JUDGMENTS ON FAMILY COURT MATTERSAdoption Adoption – Hindu Adoptions and Maintenance Act, 1956, Section 16 – Presumption of validity – Adoption deed signed by the natural father and mother of the child and by the adopting father – It was approved by examining the scribe, the witnesses and the parents giving in adoption and was duly registered – Mere fact that it does not bear the endorsement of the natural father at the time of registration, does not raise any suspicion as to its execution or as to its legality (Para 14) Karam Singh & Ors Vs Jagsir Singh & Ors., 2015 (3) RCR (Civil) 45 (P&H) Adoption – Hindu Adoptions and Maintenance Act, 1956, Section 16 –Presumption of validity – An adoption deed comes into effect the moment it is signed or thumb marked by the natural parent and the adopting parent – The only consequence of non registration or a defective registration is that the presumption of truth, raised under Section 16 of the Act shall not arise – Adoption deed shall have to be proved like any other ordinary fact or document. Karam Singh & Ors Vs Jagsir Singh & Ors., 2015 (3) RCR (Civil) 45 (P&H) Alienation of property by Guardian Alienation of property by Guardian - Hindu Minority and Guardianship Act, 1956, Sections 8(1) and 11 – Limitation Act, 1963, Article 60 – Suit by quondam minor to set aside such alienation – Is governed by Article 60 - Articles 109, 110 or 113 of the Limitation Act are not applicable – To impeach the transfer of immovable property by the guardian, the minor must file suit within the prescribed limit of 3 years after attaining majority. (Para 27) Narayan vs Baba sahib and ors, AIR 2016 SC 1666 Alimony Alimony/Maintenance – Hindu Marriage Act, 1955, Section 25 – Expression ‘at the time of passing any decree’ – Encompasses all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13. (Para 18) Rajinder Kaur Versus Kuldeep Singh, 2010 (1) RCR (Civil) 818 P&H. Civil Procedure Code, 1908 Civil Procedure Code, 1908, Section 13 - Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of Child – Principle of Comity of Courts – Not appropriate that a domestic Court having much less intimate contact with the child and having much less close concern with a child and his or her parents (as against of a foreign Court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child - A foreign Court having the most intimate contact and closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural values in which the child has been brought up rather than a domestic Court. (Para 53) Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 -2- Civil Procedure Code, 1908, Section 13 - Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of Child – Principle of Comity of Courts – Is essentially a principle of self restraint applicable when a foreign Court is seized of the issue of the custody of a child prior to the domestic Court – There may be a situation where the foreign Court though seized of the issue does not pass any effective or substantial order or directions – In that event, if the domestic Court were to pass an effective or substantial order or direction prior in point of time then the foreign Court also exercise self restraint and respect the direction or order of the domestic Court (or vice versa the order, unless there are very good reasons not to do so). (Para 50) Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 Civil Procedure Code, 1908, Section 13 - Hindu Minority and Guardianship Act, 1956, Section 6 –- Custody of children – Both the parents and children citizens of U.K. – The parents have been residents of U.K. for several years and worked for gain over there – Also owning immovable property (jointly) in U.K. – Children born and brought up in U.K. and elder daughter studying in a school in U.K. until she was brought to India – Younger daughter also joined a school in U.K. – Mere fact the children were admitted to school in India, with the consent of father is not conclusive of his consent to be permanent or long term residents of the children in India – Directions issued to mother for enabling her to present an effective case before the foreign Court (Paras 72 and 73). Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 Civil Procedure Code, 1908, Order 22, Rules 3 and 4 – Hindu Marriage Act, 1955, Sections 7, 11 and 13 – Divorce Proceedings – Wife challenged decree of nullity declaring the marriage as void – Wife died during the pendency of appeal – Applicant is the only child from the marriage in question – She wants to pursue the appeal – The legal right of the applicant to inherit the ancestral property of her parents will be affected – Her social status will also be at stake – Her matrimonial prospects may also be affected – Applicant being the affected party from the impugned decree is entitled to pursue the appeal filed by her mother. (Para 6) Balwinder Kaur Versus Gurmukh Singh, 2007(3) RCR (Civil) 433 P&H Constitution of India Constitution of India, Article 136 – Hindu Marriage Act, 1955, Section 13 – Divorce – Held that the orders of the Courts below has resulted in grave miscarriage of justice to the wife who has been constrained into living with a dead relationship for over 13 year – Resultantly agony and injustice caused to the wife – Fit case for interference under Article 136 of the Constitution – Findings of the Courts below reversed. (Para 50) Vinita Saxena Vs Pankaj Pandit, 2006(2) RCR(Civil) 302 (SC) Constitution of India, Article 226 - Guardians and Wards Act, 1890, Sections 7, 9 and 12 – Custody of minor children – Habeas Corpus petition by father – Interest of the children – Required full and thorough enquiry – In spite of the orders passed by the Court in USA, it was not proper for the High Court who has allowed the Habeas Corpus writ petition and directed the father to hand over the custody of the children to the mother and permit him to take them away to USA – High Court should have directed the father to initiate -3- appropriate proceedings in which said enquiry can be held. (Para 6). Sarita Sharma Vs Sushil Sharma, 2000 (2) RCR (Civil) 367 (SC) Criminal Procedure Code, 1973 Criminal Procedure Code, 1973, Section 125 - Family Courts Act 1984, Section 7 - Applicability to Muslim Women – While relying upon the law laid down in the case of ‘Shamin Bano Vs. Asraf Khan’ , 2014 (2 RCR (Civil) 820), it was held that Section 125 Cr.P.C. has been rightly held to be applicable by the learned Family Judge. (Para 10) Shamima Farooqui Vs Shahid Khan, 2015(5) SCC 705 Criminal Procedure Code, 1973, Section 125 – Hindu Adoptions and Maintenance Act, 1956 – Maintenance – Once the right under the provisions in Section 125 Cr.P.C. is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. (Para 14) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Criminal Procedure Code, 1973, Section 125 – Hindu Adoptions and Maintenance Act, 1956 – Scope – No inconsistency of Section 125 CrPC and the provisions of Hindu Adoptions and Maintenance Act, 1956 – Scope of the two laws is different. (Para 9) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Criminal Procedure Code, 1973, Section 125 – Hindu Adoptions and Maintenance Act, 1956 – Maintenance – Estoppel – Contention that the appellant was not informed about the respondent’s earlier marriage when she married, repelled – Principle of estoppels can not be present to the service to defeat the provision of Section 125 Cr.P.C. (Para 16) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Criminal Procedure Code, 1973, Section 125 – Hindu Marriage Act, 1955, Section 24 – Maintenance – Upon request made by wife of appellant, Director General of Police directed payment of 50% salary of appellant directly to his wife and two minor children – Order upheld taking into account the totality of the circumstances – However, 50% of the salary to be calculated after deducting the amount of Income Tax paid by the appellant. (Paras 4 to 7) Vijay Kumar Vs State of Punjab & others, 2013(3) RCR (Civil) 323 (P&H) Criminal Procedure Code, 1973, Section 125 – Maintenance – Enormous delay in disposal of the proceeding u/s 125 Cr.P.C. – Most of the time the husband had taken adjournments and some times the Court dealt with the matter showing total laxity – The circumstances required grant of maintenance from the date of application. (Para 16) Bhuwan Mohan Singh Vs Meena and others, AIR 2014 SC 2875 Criminal Procedure Code, 1973, Section 125 – Maintenance – For awarding maintenance from the date of the application, express order is necessary – No special reasons, however, are required to be recorded by the Court. – Judgment in ‘Shail Kumari Devi and anr. Vs. Krishan Bhagwal Pathak alias Kishun B. Pathak’ 2008(3) RCR (Crl.) 842, -4- relied upon. (Para 15) Bhuwan Mohan Singh Vs Meena and others, AIR 2014 SC 2875 Criminal Procedure Code, 1973, Section 125 – Maintenance – Quantum – Husband took voluntary retirement – If 40% of the commutation is taken into account then the pension of the husband amounts to ` 11,535/- - In addition to his pension, he had received encashment of commutation to the extent of 40% i.e. ` 3,84,500/- and other retiral dues to the tune of ` 16,01,455/- - Hence, solely because the husband has retired, there was no justification to reduce the maintenance amount by 50% - Orders passed by the High Court set aside – Orders of family Court restored . (Paras 19 and 20) Shamima Farooqui Vs Shahid Khan, 2015(5) SCC 705 Criminal Procedure Code, 1973, Section 125 – Muslim Women (Protection of Rights on Divorce) Act, 1986, Sections 3 – Muslim wife – Wife had already taken recourse to Section 3 of the Act after divorce took place and obtained relief which has been upheld by the High Court – During pendency of her application under Section 125 Cr.P.C. divorce took place – Wife preferred an application under Section 3 of the Act over grant of Mahr and return of articles – Magistrate provided for return of articles, payment of quantum of Mahr and also granted maintenance of Iddat period - In effect, no maintenance had been granted beyond the Iddat period – Her application under Section 125 CrPC was continuing - Held that even if an application under Section 3 of the Act was filed, the parameters of Section 125 CrPC would have been made applicable. (Para 15) Shamim Bano Vs Asraf Khan, 2014(2) RCR (Civil) 820 (SC) Criminal Procedure Code, 1973, Sections 125 and 127 – Maintenance – Enhancement – Contention that no amendment made to the Claim petition seeking enhancement, repelled – Section 127 Cr.P.C. permits increase in the quantum – Maintenance amount to the child enhanced. (Para 22) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Criminal Procedure Code, 1973, Section 125 – Maintenance – Expression ‘Wife’ – Refers to only legally married wife. (Para 7) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Cruelty Cruelty - Hindu Marriage Act, 1955, Section 13 – Wife having married during the subsistence of her first marriage has caused cruelty to the first husband – Husband entitled to decree of divorce under Section 13 of the Act (Para 20) Swaranjit Kaur Versus Lt. Col. Avtar Singh & Ors, 2016(5) RCR(Civil) 163 P&H Cruelty – Hindu Marriage Act, 1955, Section 13(1)(a) – Divorce –Wife leveling false allegations against the husband regarding his illicit relations – Held that on the basis of evidence on record, the Trial Court was perfectly justified in holding that the wife had treated the petitioner with cruelty – Husband entitled to a decree of divorce on the ground of cruelty besides the ground of desertion. (Para 7) Vijay Kumar Duggal Vs Kamlesh Kumari, 2005(2) R.C.R.(Civil) 271 (P&H) -5- Cruelty – Hindu Marriage Act, 1955, Section 13(1)(a) - Word ‘Cruelty’ has been used in relation to human conduct or human behavior – It is a conduct in relation to or in respect of matrimonial duties and obligations adversely affecting the other – Cruelty may be mental or physical, intentional or unintentional. (Para 29). Vinita Saxena Vs Pankaj Pandit, 2006(2) RCR(Civil) 302 (SC) Custom Custom – Hindu Marriage Act, 1955, Sections 5 and 11 – Void marriage – Custom to be pleaded and proved – No evidence to prove existence of any such custom in the community – Parties by which the divorce can be granted – Appellant failed to substantiate his plea that his earlier marriage stood dissolved by legal means – Order of Family Court allowing petition under Section 11 filed by the respondent wife – Upheld. (Para 14) Kala Singh Versus Jaspreet Kaur , 2016(3) RCR (Civil) P&H Custom – Plea of - To be pleaded and proved – In the absence thereof, no presumption of custom can be drawn. Rajinder Kaur Versus Kuldeep Singh, 2010 (1) RCR (Civil) 818 P&H. Customary Divorce Customary Divorce – Hindu Marriage Act, 1955, Sections 11 and 29 – Nullity of marriage – Held that it stands established on the record that there is a custom amongst Jat Sikhs of District Sangrur, permitting dissolution of marriage or divorce through writing executed by the parties in this regard – As such the divorce would be recognized in view of Section 29(2) of Hindu Marriage Act, 1955 and the law laid down by Hon’ble Supreme Court and Delhi High Court – Trial Court rightly found that the marriage between the parties could not be annulled under Section 11 of the Act, in as much as, respondent had validly obtained a divorce from her previous husband at the time of her marriage had taken place with the petitioner - Findings of the Trial Court affirmed, in this regard. (Paras 18 and 19) Jasbir Singh Versus Inderjeet Kaur, 2003(3) RCR (Civil) 503 P&H Custody of Child Custody of Child - Civil Procedure Code, 1908, Section 13 - Hindu Minority and Guardianship Act, 1956, Section 6 – Principle of Comity of Courts – Not appropriate that a domestic Court having much less intimate contact with the child and having much less close concern with a child and his or her parents (as against of a foreign Court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child - A foreign Court having the most intimate contact and closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural values in which the child has been brought up rather than a domestic Court. (Para 53) Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 Custody of child – Guardians and Wards Act, 1890, Sections 7 and 17 – Hindu Marriage Act, 1955, Sections 13B and 26 –Principles of law as laid down in ‘Rosy Jacob Vs. -6- Jacob Achakramakka’, (1973) 1 SCC 840 are equally applicable in dealing with the custody of a child under Section 26 of the Hindu Marriage Act. (Para 19) Vikram Vir Vohra Vs Shalini Bhalla, AIR 2010 SC 1675 Custody of child – Guardians and Wards Act, 1890, Section 7 – Hindu Marriage Act, 1955, Sections 13B and 26 –Parties already obtained divorce on mutual consent – Issue of custody of minor child – Respondent mother getting better job opportunity in Australia – She cannot be asked to choose between her child and her career – Separating the child from his mother will be disastrous to both – Orders passed by the High Court affirming the order of the Trial Court in favour of the respondent-mother upheld. (Paras 23 to 25). Vikram Vir Vohra Vs Shalini Bhalla, AIR 2010 SC 1675 Custody of child – Guardians and Wards Act, 1890, Section 25 – Hindu Minority and Guardianship Act, 1956, Section 6 –Paramount consideration – Welfare of the child and not rights of the parents. (Para 35) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 Custody of children – Guardians and Wards Act, 1890, Section 7 – Hindu Marriage Act, 1955, Sections 13B and 26 – Parties already obtained divorce on mutual consent – Issue as to whether the custody of child should be given to father or the mother or partially to one and partially to other – Factors to be considered (a) Wishes of the child concerned, and (b) to assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child’s Psychiatrist or a child welfare worker. (Para 4) Mamata Alias Anju Vs. Ashok Jagannath Bharuka, 2005 (12) SCC 452 Custody of child – Guardians and Wards Act, 1890, Section 7 – Hindu Minority and Guardianship Act, 1956, Section 6 –High Court directing handing over the custody of the child to the Institution, where the child is admitted for education - Held that handing over of custody to any Institution, while ignoring the claim of a parent, especially the mother of the child, is not acceptable. (Para 3) Beata Agnieszka Sobieraj versus State of Himachal Pradesh, 2016(4) RCR (Civil) 4 Custody of minor child – Guardians and Wards Act, 1890, Section 25 – Hindu Minority and Guardianship Act, 1956, Section 6 –The Grandmother of the minor, who was given the custody of the child by virtue of compromise has since expired - Paternal uncle and paternal aunt have their separate family units to be taken care of by them – Nothing on record to indicate that the mother had any interest adverse to that of the minor in the given set of facts – Welfare of child lies with her. (Para 12). Bimla and others Vs Anita, 2015(3) RCR (Civil) 153 (SC) Custody of minor child – Guardians and Wards Act, 1890, Section 25 – Hindu Marriage Act, 1955, Sections 13B and 26 –The word ‘welfare’ used in Section 13 of the Act has to be construed liberally and must be taken in its widest sense – The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being – Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which stands in the way of the Court exercising its parens patriae jurisdiction arising in such cases. (Para 43) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 -7- Custody of minor child – Guardians and Wards Act, 1890, Sections 7, 12 and 25 - Hindu Minority and Guardianship Act, 1956, Sections 6 and 13 – Fitness of father – It is not the ‘negative test’ that the father is not ’unfit’ or disqualified to have custody of his son/ daughter is relevant but the ‘positive test’ that such custody could be in the welfare of the minor which is material – On that basis the Court could exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian. (Para 62) Nil Ratan Kundu and anr Vs Abhijit Kundu, 2008 (3) RCR (Civil) 936 (SC) Custody of minor child – Hindu Marriage Act, 1955, Sections 13B and 26 – Guardians and Wards Act, 1890, Section 25 – Child living since long with the father – Held that by flouting various orders, even leaving the initiation of contempt proceedings, father has managed to keep custody of child – He cannot be beneficiary of his own wrongs – Order of the High Court granting custody of the child to the mother upheld with modification regarding the aspect the visitation rights of the father. (Paras 44, 45 and 47) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 Custody of minor child – Hindu Marriage Act, 1955, Section 26 – Hindu Minority and Guardianship Act, 1956, Section 6 - Guardians and Wards Act, 1890, Section 25 – Family Courts Act, 1984, Section 10 – Civil Procedure Code, 1908, Order 7 Rule 11 - Divorce by mutual consent – By way of judgment and decree of the Trial Court, the custody of the minor was given to the father – Mother was given visitation rights only – Mother filed petition for modifying the said judgment and decree to the extent that exclusive custody of the minor be granted to her and the father be restrained from forcibly taking away the minor from her custody and she be appointed as guardian for all purposes – Held that this petition under Section 26 of the Act was maintainable – Order of the Trial Court dismissing the application filed under Order 7 Rule 11 CPC read with Section 10 of the Family Courts Act for rejection of the petition upheld. (Para 14) Mayank bhargava vs Jyoti Bhargava, 2015(2) PLR 15 Custody of child – Hindu Minority and Guardianship Act, 1956, Section 13 – Child removed by a parent from one country to another in contravention of the orders of the Court where the parties had set up their matrimonial home – The Court in the country to which the child has been removed must first consider the question whether the Court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed. (Para 20). Dr. V.Ravi Chandran Vs Union of India & others, 2010 (1) SCC 174 Custody of Child - Hindu Minority and Guardianship Act, 1956, Section 6 – Civil Procedure Code, 1908, Section 13 -– Principle of Comity of Courts – Is essentially a principle of self restraint applicable when a foreign Court is seized of the issue of the custody of a child prior to the domestic Court – There may be a situation where the foreign Court though seized of the issue does not pass any effective or substantial order or directions – In that event, if the domestic Court were to pass an effective or substantial order or direction prior in point of time then the foreign Court also exercise self restraint and respect the direction or order of the domestic Court (or vice versa the order, unless there are very good reasons not to do so). (Para 50) Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 -8- Custody of children - Hindu Minority and Guardianship Act, 1956, Section 6 – Civil Procedure Code, 1908, Section 13 - Both the parents and children citizens of U.K. – The parents have been residents of U.K. for several years and worked for gain over there – Also owning immovable property (jointly) in U.K. – Children born and brought up in U.K. and elder daughter studying in a school in U.K. until she was brought to India – Younger daughter also joined a school in U.K. – Mere fact the children were admitted to school in India, with the consent of father is not conclusive of his consent to be permanent or long term residents of the children in India – Directions issued to mother for enabling her to present an effective case before the foreign Court (Paras 72 and 73). Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 Custody of Minor child – Hindu Minority and Guardianship Act, 1956, Sections 5, 6 and 8 – Guardians and Wards Act, 1890, Section 7 – Held that it is the desire, interest, welfare of the minor which is crucial and ultimate consideration that must guide the determination required to be made by the Court. (Para 14) Gaytri Bajaj Vs Jiten Bhalla, 2012(4) RCR (Civil) 603 (SC) Custody of Minor child – Hindu Minority and Guardianship Act, 1956, Sections 5, 6 and 8 – Guardians and Wards Act, 1890, Section 7 –Visitation Rights – The children, one of whom is on the verge of attaining majority, do not want to go with their mother – Both appear to be happy in the company of their father who also appears to be in a position to look after them – Held that any visitation right to the mother would be adverse to the interest of the children. (Para 15) Gaytri Bajaj Vs Jiten Bhalla, 2012(4) RCR (Civil) 603 (SC) Custody of Minor child – Hindu Minority and Guardianship Act, 1956, Sections 6 and 12 –Held that appellant father (Member of Indian Administrative Service) with the help of his father (Professor) will be able to take very good care of the children – Mother is not in a position to look after the educational need of the elder son – It would be in the interest of the children that they stay with the father – Visitation rights given to mother. (Paras 16 to 18) Shaleen Kabra Vs Shiwani Kabra, 2012 (2) RCR (Civil) 974 (SC) Custody of minor child – Hindu Minority and Guardianship Act, 1956, Sections 6 and 13 – Guardians and Wards Act, 1890, Sections 7, 12 and 25 – Indian Penal Code, 1860, Section 498A - Complaint against father alleging and attributing death of mother and a case under Section 498A IPC – A relevant factor – Upon enquiry by the Supreme Court, the minor unequivocally refused to go with his father or to stay with him – Stated that he was very happy with his maternal grand-parents and would like to continue to stay with them – Not proper to give custody of the minor to his father. (Paras 72, 83 and 84) Nil Ratan Kundu and anr Vs Abhijit Kundu, 2008 (3) RCR (Civil) 936 (SC) Custody of minor child – Hindu Minority and Guardianship Act, 1956, Section 6 – Order of High Court runs counter to the provisions contained in Section 6 as it incorrectly shifts the burden on the mother to show her suitability for temporary custody of the minor child – Order set aside. (Para 18) Roann Sharma Vs Arun Sharma, AIR 2015 SC 2232 Custody of minor child – Hindu Minority and Guardianship Act, 1956, Section 6 – Visitation rights – Distinct from custody or interim custody orders – Essentially they enable the parent who does not have interim custody to be able to meet the child without -9- removing him/ her from the custody of other parent – If a child is allowed to spend several hours, or even days away from the parent, who has been granted custody by the Court, temporary custody of the child stands temporarily transferred. (Para 18) Roann Sharma Vs Arun Sharma, AIR 2015 SC 2232 Custody of minor child – Hindu Minority and Guardianship Act, 1956, Section 13 – Minor an American citizen – Spent his initial years there – Parties obtained series of consent orders concerning his custody/ parenting rights, maintenance etc. from competent Court of jurisdiction in America – Merely because the child has been brought to India, the custody issue concerning him does not deserve to be gone into by the Court in India – It would be in accord with the principles of comity as well as on facts to return the child back to USA and enable the parties to establish the case before the Courts in USA. (Para 21) Dr. V.Ravi Chandran Vs Union of India & others, 2010 (1) SCC 174 Custody of minor child – Hindu Minority and Guardianship Act, 1956, Section 6 – Earlier, husband, was directed to provide the initial expenses of wife and minor child for travelling to and studying in UK for atleast a month to attend and contest the proceedings initiated by the husband before the Court in UK – Further directions issued to the husband regarding bearing of various expenses. (Para 9) Mrs.Shilpa Aggarwal Vs Mr.Aviral Mittal & anr, 2010(3) RCR (Civil) 433 (SC) Custody of minor child – Hindu Minority and Guardianship Act, 1956, Section 13 – Paramount Consideration – Welfare and custody of the child and not rights of the parents under a statute – Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents in so far as the factual aspects of the case are concerned (Para 14). Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil) 551(SC) Custody of minor child – Hindu Minority and Guardianship Act, 1956, Section 13 – Nothing on record to suggest that the welfare of the child is in any way in peril in the hands of the father – Minor has been living and studying in Allahabad in a good school – Dislocation of minor, at this stage, from Allahabad would not only impede his schooling, it may also cause emotional strain and depression on him – Interest and welfare will be best served if he continues to be in the custody of the father. (Para 17) Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil) 551 (SC) Custody of minor children – Constitution of India, Article 226 - Guardians and Wards Act, 1890, Sections 7, 9 and 12 –Habeas Corpus petition by father – Interest of the children – Required full and thorough enquiry – In spite of the orders passed by the Court in USA, it was not proper for the High Court who has allowed the Habeas Corpus writ petition and directed the father to hand over the custody of the children to the mother and permit him to take them away to USA – High Court should have directed the father to initiate appropriate proceedings in which said enquiry can be held. (Para 6). Sarita Sharma Vs Sushil Sharma, 2000 (2) RCR (Civil) 367 (SC) Custody of minor children – Hindu Marriage Act, 1955, Section 26 –Minors are in the care and custody of the mother – Receiving maintenance under Section 125 Cr.P.C. from the father – Both the children are school going – Very difficult to dislocate them from the place like Chandigarh, where the education facilities are comparatively better than -10- Faridabad, and send them to the place of the father, where none is there to look after them at his back – Moreover, due to long separation from their father, the children have lost interest in him – Orders granting custody of the children to her mother upheld. (Paras 5 to 7) Rajan Jairath Vs Mrs.Monita Mehta, 2013 (1) RCR (Civil) 546 (P&H) Custody of minor girl – Hindu Minority and Guardianship Act, 1956, Section 6 - Guardians and Wards Act, 1890, Sections 7 and 25 – After having obtained the custody of the minor child, the father does not appear to have neglected the minor or to look after all her needs – The child appears to be happy in his company and is also doing consistently well in school – Father appears to be financially stable and is also not disqualified in any way from being the guardian of the minor child – The child also expressed her preference to be with the father with whom she feels more comfortable – Interest of the minor child will be best served, if she remains with the father. (Paras 27 to 29) Sheila B.Das Vs P.R.Sugasree, 2006 (1) RCR (Civil) 758 (SC) Decree of Foreign Court Decree of foreign Court – Hindu Minority and Guardianship Act, 1956, Section 6 – Hindu Marriage Act, 1955, Section 13 – Conflict of laws – This theory prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case – No relief could be granted to the appellant given her conduct in removing the minor child from USA in defiance of the Court of competent jurisdiction. (Para 21) Arathi Bandi Vs Bandi Jagadrakshaka Rao, 2013 (3) RCR (Civil) 968 (SC) Decree of foreign Court – Guardians and Wards Act, 1890, Section 9 – Jurisdiction – Simply because the Foreign Court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the Courts in this country to shut out an independent consideration of the matter. (Para 31) Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952 Decree of nullity Decree of nullity – Hindu Marriage Act, 1955, Sections 5, 11 and 12 –Using of the words that the marriage was annulled by a decree of nullity ipso facto does not mean that the marriage was annulled under Section 12 of the Act – Wrong mentioning of this Section in the petition and the impugned order will not make any difference. (Para 4) Vinod Versus Smt. Reetu, 2012(1) Law Herald 901 Disposal of property Disposal of property – Hindu Marriage Act, 1955, Section 27 –Interim relief – Family Court directed Court Receiver to take possession of the flat from husband and induct wife in the flat during the pendency of the appeal – Held that the family Court, by way of interim relief, has granted main relief itself – Not sustainable – Order set aside. (Paras 3 to 6) Mehul Mahendra Thakkar Vs Meena Mehul Thakkar, 2009 (14) SCC 48 Disposal of property – Hindu Marriage Act, 1955, Section 27 – The direction for disposal by Matrimonial Court – Can be only in relation to the property which may belong jointly to both the husband and wife – Exclusive property to one of the spouses cannot be a -11- subject of direction under Section 27 of the Act. (Para 3) Anita Vs Rakesh, 2010(5) Law Herald 3579 Divorce Divorce – Constitution of India, Article 136 – Hindu Marriage Act, 1955, Section 13 – Held that the orders of the Courts below has resulted in grave miscarriage of justice to the wife who has been constrained into living with a dead relationship for over 13 year – Resultantly agony and injustice caused to the wife – Fit case for interference under Article 136 of the Constitution – Findings of the Courts below reversed. (Para 50) Vinita Saxena Vs Pankaj Pandit, 2006(2) RCR(Civil) 302 (SC) Divorce – Hindu Marriage Act, 1955, Section 13(1)(a) – Cruelty – Wife leveling false allegations against the husband regarding his illicit relations – Held that on the basis of evidence on record, the Trial Court was perfectly justified in holding that the wife had treated the petitioner with cruelty – Husband entitled to a decree of divorce on the ground of cruelty besides the ground of desertion. (Para 7) Vijay Kumar Duggal Vs Kamlesh Kumari, 2005(2) R.C.R.(Civil) 271 (P&H) Divorce – Hindu Marriage Act, 1955, Section 11 and 13 (1)(vii) - Evidence Act 1872, Section 108 –Person not heard alive for seven years – Just because a spouse was not heard of for seven long years, the other spouse cannot contract second marriage – A party taking such plea should first establish such a plea – It was established that the first husband was very much alive when the wife contracted second marriage – Such a marriage is taken illegal, null and void. (Paras 12 and 14) Swaranjit Kaur Versus Lt. Col. Avtar Singh & Ors, 2016(5) RCR(Civil) 163 P&H Divorce - Hindu Marriage Act, 1955, Section 13 –Mental Cruelty – Willful or intentional denial of sexual relation by a spouse – Amounts to mental cruelty – Particularly when parties are young and newly married – Can form basis for divorce. (Para 13) Sanjay Kumar Vs Bhateri, (2013) 3 RCR (Civil) 223 (P&H) Divorce Proceedings Divorce Proceedings – Hindu Marriage Act, 1955, Sections 7, 11 and 13 – Civil Procedure Code, 1908, Order 22, Rules 3 and 4 – Wife challenged decree of nullity declaring the marriage as void – Wife died during the pendency of appeal – Applicant is the only child from the marriage in question – She wants to pursue the appeal – The legal right of the applicant to inherit the ancestral property of her parents will be affected – Her social status will also be at stake – Her matrimonial prospects may also be affected – Applicant being the affected party from the impugned decree is entitled to pursue the appeal filed by her mother. (Para 6) Balwinder Kaur Versus Gurmukh Singh, 2007(3) RCR (Civil) 433 P&H Enhancement of maintenance Enhancement of maintenance – Hindu Marriage Act, 1955, Section 26 – Change in circumstances – Party can approach the Family Court again as an order under Section 26 -12- of the Act is never final – Decree passed thereunder is always subject to modification. (Para 9) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) Estoppel Estoppel – Criminal Procedure Code, 1973, Section 125 – Hindu Adoptions and Maintenance Act, 1956 – Maintenance –Contention that the appellant was not informed about the respondent’s earlier marriage when she married, repelled – Principle of estoppels can not be present to the service to defeat the provision of Section 125 Cr.P.C. (Para 16) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Evidence Act 1872 Evidence Act 1872, Section 108 – Hindu Marriage Act, 1955, Section 11 and 13 (1)(vii) - Divorce – Person not heard alive for seven years – Just because a spouse was not heard of for seven long years, the other spouse cannot contract second marriage – A party taking such plea should first establish such a plea – It was established that the first husband was very much alive when the wife contracted second marriage – Such a marriage is taken illegal, null and void. (Paras 12 and 14) Swaranjit Kaur Versus Lt. Col. Avtar Singh & Ors, 2016(5) RCR(Civil) 163 P&H Family Courts Act, 1984 Family Courts Act 1984, Section 7, Criminal Procedure Code, 1973, Section 125 – Applicability to Muslim Women – While relying upon the law laid down in the case of ‘Shamin Bano Vs. Asraf Khan’ , 2014 (2 RCR (Civil) 820), it was held that Section 125 Cr.P.C. has been rightly held to be applicable by the learned Family Judge. (Para 10) Shamima Farooqui Vs Shahid Khan, 2015(5) SCC 705 Family Courts Act, 1984, Sections 7 and 8 - Jurisdiction - In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court – It makes no difference as to whether it is an affirmative relief or a negative relief – What is important is the declaration regarding the matrimonial status. (Para 7) Balram Yadav vs Fulmaniya Yadav, AIR 2016 SC 2161 Family Courts Act, 1984, Section 10 – Hindu Marriage Act, 1955, Section 26 – Hindu Minority and Guardianship Act, 1956, Section 6 - Guardians and Wards Act, 1890, Section 25 – Civil Procedure Code, 1908, Order 7 Rule 11 - Custody of minor child – Divorce by mutual consent – By way of judgment and decree of the Trial Court, the custody of the minor was given to the father – Mother was given visitation rights only – Mother filed petition for modifying the said judgment and decree to the extent that exclusive custody of the minor be granted to her and the father be restrained from forcibly taking away the minor from her custody and she be appointed as guardian for all purposes – Held that this petition under Section 26 of the Act was maintainable – Order of the Trial Court dismissing the application filed under Order 7 Rule 11 CPC read with Section 10 of the Family Courts Act for rejection of the petition upheld. (Para 14) Mayank bhargava vs Jyoti Bhargava, 2015(2) PLR 15 -13- Family Courts Act, 1984, Section 20 – Overriding effect – The Act has an overriding effect on other laws. (Para 7) Balram Yadav vs Fulmaniya Yadav, AIR 2016 SC 2161 Guardians and Wards Act, 1890 Guardians and Wards Act, 1890, Sections 7, 9 and 12 - Constitution of India, Article 226 -– Custody of minor children – Habeas Corpus petition by father – Interest of the children – Required full and thorough enquiry – In spite of the orders passed by the Court in USA, it was not proper for the High Court who has allowed the Habeas Corpus writ petition and directed the father to hand over the custody of the children to the mother and permit him to take them away to USA – High Court should have directed the father to initiate appropriate proceedings in which said enquiry can be held. (Para 6). Sarita Sharma Vs Sushil Sharma, 2000 (2) RCR (Civil) 367 (SC) Guardians and Wards Act, 1890, Sections 7 and 17 - Custody of child – Custody orders – Nature – Custody orders are always considered interlocutory orders – By the nature of such proceedings custody orders cannot be made rigid and final – Capable of being altered and moulded keeping in mind the needs of the child. (Para 16). Vikram Vir Vohra Vs Shalini Bhalla, AIR 2010 SC 1675 Guardians and Wards Act, 1890, Sections 7 and 17 – Hindu Marriage Act, 1955, Sections 13B and 26 – Custody of child – Principles of law as laid down in ‘Rosy Jacob Vs. Jacob Achakramakka’, (1973) 1 SCC 840 are equally applicable in dealing with the custody of a child under Section 26 of the Hindu Marriage Act. (Para 19) Vikram Vir Vohra Vs Shalini Bhalla, AIR 2010 SC 1675 Guardians and Wards Act, 1890, Section 7 – Hindu Marriage Act, 1955, Sections 13B and 26 – Custody of child – Parties already obtained divorce on mutual consent – Issue of custody of minor child – Respondent mother getting better job opportunity in Australia – She cannot be asked to choose between her child and her career – Separating the child from his mother will be disastrous to both – Orders passed by the High Court affirming the order of the Trial Court in favour of the respondent-mother upheld. (Paras 23 to 25). Vikram Vir Vohra Vs Shalini Bhalla, AIR 2010 SC 1675 Guardians and Wards Act, 1890, Section 7 – Hindu Marriage Act, 1955, Sections 13B and 26 – Custody of children – Parties already obtained divorce on mutual consent – Issue as to whether the custody of child should be given to father or the mother or partially to one and partially to other – Factors to be considered (a) Wishes of the child concerned, and (b) to assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child’s Psychiatrist or a child welfare worker. (Para 4) Mamata Alias Anju Vs. Ashok Jagannath Bharuka, 2005 (12) SCC 452 Guardians and Wards Act, 1890, Section 25 – Hindu Marriage Act, 1955, Sections 13B and 26 – Custody of minor child – Child living since long with the father – Held that by flouting various orders, even leaving the initiation of contempt proceedings, father has managed to keep custody of child – He cannot be beneficiary of his own wrongs – Order of the High Court granting custody of the child to the mother upheld with modification -14- regarding the aspect the visitation rights of the father. (Paras 44, 45 and 47) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 Guardians and Wards Act, 1890, Section 25 – Hindu Marriage Act, 1955, Section 26 – Hindu Minority and Guardianship Act, 1956, Section 6 - Custody of minor child – Divorce by mutual consent – Whether a separate petition under Section 26 of the Hindu Marriage Act for variation of the order of the custody of child is maintainable or an application in the earlier petition is required to be filed – Held that both the remedies are available – It is only after having chosen one remedy that it is incumbent upon the party to pursue the remedies thereunder in accordance with law. (Para 7) Mayank bhargava vs Jyoti Bhargava, 2015(2) PLR 15 Guardians and Wards Act, 1890, Section 25 - Hindu Marriage Act, 1955, Section 26 – Hindu Minority and Guardianship Act, 1956, Section 6 - Family Courts Act, 1984, Section 10 – Civil Procedure Code, 1908, Order 7 Rule 11 - Custody of minor child – Divorce by mutual consent – By way of judgment and decree of the Trial Court, the custody of the minor was given to the father – Mother was given visitation rights only – Mother filed petition for modifying the said judgment and decree to the extent that exclusive custody of the minor be granted to her and the father be restrained from forcibly taking away the minor from her custody and she be appointed as guardian for all purposes – Held that this petition under Section 26 of the Act was maintainable – Order of the Trial Court dismissing the application filed under Order 7 Rule 11 CPC read with Section 10 of the Family Courts Act for rejection of the petition upheld. (Para 14) Mayank bhargava vs Jyoti Bhargava, 2015(2) PLR 15 Guardians and Wards Act, 1890, Section 7 – Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of child – High Court directing handing over the custody of the child to the Institution, where the child is admitted for education - Held that handing over of custody to any Institution, while ignoring the claim of a parent, especially the mother of the child, is not acceptable. (Para 3) Beata Agnieszka Sobieraj versus State of Himachal Pradesh, 2016(4) RCR (Civil) 4 Guardians and Wards Act, 1890, Sections 7, 15 and 19 – Hindu Minority and Guardianship Act, 1956, Section 6(b) – Issuance of birth certificate – If a single parent / unwed mother applies for the issuance of the birth certificate for a child born from her womb, the Authorities concerned may only require