Tuesday, March 21, 2017

Custody of minor Child Under Indian Law.

“In Laxmi Kant Pandey, this Court duly noted the provisions of the Convention on the Rights of the Child, but in the general context of adoption of children and, in particular, regarding the necessity to involve the natural parents in the consequent guardianship/custody proceedings. The provisions of the Convention which we have extracted indeed reiterate the settled legal position that the welfare of the child is of paramount consideration vis a vis the perceived rights of parents not only so far as the law in India is concerned, but preponderantly in all jurisdictions across the globe. We are mindful of the fact that we are presently not confronted with a custody conflict and, therefore, there is no reason whatsoever to even contemplate the competence or otherwise of the Appellant as custodian of the interests and welfare of her child. However, we would be loathe to lose perspective of our parens patriae obligations, and in that regard we need to ensure that the child’s right to know the identity of his parents is not vitiated, undermined, compromised or jeopardised. In order to secure and safeguard this right, we have interviewed the Appellant and impressed upon her the need to disclose the name of the father to her son. She has disclosed his name, along with some particulars to us; she states that she has no further information about him. These particulars have been placed in an envelope and duly sealed, and may be read only pursuant to a specific direction of this Court.  “

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IN THE SUPRME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. …….. OF 2015

[Arising out of SLP (Civil) No. 28367 of 2011]

ABC                                                …     Appellant

Versus

The State (NCT of Delhi)                                 …       Respondent

J U D G M E N T

VIKRAMAJIT SEN, J.



A legal nodus of seminal significance and of prosaic procedural origination presents itself before us. The conundrum is whether it is imperative for an unwed mother to specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child. The common perception would be that three competing legal interests would arise, namely, of the mother and the father and the child. We think that it is only the last one which is conclusive, since the parents in actuality have only legal obligations. A child, as has been ubiquitously articulated in different legal forums, is not a chattel or a ball to be shuttled or shunted from one parent to the other. The Court exercises paren patrae jurisdiction in custody or guardianship wrangles; it steps in to secure the welfare of the hapless child of two adults whose personal differences and animosity has taken precedence over the future of their child.
Leave granted. This Appeal is directed against the Judgment dated 8.8.2011 delivered by the High Court of Delhi, which has dismissed the First Appeal of the Appellant, who is an unwed mother, holding that her guardianship application cannot be entertained unless she discloses the name and address of the father of her child, thereby enabling the Court to issue process to him. As per the Appellant’s request, her identity and personal details as well as those of her son have not been revealed herein.
The Appellant, who adheres to the Christian faith, is well educated, gainfully employed and financially secure. She gave birth to her son in 2010, and has subsequently raised him without any assistance from or involvement of his putative father. Desirous of making her son her nominee in all her savings and other insurance policies, she took steps in this direction, but was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court. She thereupon filed an application under Section 7 of the Guardians and Wards Act, 1890 (the Act) before the Guardian Court for declaring her the sole guardian of her son. Section 11 of the Act requires a notice to be sent to the parents of the child before a guardian is appointed. The Appellant has published a notice of the petition in a daily newspaper, namely Vir Arjun, Delhi Edition but is strongly averse to naming the father. She has filed an affidavit stating that if at any time in the future the father of her son raises any objections regarding his guardianship, the same may be revoked or altered as the situation may require. However, the Guardian Court directed her to reveal the name and whereabouts of the father and consequent to her refusal to do so, dismissed her guardianship application on 19.4.2011.
 The Appellant’s appeal before the High Court was dismissed in limine, on the reasoning that her allegation that she is a single mother could only be decided after notice is issued to the father; that a natural father could have an interest in the welfare and custody of his child even if there is no marriage; and that no case can be decided in the absence of a necessary party.
Ms. Indu Malhotra, learned Senior Counsel for the Appellant, has vehemently argued before us that the Appellant does not want the future of her child to be marred by any controversy regarding his paternity, which would indubitably result should the father refuse to acknowledge the child as his own.
This is a brooding reality as the father is already married and any publicity as to a declaration of his fathering a child out of wedlock would have pernicious repercussions to his present family. There would be severe social complications for her and her child. As per Section 7 of the Act, the interest of the minor is the only relevant factor for appointing of a guardian, and the rights of the mother and father are subservient thereto. In this scenario, the interest of the child would be best served by immediately appointing the Appellant as the guardian. Furthermore, it is also pressed to the fore that her own fundamental right to privacy will be violated if she is compelled to disclose the name and particulars of the father of her child. Ms. Malhotra has painstakingly argued this Appeal, fully cognizant that the question that arises is of far reaching dimensions. It is this very feature that convinced us of the expediency of appointing amicus curiae, and Mr. Sidharth Luthra has discharged these onerous duties zealously, for which we must immediately record our indebtedness.

It would be pertinent to succinctly consider the Guardians and Wards Act, 1890. The Act, which applies to Christians in India, lays down the procedure by which guardians are to be appointed by the Jurisdictional Court. Sections 7, 11 and 19 deserve extraction, for facility of reference.
“7. Power of the court to make order as to guardianship (1) Where the court is satisfied that it is for the welfare of a minor that an order should be made-

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian,  the court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.” The details of the form of application are contained in Section 10 and the procedure that applies to a guardianship application is prescribed in Section 11.

Procedure on admission of application (1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for the hearing-
(a) to be served in the manner directed in the Code of Civil Procedure,1882(14 of 1882)11 on-

(i) the parents of the minor if they are residing in any State to which this Act extends;

(ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor;

(iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant; and

(iv) any other person to whom, in the opinion of the court special notice of the applicant should be given; and

(b) to be posted on some conspicuous part of the court-house and of the residence of the minor, and otherwise published in such manner as the court, subject to any rules made by the High Court under this Act, thinks fit.

(2) The State Government may, by general or special order, require that when any part of the property described in a petition under section 10, sub- section (1), is land of which a Court of Wards could assume the superintendence, the court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily resides and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems fit.

(3) No charge shall be made by the court or the Collector for the service or publication of any notice served or published under sub-section (2).



Section 19 is of significance, even though the infant son does not independently own or possess any property, in that it specifically alludes to the father of a minor. It reads thus:



Guardian not to be appointed by the court in certain cases Nothing in this Chapter shall authorise the court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person-
(a) of a minor who is a married female and whose husband is not, in the opinion of court, unfit to be guardian of her person; or

(b) of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor; or

(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

We must immediately underscore the difference in nomenclature, i.e. ‘parents’ in Section 11 and ‘father’ in Section 19, which we think will be perilous to ignore.

