Case BriefsForeign Courts

Supreme Court of Pakistan: The Division Bench of Qazi Faez Isa and Mazhar Alam Khan Miankhel, JJ. dismissed a petition challenging assailing the judgment of Peshawar High Court vide which custody of a minor girl was handed over to her mother.

Petitioner herein, father of the minor, submitted that the child did not even recognize her mother and was not ready to go with her. He also relied on the decision of a jirga, which had decided that the custody of child should remain with the petitioner-father.

The Court noted that the petitioner worked as a labourer in Dubai and her stepmother and a divorcee sister of the petitioner looked after the child. The petitioner also had three children from his second wife. However, the respondent had not married again after divorce from the petitioner.

At the outset, the Court opined that a jirga has no legal authority to decide custody of children, and in doing so, it violated the law and Islamic injunctions. A mother cannot be compelled to part with her child by a jirga. Mother cannot be called upon to barter the right to her child’s custody to secure a divorce, nor can a child be used to settle personal scores.

The Court placed reliance on Razia Bibi v. Riaz Ahmad, 2004 SCMR 821 and opined that poverty on the part of a lady is no ground to disentitle her from the custody of minor. It was held that welfare of the minor is of paramount consideration in determining custody, and principles of hizanat must be adhered to unless there are valid reasons not to do so. The dictum in Rubia Jilani v. Zahoor Akhtar Raja, 1999 SCMR 1834 was relied on in this regard.

In view of the above, the petitioner was directed to, immediately and peacefully, handover the minor girl to her mother.[Bat Khan v. Sherin Bibi, Civil Petition No. 809-P of 2018, Order dated 08-02-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Mohammad Rafiq and Goverdhan Bardhar, JJ. dismissed a habeas corpus Petition filed by the petitioner-husband praying for a direction to the respondent- wife to produce before the court the minor child who was a permanent resident of Canada and a citizen of US and cause his return along with the respondent-wife to the jurisdiction of the Court of Canada in compliance of the orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario.

The facts of the case are that the petitioner-husband had alleged that the respondent-wife had wrongly removed their son from his custody. The wife had moved from Ontario, Canada, the place where the three of them were residing at that time, to New York. She then shifted to New Jersey and finally to India along with the son, who was 4 years old at that time. The petitioner challenged this and sought for his custody and his documents like passport, etc. A habeas corpus petition was filed by the husband petitioner, demanding that the wife be directed to produce before the court their son, who was a permanent resident of Canada and was a US citizen, in compliance with orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario. The Canadian Court had also directed various law enforcement agencies including INTERPOL to enforce the custody order. A warrant was also issued against the wife, with imposition of cost of $30,000 upon her.

The High Court, upholding the previously settled law observed that the law has sufficiently developed to rule that despite a pre-existing order for return of a child by a foreign court, the High Court may decline relief for such return. The Court further asserted that the issue should be considered bearing in mind the welfare of the child.

The High Court dismissed the petition of the father stating that the child’s return would not be in his best interests. It observed that if he was forced to go back to Canada in the sole care of his father, it is likely to psychologically disturb him, particularly when he will be required to now adapt to an education system of that country. This would adversely affect his overall growth and grooming as in the absence of his mother.

The Court while dismissing the petition held that  the Court in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. The removal of the child from Ajmer, after he has stayed there for a few years now, would not be in his best interests, especially in view of the fact that he is suffering from chronic asthma and amblyopia. It further opined that it cannot hold the wife guilty of contempt as she cannot be solely held responsible for violation of the settlement terms. The Court gave directions allowing the father to maintain contact with his son. Till the time the child attains majority he shall be kept in the custody of his mother in India. [Naveen Sharma v. State of Rajasthan, 2019 SCC OnLine Raj 63, Order dated 11-01-2019]

Case BriefsForeign Courts

Eswatini High Court: This matter was brought before a Bench of M. Langwenya, J. for judgment on sentence.