her to furnish the affidavit to this effect – Must thereupon issue the birth certificate, unless there is a Court direction to the contrary – It is the responsibility of the State to ensure that no citizen suffers any inconvenience or disadvantage, merely because the parents failed or neglect to register the birth. (Para 19) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC) Guardians and Wards Act, 1890, Sections 7, 12 and 25 – Hindu Minority and Guardianship Act, 1956, Sections 6 and 13 – Indian Penal Code, 1860, Section 498A - Custody of minor child – Complaint against father alleging and attributing death of mother and a case under Section 498A IPC – A relevant factor – Upon enquiry by the Supreme Court, the minor unequivocally refused to go with his father or to stay with him – Stated that he was very happy with his maternal grand-parents and would like to continue to stay with them – Not proper to give custody of the minor to his father. (Paras -15- 72, 83 and 84) Nil Ratan Kundu and anr Vs Abhijit Kundu, 2008 (3) RCR (Civil) 936 (SC) Guardians and Wards Act, 1890, Section 25 – Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of child – Paramount consideration – Welfare of the child and not rights of the parents. (Para 35) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 Guardians and Wards Act, 1890, Sections 7, 15 and 19 – Hindu Minority and Guardianship Act, 1956, Section 6(b) – 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 guardian of a child? – Held No - If a single parent / unwed mother applies for the issuance of the birth certificate for a child born from her womb, the Authorities concerned may only require her to furnish the affidavit to this effect – Must thereupon issue the birth certificate, unless there is a Court direction to the contrary. (Paras 1 and 19) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC) Guardians and Wards Act, 1890, Sections 7 and 25 – Hindu Minority and Guardianship Act, 1956, Section 6 - Custody of minor girl – After having obtained the custody of the minor child, the father does not appear to have neglected the minor or to look after all her needs – The child appears to be happy in his company and is also doing consistently well in school – Father appears to be financially stable and is also not disqualified in any way from being the guardian of the minor child – The child also expressed her preference to be with the father with whom she feels more comfortable – Interest of the minor child will be best served, if she remains with the father. (Paras 27 to 29) Sheila B.Das Vs P.R.Sugasree, 2006 (1) RCR (Civil) 758 (SC) Guardians and Wards Act, 1890, Section 7 – Hindu Minority and Guardianship Act, 1956, Sections 5, 6 and 8 – Custody of Minor child – Held that it is the desire, interest, welfare of the minor which is crucial and ultimate consideration that must guide the determination required to be made by the Court. (Para 14) Gaytri Bajaj Vs Jiten Bhalla, 2012(4) RCR (Civil) 603 (SC) Guardians and Wards Act, 1890, Section 7 – Hindu Minority and Guardianship Act, 1956, Sections 5, 6 and 8 – Guardians and Wards Act, 1890, Section 7 – Custody of Minor child – Visitation Rights – The children, one of whom is on the verge of attaining majority, do not want to go with their mother – Both appear to be happy in the company of their father who also appears to be in a position to look after them – Held that any visitation right to the mother would be adverse to the interest of the children. (Para 15) Gaytri Bajaj Vs Jiten Bhalla, 2012(4) RCR (Civil) 603 (SC) Guardians and Wards Act, 1890, Sections 7, 12 and 25 - Hindu Minority and Guardianship Act, 1956, Sections 6 and 13 – Custody of minor child – Fitness of father – It is not the ‘negative test’ that the father is not ’unfit’ or disqualified to have custody of his son/ daughter is relevant but the ‘positive test’ that such custody could be in the welfare of the minor which is material – On that basis the Court could exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian. (Para 62) Nil Ratan Kundu and anr Vs Abhijit Kundu, 2008 (3) RCR (Civil) 936 (SC) -16- Guardians and Wards Act, 1890, Sections 7, 15 and 19 – Hindu Minority and Guardianship Act, 1956, Section 6(b) – Guardianship Petition – Duty of the Court – 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 attainment of majority, the child continues in curial curatorship. (Para 20) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC) Guardians and Wards Act, 1890, Section 9 – Jurisdiction – Solitary test – ‘Ordinary Residence’ of the minor – Whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact – It may at best be mixed question of law and fact, but unless jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. (Para 14) Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952 Guardians and Wards Act, 1890, Section 9 – Jurisdiction – Whether the High Court was justified in dismissing the petition for custody of the minor on the ground that the Court at Delhi had no jurisdiction to entertain the same – Held No – High Court was not right in holding that the respondent’s version regarding the letter in question having been obtained under threat and coercion was unacceptable – If the letter was under duress and coercion, there was no reason why the respondent should not have repudiated the same no sooner he landed in America and the alleged duress and coercion had ceased – Far from doing so the respondent continued to support that decision even when he was far away from any duress and coercion alleged by him till the time he suddenly changed his mind and started accusing the appellant of abduction. (Para 30) Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952 Guardians and Wards Act, 1890, Section 9 – Jurisdiction – Decree of foreign Court – Simply because the Foreign Court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the Courts in this country to shut out an independent consideration of the matter. (Para 31) Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952 Guardians and Wards Act, 1890, Section 9 – Jurisdiction – Principle of Comity of Courts – Held that in the light of the circumstances of this case, repatriation of the minor to the USA, principle of ‘comity of Courts’ does not appear to be an acceptable option worthy of being exercised at the stage – Interest of the minor shall be better served if he continued in the custody of his mother, especially when the respondent has contracted the second marriage and do not appear to be keen for having actual custody of the minor. (Para 45). Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952 Custody of minor child – Guardians and Wards Act, 1890, Section 25 – Hindu Minority and Guardianship Act, 1956, Section 6 –Merely because there is no defect in his personal care and his attachment for his children - which every parent normally has, father would -17- not be granted custody. (Para 40) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 Guardians and Wards Act, 1890, Section 25 – Hindu Marriage Act, 1955, Sections 13B and 26 – Custody of minor child – The word ‘welfare’ used in Section 13 of the Act has to be construed liberally and must be taken in its widest sense – The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being – Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which stands in the way of the Court exercising its parens patriae jurisdiction arising in such cases. (Para 43) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 Guardians and Wards Act, 1890, Section 25 – Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of minor child – Merely because there is no defect in his personal care and his attachment for his children - which every parent normally has, father would not be granted custody. (Para 40) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 Guardians and Wards Act, 1890, Section 25 – Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of minor child – The Grandmother of the minor, who was given the custody of the child by virtue of compromise has since expired - Paternal uncle and paternal aunt have their separate family units to be taken care of by them – Nothing on record to indicate that the mother had any interest adverse to that of the minor in the given set of facts – Welfare of child lies with her. (Para 12). Bimla and others Vs Anita, 2015(3) RCR (Civil) 153 (SC) Guardianship Petition Guardianship Petition – Guardians and Wards Act, 1890, Sections 7, 15 and 19 – Hindu Minority and Guardianship Act, 1956, Section 6(b) – Duty of the Court – 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 attainment of majority, the child continues in curial curatorship. (Para 20) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC) Hindu Adoptions and Maintenance Act, 1956 Hindu Adoptions and Maintenance Act, 1956 – Criminal Procedure Code, 1973, Section 125 – Maintenance – Estoppel – Contention that the appellant was not informed about the respondent’s earlier marriage when she married, repelled – Principle of estoppels can not be present to the service to defeat the provision of Section 125 Cr.P.C. (Para 16) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Hindu Adoptions and Maintenance Act, 1956 – Criminal Procedure Code, 1973, Section 125 – Scope – No inconsistency of Section 125 CrPC and the provisions of Hindu Adoptions and Maintenance Act, 1956 – Scope of the two laws is different. (Para 9) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 -18- Hindu Adoptions and Maintenance Act, 1956 – Criminal Procedure Code, 1973, Section 125 –Maintenance – Once the right under the provisions in Section 125 Cr.P.C. is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. (Para 14) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Hindu Adoptions and Maintenance Act, 1956 - Hindu Marriage Act, 1955 - Hindu Minority and Guardianship Act, 1956 - Hindu Succession Act, 1956 – Interpretation of statutes – All the Acts are to be read in conjunction with one another and interpreted accordingly – Definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision, unless there is anything repugnant to the context. (Para 10) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) Hindu Adoptions and Maintenance Act, 1956, Section 16 – Adoption – Presumption of validity – Adoption deed signed by the natural father and mother of the child and by the adopting father – It was approved by examining the scribe, the witnesses and the parents giving in adoption and was duly registered – Mere fact that it does not bear the endorsement of the natural father at the time of registration, does not raise any suspicion as to its execution or as to its legality (Para 14) Karam Singh & Ors Vs Jagsir Singh & Ors., 2015 (3) RCR (Civil) 45 (P&H) Hindu Adoptions and Maintenance Act, 1956, Section 16 – Adoption – Presumption of validity – An adoption deed comes into effect the moment it is signed or thumb marked by the natural parent and the adopting parent – The only consequence of non registration or a defective registration is that the presumption of truth, raised under Section 16 of the Act shall not arise – Adoption deed shall have to be proved like any other ordinary fact or document. Karam Singh & Ors Vs Jagsir Singh & Ors., 2015 (3) RCR (Civil) 45 (P&H) Hindu Adoptions and Maintenance Act, 1956 Sections 18 and 20 – Hindu Marriage Act, 1955, Section 26 –Maintenance for children – Both the parents are employed – if the approximate salary of the husband is twice as much as that of the wife, they are bound to contribute for maintenance of their child in that proportion. (Para 11) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) Hindu Marriage Act, 1955 Hindu Marriage Act, 1955 - Hindu Minority and Guardianship Act, 1956 - Hindu Adoptions and Maintenance Act, 1956 - Hindu Succession Act, 1956 – Interpretation of statutes – All the Acts are to be read in conjunction with one another and interpreted accordingly – Definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision, unless there is anything repugnant to the context. (Para 10) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) Hindu Marriage Act, 1955, Sections 5, 11 and 12 – Decree of nullity – Using of the words that the marriage was annulled by a decree of nullity ipso facto does not mean that the marriage was annulled under Section 12 of the Act – Wrong mentioning of this -19- Section in the petition and the impugned order will not make any difference. (Para 4) Vinod Versus Smt. Reetu, 2012(1) Law Herald 901 Hindu Marriage Act, 1955, Sections 5(i), 11 and 12 – Nullity of marriage – A marriage which was null and void from the very inception could not be held valid even if the complaining spouse knew about the previous marriage of the other spouse. (Para 19) Manpreet Kaur Versus Balkar Singh, 2015(5) RCR (Civil) 510 (P&H) Hindu Marriage Act, 1955, Sections 5(i), 11 and 12 – Nullity of marriage – When the appellant was married to the respondent, her first marriage was in subsistence and she had a living spouse – Marriage between the parties in violation of Section 5 (i) of the Act – Rightly declared null and void by the Trial Court. (Paras 21 and 22) Manpreet Kaur Versus Balkar Singh, 2015(5) RCR (Civil) 510 (P&H) Hindu Marriage Act, 1955, Sections 5, 11 and 12 – Void marriage – Wife sought declaration to the effect that the marriage between her and appellant (husband) be declared void by decree of nullity on the ground of being in contravention of clause (i) of Section 5 of the Act – Held that such marriage can be declared void at any time – Merely because while filing the petition the wife had mentioned that the petition was filed under Section 12 or the learned Additional District Judge has ordered that the marriages annulled under Section 12 will not mean that the marriage was declared void by decree of nullity under Section 12. (Para 4) Vinod Versus Smt. Reetu, 2012(1) Law Herald 901. Hindu Marriage Act, 1955, Sections 5 and 11 – Void marriage – Custom – To be pleaded and proved – No evidence to prove existence of any such custom in the