Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. allowed a petition under Section 561-A of the Criminal Procedure Code.

The petitioner married the respondent in 2002 and gave birth to a child in 2005 out of the wedlock. The couple got divorced in 2009, and the petitioner re-married another man in 2012. The child, being her minor daughter, was living with the petitioner ever since birth. Respondent never paid any maintenance for the child. On an application of the petitioner, the Divisional Commissioner directed the respondent to pay the maintenance.

Under the law, the respondent could not have succeeded in a guardianship suit because the child was yet to attain the age of 13 years and the petitioner being the natural guardian would have been entitled custody. In light of this situation, the respondent filed a petition under Section 100 of the CrPC. The trial Magistrate allowed the application filed by the respondent directing the petitioner to restore the custody of the minor daughter to the respondent. Aggrieved thereby, the petitioners herein preferred a revision petition before the Court of learned Principal Sessions Judge for seeking setting aside the said order.

Now the question before the High Court is whether the provisions of Section 100 of the CrPC could be invoked and, consequently, could it be said that the custody of the minor child with the mother was illegal and that the child was under her wrongful confinement?

The petitioner argued that the issue of guardianship and custody cannot be decided under Section 100. This Section confers the Magistrate with the power to issue a search warrant for the production of the confined person before the Court only if he has the reason to believe that the person has been kept in illegal confinement and such confinement constitutes an offence. The expression “reason to believe” imposes responsibility on the Magistrate to record cogent reasons which would suggest that the confinement amounts to an offence. The trial Magistrate in the present case held that the petitioner had no legal right whatsoever to the custody of the child and her refusal to hand over the child to the respondent resulted in illegal detention of the minor daughter within the meaning of Section 100 CrPC.

The High Court considered the facts of the case and held that the custody of the minor child with her mother was not wrongfully confined by the mother, stating that “a mother is also a natural guardian of the child”. If the respondent was aggrieved with the custody of the child, he should have filed an application before a competent Court of the jurisdiction in terms of the Guardians and Wards Act. The order of the Trial Magistrate was quashed.[Rehana Kouser v. Altaf Ahmed, 2019 SCC OnLine J&K 646, decided on 26-07-2019]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: An appeal was filed before a Single Judge Bench comprising of M.M.A. Gaffoor, J., against a judgment of district judge where the original plaintiff instituted an action seeking partition of a land.

Claim of plaintiff regarding the land was to receive undivided 1/2 share against the share of defendants whereas the two defendants were entitled to receive undivided 1/4 share according to his amended petition. The other defendants averted that they were exclusively entitled to the plantations and improvements in the land sought to be partitioned in this action. District court favoured the other defendants. Subsequently, the original plaintiff died and his son was substituted in his place as plaintiff-appellant who filed this appeal for setting aside of the above order of District Court.

Supreme Court observed after perusal of the plaint that the substituted plaintiff had amended the original plaint claiming that he was entitled to an undivided 1/2 share against two others entitled to an undivided 1/4 share while in the original plaint it was to be divided between four defendants. It was observed that substituted plaintiff was not completely aware of the facts of the case due to his admission of the fact that his father, the original plaintiff, was well aware of the facts of the case compared to himself and due to the same he had to amend the plaint. Appellant failed to show the existence of facts which could show his legal right or liability, thereby he failed to prove his case. Therefore, the appeal was dismissed. [Ahamed Abdulla Marikkar Mesthiriyar  Mohamed Ismail v. Sammon Hadjiar,2018 SCC OnLine SL CA 85, decided on 01-10-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: The petition was filed before Krishna Murari, CJ. and Arun Palli, J., praying that the State Government should be commanded to declare an area in question as a protected monument and to preserve it accordingly. An affidavit was filed by Deputy Secretary, Department of Archaeology, Museums, and Archives, Punjab stating that a notification under Section 4(3) of the Punjab Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1964, had been issued and published.

As per the amicus curiae in this case, according to the affidavit, cause of this petition had already been served thus this petition should be quashed. Whereas the Punjab Urban Development Authority submitted that notification had been issued without considering the objections by the authorities.

The High Court was of the view that issue raised by Punjab Urban Development Authority and submission of respondent both were beyond the scope of this Public Interest Litigation. Amicus curiae brought to light the fact that consideration for auction was not fully paid and no allotment order in their favour has been issued. The Court stated that if any legal right was violated they can take recourse accordingly and for this Public Interest Litigation the proceedings were closed and the matter was disposed. [Subhash Kapoor v. State of Punjab, 2018 SCC OnLine P&H 1517, decided on 01-10-2018]