Archive

Archive for the ‘Hindu Minority & Guardianship Act (HMGA)’ Category

Bombay HC : Wife or husband’s attorney cannot appear in family courts u/s 13 of Family Courts Act.

August 29, 2013 Leave a comment

Bombay High Court

Neelam Dadasaheb Shewale vs Dadasaheb Bandu Shewale on 17 February, 2010

Bench: R. S. Dalvi

1

Amk

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 8954 OF 2009

Neelam Dadasaheb Shewale .. Petitioner Vs.

Dadasaheb Bandu Shewale .. Respondent Mr. Milind N. Jadhav i/b Mr. Sagar G. Talekar for the Petitioner. Mr. R. T. Lalwani for the Respondent.

CORAM : MRS. R. S. DALVI, J.

DATE : 17TH FEBRUARY, 2010

JUDGMENT:

 

1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.

2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.

3. Two orders are passed upon three applications of the parties.

4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.

5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife’s application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.

6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.

 

7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.

8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband’s name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.

 

9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.

10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :

ORDER III :

1. Appearances, etc., maybe in person, by recognized agent or by pleader. – Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

(emphasis supplied)

 

11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression “appearance, application or act in or to any Court”. This is so because, the right of audience in Court, the right to address the Court, the right to examine and cross-examine the witnesses are dealt with in other parts of the Civil Procedure Code and not under Order 3. It was further held the right of audience in Court is a part of pleading in Court and not “acting” as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be “appearing, applying or acting” on his behalf. 7

 

12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression “practice” is wider than the expression “plead”. Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney 8

could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.

 

13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties’ constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and 9

the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.

 

14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought 10

permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.

 

15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner’s life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.

 

16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.

(R. S. DALVI, J.)

Advertisements

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/

Supreme Court of India: Father wins the custody of Daughter, Parental Alienation Symdrome (PAS) had been first cited in SC

January 22, 2013 Leave a comment

Parental Alienation Symdrome (PAS) had been first cited in SC intrestingly
by the mother (a paediatrician doctor) against father (A lawyer) in GAWA
—————–
full text

HEAD NOTES
Disposing of the appeal with some modifications of the order of the Family Court, this Court

HELD: 1.1. 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 this Court is convinced that despite the tussle between her
parents, she would be in a position to make an intelligent choice with
regard to her custody. 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 the Court 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. [355-c-e]

1.2. There is 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 and is not sufficient to make the respondent ineligible to act as the guardian of the minor. This Court, therefore, feels 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.[355-f-g;
356-a-b]

Hoshie Shavaksha Dolikuka v. Thirty Hoshie Dolikuka, AIR (1984) SC 410;
Kumar v. Jahgirdar v. Chethana Ramatheertha, [2004] 2 SCC 688 and Rosy Jacob v. Jacob A.Chakramakkal, AIR (1973) SC 2090, referred to.

Kurian C. Jose v. Meena Jose, (1992) 1 KLT 818 and                   Saraswatibai Shripad Ved v. Shripad Vasanji Ved, AIR (1941) Bombay 103, referred to.

Appellant-In-Person.

M.P. Vinod, Sajith and A. Raghunath for the Respondents.

SUBJECT

Guardians and Wards Act, 1890; Sections 7 and 25-Hindu Minority and
Guardianship Act, 1956; Section 6-Claim of custody of child by father and mother after divorce-Child preferred to stay with her father-Family court holding in favour of father as per child’s wishes-High Court dismissing the appeal of the mother-Correctness of-Held, on facts, after having custody of the child, the father looked after all her needs and the child appears to be happy with her father-Hence, the interest of the child will be best served if she remains with her father but with sufficient access to the mother to visit her child at frequent intervals as directed by the Court.

Appellant-doctor and respondent-lawyer got married under the provisions of the Special Marriage Act, 1954 and a girl child was born to them. The appellant left her matrimonial home alongwith the child without informing the respondent. The respondent filed a Writ of Habeas Corpus in High Court which was disposed of upon an undertaking given by the appellant to bring the child back to her matrimonial home. Thereafter, the respondent filed two applications before Family Court under sections 7 and 25 of the Guardians and words Act, 1890 and under sections 6 of the Hindu Minority and
Guardianship Act, 1956. The respondent also filed an application before the Family Court for interim custody of the minor child. After interviewing the minor child to elucidate her views with regard to the respondent’s prayer for interim custody, the Family Court allowed the two applications of the respondent by giving certain directions and directed the appellant to give the custody of the child to the respondent.

The appellant filed an appeal in High Court wherein the order of the Family Court was stayed. The respondent filed an application before the High Court for review of the order of stay. The High Court directed the Family Court to interview the minor child. The Family Court interviewed the minor child and gave a report the High Court stating that the minor child preferred to stay
with the respondent. The High Court vacated the interim stay and granted
custody of the minor child to the respondent till the disposal of the appeal. The respondent, thereafter, filed an application for divorce before the Family Court. The appellant filed a special leave petition before the Supreme Court against the order of the High Court granting custody of the minor child to the respondent, which was dismissed. The High Court thereafter dismissed the appeal of the appellant. Immediately thereafter, the Family Court granted divorce to the parties.

In appeal to the Court, the appellant-mother contended that the minor child
was of tender age and 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; that
she, being a doctor, would be in a better position to take care of the needs
of the minor child in comparison to the respondent who had little time to
look after the needs of the minor child; that the minor child was extremely
happy with her till the respondent-father began to claim custody of the
child and soon after obtaining the custody, the respondent influenced his
child to tell the Family Court that she preferred to stay with her father;
that the child has been exposed by the respondent to “Parental Alienation
Syndrome” and hence the minor child, inspite of her being with the appellant
for 7 years, had expressed a preference to be with the respondent after she
was placed in his custody; that section 6 of the Hindu Minority and Guardianship Act, 1956 recognised the mother also as the natural guardian of
the minor; that she paid school admission and tuition fees for the child’s
schooling in a good school and for extracurricular activities; that she made
various financial investments for the benefit of the minor child; that, although she was granted visitation rights by an interim order of this Court, she was unable to remain in contact with her because of distance and that the respondent never allowed her to meet the minor child and spend sufficient time with her.

The respondent-father, denying the various allegations of the appellant,
contended that the minor child was suddenly and surreptitiously removed from his custody by the appellant who left her matrimonial home without informing the appellant; that the minor child made her preference to be with her father before the Family Court even though the appellant forcibly removed the minor child from the respondent; that he made arrangements with his elder sister to look after his minor child’s needs which was duly considered by the Family Court and the High Court; and that he had sufficient finances to look after and provide for all the needs of the minor child. The
respondent submitted that 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.

CITATIONS
2006 AIR 1343, 2006(2 )SCR342 , 2006(3 )SCC62 , 2006(2 )SCALE388 ,
2006

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 and 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 hoilidays 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 re- numbered 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 counsellor 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 hereinbefore, 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 up. In 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.

—————–
====================================================

Click here to Download the PDF Judgment.

Fight for Justice

A crusaders blog for inspiring thought.

Stand up for your rights

Gender biased laws

MyNation Foundation - News

News Articles from MyNation, india - News you can use

498afighthard's Blog

Raising Awareness About Gender Biased Laws and its misuse In India

The WordPress.com Blog

The latest news on WordPress.com and the WordPress community.