community – Parties by which the divorce can be granted – Appellant failed to substantiate his plea that his earlier marriage stood dissolved by legal means – Order of Family Court allowing petition under Section 11 filed by the respondent wife – Upheld. (Para 14) Kala Singh Versus Jaspreet Kaur , 2016(3) RCR (Civil) P&H Hindu Marriage Act, 1955, Sections 7, 11 and 13 – Civil Procedure Code, 1908, Order 22, Rules 3 and 4 – Divorce Proceedings – Wife challenged decree of nullity declaring the marriage as void – Wife died during the pendency of appeal – Applicant is the only child from the marriage in question – She wants to pursue the appeal – The legal right of the applicant to inherit the ancestral property of her parents will be affected – Her social status will also be at stake – Her matrimonial prospects may also be affected – Applicant being the affected party from the impugned decree is entitled to pursue the appeal filed by her mother. (Para 6) Balwinder Kaur Versus Gurmukh Singh, 2007(3) RCR (Civil) 433 P&H Hindu Marriage Act, 1955, Sections 7, 11, and 13 – Nullity of marriage – Factum of performance of essential ceremonies at the time of previous marriage not even pleaded by the respondent – The witness who proved marriage certificate, has not stated anything about performance of the marriage ceremonies at the time of the alleged previous marriage – Held that respondent has failed to prove that prior to the marriage in question, the appellant had performed valid marriage with another party and the said marriage was subsisting at the time of marriage in question – Decree of nullity passed by the Trial Court liable to be set aside. (Paras 11 and 13) Balwinder Kaur Versus Gurmukh Singh, 2007(3) RCR (Civil) 433 P&H -20- Hindu Marriage Act, 1955, Sections 9 and 24 – Maintenance – Grant of decree for restitution of conjugal rights in favour of a husband – Cannot create a legal bar to claim maintenance by a destitute wife. (Para 17) Sanjay Kumar Vs Bhateri, (2013) 3 RCR (Civil) 223 (P&H) Hindu Marriage Act, 1955, Section 11 – Nullity of marriage – Appellant wife earlier married to someone else – Said marriage not shown to have been dissolved – Even if it is assumed that her second husband was already married and, therefore, she was not required to obtain divorce, she was ineligible to marry the respondent-husband – Respondent-husband having married appellant wife without any misrepresentation or fraud by her, filed a petition for annulling the marriage – It would amount to taking advantage of his own wrong. (Paras 4 and 5) Sunita Versus Jugal Kishore, 2004(4) RCR (Civil) 784 (P&H) Hindu Marriage Act, 1955, Section 11 and 13 (1)(vii) - Evidence Act 1872, Section 108 – Divorce – Person not heard alive for seven years – Just because a spouse was not heard of for seven long years, the other spouse cannot contract second marriage – A party taking such plea should first establish such a plea – It was established that the first husband was very much alive when the wife contracted second marriage – Such a marriage is taken illegal, null and void. (Paras 12 and 14) Swaranjit Kaur Versus Lt. Col. Avtar Singh & Ors, 2016(5) RCR(Civil) 163 P&H Hindu Marriage Act, 1955, Sections 11, 13 and 25 – Interim maintenance – Cannot be declined at the interim stage by coming to the conclusion that marriage between the parties is a nullity – That is the final relief claimed by respondent in the petition – Even when the petition is decided finally, the Court can still grant permanent alimony. (Para 6) Smt. Lata Versus Neeraj Pawar, 2009(1) RCR (Civil) 872 P&H Hindu Marriage Act, 1955, Section 11 – Nullity of marriage – No evidence was led to establish that there was any custom or usage prevalent in the community of the appellant under which divorce through writing by Panchayatnama was permissible – Matrimonial Court held that on the date of marriage, the appellant had not obtained divorce from her previous husband from any competent Court having jurisdiction – Decree declaring the second marriage null and void upheld. (Paras 10, 11 and 18) Rajinder Kaur Versus Kuldeep Singh, 2010 (1) RCR (Civil) 818 P&H. Hindu Marriage Act, 1955, Sections 11 and 23(1)(a) – Nullity of marriage – Remedy under Section 11 of the Act is available to "any party" and not to the aggrieved party – Cannot be said that the party who is performing second marriage and seeking declaration of that marriage to be a nullity, is precluded from filing petition under Section 11 of the Act – Provisions of Section 23(1)(a) would not debar such spouse from presenting a petition under Section 11 of the Act seeking declaration that the second marriage is a nullity and void. (Para 9) Kiran Kaur Versus Jagir Singh Bamrah, 2015(2) PLR 380 P&H Hindu Marriage Act, 1955, Sections 11 and 29 – Nullity of marriage – Customary Divorce – Held that it stands established on the record that there is a custom amongst Jat Sikhs of District Sangrur, permitting dissolution of marriage or divorce through writing -21- executed by the parties in this regard – As such the divorce would be recognized in view of Section 29(2) of Hindu Marriage Act, 1955 and the law laid down by Hon’ble Supreme Court and Delhi High Court – Trial Court rightly found that the marriage between the parties could not be annulled under Section 11 of the Act, in as much as, respondent had validly obtained a divorce from her previous husband at the time of her marriage had taken place with the petitioner - Findings of the Trial Court affirmed, in this regard. (Paras 18 and 19) Jasbir Singh Versus Inderjeet Kaur, 2003(3) RCR (Civil) 503 P&H Hindu Marriage Act, 1955, Section 13 – Constitution of India, Article 136 – Divorce – Held that the orders of the Courts below has resulted in grave miscarriage of justice to the wife who has been constrained into living with a dead relationship for over 13 year – Resultantly agony and injustice caused to the wife – Fit case for interference under Article 136 of the Constitution – Findings of the Courts below reversed. (Para 50) Vinita Saxena Vs Pankaj Pandit, 2006(2) RCR(Civil) 302 (SC) Hindu Marriage Act, 1955, Section 13 – Cruelty - Wife having married during the subsistence of her first marriage has caused cruelty to the first husband – Husband entitled to decree of divorce under Section 13 of the Act (Para 20) Swaranjit Kaur Versus Lt. Col. Avtar Singh & Ors, 2016(5) RCR(Civil) 163 P&H Hindu Marriage Act, 1955, Section 13 – Divorce - Mental Cruelty – Willful or intentional denial of sexual relation by a spouse – Amounts to mental cruelty – Particularly when parties are young and newly married – Can form basis for divorce. (Para 13) Sanjay Kumar Vs Bhateri, (2013) 3 RCR (Civil) 223 (P&H) Hindu Marriage Act, 1955, Section 13 – Hindu Minority and Guardianship Act, 1956, Section 6 –Decree of Foreign Court – Conflict of laws – This theory prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case – No relief could be granted to the appellant given her conduct in removing the minor child from USA in defiance of the Court of competent jurisdiction. (Para 21) Arathi Bandi Vs Bandi Jagadrakshaka Rao, 2013 (3) RCR (Civil) 968 (SC) Hindu Marriage Act, 1955, Sections 13, 25 and 27 – Permanent Alimony – Husband getting salary of `7500/- per month – Grant of maintenance amount of ` 2500/- per month is reasonable and adequate – Wife already received a sum of ` 40,000/- as full and final settlement – Therefore, not entitled to anything under Section 27 of the Act – In the absence of any evidence to suggest regarding increase in salary, amount of permanent alimony cannot be enhanced. (Paras 12 and 13) Smt Raj Bala Vs Krishan Avtar Kaushik, 2012(8) RCR (Civil) 51 (P&H) Hindu Marriage Act, 1955, Section 13(1)(a) – Cruelty – Word ‘Cruelty’ has been used in relation to human conduct or human behavior – It is a conduct in relation to or in respect of matrimonial duties and obligations adversely affecting the other – Cruelty may be mental or physical, intentional or unintentional. (Para 29). Vinita Saxena Vs Pankaj Pandit, 2006(2) RCR(Civil) 302 (SC) Hindu Marriage Act, 1955, Section 13(1)(a) – Divorce – Cruelty – Wife leveling false allegations against the husband regarding his illicit relations – Held that on the basis of evidence on record, the Trial Court was perfectly justified in holding that the wife had -22- treated the petitioner with cruelty – Husband entitled to a decree of divorce on the ground of cruelty besides the ground of desertion. (Para 7) Vijay Kumar Duggal Vs Kamlesh Kumari, 2005(2) R.C.R.(Civil) 271 (P&H) Hindu Marriage Act, 1955, Section 13(1)(a) – Mental disorder – Trial Court directing setting up of Medical Board to examine the husband – Husband refused to submit himself for examination and to go before the Medical Board – Held that this would but confirm the contention of the wife that the husband is suffering from Paranoid Schizophrenia and the Court can draw adverse inference in the conduct of the husband (Para 44) Vinita Saxena Vs Pankaj Pandit, 2006(2) RCR(Civil) 302 (SC) Hindu Marriage Act, 1955, Sections 13B and 26 – Guardians and Wards Act, 1890, Sections 7 and 17 – Custody of child – Principles of law as laid down in ‘Rosy Jacob Vs. Jacob Achakramakka’, (1973) 1 SCC 840 are equally applicable in dealing with the custody of a child under Section 26 of the Hindu Marriage Act. (Para 19) Vikram Vir Vohra Vs Shalini Bhalla, AIR 2010 SC 1675 Hindu Marriage Act, 1955, Sections 13B and 26 – Guardians and Wards Act, 1890, Section 7 –Custody of child – Parties already obtained divorce on mutual consent – Issue of custody of minor child – Respondent mother getting better job opportunity in Australia – She cannot be asked to choose between her child and her career – Separating the child from his mother will be disastrous to both – Orders passed by the High Court affirming the order of the Trial Court in favour of the respondent-mother upheld. (Paras 23 to 25). Vikram Vir Vohra Vs Shalini Bhalla, AIR 2010 SC 1675 Hindu Marriage Act, 1955, Sections 13B and 26 – Guardians and Wards Act, 1890, Section 25 – Custody of minor child – The word ‘welfare’ used in Section 13 of the Act has to be construed liberally and must be taken in its widest sense – The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being – Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which stands in the way of the Court exercising its parens patriae jurisdiction arising in such cases. (Para 43) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 Hindu Marriage Act, 1955, Sections 13B and 26 - Guardians and Wards Act, 1890, Section 7 –– Custody of children – Parties already obtained divorce on mutual consent – Issue as to whether the custody of child should be given to father or the mother or partially to one and partially to other – Factors to be considered (a) Wishes of the child concerned, and (b) to assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child’s Psychiatrist or a child welfare worker. (Para 4) Mamata Alias Anju Vs. Ashok Jagannath Bharuka, 2005 (12) SCC 452 Hindu Marriage Act, 1955, Section 24 – Criminal Procedure Code, 1973, Section 125 – Maintenance – Upon request made by wife of appellant, Director General of Police directed payment of 50% salary of appellant directly to his wife and two minor children – Order upheld taking into account the totality of the circumstances – However, 50% of the salary to be calculated after deducting the amount of Income Tax paid by the appellant. (Paras 4 to 7) Vijay Kumar Vs State of Punjab & others, 2013(3) RCR (Civil) 323 (P&H) -23- Hindu Marriage Act, 1955, Section 25 – Alimony/ Maintenance – Expression ‘at the time of passing any decree’ – Encompasses all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13. (Para 18) Rajinder Kaur Versus Kuldeep Singh, 2010 (1) RCR (Civil) 818 P&H. Hindu Marriage Act, 1955, Section 26 – Custody of minor children – Minors are in the care and custody of the mother – Receiving maintenance under Section 125 Cr.P.C. from the father – Both the children are school going – Very difficult to dislocate them from the place like Chandigarh, where the education facilities are comparatively better than Faridabad, and send them to the place of the father, where none is there to look after them at his back – Moreover, due to long separation from their father, the children have lost interest in him – Orders granting custody of the children to her mother upheld. (Paras 5 to 7) Rajan Jairath Vs Mrs.Monita Mehta, 2013 (1) RCR (Civil) 546 (P&H) Hindu Marriage Act, 1955, Section 26 – Enhancement of maintenance – Change in circumstances – Party can approach the Family Court again as an order under Section 26 of the Act is never final – Decree passed thereunder is always subject to modification. (Para 9) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) Hindu Marriage Act, 1955, Section 26 – Hindu Minority and Guardianship Act, 1956, Section 6 - Guardians and Wards Act, 1890, Section 25 – Custody of minor child – Divorce by mutual consent – Whether a separate petition under Section 26 of the Hindu Marriage Act for variation of the order of the custody of child is maintainable or an application in the earlier petition is required to be filed – Held that both the remedies are available – It is only after having chosen one remedy that it is incumbent upon the party to pursue the remedies thereunder in accordance with law. (Para 7) Mayank bhargava vs Jyoti Bhargava, 2015(2) PLR 15 Hindu Marriage Act, 1955, Section 26 – Hindu Minority and Guardianship Act, 1956, Section 6 - Guardians and Wards Act, 1890, Section 25 – Custody of minor child – Divorce by mutual consent – Whether a separate petition under Section 26 of the Hindu Marriage Act for variation of the order of the custody of child is maintainable or an application in the earlier petition is required to be filed – Held that both the remedies are available – It is only after having chosen one remedy that it is incumbent upon the party to pursue the remedies thereunder in accordance with law. (Para 7) Mayank bhargava vs