//
archives

Family Court

This tag is associated with 15 posts

Guardian and Wards Act, 1890 – ss. 7, 9, 17 and 12 – Interim custody of minor Muslim children – Death of mother of minor children, girl aged 13 years and boy aged 5 years – Re-marriage of father – Application by maternal relatives for appointment as guardian and interim custody of minor children till disposal of application u/ss. 7, 9 and 17 – Family court granting interim injunction against father restraining him from interfering with the custody – Vacation of interim order – Set aside by High Court – Interim custody granted to maternal relatives till the disposal of the proceedings – On appeal, held: Custody is distinct from guardianship – In matters of custody, welfare of children is the sole consideration – Personal law governing custody of minor girl dictates that her maternal relatives, especially maternal aunt, shall be given preference, thus, no reason to override the rule of Mohammedan Law – Prima facie case and balance of convenience in favour of granting custody to maternal relatives – Children would suffer irreparable injury if they are uprooted from their present settings against their will – Thus, order of High Court modified to the extent of visitation rights granted to father – Code of Civil Procedure, 1908 – O. 39 r.1 and 2 – Child welfare – Mohammedan Law. Appellant married the daughter of respondent no. 1, as per the Islamic rites and customs. Two children were born out of the wedlock. Appellant’s wife died after thirteen years of marriage and within a year he married again. Respondent no.1- maternal grandfather, respondent nos. 2, 3 and 4- maternal aunt and uncles of the minor children, girl aged 13 years and boy aged 5 years, initiated proceedings u/ss. 7, 9 and 17 of the Guardian and Wards Act, 1890 for appointment as guardians. They also filed application u/s. 12 of the Act r/w Or. 39 r. 1 and 2 CPC praying for interim protection of the persons and properties of the minor children and also for an injunction order restraining the appellant from interfering or disturbing the custody of the minor children. Family Court passed an interim order restraining the appellant from interfering with the custody of the children with the respondent. Appellant challenged the order. Family court vacated the interim order of injunction. High Court set aside the said order and passed certain directions. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1.1. Section 12 of the Guardian and Wards Act, 1890 empowers courts to “make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.” In matters of custody, welfare of the children is the sole and single yardstick by which the Court shall assess the comparative merit of the parties contesting for custody. Therefore, while deciding the question of interim custody, the court must be guided by the welfare of the children since s. 12 empowers the Court to make any order as it deems proper. [Para 32] [65-E-F] 1.2 With regard to guardianship, the prima facie case lies in favour of the father as u/s. 19 of the Act, unless the father is not fit to be a guardian, the Court has no jurisdiction to appoint another guardian. Respondents, despite the voluminous allegations leveled against the appellant have not been able to prove that he is not fit to take care of the minor children, nor has the Family Court or the High Court found him so. However, the question of custody is different from the question of guardianship. Father can continue to be the natural guardian of the children; however, the considerations pertaining to the welfare of the child may indicate lawful custody with another friend or relative as serving his/her interest better. The question of guardianship can be independent of and distinct from that of custody in facts and circumstances of each case. [Paras 33 and 35] [65-G-H; 66-A-B; 67-B] Rosy Jacob v. Jacob A.Chakramakkal (1973) 3 S.C.R. 918; Mt. Siddiqunnisa Bibi v. Nizamuddin Khan and Ors. AIR 1932 All 215, referred to. 1.3. The Court shall determine whether, in proceedings relating to interim custody, there are sufficient and compelling reasons to persuade the Court to change the custody of the minor children with immediate effect. Stability and consistency in the affairs and routines of children is also an important consideration. [Paras 37 and 38] [68-B-C] R.V. Srinath Prasad v. Nandamuri Jayakrishna AIR 2001 SC 1056; Mausami Moitra Ganguli v. Jayant Ganguli AIR 2008 SC 2262, referred to. 2.1. Keeping in mind the paramount consideration of welfare of the children, the custody of the children which currently rests with their maternal relatives is not disturbed as the scope of this order is limited to determining with which of the contesting parties the minors should stay till the disposal of the application for guardianship. [Para 36] [67-B-C] 2.2. The children have been in the lawful custody of the respondents from October, 2007. It has the sanction of the order of the High Court granting interim custody of the children in their favour. Hence, the consideration that the custody of the children should not undergo an immediate change prevails. The question with whom they remained during the period from the death of their mother till the institution of present proceedings is a matter of dispute between the parties and a conclusion on the same cannot be reached without going into the merits of the matter. At any rate, the children are happy and are presumably taken care of with love and affection by the respondents, judging from the reluctance on part of the girl child to go with her father. She might attain puberty at any time. High Court rightly observed, that it may not be in the interests of the children to separate them from each other. Hence, the status quo is not disturbed as the only concern is with the question of interim