Facts of the case were such that accused was found guilty of murder with extenuating circumstances. The accused was found to have been drinking alcohol at the time when the deceased was stabbed. Pieces of evidence were present showing that the accused was provoked by deceased which reduced the moral blameworthiness due to its effect on the state of mind of accused.

Accused defended by submitting mitigating factors such as his young age, his remorsefulness towards the crime, that he is a first-time offender and that he had already been in the custody for five years, five months and two days. Court referred the case of Samkeliso Madati Tsela v. Rex, (2010) [2011] SZSC 13 in order to decide on the sentence of accused which is an authority setting out the appropriate range of sentences in cases of murder in the country.

High Court was of the view that murder was a serious offence but considering the personal circumstances of the accused and his young age, Court was inclined to sentence him to twelve years of imprisonment, where the time period already spent in custody would be adjusted. [Rex v. Lwazi Tshepo Kubheka, Case No. 43 of 2016, decided on 15-11-2018]

Case BriefsHigh Courts

Madras High Court: A Single Judge Bench comprising of N. Seshasayee, J., allowed an appeal on the ground that the respondent gave up his interest in the Order that he had obtained in his favour. 

The facts of this case are that respondent is the biological father of the child and the appellant is the maternal grand father of the child. Seeking custody of the minor child, the respondent filed a petition before the Additional District Court, and the same was ordered in his favour. Challenging the order of the lower Court, the appellant preferred the present appeal.

The counsel for petitioner, Advocate R.Shivakumar, argued that the respondent had gotten married and settled down and did not turn up to see his daughter. It was also reported that the child was 17 years and she does not remember to have seen her father.

The counsel for the respondent, Advocate N.U. Prasanna submitted that the respondent had no interest to take immediate custody of the child since the child was only few months to attain majority and that she had not been in his care through out the duration of this litigation.

This Court allowed the appeal on the ground that the respondent gave up his interest in the order that he had obtained in his favour. [R. Venkatesan v. J. Gunasekaran, 2017 SCC OnLine Mad 35492, Decided on 10-11-2017]

Case BriefsHigh Courts

Gujarat High Court: A Single Judge Bench of R.P. Dholaria, J., allowed a petition filed against the order of the lower courts, whereby petitioner’s application for granting custody of his vehicle which was involved in an offence under the provision of Gujarat Prohibition Act, 1949, was dismissed.

The main issue that arose before the Court was whether the lower courts were justified in rejecting the application of petitioner for the release of his vehicle, pending investigation.

The Court observed that the lower courts have not handed over the interim custody of the vehicle to petitioner in view of Section 98 of the Gujarat Prohibition Act, 1949, which provides embargo for handing over the custody of the vehicle used in the offence pending the trial. The respondent’s contention with regard to the lower courts and revisional courts having no jurisdiction to hand over custody of the vehicle used in the offence as per the provisions of Section 451 of the Code of Criminal Procedure 1973, was rejected by the Court.

The Court held that this instant case was covered by the judgment delivered in Hardikbhai Mukeshbhai Chauhan v. State of Gujarat, Special Criminal Application No. 7642 of 2018 and subsequently allowed the petition filed by the petitioner. The Court directed the lower court to immediately release the vehicle owned by the petitioner after due verification and following the procedure of recording such evidence as it thinks necessary as provided under Section 451 of the Code of Criminal Procedure 1973. [Rangrej Shokatbhai Noormohammed v. State of Gujarat, R/Special Criminal Application No. 9528 of 2018, Order dated 30-10-2018]

Case BriefsHigh Courts

Punjab & Haryana High Court: A Single Judge Bench of Amol Rattan Singh, J., dismissed a petition filed against the order of the lower court whereby the application of the petitioner under Order VII, Rule 11 of CPC was dismissed.

