themselves. Section
18(1) of the Hindu Adoption and Maintenance Act, 1956 bestows right in the
Hindu wife, being entitled to be maintained by her husband during her life
time. Indeed, the opening words of the said Section are of some significance,
which read – “subject to the provisions of this section”. Sub-Section (1) of
Section 18, distinctly deals with issue of maintenance of Hindu wife, by her
husband, during her lifetime. Whereas, Section 18(2) of the Act bestows right
in the Hindu wife to be entitled to live separately from her husband without
forfeiting her claim of maintenance. In the present case, besides the issue of
maintenance of wife, it was necessary to examine the independent claim of the
unmarried daughter – who at the time of institution of the petition was
admittedly minor.
15. As regards the claim of the appellant wife for providing separate
residential accommodation, even if we were to take the view that the Family
Court in substance has found that the appellant wife has not substantiated the
15 of 18
fca28.12.sxw
requirements specified in Clause (a) and Clause (b) of Sub-Section (2), even
then, the Court was obliged to analyse the pleadings and evidence of the parties
in the context of the requirements of Clause (g) of Section 18(2), which entitles
the Hindu wife to live separately from her husband without forfeiting her claim
to maintainance on account of any other cause justifying living separately. That
was one of the ground pressed into service by the appellant for her claim of
separate residence, in her Petition, which is noted even in the opening part of
the Judgment. The Family Court ought to have considered the matter in that
context.
16. On a bare perusal of Section 18, it is amply clear that the sweep of
each requirement under Sub-Section (2) is markedly different. In other words,
each of these causes in clauses (a), (b) and (g), invoked by the appellant wife,
operate in different spheres. It was but appropriate that the Family Court ought
to have analysed the material on record to answer the same independently and
not to jump to a conclusion.
17. Considering the fact that the Family Court has not properly dealt with
the issues of maintenance and separate residence, we deem it appropriate to
quash and set aside the reasons and the conclusion on these two issues, which
have been considered in Petition No. C-136/2006, filed by the wife along with
the daughter. Instead, the parties will have to be relegated before the Family
16 of 18
fca28.12.sxw
Court for reconsideration of the said matter afresh from the stage of oral
arguments, on its own merits, in accordance with law, uninfluenced by any
observation made in the impugned decision on the said issues.
18. We may place on record that we are not specifically touching upon
the arguments canvassed by the parties, in relation to these two issues of grant
of separate residence to wife and maintenance amount payable to the wife and
daughter, unmarrried though. Inasmuch as, any observation made in that
behalf would affect the parties one way or the other. In other words, all the
contentions available to the parties, in Petition No. C-136/2006, are kept open.
19. Accordingly, we proceed to pass the following order:
O R D E R
(1) The Appeal No.28/2012 filed by the wife challenging the
decree of dissolution of marriage between the parties and divorce is
dismissed. Instead, the said decree, passed by the Family Court at
the instance of the respondent/husband, is upheld and maintained.
(2) The Family Court Appeal No.29/2012 is allowed. The
judgment and decree, passed in Petition No. C-136/2006 is quashed
17 of 18
fca28.12.sxw
and set aside. Instead, the parties are relegated before the Principal
Judge, Family Court, Mumbai for reconsideration of the said Petition
afresh from the stage of oral arguments. All questions therein are left
open.
(3) The parties shall appear before the Principal Judge of the
Family Court, Mumbai on 2nd July, 2012, who may take up the said
Petition No.C-135/2006 himself or assign it to any other Judge of the
Family Court at Mumbai for denovo reconsideration from the stage
of arguments. The Concerned Judge shall dispose of the said
Petition expeditiously.
(4) No order as to costs.
(5) In view of the above order, Civil Application stands
disposed of.
(A.R.JOSHI,J.) (A.M.KHANWILKAR,J.)
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