It is contended on behalf of the State that Section 11 requires a notice to be given to the ‘parents’ of a minor before a guardian is appointed; and that as postulated by Section 19, a guardian cannot be appointed if the father of the minor is alive and is not, in the opinion of the court, unfit to be the guardian of the child. The impugned judgment is, therefore, in accordance with the Act and should be upheld. It seems to us that this interpretation does not impart comprehensive significance to Section 7, which is the quintessence of the Act. However, before discussing the intendment and interpretation of the Act, it would be helpful to appreciate the manner in which the same issue has been dealt with in other statutes and spanning different legal systems across the globe.
Section 6(b) of the Hindu Minority and Guardianship Act, 1956 makes specific provisions with respect to natural guardians of illegitimate children, and in this regard gives primacy to the mother over the father. Mohammedan law accords the custody of illegitimate children to the mother and her relations. The law follows the principle that the maternity of a child is established in the woman who gives birth to it, irrespective of the lawfulness of her connection with the begetter. However, paternity is inherently nebulous especially where the child is not an offspring of marriage. Furthermore, as per Section 8 of the Indian Succession Act, 1925, which applies to Christians in India, the domicile of origin of an illegitimate child is in the country in which at the time of his birth his mother is domiciled. This indicates that priority, preference and pre- eminence is given to the mother over the father of the concerned child.
In the United Kingdom, the Children Act 1989 allocates parental responsibility, which includes all rights, duties, powers, responsibilities and authority of a parent over the child and his/her property. According to Section 2(2) of that Act, parental custody of a child born of unwed parents is with the mother in all cases, and additionally with the father provided he has acquired responsibility in accordance with the provisions of the Act. To acquire responsibility, he would have to register as the child’s father, execute a parental responsibility agreement with the mother or obtain a Court order giving him parental responsibility over the child. In the U.S.A., each State has different child custody laws but predominantly the mother has full legal and physical custody from the time the child is born. Unless an unmarried father establishes his paternity over the child it is generally difficult for him to defeat or overwhelm the preferential claims of the mother to the custody. However, some States assume that both parents who sign the child’s Birth Certificate have joint custody, regardless of whether they are married. In Ireland, Section 6(4) of the Guardianship of Infants Act, 1964 ordains – “The mother of an illegitimate infant shall be guardian of the infant.” Unless the mother agrees to sign a statutory declaration, an unmarried father must apply to the Court in order to become a legal guardian of his child. Article 176 of the Family Code of the Philippines explicitly provides that “illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code.” This position obtains regardless of whether the father admits paternity. In 2004, the Supreme Court of the Philippines in Joey D. Briones vs. Maricel P. Miguel et al, G.R. No. 156343, held that an illegitimate child is under the sole parental authority of the mother. The law in New Zealand, as laid out in Section 17 of the Care of Children Act, 2004, is that the mother of a child is the sole guardian if she is not married to, or in civil union with, or living as a de facto partner with the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child. In South Africa, according to the Children’s Act No. 38 of 2005, parental responsibility includes the responsibility and the right (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. The father has full parental responsibility if he is married to the mother, or if he was married to her at the time of the child’s conception, or at the time of the child’s birth or any time in between, or if at the time of the child’s birth he was living with the mother in a permanent life-partnership, or if he (i) consents to be identified or successfully applies in terms of Section 26 to be identified as the child’s father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. This conspectus indicates that the preponderant position that it is the unwed mother who possesses primary custodial and guardianship rights with regard to her children and that the father is not conferred with an equal position merely by virtue of his having fathered the child. This analysis should assist us in a meaningful, dynamic and enduring interpretation of the law as it exists in India.
It is thus abundantly clear that the predominant legal thought in different civil and common law jurisdictions spanning the globe as well as in different statutes within India is to bestow guardianship and related rights to the mother of a child born outside of wedlock. Avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word ‘mamta’. Furthermore, recognizing her maternity would obviate the necessity of determining paternity. In situations such this, where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility. In today’s society, where women are increasingly choosing to raise their children alone, we see no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus. It seems to us that a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the wellbeing of the child. The Appellant has taken care to clarify that should her son’s father evince any interest in his son, she would not object to his participation in the litigation, or in the event of its culmination, for the custody issue to be revisited. Although the Guardian Court needs no such concession, the mother’s intent in insisting that the father should not be publically notified seems to us not to be unreasonable.
We feel it necessary to add that the purpose of our analysis of the law in other countries was to arrive at a holistic understanding of what a variety of jurisdictions felt would be in the best interest of the child. It was not, as learned Counsel suggested, to understand the tenets of Christian law. India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law.
It is imperative that the rights of the mother must also be given due consideration. As Ms. Malhotra, learned Senior Counsel for the Appellant, has eloquently argued, the Appellant’s fundamental right of privacy would be violated if she is forced to disclose the name and particulars of the father of her child. Any responsible man would keep track of his offspring and be concerned for the welfare of the child he has brought into the world; this does not appear to be so in the present case, on a perusal of the pleading as they presently portray. Furthermore, Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers. It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation.
We recognize that the father’s right to be involved in his child’s life may be taken away if Section 11 is read in such a manner that he is not given notice, but given his lack of involvement in the child’s life, we find no reason to prioritize his rights over those of the mother or her child. Additionally, given that the Appellant has already issued notice to the public in general by way of a publication in a National Daily and has submitted an affidavit stating that her guardianship rights may be revoked, altered or amended if at any point the father of the child objects to them, the rights, nay duty of the father have been more than adequately protected.
The issue at hand is the interpretation of Section 11 of the Act. As the intention of the Act is to protect the welfare of the child, the applicability of Section 11 would have to be read accordingly. In Laxmi Kant Pandey vs. Union of India 1985 (Supp) SCC 701, this Court prohibited notice of guardianship applications from being issued to the biological parents of a child in order to prevent them from tracing the adoptive parents and the child. Although the Guardians and Wards Act was not directly attracted in that case, nevertheless it is important as it reiterates that the welfare of the child takes priority above all else, including the rights of the parents. In the present case we do not find any indication that the welfare of the child would be undermined if the Appellant is not compelled to disclose the identity of the father, or that Court notice is mandatory in the child’s interest. On the contrary, we find that this may well protect the child from social stigma and needless controversy.
Even in the absence of Laxmi Kant Pandey, we are not like mariners in unchartered troubled seas. The observations of a three Judge Bench of this Court in Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 are readily recollected. The RBI had refused to accept an application for a fixed deposit in the name of the child signed solely by the mother. In the context of Section 6 of the Hindu Minority and Guardianship Act as well as Section 19 of the Guardians and Wards Act, this Court had clarified that “in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the life time of the father who would be deemed to be “absent” for the purposes of Section 6(a) of the HMG Act and Section 19(b) of the GW Act.” This Court has construed the word ‘after’ in Section 6(a) of the Hindu Minority and Guardianship Act as meaning “in the absence of – be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.” Thus this Court interpreted the legislation before it in a manner conducive to granting the mother, who was the only involved parent, guardianship rights over the child.
In a case where one of the parents petitions the Court for appointment as guardian of her child, we think that the provisions of Section 11 would not be directly applicable. It seems to us that Section 11 applies to a situation where the guardianship of a child is sought by a third party, thereby making it essential for the welfare of the child being given in adoption to garner the views of child’s natural parents. The views of an uninvolved father are not essential, in our opinion, to protect the interests of a child born out of wedlock and being raised solely by his/her mother. We may reiterate that even in the face of the express terms of the statute, this Court had in Laxmi Kant Pandey directed that notice should not be sent to the parents, as that was likely to jeopardize the future and interest of the child who was being adopted. The sole factor for consideration before us, therefore, is the welfare of the minor child, regardless of the rights of the parents. We should not be misunderstood as having given our imprimatur to an attempt by one of the spouses to unilaterally seek custody of a child from the marriage behind the back of other spouse. The apprehensions of Mr. Luthra, learned amicus curiae, are accordingly addressed.