custody at this stage. [Para 40] [68-G-H; 69-A-E] 2.3. Regarding the matters of custody, the Court is not bound by the bar envisaged u/s. 19 of the Act. The personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given reference. As such regarding the interim custody, there is no reason to override the rule of Mohammedan Law and, hence, a prima facie case is found in favour of the respondents. The balance of convenience lies in favour of granting custody to the maternal grandfather, aunt and uncle. In matters of custody of children, their welfare shall be the focal point. Once the focus is shifted from the rights of the contesting relatives to the welfare of the minor children, the considerations in determining the question of balance of convenience also differ. Respondent no.3 stated that she has no intention to get married and her plea that she had resigned from her job as a technical writer to take care of the children remains uncontroverted. Hence, the respondents will be in a position to provide sufficient love and care for the children until the disposal of the guardianship application. The second marriage of the appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account. It may not be appropriate to place the children in a predicament where they have to adjust with their step-mother, with whom admittedly they had not spent much time as the marriage took place only in March, 2007, when the ultimate outcome of the guardianship proceedings is still uncertain. [Paras 43 and 44] [70-G-H; 71- A-E] 2.4. Till the final disposal of the application for guardianship, the interests of the children will be duly served if their current residence is not disturbed and a sudden separation from their maternal relatives does not come on their way. Irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings. There is no conflict between the welfare of the children and the course of action suggested by personal law to which they are subject. [Paras 45 and 46] [72- B-C-E] Hassan Bhatt v. Ghulam Mohamad Bhat AIR 1961 J & K 5, approved. 2.5. Respondent no. 1 is an old person aged about 72 years. Respondent no. 2 is already married, living with his wife and children. Respondent no. 3 and 4 are unmarried and are of marriageable age. Respondent no. 3, the maternal aunt of the children, will go to live with her husband after marriage. Respondent no. 4 after his marriage may or may not live with his father. There is nothing on record to show that the appellant mistreated the deceased mother of minor children. No views can be expressed on the correctness of these averments. These matters must be gone into when the Family Court disposes of the application for guardianship filed by the respondents and not at this stage. [Para 47] [72-F-H; 73-A] 2.6. As far as the denial of the interim custody of children to the respondents on the ground that they had not approached the Court with clean hands, such cannot be inferred. The alleged refusal on part of the appellant to marry respondent no.3 which is said to have led the respondents to file the application for guardianship, is a question of fact which is yet to be proved. [Para 48] [73-B-D] 2.7. In the opinion of High Court, the minor girl who was then was 10 to 11 years old, was capable of making intelligent preference. It may be true that 11 years is a tender age and her preference cannot be conclusive. But as only the question of interim custody is dealt with, there is no reason why the preference of the elder child shall be overlooked. The Family Court had considered fact that the younger child had instinctively approached his father while he met him in the Court premises while vacating the interim order of injunction. The second child who is just 4 years old cannot form an intelligent opinion as to who would be the right person to look after him and, hence, weight must be given to the preference that daughter had expressed. However, the visitation rights granted to the appellant is modified. He shall be allowed to visit the children on Saturdays as well between 9 am and 5 pm. The order of the High Court is modified and the order of the Family Court vacating its injunction order is set aside. The Family Court is directed to dispose of the case relating to the guardianship of the two children after adducing evidence by both the parties (both oral and documentary) at an early date. [Paras 50, 51 and 52] [74-A-F] Gaurav Nagpal v.Sumedha Nagpal (2009) 1 SCC 42, distinguished Rafiq v. Bashiran and Ors AIR 1963 Rajasthan 239; B.N. Ganguly v. C.H. Sarkar AIR 1961 MP 173; R.V. Srinath Prasad v. Nandamuri Jayakrishna AIR 2001 SC 1056; Mausami Moitra Ganguli v. Jayant Ganguli AIR 2008 SC 2262; Bal Krishna Pandey v. Sanjeev Bajpayee AIR 2004 UTR 1; Nil Ratan Kundu and Anr. vs. Abhijit Kundu (2008) 9 SCC 413, referred to. Case Law Reference: AIR 1963 Rajasthan 239 Referred to. Para 28 AIR 1961 MP 173 Referred to. Para 29, 49 (1973) 3 S.C.R. 918 Referred to. Para 33 AIR 1932 All 215 Referred to. Para 34 AIR 2001 SC 1056 Referred to. Para 37 AIR 2008 SC 2262 Referred to. Para 38 (2009) 1 SCC 42 Distinguished. Para 40 AIR 2004 UTR 1 Referred to. Para 44 AIR 1961 J & K 5 Approved. Para 46 (2008) 9 SCC 413 Referred to. Para 48 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11 of 2010. From the Judgment & Order dated 8.10.2007 of the High Court of Karnataka at Bangalore in Writ Petition No. 9177 of 2007. S. Balaji, B.M. Arun, Madhusmita Bora for the Appellant. Nalini Chidambaram, Sunieta Ojha, Vikas Mehta for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.11 OF 2010 (Arising out of SLP ) No. 24148 of 2007) Athar Hussain. —–Appellant Versus Syed Siraj Ahmed & Ors. —-Respondents JUDGMENT TARUN CHATTERJEE, J. 1. Leave granted. 2. This appeal is directed against the judgment and order dated 8th of October, … Continue reading