Jyoti Bhargava, 2015(2) PLR 15 Hindu Marriage Act, 1955, Section 26 – Hindu Minority and Guardianship Act, 1956, Section 6 - Guardians and Wards Act, 1890, Section 25 – Family Courts Act, 1984, Section 10 – Civil Procedure Code, 1908, Order 7 Rule 11 - Custody of minor child – Divorce by mutual consent – By way of judgment and decree of the Trial Court, the custody of the minor was given to the father – Mother was given visitation rights only – Mother filed petition for modifying the said judgment and decree to the extent that exclusive custody of the minor be granted to her and the father be restrained from forcibly taking away the minor from her custody and she be appointed as guardian for all purposes – Held that this petition under Section 26 of the Act was maintainable – Order -24- of the Trial Court dismissing the application filed under Order 7 Rule 11 CPC read with Section 10 of the Family Courts Act for rejection of the petition upheld. (Para 14) Mayank bhargava vs Jyoti Bhargava, 2015(2) PLR 15 Hindu Marriage Act, 1955, Section 26 – Hindu Adoptions and Maintenance Act, 1956 Sections 18 and 20 – Maintenance for children – Both the parents are employed – if the approximate salary of the husband is twice as much as that of the wife, they are bound to contribute for maintenance of their child in that proportion. (Para 11) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) Hindu Marriage Act, 1955, Section 27 – Disposal of property – The direction for disposal by Matrimonial Court – Can be only in relation to the property which may belong jointly to both the husband and wife – Exclusive property to one of the spouses cannot be a subject of direction under Section 27 of the Act. (Para 3) Anita Vs Rakesh, 2010(5) Law Herald 3579 Hindu Marriage Act, 1955, Section 27 – Disposal of property – Interim relief – Family Court directed Court Receiver to take possession of the flat from husband and induct wife in the flat during the pendency of the appeal – Held that the family Court, by way of interim relief, has granted main relief itself – Not sustainable – Order set aside. (Paras 3 to 6) Mehul Mahendra Thakkar Vs Meena Mehul Thakkar, 2009 (14) SCC 48 Hindu Minority and Guardianship Act, 1956 Hindu Minority and Guardianship Act, 1956 - Hindu Marriage Act, 1955 - Hindu Adoptions and Maintenance Act, 1956 - Hindu Succession Act, 1956 – Interpretation of statutes – All the Acts are to be read in conjunction with one another and interpreted accordingly – Definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision, unless there is anything repugnant to the context. (Para 10) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) Hindu Minority and Guardianship Act, 1956, Sections 5, 6 and 8 – Custody of Minor child – Visitation Rights – The children, one of whom is on the verge of attaining majority, do not want to go with their mother – Both appear to be happy in the company of their father who also appears to be in a position to look after them – Held that any visitation right to the mother would be adverse to the interest of the children. (Para 15) Gaytri Bajaj Vs Jiten Bhalla, 2012(4) RCR (Civil) 603 (SC) Hindu Minority and Guardianship Act, 1956, Sections 5, 6 and 8 – Guardians and Wards Act, 1890, Section 7 – Custody of Minor child – Held that it is the desire, interest, welfare of the minor which is crucial and ultimate consideration that must guide the determination required to be made by the Court. (Para 14) Gaytri Bajaj Vs Jiten Bhalla, 2012(4) RCR (Civil) 603 (SC) Hindu Minority and Guardianship Act, 1956, Section 6 – Civil Procedure Code, 1908, Section 13 - Custody of children – Both the parents and children citizens of U.K. – The parents have been residents of U.K. for several years and worked for gain over there – -25- Also owning immovable property (jointly) in U.K. – Children born and brought up in U.K. and elder daughter studying in a school in U.K. until she was brought to India – Younger daughter also joined a school in U.K. – Mere fact the children were admitted to school in India, with the consent of father is not conclusive of his consent to be permanent or long term residents of the children in India – Directions issued to mother for enabling her to present an effective case before the foreign Court (Paras 72 and 73). Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 Hindu Minority and Guardianship Act, 1956, Section 6 – Civil Procedure Code, 1908, Section 13 - Custody of Child – Principle of Comity of Courts – Is essentially a principle of self restraint applicable when a foreign Court is seized of the issue of the custody of a child prior to the domestic Court – There may be a situation where the foreign Court though seized of the issue does not pass any effective or substantial order or directions – In that event, if the domestic Court were to pass an effective or substantial order or direction prior in point of time then the foreign Court also exercise self restraint and respect the direction or order of the domestic Court (or vice versa the order, unless there are very good reasons not to do so). (Para 50) Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 Hindu Minority and Guardianship Act, 1956, Section 6 – Civil Procedure Code, 1908, Section 13 - Custody of Child – Principle of Comity of Courts – Not appropriate that a domestic Court having much less intimate contact with the child and having much less close concern with a child and his or her parents (as against of a foreign Court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child - A foreign Court having the most intimate contact and closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural values in which the child has been brought up rather than a domestic Court. (Para 53) Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of minor child – Earlier, husband, was directed to provide the initial expenses of wife and minor child for travelling to and studying in UK for atleast a month to attend and contest the proceedings initiated by the husband before the Court in UK – Further directions issued to the husband regarding bearing of various expenses. (Para 9) Mrs.Shilpa Aggarwal Vs Mr.Aviral Mittal & anr, 2010(3) RCR (Civil) 433 (SC) Hindu Minority and Guardianship Act, 1956, Sections 6 and 12 – Custody of Minor child – Held that appellant father (Member of Indian Administrative Service) with the help of his father (Professor) will be able to take very good care of the children – Mother is not in a position to look after the educational need of the elder son – It would be in the interest of the children that they stay with the father – Visitation rights given to mother. (Paras 16 to 18) Shaleen Kabra Vs Shiwani Kabra, 2012 (2) RCR (Civil) 974 (SC) Hindu Minority and Guardianship Act, 1956, Sections 6 and 13 – Guardians and Wards Act, 1890, Sections 7, 12 and 25 – Indian Penal Code, 1860, Section 498A - Custody of minor child – Complaint against father alleging and attributing death of mother and a case under Section 498A IPC – A relevant factor – Upon enquiry by the Supreme Court, the minor unequivocally refused to go with his father or to stay with him – Stated that he was very happy with his maternal grand-parents and would like to continue to stay with -26- them – Not proper to give custody of the minor to his father. (Paras 72, 83 and 84) Nil Ratan Kundu and anr Vs Abhijit Kundu, 2008 (3) RCR (Civil) 936 (SC) Hindu Minority and Guardianship Act, 1956, Sections 6 and 13 – Guardians and Wards Act, 1890, Sections 7, 12 and 25 – Custody of minor child – Fitness of father – It is not the ‘negative test’ that the father is not ’unfit’ or disqualified to have custody of his son/ daughter is relevant but the ‘positive test’ that such custody could be in the welfare of the minor which is material – On that basis the Court could exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian. (Para 62) Nil Ratan Kundu and anr Vs Abhijit Kundu, 2008 (3) RCR (Civil) 936 (SC) Hindu Minority and Guardianship Act, 1956, Section 6 - Guardians and Wards Act, 1890, Sections 7 and 25 – Custody of minor girl – After having obtained the custody of the minor child, the father does not appear to have neglected the minor or to look after all her needs – The child appears to be happy in his company and is also doing consistently well in school – Father appears to be financially stable and is also not disqualified in any way from being the guardian of the minor child – The child also expressed her preference to be with the father with whom she feels more comfortable – Interest of the minor child will be best served, if she remains with the father. (Paras 27 to 29) Sheila B.Das Vs P.R.Sugasree, 2006 (1) RCR (Civil) 758 (SC) Hindu Minority and Guardianship Act, 1956, Section 6 – Guardians and Wards Act, 1890, Section 7 – Custody of child – High Court directing handing over the custody of the child to the Institution, where the child is admitted for education - Held that handing over of custody to any Institution, while ignoring the claim of a parent, especially the mother of the child, is not acceptable. (Para 3) Beata Agnieszka Sobieraj versus State of Himachal Pradesh, 2016(4) RCR (Civil) 4 Hindu Minority and Guardianship Act, 1956, Section 6 – Guardians and Wards Act, 1890, Section 25 – Custody of child – Paramount consideration – Welfare of the child and not rights of the parents. (Para 35) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 Hindu Minority and Guardianship Act, 1956, Section 6 – Guardians and Wards Act, 1890, Section 25 – Custody of minor child – The Grandmother of the minor, who was given the custody of the child by virtue of compromise has since expired - Paternal uncle and paternal aunt have their separate family units to be taken care of by them – Nothing on record to indicate that the mother had any interest adverse to that of the minor in the given set of facts – Welfare of child lies with her. (Para 12). Bimla and others Vs Anita, 2015(3) RCR (Civil) 153 (SC) Hindu Minority and Guardianship Act, 1956, Section 6 – Guardians and Wards Act, 1890, Section 25 –Custody of minor child – Merely because there is no defect in his personal care and his attachment for his children - which every parent normally has, father would not be granted custody. (Para 40) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928 -27- Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of minor child – Order of High Court runs counter to the provisions contained in Section 6 as it incorrectly shifts the burden on the mother to show her suitability for temporary custody of the minor child – Order set aside. (Para 18) Roann Sharma Vs Arun Sharma, AIR 2015 SC 2232 Hindu Minority and Guardianship Act, 1956, Section 6 - Hindu Marriage Act, 1955, Section 26 –Guardians and Wards Act, 1890, Section 25 – Custody of minor child – Divorce by mutual consent – Whether a separate petition under Section 26 of the Hindu Marriage Act for variation of the order of the custody of child is maintainable or an application in the earlier petition is required to be filed – Held that both the remedies are available – It is only after having chosen one remedy that it is incumbent upon the party to pursue the remedies thereunder in accordance with law. (Para 7) Mayank bhargava vs Jyoti Bhargava, 2015(2) PLR 15 Hindu Minority and Guardianship Act, 1956, Section 6 – Hindu Marriage Act, 1955, Section 13 – Decree of Foreign Court – Conflict of laws – This theory prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case – No relief could be granted to the appellant given her conduct in removing the minor child from USA in defiance of the Court of competent jurisdiction. (Para 21) Arathi Bandi Vs Bandi Jagadrakshaka Rao, 2013 (3) RCR (Civil) 968 (SC) Hindu Minority and Guardianship Act, 1956, Section 6 - Hindu Marriage Act, 1955, Section 26 –Guardians and Wards Act, 1890, Section 25 – Family Courts Act, 1984, Section 10 – Civil Procedure Code, 1908, Order 7 Rule 11 - Custody of minor child – Divorce by mutual consent – By way of judgment and decree of the Trial Court, the custody of the minor was given to the father – Mother was given visitation rights only – Mother filed petition for modifying the said judgment and decree to the extent that exclusive custody of the minor be granted to her and the father be restrained from forcibly taking away the minor from her custody and she be appointed as guardian for all purposes – Held that this petition under Section 26 of the Act was maintainable – Order of the Trial Court dismissing the application filed under Order 7 Rule 11 CPC read with Section 10 of the Family Courts Act for rejection of the petition upheld. (Para 14) Mayank bhargava vs Jyoti Bhargava, 2015(2) PLR 15 Hindu Minority and Guardianship Act, 1956, Section 6(b) – Guardians and Wards Act, 1890, Sections 7, 15 and 19 – Issuance of birth certificate – If a single parent / unwed mother applies for the issuance of the birth certificate for a child born from her womb, the Authorities concerned may only require her to furnish the affidavit to this effect – Must thereupon issue the birth certificate, unless there is a Court direction to the contrary – It is the responsibility of the State to ensure that no citizen suffers any inconvenience or disadvantage, merely because the parents failed or neglect to register the birth. (Para 19) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC) Hindu Minority and Guardianship Act, 1956, Section 6(b) – Guardians and Wards Act, 1890, Sections 7, 15 and 19 – Guardianship Petition – Duty of the Court – 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 attainment of -28- majority, the child continues in curial curatorship. (Para 20) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC) Hindu Minority and Guardianship Act, 1956, Section 6(b) – Guardians and Wards Act, 1890, Sections 7, 15 and 19 – 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 guardian of a child? – Held No - If a single parent / unwed mother applies for the issuance of the birth certificate