Section 11 is purely procedural; we see no harm or mischief in relaxing its requirements to attain the intendment of the Act. Given that the term “parent” is not defined in the Act, we interpret it, in the case of illegitimate children whose sole caregiver is one of his/her parents, to principally mean that parent alone. Guardianship or custody orders never attain permanence or finality and can be questioned at any time, by any person genuinely concerned for the minor child, if the child’s welfare is in peril. The uninvolved parent is therefore not precluded from approaching the Guardian Court to quash, vary or modify its orders if the best interests of the child so indicate. There is thus no mandatory and inflexible procedural requirement of notice to be served to the putative father in connection with a guardianship or custody petition preferred by the natural mother of the child of whom she is the sole caregiver.

Implicit in the notion and width of welfare of the child, as one of its primary concomitants, is the right of the child to know the identity of his or her parents. This right has now found unquestionable recognition in the Convention on the Rights of the Child, which India has acceded to on 11th November, 1992. This Convention pointedly makes mention, inter alia, to the Universal Declaration of Human Rights. For facility of reference the salient provisions are reproduced –
Article 1 For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Article 3

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 7

The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
Article 9

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.


In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
Article 12

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Article 18

States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
Article 21 States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

Article 27

The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.
States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.

In Laxmi Kant Pandey, this Court duly noted the provisions of the Convention on the Rights of the Child, but in the general context of adoption of children and, in particular, regarding the necessity to involve the natural parents in the consequent guardianship/custody proceedings. The provisions of the Convention which we have extracted indeed reiterate the settled legal position that the welfare of the child is of paramount consideration vis a vis the perceived rights of parents not only so far as the law in India is concerned, but preponderantly in all jurisdictions across the globe. We are mindful of the fact that we are presently not confronted with a custody conflict and, therefore, there is no reason whatsoever to even contemplate the competence or otherwise of the Appellant as custodian of the interests and welfare of her child. However, we would be loathe to lose perspective of our parens patriae obligations, and in that regard we need to ensure that the child’s right to know the identity of his parents is not vitiated, undermined, compromised or jeopardised. In order to secure and safeguard this right, we have interviewed the Appellant and impressed upon her the need to disclose the name of the father to her son. She has disclosed his name, along with some particulars to us; she states that she has no further information about him. These particulars have been placed in an envelope and duly sealed, and may be read only pursuant to a specific direction of this Court.
We are greatly perturbed by the fact that the Appellant has not obtained a Birth Certificate for her son who is nearly five years old. This is bound to create problems for the child in the future. In this regard, the Appellant has not sought any relief either before us or before any of the Courts below. It is a misplaced assumption in the law as it is presently perceived that the issuance of a Birth Certificate would be a logical corollary to the Appellant succeeding in her guardianship petition. It may be recalled that owing to curial fiat, it is no longer necessary to state the name of the father in applications seeking admission of children to school, as well as for obtaining a passport for a minor child. However, in both these cases, it may still remain necessary to furnish a Birth Certificate. The law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents. There is no gainsaying that the identity of the mother is never in doubt. Accordingly, we direct that if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary. Trite though it is, yet we emphasise that it is the responsibility of the State to ensure that no citizen suffers any inconvenience or disadvantage merely because the parents fail or neglect to register the birth. Nay, it is the duty of the State to take requisite steps for recording every birth of every citizen. To remove any possible doubt, the direction pertaining to issuance of the Birth Certificate is intendedly not restricted to the circumstances or the parties before us.
We think it necessary to also underscore the fact that the Guardian Court as well as the High Court which was in seisin of the Appeal ought not to have lost sight of the fact that they had been called upon to discharge their parens patriae jurisdiction. Upon a guardianship petition being laid before the Court, the concerned child ceases to be in the exclusive custody of the parents; thereafter, until the attainment of majority, the child continues in curial curatorship. Having received knowledge of a situation that vitally affected the future and welfare of a child, the Courts below could be seen as having been derelict in their duty in merely dismissing the petition without considering all the problems, complexities and complications concerning the child brought within its portals.
The Appeal is therefore allowed. The Guardian Court is directed to recall the dismissal order passed by it and thereafter consider the Appellant’s application for guardianship expeditiously without requiring notice to be given to the putative father of the child.




(VIKRAMAJIT SEN) ………………………………..J


(ABHAY MANOHAR SAPRE) …….J

Tuesday, October 11, 2016

Joint Custody/equal custody of son to both the parents.

In this matter The Hon"ble Held that:-

Having held so, it would be necessary to consider as to who would be entitled to the custody of Anvesh. The wife has admitted in her cross-examination that her brother had threatened to kill Anvesh. She had also admitted in her cross-examination that though on 08.09.2011, she had telephoned the husband that Anvesh had a fall and had a bump on his head with a bleeding injury, she did not take Anvesh to a doctor.