The main issue that arose before the Court was whether the lower court had the territorial jurisdiction to hear the petition under Section 25 of the Guardian and Wards Act, 1990 read with Section 10 of the Hindu Minority and Guardianship Act, 1956 and Section 26 of the Hindu Marriage Act, 1955.

The Court observed that the application in respect of the guardianship of the minor is to be made to the District Court having jurisdiction in the place where minor ordinarily resides. The Court referred to the case of Sunita Jain v. Mittar Sain Jain2002 SCC OnLine P&H 869, wherein it was held that the place of residence of a minor child below 5 years of age would be the place of residence of the mother. The custody of a child below 5 years of age (especially a female child), would naturally lie with the mother, and therefore the deemed custody would be with the mother even if actual custody was with the father.

The Court held that in the instant case the age of the child was 11 months and hence applying the rule laid down in Sunita Jain’s case, the natural custody of such child would lie with the mother. Hence, the petition for the guardianship of the child was rightly instituted before the District Court of Khadur Sahib. Resultantly, the petition of the petitioner was dismissed and the order of lower court was upheld. [Tejbir Singh v. Baljit Kaur, 2018 SCC OnLine P&H 1682, order dated 02-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ. dismissed an appeal seeking review of the family court order directing the custody of girl child to be given to her mother.

The family court had granted custody of the girl child, aged 4 years, to her mother. The appellant-father filed the instant appeal under Section 19 of the Family Courts Act. He submitted that the respondent was mentally sick and behaved abnormally. Her violent behavior may have an adverse impact on well-being of the child. On the other hand, the respondent alleged that the appellant was a drunkard. She was often beaten by him and thrown out of the matrimonial home.

The High Court, on a careful reading of the order impugned, noted that the family court had carefully analysed the submissions made and passed the order. The respondent was a commerce graduate with additional qualification in Computer Applications. She was working as a Senior Manager with a private firm on a monthly salary of Rs 25,000. The High Court perused Section 6 of the Hindu Minority and Guardianship Act, 1956 which provides that custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Referring to decisions of the Supreme Court in Gayatri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 and Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 the High Court reiterated that while dealing with the application of custody of a minor child, the interest and welfare of the minor should be of paramount importance. Conducive and appropriate environment along with the desirability of the child are some of the relevant factors that have to be kept in mind. In the instant case, the child was 4-years old. It was also an established fact that she was comfortable around the respondent. Additionally, the respondent-mother was in a better position to look after her as she would require special attention and guidance in her childhood for her psychological and biological needs. Accordingly, no infirmity was found in the order impugned and the appeal was dismissed. [Tarun Pullani v. Shilpa Pullani,2018 SCC OnLine Del 11520, decided on 27-08-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Tarlok Singh Chauhan and Chander Bhusan Barowalia, JJ., decided a criminal writ petition, wherein the minor petitioner was sent to Balika Ashram considering welfare of the minor child.

The petitioner was a minor girl who met one ‘L’ through facebook and they developed mutual feelings for each other. The petitioner expressed to her parents that she wanted to marry ‘L’, but her parents did not agree. However, the petitioner married ‘L’ against wishes of her parents and was living with his family. The parents of the petitioner lodged complaint against ‘L’ under various sections of IPC and the POCSO Act, pursuant to which ‘L’ was arrested. The petitioner was handed over to her parents by the police. However, the petitioner came back and was since then living with parents of ‘L’. Question before the Court in this case was whether it should continue to entrust the custody of the minor child to father of ‘L’?