for a child born from her womb, the Authorities concerned may only require her to furnish the affidavit to this effect – Must thereupon issue the birth certificate, unless there is a Court direction to the contrary. (Paras 1 and 19) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC) Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of minor child – Visitation rights – Distinct from custody or interim custody orders – Essentially they enable the parent who does not have interim custody to be able to meet the child without removing him/ her from the custody of other parent – If a child is allowed to spend several hours, or even days away from the parent, who has been granted custody by the Court, temporary custody of the child stands temporarily transferred. (Para 18) Roann Sharma Vs Arun Sharma, AIR 2015 SC 2232 Hindu Minority and Guardianship Act, 1956, Section 8 – Powers of Natural Guardian – Death of father – Property shared amongst each member of the family – Recorded in Mutation Register having 1/4th share each – Provisions of sub Section (3) of Section 8 shall attract as the mother sold the property without previous permission of the Court – Both the sale deeds shall become voidable at the instance of the minor. (Para 13) Saroj Vs Sunder Singh and others, 2014(1) Apex Court Judgments (SC) 08 Hindu Minority and Guardianship Act, 1956, Sections 8(1) and 11 – Limitation Act, 1963, Article 60 – Alienation of property by Guardian – Suit by quondam minor to set aside such alienation – Is governed by Article 60 - Articles 109, 110 or 113 of the Limitation Act are not applicable – To impeach the transfer of immovable property by the guardian, the minor must file suit within the prescribed limit of 3 years after attaining majority. (Para 27) Narayan vs Baba sahib and ors, AIR 2016 SC 1666 Hindu Minority and Guardianship Act, 1956, Sections 8(1) and 11 – Limitation Act, 1963, Section 7, Article 60 – Disability of one of several persons - First plaintiff was 20 years old – Second defendant was still a minor – Plaintiffs 3, 4 and 5 (married daughters) were aged 29, 27, 25 respectively, on the date of institution of suit – Plaintiffs 3 and 5 though majors as on the date of institution of suit will not fall under Explanation 2 of Section 7 of the Limitation Act as they are not the Manager or Karta of the joint family – The first plaintiff was 20 years old as on the date of institution of the suit – No evidence forthcoming to arrive at a different conclusion with regard to age of the first plaintiff – Suit is instituted well within three years of limitation from the date of attaining majority as envisaged under Article 60 of the Act. (Para 32) Narayan vs Baba sahib and ors, AIR 2016 SC 1666 -29- Hindu Minority and Guardianship Act, 1956, Section 13 – Welfare of child – Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. (Para 14) Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil) 551 (SC) Hindu Minority and Guardianship Act, 1956, Section 13 – Custody of minor child – Nothing on record to suggest that the welfare of the child is in any way in peril in the hands of the father – Minor has been living and studying in Allahabad in a good school – Dislocation of minor, at this stage, from Allahabad would not only impede his schooling, it may also cause emotional strain and depression on him – Interest and welfare will be best served if he continues to be in the custody of the father. (Para 17) Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil) 551 (SC) Hindu Minority and Guardianship Act, 1956, Section 13 – Custody of child – Child removed by a parent from one country to another in contravention of the orders of the Court where the parties had set up their matrimonial home – The Court in the country to which the child has been removed must first consider the question whether the Court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed. (Para 20). Dr. V.Ravi Chandran Vs Union of India & others, 2010 (1) SCC 174 Hindu Minority and Guardianship Act, 1956, Section 13 – Custody of minor child – Paramount Consideration – Welfare and custody of the child and not rights of the parents under a statute – Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents in so far as the factual aspects of the case are concerned (Para 14). Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil) 551(SC) Hindu Minority and Guardianship Act, 1956, Section 13 – Custody of minor child – Minor an American citizen – Spent his initial years there – Parties obtained series of consent orders concerning his custody/ parenting rights, maintenance etc. from competent Court of jurisdiction in America – Merely because the child has been brought to India, the custody issue concerning him does not deserve to be gone into by the Court in India – It would be in accord with the principles of comity as well as on facts to return the child back to USA and enable the parties to establish the case before the Courts in USA. (Para 21) Dr. V.Ravi Chandran Vs Union of India & others, 2010 (1) SCC 174 Hindu Succession Act, 1956 Hindu Succession Act, 1956 – Hindu Marriage Act, 1955 - Hindu Minority and Guardianship Act, 1956 - Hindu Adoptions and Maintenance Act, 1956 Interpretation of statutes – All the Acts are to be read in conjunction with one another and interpreted accordingly – Definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision, unless there is anything repugnant to the context. (Para 10) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) -30- Interim maintenance Interim maintenance – Hindu Marriage Act, 1955, Sections 11, 13 and 25 – Interim maintenance cannot be declined at the interim stage by coming to the conclusion that marriage between the parties is a nullity – That is the final relief claimed by respondent in the petition – Even when the petition is decided finally, the Court can still grant permanent alimony. (Para 6) Smt. Lata Versus Neeraj Pawar, 2009(1) RCR (Civil) 872 P&H Indian Penal Code, 1860 Indian Penal Code, 1860, Section 498A - Hindu Minority and Guardianship Act, 1956, Sections 6 and 13 – Guardians and Wards Act, 1890, Sections 7, 12 and 25 – Custody of minor child – Complaint against father alleging and attributing death of mother and a case under Section 498A IPC – A relevant factor – Upon enquiry by the Supreme Court, the minor unequivocally refused to go with his father or to stay with him – Stated that he was very happy with his maternal grand-parents and would like to continue to stay with them – Not proper to give custody of the minor to his father. (Paras 72, 83 and 84) Nil Ratan Kundu and anr Vs Abhijit Kundu, 2008 (3) RCR (Civil) 936 (SC) Interpretation of statute Interpretation of statutes – Hindu Marriage Act, 1955 - Hindu Minority and Guardianship Act, 1956 - Hindu Adoptions and Maintenance Act, 1956 - Hindu Succession Act, 1956 – All the Acts are to be read in conjunction with one another and interpreted accordingly – Definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision, unless there is anything repugnant to the context. (Para 10) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) Interpretation of statute – Main principle – Inconvenience and hardship to a person will not be decisive factor while interpreting the provision – When the provision makes it very clear and unequivocally gives a meaning, it was to be interpreted in the same sense as the maxim says ‘dulo lex sed lex’, which means the law is hard but it is a law and there cannot be any departure from the words of the law. (Para 30) Narayan vs Baba sahib and ors, AIR 2016 SC 1666 Issuance of birth certificate Issuance of birth certificate – Guardians and Wards Act, 1890, Sections 7, 15 and 19 – Hindu Minority and Guardianship Act, 1956, Section 6(b) – If a single parent / unwed mother applies for the issuance of the birth certificate for a child born from her womb, the Authorities concerned may only require her to furnish the affidavit to this effect – Must thereupon issue the birth certificate, unless there is a Court direction to the contrary – It is the responsibility of the State to ensure that no citizen suffers any inconvenience or disadvantage, merely because the parents failed or neglect to register the birth. (Para 19) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC) Jurisdiction -31- Jurisdiction - Family Courts Act, 1984, Sections 7 and 8 - In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court – It makes no difference as to whether it is an affirmative relief or a negative relief – What is important is the declaration regarding the matrimonial status. (Para 7) Balram Yadav vs Fulmaniya Yadav, AIR 2016 SC 2161 Jurisdiction – Guardians and Wards Act, 1890, Section 9 –Decree of foreign Court – Simply because the Foreign Court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the Courts in this country to shut out an independent consideration of the matter. (Para 31) Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952 Jurisdiction – Guardians and Wards Act, 1890, Section 9 – Principle of Comity of Courts – Held that in the light of the circumstances of this case, repatriation of the minor to the USA, principle of ‘comity of Courts’ does not appear to be an acceptable option worthy of being exercised at the stage – Interest of the minor shall be better served if he continued in the custody of his mother, especially when the respondent has contracted the second marriage and do not appear to be keen for having actual custody of the minor. (Para 45). Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952 Jurisdiction – Guardians and Wards Act, 1890, Section 9 - Solitary test – ‘Ordinary Residence’ of the minor – Whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact – It may at best be mixed question of law and fact, but unless jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. (Para 14) Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952 Jurisdiction – Guardians and Wards Act, 1890, Section 9 – Whether the High Court was justified in dismissing the petition for custody of the minor on the ground that the Court at Delhi had no jurisdiction to entertain the same – Held No – High Court was not right in holding that the respondent’s version regarding the letter in question having been obtained under threat and coercion was unacceptable – If the letter was under duress and coercion, there was no reason why the respondent should not have repudiated the same no sooner he landed in America and the alleged duress and coercion had ceased – Far from doing so the respondent continued to support that decision even when he was far away from any duress and coercion alleged by him till the time he suddenly changed his mind and started accusing the appellant of abduction. (Para 30) Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952 Limitation Act, 1963 Limitation Act, 1963, Article 60 – Hindu Minority and Guardianship Act, 1956, Sections 8(1) and 11 – Alienation of property by Guardian – Suit by quondam minor to set aside such alienation – Is governed by Article 60 - Articles 109, 110 or 113 of the Limitation Act are not applicable – To impeach the transfer of immovable property by the guardian, the minor must file suit within the prescribed limit of 3 years after attaining majority. (Para 27) Narayan vs Baba sahib and ors, AIR 2016 SC 1666 -32- Limitation Act, 1963, Article 60 - Hindu Minority and Guardianship Act, 1956, Sections 8(1) and 11 – Alienation of property by Guardian – Suit by quondam minor to set aside such alienation – Is governed by Article 60 - Articles 109, 110 or 113 of the Limitation Act are not applicable – To impeach the transfer of immovable property by the guardian, the minor must file suit within the prescribed limit of 3 years after attaining majority. (Para 27) Narayan vs Baba sahib and ors, AIR 2016 SC 1666 Limitation Act, 1963, Section 7, Article 60 - Hindu Minority and Guardianship Act, 1956, Sections 8(1) and 11– Disability of one of several persons - First plaintiff was 20 years old – Second defendant was still a minor – Plaintiffs 3, 4 and 5 (married daughters) were aged 29, 27, 25 respectively, on the date of institution of suit – Plaintiffs 3 and 5 though majors as on the date of institution of suit will not fall under Explanation 2 of Section 7 of the Limitation Act as they are not the Manager or Karta of the joint family – The first plaintiff was 20 years old as on the date of institution of the suit – No evidence forthcoming to arrive at a different conclusion with regard to age of the first plaintiff – Suit is instituted well within three years of limitation from the date of attaining majority as envisaged under Article 60 of the Act. (Para 32) Narayan vs Baba sahib and ors, AIR 2016 SC 1666 Limitation Act, 1963 – Nature – The Limitation Act neither confers a right nor an obligation to file a suit, if no such right exists under the substantive law – Only provides for a period of limitation for filing the suit. (Para 28) Narayan vs Baba sahib and ors, AIR 2016 SC 1666 Maintenance Maintenance - Criminal Procedure Code, 1973, Section 125 – Enormous delay in disposal of the proceeding u/s 125 Cr.P.C. – Most of the time the husband had taken adjournments and some times the Court dealt with the matter showing total laxity – The circumstances required grant of maintenance from the date of application. (Para 16) Bhuwan Mohan Singh Vs Meena and others, AIR 2014 SC 2875 Maintenance - Criminal Procedure Code, 1973, Section 125 – For awarding maintenance from the date of the application, express order is necessary – No special reasons, however, are required to be recorded by the Court. – Judgment in ‘Shail Kumari Devi and anr. Vs. Krishan Bhagwal Pathak alias Kishun B. Pathak’ 2008(3) RCR (Crl.) 842, relied upon. (Para 15) Bhuwan Mohan Singh Vs Meena and others, AIR 2014 SC 2875 Maintenance – Criminal Procedure Code, 1973, Section 125 – Expression ‘Wife’ – Refers to only legally married wife. (Para 7) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Maintenance – Criminal Procedure Code, 1973, Sections 125 and 