Though the aforesaid admissions on the part of the wife would result in recording a finding that the wife was not taking proper care of Anvesh, we are not inclined to permit the husband to have the custody of Anvesh in the entirety. It is not in dispute that the husband is paying a sum of Rs.10,000/- to the wife and Anvesh and also paying the school fees, fees for the speech and development therapy and is bearing the other expenses for Anvesh. It is fairly stated on behalf of the husband that even if the custody of Anvesh is granted to the husband, the husband would still continue to pay a sum of Rs.10,000/- to the wife. We have found from the evidence of the husband and the statements made on his behalf in this Court at the time of hearing that the husband is conducting himself as a good father and is also desirous of giving a substantial amount to the wife towards her maintenance. It is also not disputed by the counsel for the wife that the husband used to drop and collect Anvesh from the school and the coaching classes, even after the parties had decided to share the custody-access to Anvesh, as per the terms of settlement, FCA 344/14 19 Judgment executed on 19.09.2013. The husband and the wife had agreed in terms of the interim settlement that Anvesh would be in the custody of the wife from Monday to Friday and from Friday evening to Monday Morning, the custody-access of Anvesh would be with the husband. We find that the custody of Anvesh is given to the wife by the Family Court only because the custody of a child should normally remain with the mother, if the child is below five years of age. Now, Anvesh is seven years of age and in the circumstances narrated hereinabove, it would be necessary in the interest of justice to permit the husband to have the custody of Anvesh for some more time during the school days and equally with the wife during the vacations. In the circumstances of the case, we are not inclined to grant the custody of Anvesh only to one of the parents as the child is a slow learner, and in our view, both the parents should be able to shower their love and affection on Anvesh so that the child remains attached with both of them.


 The terms of settlement executed between the parties on 19.09.2013 as an interim arrangement have worked to a great extent and in the circumstances of the case, we direct that the custody of Anvesh would be with the husband from Friday evening (after the School hours) till Tuesday morning, when Anvesh would be dropped to the school. It is needless to mention that the wife would have the custody of Anvesh from FCA 344/14 20 Judgment Tuesday evening (after the School hours) till Friday evening. We have arrived at this arrangement, with a view to give equal opportunity to both the parents to spend time with Anvesh who is just seven years of age and is a slow learner. The husband may continue to drop Anvesh to the school and classes and bring him back to the house of the wife even when Anvesh would be in the custody of the wife. During the vacations, the custody of Anvesh should be shared equally by the husband and the wife, that is to say that, if the vacations are for a period of twenty two days, Anvesh would remain with each of the parents for eleven days. This arrangement would apply to all the vacations including the Summer, the Winter and the Diwali vacations.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                                                                      
                   NAGPUR BENCH, NAGPUR.
                    FAMILY COURT APPEAL No. 344/2014
                                                              
                                 WITH
                      CROSS OBJECTION NO.15/2012
    Sau. Sarika W/o. Sachin Palsokar,
                                                             
    aged 32 years, Occ. : Household,
    R/o. C/o. Vasantrao Pimpalkar,
    102, Sai-Prasad Apartments, Revti
    Nagar, Besa, Nagpur.                                                         APPELLANT


                                          
                                        .....VERSUS.....
                             
    Sachin S/o. Suresh Palsokar,
    aged 36 years, Occ. : Service,
    R/o. Sahajivan flats - 2, in front of
                            
    LAD College, Shivaji Nagar, Nagpur.                                      RESPONDENT


                           Mrs. T.D. Khade, counsel for the appellant.
                           Shri A.V. Khare, counsel for the respondent.
    

                                         CORAM :SMT.VASANTI  A  NAIK AND
                                                     KUM. INDIRA JAIN, JJ.       
                                          DATE      :   SEPTEMBER,   2016
    ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)

By this Family Court Appeal, the appellant challenges the judgment of the Family Court, Nagpur dated 20.12.2011 allowing a petition filed by the respondent for a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. In the First Appeal filed by the appellant, the respondent has filed a Cross Objection for seeking the custody of the minor child as the Family Court has held that the custody of the minor child, would remain with the appellant.

FCA 344/14 2 Judgment

2. Few facts giving rise to this Family Court Appeal and the Cross Objection are stated thus :-

The appellant-wife (hereinafter referred to as 'the wife' for the sake of convenience) and the respondent-husband (hereinafter referred to as ' the husband') were married at Nagpur as per the Hindu rites and custom on 20.02.2009. A son by name Anvesh was born from the wedlock on 13.10.2009. The husband and the wife belong to highly educated middle class families and the wife was made aware before the solemnization of the marriage that she would be required to stay in the matrimonial home along with the parents of the husband. After the marriage, the wife started residing in the matrimonial home at Nagpur.

The husband had taken the wife to Kerala after the marriage was solemnized and from the inception of the marriage, the husband found that the wife was behaving strangely. It is stated by the husband in the Hindu Marriage Petition filed by him for a decree of divorce that the wife continued to behave badly with the husband and his parents though they tried to keep her happy. It is pleaded that the wife used to lose her temper on petty matters and used to shout on the parents of the husband.

It is pleaded that the wife always threatened the husband and his parents that she would commit suicide. It is pleaded that the wife insisted that the husband should reside separately in a nuclear family. It is pleaded FCA 344/14 3 Judgment that the husband suffered mental trauma due to the quarrelsome, rude and insulting behaviour of the wife. It is pleaded that the wife did not contribute in the household work. It is pleaded that the father of the husband wrote a letter on 28.06.2009 to the father of the wife about her whimsical behaviour. It is stated that the father of the wife acknowledged the goodness of the husband and his parents and promised to advise his daughter. It is pleaded that Anvesh was a slow learner and required great care and attention. It is stated that after the birth of Anvesh there was no change in the behaviour of the wife and she constantly threatened the husband to leave the matrimonial home and commit suicide. It is pleaded that the wife also threatened the husband that she would throw and harm Anvesh. It is pleaded that the wife needed medical treatment from a Psychiatrist but, she was not ready to take treatment. It is pleaded that on 24.05.2010, the wife left the matrimonial house along with Anvesh, with an assurance that she would take medical treatment and join the company of the husband but, she did not do so. It is pleaded that on the same day, the wife swallowed tablets and called the police, her parents and Smt. Mrunal Dani, and all of them advised her to behave properly and to take medical treatment. It is pleaded that as the police had visited the matrimonial house, the mother of the husband suffered a heart attack.

