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

Kerala High Court: A Division Bench comprising of Anthony Dominic, CJ and Dama Seshadri Naidu, J. decided a public interest litigation, wherein it declined to issue guidelines for objective assessment in a scientific manner for the court or other authorities concerned to decide issues relating to custody of children.

The petitioners were estranged husbands involved in cases relating to custody of children, pending before the Family Court with their wives as opposite parties. Grievance of the petitioners was that they often faced adverse orders in matters of visitation rights, interim custody of wards, guardianship and other such issues, before the Family Court. They submitted that the orders passed by the Family Court lacked objective assessment based on scientific criteria and were often passed purely on the subjective satisfaction of the Judges; the ‘interest of the child’ quite often became a casualty. Learned counsel for the petitioners impressed upon the need of laying down scientific guidelines by the High Court for an objective assessment of the welfare of the child which should be prime consideration in disputes of such nature.

The High Court, after duly considering the submissions made on behalf of the parties, held the law to be well settled that in a case where custody of a minor child becomes the subject matter of the dispute between the warring parents, the Court is required to decide the issue keeping the welfare of the child in the forefront. Further, in disputes of such a nature, the Court has to appreciate the issue as a whole, and not by going entirely on the legal rights of the parties. The exercise of such a discretionary power by a Court could not be curtailed by issuing any guidelines, as was sought by the petitioners. On the other hand, if at all the legislature is satisfied that this exercise of power has to be regulated by any statutory yardstick, it is for the legislature to step in and enact any appropriate law as it may be competent to do so.

In such circumstances, the Court held that no such relief as prayed for by the petitioners could be granted and therefore, the petition was dismissed. [Sachin Narayanan Pillai v. State of Kerala,2018 SCC OnLine Ker 1460, decided on 21.3.2018]

Case BriefsHigh Courts

Delhi High Court: While deciding the instant review petition wherein the issue was raised that whether the either parties during the trial can use the Counselor’s report furnished in the course of mediation proceedings or the Mediator’s report in case the process fails. The petitioner further raised a grievance against the decision of this Court dated 07.02.2017 holding that the reports furnished by the Counselor and Mediator were not confidential and will not fall within the bar of confidentiality. Allowing the petition it was observed by the Division Bench of S. Ravindra Bhat and Yogesh Khanna, JJ., that ‘confidentiality’ is the essence of mediation proceedings, thus constituting “a permanent ‘dark area’ and off limits, till such time appropriate and nuanced clear rules are enacted by legislation or binding norms by way of limited exception”.

As per the facts, the parties to the instant petition are disputants before the Family Court claiming guardianship of the son born to them. In order to resolve the dispute amicably, the parties opted for Mediation which unfortunately failed. The Counselor appointed by the Mediator submitted its report to this Court thereby causing the decision of 07.02.2017. The counsel for the petitioner Prosenjeet Banerjee referring to the Delhi High Court Mediation and Conciliation Rules, 2004, Conciliation Rules of United Nations Commission on International Trade Law (UNCITRAL) and Mediation Training Manual issued by the Supreme Court, argued that mediation is purely a confidential process and anything said or any view expressed by the parties; or documents obtained etc in the course of the process, need not be a part of the mediation report especially when the mediation has failed. It was also argued that the Mediator was not authorised by the Court to refer the dispute to the Counselor. The respondents via Inderjeet Saroop put forth before the Court that the Counselor’s report is only to be referred for the purposes of appreciation of the parties’ stand vis-à-vis their child and urged the Court to exercise it’s parens patriae jurisdiction for the benefit of the child.

Perusing the contentions and facts and referring to the various Rules and Conventions namely UNCITRAL Rules, Arbitration and Conciliation Act, 1996 etc. all highlighting the confidentiality aspect of mediation, the Court observed that a Mediator is not an amicus curiae and therefore the process itself involves a neutral third party who in a non- judgmental fashion acts as a facilitator for the disputants to reach an agreement. Therefore mediation process depends upon maintaining confidentiality at all times till the end of the proceedings, thus a mediator cannot file reports to the Court especially when the process has failed. Mediators cannot involve experts or counselors in the process and if any need arises, the parties must approach the Court to explain requirement and the Court in such cases may use its discretion under Section 12 of the Family Courts Act, 1984. In case a counselor is appointed, a mediator shall not present when the parties are interacting with the counselor and interactions of the counselor and Court should be confidential as well. Based on the observations, the Court directed the Family Court to

disregard the reports of the Mediator and Counselor when it will determine the case upon its merits. It was also held that the said report will not be a subject of debate or argument. [Smriti Madan Kansagra v. Perry Kansagra, 2017 SCC OnLine Del 12156, decided on 11.12.2017]

Case BriefsHigh Courts

Madras High Court: While disposing of an appeal filed under Section 96 of the Code of Civil Procedure, 1908 the Single Bench of R.M.T. Teekaa Raman, J. held that a gift by a father to his minor child can be accepted by child’s mother under the Mohammedan Law.

 The plaintiff had filed a suit for partition and for permanent injunction against the defendants restraining them from alienating the suit properties. The plaintiff contended that suit properties were acquired by Hashim Saheb who possessed the same till he died intestate on 12.06.2004. The plaintiff and the third defendant were daughters,  Defendants 1 and 2 were sons and the fourth defendant was the widow of Hashim Saheb. The trial court found that Hashim Bai had executed a gift settlement in respect of most of the suit properties to his sons and thereby refused the relief of partition as claimed by the plaintiff. The plaintiff, in appeal, contended that at the time of execution of the Gift Deeds, the second defendant was minor and his mother had represented on his behalf and hence the same was not valid as under Mohammedan law women have no rights to act as guardian.

The High Court noted that Section 359 of Mulla’s Principles of Mohammedan Law which governs the guardianship of the property of the minors, describes that only the father or father’s father can act as a guardian. Further, the general rule under Section 156 requires that a gift to a minor by a person other than his father or guardian will be completed by delivery of possession to the father or guardian. However, the instant case falls under Section 155 which omits the requirement of transfer of possession when a father gifts property to his child. On a conjoint reading of Section 155 with that of Section 359, the Court concluded that when mother was the only person who could look after the interest of the minor, acceptance of the gift by the mother was not invalid, and in such cases, the completion of the gift for his benefit is to be the sole consideration. [Shamshed Begum v. Sadiq Basha, 2016 SCC OnLine Mad 16883, decided on December 22, 2016]