127 –Enhancement – Contention that no amendment made to the Claim petition seeking enhancement, repelled – Section 127 Cr.P.C. permits increase in the quantum – Maintenance amount to the child enhanced. (Para 22) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 -33- Maintenance – Hindu Marriage Act, 1955, Sections 9 and 24 –Grant of decree for restitution of conjugal rights in favour of a husband – Cannot create a legal bar to claim maintenance by a destitute wife. (Para 17) Sanjay Kumar Vs Bhateri, (2013) 3 RCR (Civil) 223 (P&H) Maintenance – Criminal Procedure Code, 1973, Section 125 – Hindu Adoptions and Maintenance Act, 1956 – Once the right under the provisions in Section 125 Cr.P.C. is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. (Para 14) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Maintenance – Criminal Procedure Code, 1973, Section 125 – Hindu Adoptions and Maintenance Act, 1956 – Estoppel – Contention that the appellant was not informed about the respondent’s earlier marriage when she married, repelled – Principle of estoppels can not be present to the service to defeat the provision of Section 125 Cr.P.C. (Para 16) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541 Maintenance – Hindu Marriage Act, 1955, Section 24 – Criminal Procedure Code, 1973, Section 125 –Upon request made by wife of appellant, Director General of Police directed payment of 50% salary of appellant directly to his wife and two minor children – Order upheld taking into account the totality of the circumstances – However, 50% of the salary to be calculated after deducting the amount of Income Tax paid by the appellant. (Paras 4 to 7) Vijay Kumar Vs State of Punjab & others, 2013(3) RCR (Civil) 323 (P&H) Maintenance - Quantum - Criminal Procedure Code, 1973, Section 125 – Husband took voluntary retirement – If 40% of the commutation is taken into account then the pension of the husband amounts to ` 11,535/- - In addition to his pension, he had received encashment of commutation to the extent of 40% i.e. ` 3,84,500/- and other retiral dues to the tune of ` 16,01,455/- - Hence, solely because the husband has retired, there was no justification to reduce the maintenance amount by 50% - Orders passed by the High Court set aside – Orders of family Court restored . (Paras 19 and 20) Shamima Farooqui Vs Shahid Khan, 2015(5) SCC 705 Maintenance for children – Hindu Marriage Act, 1955, Section 26 – Hindu Adoptions and Maintenance Act, 1956 Sections 18 and 20 –Both the parents are employed – if the approximate salary of the husband is twice as much as that of the wife, they are bound to contribute for maintenance of their child in that proportion. (Para 11) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) Mental Cruelty Mental Cruelty – Hindu Marriage Act, 1955, Section 13 – Divorce - Willful or intentional denial of sexual relation by a spouse – Amounts to mental cruelty – Particularly when parties are young and newly married – Can form basis for divorce. (Para 13) Sanjay Kumar Vs Bhateri, (2013) 3 RCR (Civil) 223 (P&H) -34- Mental Disorder Mental disorder – Hindu Marriage Act, 1955, Section 13(1)(a) – Trial Court directing setting up of Medical Board to examine the husband – Husband refused to submit himself for examination and to go before the Medical Board – Held that this would but confirm the contention of the wife that the husband is suffering from Paranoid Schizophrenia and the Court can draw adverse inference in the conduct of the husband (Para 44) Vinita Saxena Vs Pankaj Pandit, 2006(2) RCR(Civil) 302 (SC) Muslim wife Muslim wife – Criminal Procedure Code, 1973, Section 125 – Muslim Women (Protection of Rights on Divorce) Act, 1986, Sections 3 –Wife had already taken recourse to Section 3 of the Act after divorce took place and obtained relief which has been upheld by the High Court – During pendency of her application under Section 125 Cr.P.C. divorce took place – Wife preferred an application under Section 3 of the Act over grant of Mahr and return of articles – Magistrate provided for return of articles, payment of quantum of Mahr and also granted maintenance of Iddat period - In effect, no maintenance had been granted beyond the Iddat period – Her application under Section 125 CrPC was continuing - Held that even if an application under Section 3 of the Act was filed, the parameters of Section 125 CrPC would have been made applicable. (Para 15) Shamim Bano Vs Asraf Khan, 2014(2) RCR (Civil) 820 (SC) Muslim Women (Protection of Rights on Divorce) Act, 1986 Muslim Women (Protection of Rights on Divorce) Act, 1986, Sections 3 – Criminal Procedure Code, 1973, Section 125 –Muslim wife – Wife had already taken recourse to Section 3 of the Act after divorce took place and obtained relief which has been upheld by the High Court – During pendency of her application under Section 125 Cr.P.C. divorce took place – Wife preferred an application under Section 3 of the Act over grant of Mahr and return of articles – Magistrate provided for return of articles, payment of quantum of Mahr and also granted maintenance of Iddat period - In effect, no maintenance had been granted beyond the Iddat period – Her application under Section 125 CrPC was continuing - Held that even if an application under Section 3 of the Act was filed, the parameters of Section 125 CrPC would have been made applicable. (Para 15) Shamim Bano Vs Asraf Khan, 2014(2) RCR (Civil) 820 (SC) Nullity of marriage Nullity of marriage – Hindu Marriage Act, 1955, Sections 5(i), 11 and 12 –When the appellant was married to the respondent, her first marriage was in subsistence and she had a living spouse – Marriage between the parties in violation of Section 5 (i) of the Act – Rightly declared null and void by the Trial Court. (Paras 21 and 22) Manpreet Kaur Versus Balkar Singh, 2015(5) RCR (Civil) 510 (P&H) Nullity of marriage – Hindu Marriage Act, 1955, Sections 5(i), 11 and 12 –A marriage which was null and void from the very inception could not be held valid even if the -35- complaining spouse knew about the previous marriage of the other spouse. (Para 19) Manpreet Kaur Versus Balkar Singh, 2015(5) RCR (Civil) 510 (P&H) Nullity of marriage – Hindu Marriage Act, 1955, Sections 7, 11, and 13 –Factum of performance of essential ceremonies at the time of previous marriage not even pleaded by the respondent – The witness who proved marriage certificate, has not stated anything about performance of the marriage ceremonies at the time of the alleged previous marriage – Held that respondent has failed to prove that prior to the marriage in question, the appellant had performed valid marriage with another party and the said marriage was subsisting at the time of marriage in question – Decree of nullity passed by the Trial Court liable to be set aside. (Paras 11 and 13) Balwinder Kaur Versus Gurmukh Singh, 2007(3) RCR (Civil) 433 P&H Nullity of marriage – Hindu Marriage Act, 1955, Sections 11 and 29 –Customary Divorce – Held that it stands established on the record that there is a custom amongst Jat Sikhs of District Sangrur, permitting dissolution of marriage or divorce through writing executed by the parties in this regard – As such the divorce would be recognized in view of Section 29(2) of Hindu Marriage Act, 1955 and the law laid down by Hon’ble Supreme Court and Delhi High Court – Trial Court rightly found that the marriage between the parties could not be annulled under Section 11 of the Act, in as much as, respondent had validly obtained a divorce from her previous husband at the time of her marriage had taken place with the petitioner - Findings of the Trial Court affirmed, in this regard. (Paras 18 and 19) Jasbir Singh Versus Inderjeet Kaur, 2003(3) RCR (Civil) 503 P&H Nullity of marriage – Hindu Marriage Act, 1955, Sections 11 and 23(1)(a) – Remedy under Section 11 of the Act is available to "any party" and not to the aggrieved party – Cannot be said that the party who is performing second marriage and seeking declaration of that marriage to be a nullity, is precluded from filing petition under Section 11 of the Act – Provisions of Section 23(1)(a) would not debar such spouse from presenting a petition under Section 11 of the Act seeking declaration that the second marriage is a nullity and void. (Para 9) Kiran Kaur Versus Jagir Singh Bamrah, 2015(2) PLR 380 P&H Nullity of marriage – Hindu Marriage Act, 1955, Section 11 – Appellant wife earlier married to someone else – Said marriage not shown to have been dissolved – Even if it is assumed that her second husband was already married and, therefore, she was not required to obtain divorce, she was ineligible to marry the respondent-husband – Respondent-husband having married appellant wife without any misrepresentation or fraud by her, filed a petition for annulling the marriage – It would amount to taking advantage of his own wrong. (Paras 4 and 5) Sunita Versus Jugal Kishore, 2004(4) RCR (Civil) 784 (P&H) Nullity of marriage – Hindu Marriage Act, 1955, Section 11 – No evidence was led to establish that there was any custom or usage prevalent in the community of the appellant under which divorce through writing by Panchayatnama was permissible – Matrimonial Court held that on the date of marriage, the appellant had not obtained divorce from her previous husband from any competent Court having jurisdiction – Decree declaring the -36- second marriage null and void upheld. (Paras 10, 11 and 18) Rajinder Kaur Versus Kuldeep Singh, 2010 (1) RCR (Civil) 818 P&H. Permanent Alimony Permanent Alimony – Hindu Marriage Act, 1955, Sections 13, 25 and 27 – Husband getting salary of `7500/- per month – Grant of maintenance amount of ` 2500/- per month is reasonable and adequate – Wife already received a sum of ` 40,000/- as full and final settlement – Therefore, not entitled to anything under Section 27 of the Act – In the absence of any evidence to suggest regarding increase in salary, amount of permanent alimony cannot be enhanced. (Paras 12 and 13) Smt Raj Bala Vs Krishan Avtar Kaushik, 2012(8) RCR (Civil) 51 (P&H) Powers of Natural Guardian Powers of Natural Guardian – Hindu Minority and Guardianship Act, 1956, Section 8 – Death of father – Property shared amongst each member of the family – Recorded in Mutation Register having 1/4th share each – Provisions of sub Section (3) of Section 8 shall attract as the mother sold the property without previous permission of the Court – Both the sale deeds shall become voidable at the instance of the minor. (Para 13) Saroj Vs Sunder Singh and others, 2014(1) Apex Court Judgments (SC) 08 Principle of Comity of Courts Principle of Comity of Courts - Civil Procedure Code, 1908, Section 13 - Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of Child - Not appropriate that a domestic Court having much less intimate contact with the child and having much less close concern with a child and his or her parents (as against of a foreign Court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child - A foreign Court having the most intimate contact and closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural values in which the child has been brought up rather than a domestic Court. (Para 53) Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 Principle of Comity of Courts - Guardians and Wards Act, 1890, Section 9 – Jurisdiction – Held that in the light of the circumstances of this case, repatriation of the minor to the USA, principle of ‘comity of Courts’ does not appear to be an acceptable option worthy of being exercised at the stage – Interest of the minor shall be better served if he continued in the custody of his mother, especially when the respondent has contracted the second marriage and do not appear to be keen for having actual custody of the minor. (Para 45). Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952 Principle of Comity of Courts – Hindu Minority and Guardianship Act, 1956, Section 6 – Civil Procedure Code, 1908, Section 13 - Custody of Child –Is essentially a principle of self restraint applicable when a foreign Court is seized of the issue of the custody of a child prior to the domestic Court – There may be a situation where the foreign Court though seized of the issue does not pass any effective or substantial order or directions – In that event, if the domestic Court were to pass an effective or substantial order or direction prior in point of time then the foreign Court also exercise self restraint and -37- respect the direction or order of the domestic Court (or vice versa the order, unless there are very good reasons not to do so). (Para 50) Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243 Void marriage Void marriage – Hindu Marriage Act, 1955, Sections 5 and 11 – Custom – To be pleaded and proved – No evidence to prove existence of any such custom in the community – Parties by which the divorce can be granted – Appellant failed to substantiate his plea that his earlier marriage stood dissolved by legal means – Order of Family Court allowing petition under Section 11 filed by the respondent wife – Upheld. (Para 14) Kala Singh Versus Jaspreet Kaur , 2016(3) RCR (Civil) P&H Void marriage – Hindu Marriage Act, 1955, Sections 5, 11 and 12 –Wife sought declaration to the effect that the marriage between her and appellant (husband) be declared void by decree of nullity on the ground of being in contravention of clause (i) of Section 5 of the Act – Held that such marriage can be declared void at any time – Merely because while filing the petition the wife had mentioned that the petition was filed under Section 12 or the learned Additional District Judge has ordered that the marriages annulled under Section 12 will not mean that the marriage was declared void by decree of nullity under Section 12. (Para 4) Vinod Versus Smt. Reetu, 2012(1) Law Herald 901. Welfare of child Welfare of child – Hindu Minority and Guardianship Act, 1956, Section 13 –Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. (Para 14) Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil) 551 (SC) *****