It is pleaded that on 17.06.2010, when the husband and the wife were returning from the hospital of Dr. Bhole where Anvesh was being treated, FCA 344/14 4 Judgment the wife started behaving erratically. It is pleaded that the child was kept on the floor of the house and the wife went near the well, stood on the brick-skirt of the well and threatened that she would commit suicide if the husband does not behave as per her wishes. It is pleaded that the wife threatened the husband to throw the son in the well and asked the husband to take both of them to the matrimonial home. It is pleaded that the parents of the wife brought her into the house with great efforts. It is pleaded that the husband apprehended that the wife would go to any extent to harass the husband and his parents and may also harm Anvesh to implicate the husband or his family members in a false criminal case.

While seeking the decree of divorce on the aforesaid allegations, the husband also sought the custody of Anvesh, who was aged about 2-3 years at the relevant time.

3. The wife filed the written statement and denied the claim of the husband. The wife denied all the adverse allegations levelled by the husband against her. The wife pleaded that the husband had differences with the wife on trivial issues. It is pleaded that due to the short temper of the parents of the husband, it was difficult for her to stay in the matrimonial home, along with them. The wife pleaded that she was required to return to her parental home in view of the ill-treatment meted out by the parents of the husband to her. It is pleaded that the father of FCA 344/14 5 Judgment the husband wrote a note in his own handwriting and compelled the wife and her father to sign the same. It is pleaded that the wife was forcibly asked to sign on the documents that recited that she would behave properly with the husband and his family members after she returned to the matrimonial home. It is pleaded that due to the threat of the husband and his parents, the wife and her father had signed on a document that recited that the wife would behave well with her husband and his parents, after she returned to the matrimonial home. It is pleaded that the family life of the husband and the wife became miserable only because of the interference of the parents of the husband. It is pleaded that the parents of the husband tortured her mentally and assaulted her.

The wife pleaded that the husband used to beat her and the father of the husband also tried to assault her. It is pleaded that when the husband and his father tried to beat her, she was required to call the police. It is pleaded that the wife tried her level best to behave well with the husband and his family members but they had high expectations. The wife denied that the husband was entitled to the custody of the minor child at the tender age of 2-3 years. The wife sought for the dismissal of the petition filed by the husband.

4. On the aforesaid pleadings of the parties, the Family Court framed the issues. The husband examined himself and also examined his FCA 344/14 6 Judgment father and Dr.Nilkanth Nimdeokar. The wife examined herself and closed the evidence on her side. On an appreciation of the evidence on record, the Family Court, by the judgment dated 20.12.2011, decreed the petition filed by the husband for divorce under Section 13(1)(i-a) of the Hindu Marriage Act and directed that the custody of Anvesh shall remain with the wife. Being aggrieved with the part of the judgment granting a decree of divorce in favour of the husband, the wife has filed this Family Court Appeal. The husband has filed the cross-objection, seeking the custody of Anvesh, as according to the judgment of the Family Court, the custody of Anvesh was to remain with the wife.

5. Mrs. Khade, the learned counsel for the wife, submitted that the Family Court was not justified in granting a decree of divorce in favour of the husband. It is stated that the wife behaved well with the husband and her in-laws but, they did not treat her well. It is submitted that the husband has failed in proving that the wife used to frequently quarrel with the husband and threaten the husband and his parents that she would commit suicide. It is submitted that the wife desired to live in the matrimonial home and, therefore, she had signed the document that recited that she would behave properly with the husband and his parents, if she was permitted to reside in the matrimonial home. It is stated that the said document was signed by the wife and her father under pressure FCA 344/14 7 Judgment and, hence, the same could not have been relied on by the Family Court for holding that the wife was not behaving well with the husband and her in-laws. It is stated that on a number of occasions, the husband and his parents had threatened to beat the wife and, therefore, she was constrained to call the police. It is stated that the Family Court has not appreciated the evidence of the parties in the right perspective while holding that the wife had treated the husband with cruelty and he was entitled to a decree of divorce under Section 13(1)(i-a) of the Act. It is stated that the Family Court has rightly directed that the custody of Anvesh should remain with the wife as Anvesh needs the care, love and affection of a mother, at the tender age. It is stated that since Anvesh was aged about two years and since the custody of a minor child below five years should ordinarily be with the mother, the Family Court had rightly granted the custody of Anvesh, to the wife. It is submitted that the husband works with the H.D.F.C. as a senior officer and, hence, he would not be able to take proper care of Anvesh, who is now seven years of age.

6. Shri Khare, the learned counsel for the husband, supported the judgment and decree of the Family Court for divorce under Section 13(1)(i-a) of the Act. It is stated that the Family Court has rightly relied on the admissions of the wife in the cross-examination to grant a decree FCA 344/14 8 Judgment of divorce after holding that the wife had treated the husband with cruelty. It is stated that though the wife had levelled serious allegations against the husband and his parents in the written statement, she had admitted in her cross-examination that the parents of the husband had not demanded any dowry and her mother-in-law used to cook the food in the morning and she used to cook the food in the evening. It is stated that the mother of the husband was a working woman and she used to be out of the house for work from 10.30 a.m. till 4.30 p.m. It is stated that the Family Court has rightly held that reckless allegations were levelled by the wife against the husband and his family members. It is stated that the wife had admitted that when her mother-in-law had only asked her as to why she had cooked the vegetable (curry) in the evening when sufficient vegetable that was cooked in the morning was available, she became angry and had slept empty stomach and also did not have her lunch on the next day. It is stated that the wife had admitted that in the evening, on the next day, she had called a tiffin from outside for dinner as she was angry with her mother-in-law. It is stated that the wife had admitted that she had destroyed the picture-poster of a baby that was affixed on the wall when there was a big quarrel between herself and the husband. It is stated that the wife had admitted that her father had bought a stamp paper (Exhibit 51) and she had signed on the said stamp paper, wherein she had written in her handwriting that she would behave FCA 344/14 9 Judgment well with her in-laws, if she was permitted to reside in the matrimonial home. It is stated that the wife had admitted that she had called the police in the matrimonial home. It is stated that the wife had also admitted that she was standing near the well, as pleaded by the husband.