The Court took notice of the fact that despite being served, father of the petitioner did not appear in the Court. It was observed that in such like cases, the court has to exercise parens-patriae jurisdiction as first and paramount consideration is the welfare of the minor child, especially when natural parents refuse to accept the child. The Court held that though father of ‘L’ kept the petitioner like his own daughter, yet the custody of the petitioner could not be granted to him, as on the date he had virtually no relation with the petitioner. In the given circumstances, the Court was of the considered opinion that sending the petitioner to Balika Ashram till the time she attains majority, would be in her best interest. After that she would be free to go wherever she likes and marry whoever she wants. Directions were made accordingly. [‘K’ v. State of H.P., 2018 SCC OnLine HP 432, order dated 12.4.2018]

Case BriefsHigh Courts

High Court of Kerala: The Division Bench comprising of V. Chitambaresh and Sathish Ninnan, JJ., recently dealt with a writ petition filed by the mother for presenting the child in question to the Court since he had allegedly been removed from her custody without any orders from a court of law.

The petitioner contended that following her separation from her husband, despite her having full custody of the child, he was taken away by his paternal grand parents from his maternal aunt’s house while she was away working and was never returned back. The paternal grand parents refuted the claims and instead alleged that he was found abandoned in a store nearby the school. They also contended that by virtue of their son, the father of the child, being the natural guardian and since he was living abroad, they would have custody of the child.

The Court referred to Section 352 of Mulla’s Principles of Mahomedan Law wherein it has been laid down that a mother is entitled to the custody of her male child until he has completed 7 years of age or her girl child until she has attained puberty. The only exception to the rule arises if the mother has remarried, in which case, the father gets custody of the child. In the present case, since the child has not completed 7 years, the mother gets the custody.

The Court also acknowledged that the question of guardianship is separate from that of custody as was held in Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654. The Court also referred to Nithya Anand Raghavan v. State (NCT of Delhi),  (2017) 8 SCC 454 wherein it was held that at the threshold the High Court is only supposed to examine whether “the minor is in lawful custody” of the respondent or not and a natural guardian would constitute as one by default. The biological mother is one such natural guardian. Once such a factor has been ascertained, only in exceptional cases can writ petitions for removal of guardianship of the child from the mother be entertained by the High Courts.

The Court thus ordered for the custody of the child to be returned to the mother and the parties to move the Family Court for further remedies if needed. It quoted Cardinal Mermillod’s famous quote, “A mother is she who can take the place of all others, but whose place no one else can take”. [Ancy A. v. Station House Officer, WP(Crl). No. 42 of 2018, order dated 7-2-2018]

Supreme Court

Supreme Court: Fastening the liability of approximately Rs. 36,000 crores on Sahara Group of Companies, the 3-judge bench of T.S. Thakur, A.R. Dave and Dr. A.K. Sikri, JJ held that the balance outstanding amount is to be deposited by the contemnors within 18 months of their release from the custody. The Court directed that the deposits be made in 9 installments i.e. first 8 installments of Rs. 3, 000 Crores payable in every 2 months and the last installment of the remaining amount. Accepting the bank guarantee format furnished by the contemnors, the Court said that in the event of the default in payment of 2 instalments, not necessarily consecutive, the bank guarantee will be encashed by SEBI and that it will also be encashable in the event of failure to deposit the full amount within a period of 18 months.

Laying down stringent conditions, the Court further said that In the event of failure of the contemnors to deposit 3 instalments, not necessarily consecutive, the contemnors will have to surrender back to custody and in case they fail to do so, they will be taken into custody and committed to jail. Also, restraining the contemnors from leaving the country without prior permission of the court, the Court directed the contemnors to deposit their passports within 15 days of this order or before their release, whichever is earlier. So far as the movement within the country is concerned, the contemnors were directed to keep the police station Tilak Marg, New Delhi informed about their whereabouts every fortnight.

The Court vide order dated 26.03.2014 had passed a conditional order of bail with the condition to deposit Rs. 5000 Crores in cash and Rs. 5000 Crores in the form of bank guarantee in favour of SEBI. However, the contemnors who are in custody since almost 15 months, have not been able to fulfill the said condition yet and will remain in custody till the order dated 26.03.2014 is complied with. SEBI v. Sahara India Real Estate Corpn. Ltd.,2015 SCC OnLine SC 540 decided on 19.06.2015