It is stated that the wife had admitted that on 01.10.2010, she had gone to the housing society, where the husband resides and that she had lived for one night in the house of one Shri Deshpande. It is stated that in the circumstances of the case and in the face of the admissions of the wife in her cross-examination, the Family Court was justified in granting a decree of divorce in favour of the husband on the ground of cruelty.

7. The learned counsel for the husband submitted that Anvesh is a slow learner and since he is seven years of age now, the custody of Anvesh may be given to the husband. It is submitted that considering the nature and the temperament of the wife, as could be gauged from her cross-examination, in the interest of Anvesh, the custody of Anvesh should be given to the husband. It is stated that when the wife is in a bad mood, she does not send Anvesh to the school or to the coaching classes meant for the slow learners. It is stated that during the pendency of the Family Court Appeal, the husband is dropping Anvesh to the school in the morning and is picking him up in the evening and reaching him to the wife. It is stated that though the custody of Anvesh is with the wife, FCA 344/14 10 Judgment during the working days of the week, i.e. from Monday to Friday, in terms of the agreement between the parties, as recorded by this Court in the order dated 21.09.2013, the husband voluntarily performs the duty of dropping Anvesh to the school and the classes and reaching him back to the wife's residence on all the school days. It is stated that the husband is paying a sum of Rs.10,000/- per month (i.e. Rs.6,000/- for the wife and Rs.4,000/- for Anvesh) apart from all other expenses that are borne by the husband for the education and the speech and development therapy of Anvesh. It is stated that the husband would continue to pay a sum of Rs.10,000/- to the wife even if this Court grants the custody of Anvesh to the husband. It is stated that in terms of the settlement that was executed between the parties on 19.09.2013 and recorded in the order dated 21.09.2013, the husband used to have the access to Anvesh from Friday evening to Monday morning but, the said access is extremely short. It is stated that in the changed scenario, this Court may grant the custody of Anvesh to the husband. It is stated that the wife is living all alone and separately in a rented house and it is admitted by the wife in her cross-examination that her brother had threatened to kill Anvesh and in this background, it would not be in the interest of justice to permit the wife to retain the custody of Anvesh.

FCA 344/14 11 Judgment

8. On hearing the learned counsel for the parties and on a perusal of the Record & Proceedings, it appears that the following points arise for determination in this Family Court Appeal.

I) Whether the husband is successful in proving that the wife had treated him with cruelty and whether he is entitled to a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act ?

II) Whether the husband is entitled to the custody of Anvesh and/or the wife is entitled to the custody as per the judgment of the Family Court ?

III) What order?

9. To answer the aforesaid points, it would be necessary to consider the pleadings of the parties and the evidence tendered by them.

It would not be necessary to reiterate the pleadings as we have narrated the pleadings in detail, in the earlier part of this judgment.

10. The husband had examined himself and reiterated the facts stated by him in his pleadings. The husband was not cross-examined at length. In his cross-examination, the husband admitted that the wife FCA 344/14 12 Judgment resided with him in short spells. The husband admitted in his cross-

examination that the normal voice of the wife was very loud but, that was not the reason for feeling that she was quarreling when she was talking normally. The husband admitted that his gross salary is Rs.40,000/- per month. There were no suggestions to the husband in regard to the allegations made by him against the wife in respect of the cruel treatment meted out by her to the husband and his parents. The husband had stated in his examination-in-chief that the wife was behaving strangely and erratically and though she was asked not to shout and speak softly, she used to give threats to him and his parents. Though the husband had stated in the examination-in-chief that the wife would threaten the husband and his parents that she would commit suicide, there is no cross-

examination of the husband on the said allegation. The husband had stated in his examination-in-chief that the wife had written on the document at Exhibit 51 that she would mend her ways and behave well with the husband if she was permitted to live in the matrimonial home and the husband was not cross-examined on the said statement. The husband had stated in his examination-in-chief that the wife had gone to a well, stood on the brick-skirting of the well on or about 17.06.2010 and threatened to commit suicide if the husband does not behave as per her wishes and there is no cross-examination of the husband in this respect.

The husband had stated in his examination-in-chief that with great FCA 344/14 13 Judgment efforts, the wife was pulled away from the well but, the husband was under a constant threat that the wife would either try to harm herself or Anvesh, if the things did not go her way. Though the husband had pleaded the aforesaid facts in his petition and had also tendered evidence on affidavit reiterating the facts in the pleadings, there is no cross-

examination of the husband on the said facts. In the absence of cross-

examination, the Family Court has rightly believed the case of the husband. Apart from the husband, the husband had examined his father and also Dr.Nilkanth Nimdeokar. The evidence of the father of the husband and the doctor supported the case of the husband. Apart from the fact that the evidence of the husband went unchallenged, the Family Court has rightly relied on the admissions of the wife in her cross-

examination to hold that the husband has proved that the wife has treated the husband with cruelty and he is entitled to a decree of divorce.

Though the wife had stated in her evidence that her in-laws had harassed her and also assaulted her on certain occasions, the wife did not prove the said fact by tendering cogent evidence. In fact, the wife admitted in her cross-examination that her in-laws had never demanded dowry, that her mother-in-law was in service, that she used to go out for work from 10.30 a.m. till 4.30 p.m., that the mother-in-law used to cook food in the morning and that she used to cook the food in the evening. The wife had admitted that her elder brother used to ill-treat her and had even FCA 344/14 14 Judgment threatened to kill Anvesh. The wife had admitted in her cross-

examination that she was aware before the marriage that her husband was the only son of his parents and that she would be required to live in a joint family. The wife admitted that when her mother-in-law asked her as to why she had cooked the vegetable in the evening when there was sufficient cooked vegetable available, she became angry and had slept empty stomach and also did not have her lunch on the next day. The wife admitted that in the evening on the next day, she had called a tiffin from outside for dinner as she was angry with her mother-in-law. The wife admitted that her father had come to the matrimonial home and had given her an understanding that she should behave properly with the husband and her in-laws. The wife admitted that her father had told her in-laws that the wife was hot tempered. The wife admitted that she assured her father that she would behave properly with the husband and her in-laws. The wife further admitted that she had torn the poster-

picture of a baby that was affixed on a wall in her bedroom. The wife admitted that she had written on a stamp paper (Exhibit 51) that she would behave well with her husband and her in-laws in future and that her father had bought that stamp paper and that the contents of the stamp paper were written in her handwriting and that she had signed the same. The wife had admitted that when there was a quarrel between the husband and the wife on 24.05.2010, she had called the police from her FCA 344/14 15 Judgment cellphone. The wife had admitted that she was standing near the well as stated by the husband but, that was not for the purpose of committing suicide. The wife admitted that on 08.09.2011, i.e. after the separation, she had called the husband, in his office that Anvesh had fallen down and had a bump on his head with a bleeding injury but, she did not take Anvesh to the doctor. The wife had admitted that she had been to the housing society where her husband resides and lived in the night in the house of one Shri Deshpande and had called the tiffin for Anvesh from her in-laws. From the aforesaid admissions of the wife, it is clear that the wife had treated the husband with cruelty. In this case, the evidence of the husband has remained unchallenged. The evidence of the husband is supported by the evidence of the witnesses examined by him. Apart from the fact that the evidence of the husband has remained unchallenged, the admissions of the wife in her cross-examination have further proved that the wife had treated the husband with cruelty. The wife had made reckless allegations against the husband and her in-laws in regard to the ill-treatment meted out to her including the physical violence but, she has failed to prove the same by leading cogent evidence. In fact, the wife had admitted in her cross-examination that her in-laws had never demanded dowry, that her mother-in-law used to be out of the house from 10.30 a.m. till 4.30 p.m. as she was in service, that her mother-in-law used to cook the food in the morning and that she was required to cook the food FCA 344/14 16 Judgment in the evening. The wife had admitted that when her mother-in-law casually asked her as to why she had prepared the vegetable in the evening when the vegetable cooked in the morning was remaining and was sufficient for the family, for dinner, the wife became so angry that she had slept empty stomach that night, did not have her lunch on the next day, and had called for a tiffin for her, for the dinner on the next day. The admissions of the wife clearly show that she was extremely hot tempered and she used to make a big issue of trifle matters. The allegations made by the husband in regard to the eccentric nature and temperament of the wife are proved by the husband not only by his evidence, that has gone unchallenged but, also by the admissions of the wife in her cross-examination. The wife has admitted that she was standing near the well but, she stated that that was not for the purpose of committing suicide. We believe the case of the husband that the wife was threatening the husband that she would commit suicide. The wife was eccentric and the fact that the wife was standing on the brick-skirting of the well, shows that the wife threatened the husband that she would commit suicide. The allegations made by the husband in this regard have been proved by the husband by tendering cogent evidence, that has remained unchallenged. There is no cross-examination of the husband on this aspect from the side of the wife. It is proved by the husband from his evidence as well as the evidence of the wife in her cross-examination that FCA 344/14 17 Judgment the wife was treating the husband with cruelty. The Family Court has rightly held that the wife was not behaving properly with the husband and her in-laws, or else there was no occasion for her to prepare the writing on the stamp paper, Exhibit 51, that she would behave well with the husband and the in-laws, in future. The act on the part of the wife to remain without food for more than a day, when she knew that she was pregnant, the act on the part of the wife to call the police in the matrimonial home, the act on the part of the wife to tear the baby poster after a fight, the act on the part of the wife to stand on the skirting of the well to threaten the husband, the act on the part of the wife to threaten the husband to commit suicide, the insistence on the part of the wife to stay away from his old in-laws and the writing by the wife that she would behave well in future, show that the wife treated the husband with cruelty. The cumulative effect of the acts on the part of the wife of becoming angry on trifle matters, threatening the husband to commit suicide and attempting to commit the same by standing near the well surely tantamounts to cruelty. It would be difficult for any husband to live with the wife, who continuously gets flared up on trifle issues and threatens to commit suicide or injure the minor child. The Family Court has rightly held that it was clear from the oral and the documentary evidence on record that the wife had treated the husband with cruelty and that he was entitled to a decree of divorce on the said ground.

11. Having held so, it would be necessary to consider as to who would be entitled to the custody of Anvesh. The wife has admitted in her cross-examination that her brother had threatened to kill Anvesh. She had also admitted in her cross-examination that though on 08.09.2011, she had telephoned the husband that Anvesh had a fall and had a bump on his head with a bleeding injury, she did not take Anvesh to a doctor.

Though the aforesaid admissions on the part of the wife would result in recording a finding that the wife was not taking proper care of Anvesh, we are not inclined to permit the husband to have the custody of Anvesh in the entirety. It is not in dispute that the husband is paying a sum of Rs.10,000/- to the wife and Anvesh and also paying the school fees, fees for the speech and development therapy and is bearing the other expenses for Anvesh. It is fairly stated on behalf of the husband that even if the custody of Anvesh is granted to the husband, the husband would still continue to pay a sum of Rs.10,000/- to the wife. We have found from the evidence of the husband and the statements made on his behalf in this Court at the time of hearing that the husband is conducting himself as a good father and is also desirous of giving a substantial amount to the wife towards her maintenance. It is also not disputed by the counsel for the wife that the husband used to drop and collect Anvesh from the school and the coaching classes, even after the parties had decided to share the custody-access to Anvesh, as per the terms of settlement, FCA 344/14 19 Judgment executed on 19.09.2013. The husband and the wife had agreed in terms of the interim settlement that Anvesh would be in the custody of the wife from Monday to Friday and from Friday evening to Monday Morning, the custody-access of Anvesh would be with the husband. We find that the custody of Anvesh is given to the wife by the Family Court only because the custody of a child should normally remain with the mother, if the child is below five years of age. Now, Anvesh is seven years of age and in the circumstances narrated hereinabove, it would be necessary in the interest of justice to permit the husband to have the custody of Anvesh for some more time during the school days and equally with the wife during the vacations. In the circumstances of the case, we are not inclined to grant the custody of Anvesh only to one of the parents as the child is a slow learner, and in our view, both the parents should be able to shower their love and affection on Anvesh so that the child remains attached with both of them.

12. The terms of settlement executed between the parties on 19.09.2013 as an interim arrangement have worked to a great extent and in the circumstances of the case, we direct that the custody of Anvesh would be with the husband from Friday evening (after the School hours) till Tuesday morning, when Anvesh would be dropped to the school. It is needless to mention that the wife would have the custody of Anvesh from FCA 344/14 20 Judgment Tuesday evening (after the School hours) till Friday evening. We have arrived at this arrangement, with a view to give equal opportunity to both the parents to spend time with Anvesh who is just seven years of age and is a slow learner. The husband may continue to drop Anvesh to the school and classes and bring him back to the house of the wife even when Anvesh would be in the custody of the wife. During the vacations, the custody of Anvesh should be shared equally by the husband and the wife, that is to say that, if the vacations are for a period of twenty two days, Anvesh would remain with each of the parents for eleven days. This arrangement would apply to all the vacations including the Summer, the Winter and the Diwali vacations.

13. For the reasons aforesaid, the Family Court Appeal is dismissed. The cross-objection is allowed in terms of the directions in paragraph 12 of the judgment. In the circumstances of the case, there would be no order as to costs.

                    JUDGE                                        JUDGE





    Deshmukh/APTE

Tuesday, August 4, 2015

New Child Adoption Guidelines and Laws in India.

On 17.07.2015 the Central Government notified the following Guidelines issued by the Central Adoption Resource Authority, superseding the Guidelines Governing the Adoption of Children, 2011 to provide for the regulation of adoption of orphaned, abandoned or surrendered children.
         Adequately defined terms like ‘prospective adoptive parents’ and ‘surrendered child’ find a place in the preliminary provisions, which also deal with the fundamental principles governing adoption of children and permitting prospective parents’ adoption on realization of the eligibility criteria. Couples having more than four children are not to be considered for adoption.
         Declaration of an abandoned or orphaned child as legally free for adoption shall be done by issuing an Order for the same by the Child Welfare Committee as per the format in Schedule-1. With respect to a surrendered child, recourse to counseling shall be taken to discourage surrender by biological parents. On account of surrender being inevitable, a deed of surrender shall be executed with accordance to the terms, however no advertisement to be issued in case of a surrendered child.
         Home study report of the prospective adoptive parents shall be prepared by the adoption agency and be completed within one month, on the basis of which the eligibility of the prospective adoptive parents shall be declared along with reasons. The registration of an adoption deed is not mandatory. The Specialised Adoption Agency shall file the adoption petition in the court having jurisdiction over the place where it is located, within seven days from the date of acceptance by the prospective adoptive parents for obtaining the necessary adoption.
         Pertaining to inter-country adoption, profiles of two children shall be referred to the authorised foreign adoption agency. In case the prospective adoptive parents fail to reserve any of the children within ninety-six hour, then the profile of both the children stand automatically withdrawn. No objection certificate shall be issued by the Central Adoption Resource Authority within ten days from the date of receipt of the acceptance of the child by the prospective adoptive parents. For obtaining Indian passport for the adopted child, the specialized adoption agency shall submit the application to the regional passport officer within three working days from the date of receipt of a certified copy of the adoption order. The child shall be entitled to receive care, protection and rehabilitation through the child protection services in the event of adjustment problem.
         Directions given which specifies the procedure for renewal, suspension and inspection of Specialised Adoption Agency and enlisting the various functions of the Agency towards children and biological as well as prospective adoptive parents. Role of the Indian diplomatic missions in inter-country adoption of Indian children also finds mention.
         Miscellaneous provisions determining seniority of the prospective adoptive parents facilitating the root search and adoption of children with special needs, also finds acknowledgment.

                                                                                                       -Ministry of Women and Child Development

Monday, June 1, 2015

Joint Custody of Children's to the divorce parents now in India.

The Law Commission on Friday recommended that divorced parents be given joint custody of minor children, a move aimed at doing away with gender bias in India’s custody laws that favour the father.
“Neither the father nor the mother of a minor can, as of a right, claim to be appointed by the court as the guardian unless such an appointment is for the welfare of the minor,” the commission, which advises the government on legal issues, said in a report to the law ministry.
It proposed two draft bills to amend the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 that prefer the father as the natural guardian. The commission said that despite a Supreme Court judgment, the mother is preferred as the natural guardian while the father is still alive only under exceptional circumstances.
“This is required to be changed to fulfil the principles of equality enshrined in article 14 of the Constitution,” the panel said.
Amendments to the Guardians and Wards Act will also cover visitation arrangements.
They will be relevant for all custody proceedings bar any personal laws that may apply, the law commission’s report said.
The recommendations assume significance as the idea of shared parenting is still new to custody jurisprudence in India. The panel said the amendments are necessary to bring the law in tune with modern social considerations.

With source:http://www.hindustantimes.com/india-news/law-panel-recommends-shared-custody-of-minor-children/article1-1350188.aspx

Thursday, May 1, 2014

The Protection of Children from Sexual Offences Act, 2012

The Protection of Children from Sexual Offences Act, 2012


The Protection of Children from Sexual Offences Act, 2012, has been passed by the Lok Sabha on, 22nd May, 2012. The Bill was earlier passed by the Rajya Sabha on 10th May, 2012.

The Protection of Children from Sexual Offences Act, 2012 has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children.

Sexual offences are currently covered under different sections of IPC. The IPC does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.

The Protection of Children from Sexual Offences Act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. These offences have been clearly defined for the first time in law. The Act provides for stringent punishments, which have been graded as per the gravity of the offence. The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for fine, which is to be decided by the Court.

An offence is treated as “aggravated” when committed by a person in a position of trust or authority of child such as a member of security forces, police officer, public servant, etc.

Punishments for Offences covered in the Act are:
·   Penetrative Sexual Assault (Section 3) –  Not less than seven years which may extend to imprisonment for life, and fine (Section 4)
·   Aggravated Penetrative Sexual Assault (Section 5) –­ Not less than ten years which may extend to imprisonment for life, and fine (Section 6)
·   Sexual Assault (Section 7) – Not less than three years which may extend to five years, and fine (Section 8)
·   Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to seven years, and fine (Section 10)
·   Sexual Harassment of the Child (Section 11) – Three years and fine (Section 12)
·   Use of Child for Pornographic Purposes (Section 13) –  Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1))

                           The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include:
·                                       Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector
·                                       No child to be detained in the police station in the night for any reason.
·                                       Police officer to not be in uniform while recording the statement of the child
·                                       The statement of the child to be recorded as spoken by the child
·                                       Assistance of an interpreter or translator or an expert as per the need of the child
·                                       Assistance of special educator or any person familiar with the manner of communication of the child in case child is disabled
·                                       Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
·                                       In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
·                                       Frequent breaks for the child during trial
·                                       Child not to be called repeatedly to testify
·                                       No aggressive questioning or character assassination of the child
·                                       In-camera trial of cases

The Act recognizes that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt to commit an offence under the Act has been made liable for punishment for upto half the punishment prescribed for the commission of the offence.

The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.
For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child, punishment is higher (one year).
The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year.
For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.
To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.
The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.
The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.