“7. Jurisdiction – 1) Subject to the other provisions of this Act, a Family Court shall — a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation: – The suit and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; b) A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; c) A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; d) A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; e) A suit or proceeding for a declaration as to the legitimacy of any person; f) A suit or proceeding for maintenance; g) A suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a family court shall also have and exercise – a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974) ; and b) Such other jurisdiction as may be conferred on it by any other enactment.” 3. Sub-Sections (1) & (2) of Section 7 of the Act deal with jurisdiction of the Family Court. It does not deal with rights and liabilities of the parties before the Family Court. Rights and liabilities of the parties depend on their personal laws well as civil and criminal laws applicable to them.

THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.R.P. No. 4569 of 2010 10-12-2010 Razia Begum D/o Mohd. Abbas, Aged about 30 years, Muslim, Occ: Nil R/o H.No. 17-5-144, Bibi ka Alawa, Dabeerpura Hyderabad. Mohd Iqbal S/o Mohd Abbas Aged about 56 years, Occ: Tailor R/o H.No. 17-5-124/1, Kali Masjid, Yakutpura, Hyderabad. Counsel for the petitioner: Sri … Continue reading

Guardian and Wards Act, 1890 – ss. 7, 9, 17 and 12 – Interim custody of minor Muslim children – Death of mother of minor children, girl aged 13 years and boy aged 5 years – Re-marriage of father – Application by maternal relatives for appointment as guardian and interim custody of minor children till disposal of application u/ss. 7, 9 and 17 – Family court granting interim injunction against father restraining him from interfering with the custody – Vacation of interim order – Set aside by High Court – Interim custody granted to maternal relatives till the disposal of the proceedings – On appeal, held: Custody is distinct from guardianship – In matters of custody, welfare of children is the sole consideration – Personal law governing custody of minor girl dictates that her maternal relatives, especially maternal aunt, shall be given preference, thus, no reason to override the rule of Mohammedan Law – Prima facie case and balance of convenience in favour of granting custody to maternal relatives – Children would suffer irreparable injury if they are uprooted from their present settings against their will – Thus, order of High Court modified to the extent of visitation rights granted to father – Code of Civil Procedure, 1908 – O. 39 r.1 and 2 – Child welfare – Mohammedan Law. Appellant married the daughter of respondent no. 1, as per the Islamic rites and customs. Two children were born out of the wedlock. Appellant’s wife died after thirteen years of marriage and within a year he married again. Respondent no.1- maternal grandfather, respondent nos. 2, 3 and 4- maternal aunt and uncles of the minor children, girl aged 13 years and boy aged 5 years, initiated proceedings u/ss. 7, 9 and 17 of the Guardian and Wards Act, 1890 for appointment as guardians. They also filed application u/s. 12 of the Act r/w Or. 39 r. 1 and 2 CPC praying for interim protection of the persons and properties of the minor children and also for an injunction order restraining the appellant from interfering or disturbing the custody of the minor children. Family Court passed an interim order restraining the appellant from interfering with the custody of the children with the respondent. Appellant challenged the order. Family court vacated the interim order of injunction. High Court set aside the said order and passed certain directions. Hence the present appeal.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.11 OF 2010 (Arising out of SLP ) No. 24148 of 2007) Athar Hussain. —–Appellant Versus Syed Siraj Ahmed & Ors. —-Respondents JUDGMENT TARUN CHATTERJEE, J. 1. Leave granted. 2. This appeal is directed against the judgment and order dated 8th of October, … Continue reading

no sec.12 . only sec.18 to 22 .”The Domestic Violence Act does not contain any provisions clothing jurisdiction on the Family Court to entertain an application filed under Section 12 of the Act. It may be true that the reliefs available under Sections 18 to 22 of the Act may also be claimed in a pending proceeding before the Family Court already initiated by the aggrieved person but from that it cannot be inferred that an independent application under Section 12 of the Act can be filed before the Family Court. So only an option is given to the aggrieved person to claim the reliefs available under Sections 18 to 22 of the Act in a pending legal proceedings initiated by such aggrieved person before the Family Court and therefore from such a liberty given to the aggrieved person an inference cannot be drawn to the effect that a pending application filed under Section 12 of the Act before the learned Magistrate can be transferred to the file of the Family Court. Unless the Court has been specifically empowered to entertain an independent application filed under Section 12 of the Act, transfer of a pending application filed under Section 12 of the Act from the file of the learned Magistrate to the file of the Family Court cannot be ordered.”

In the High Court of Judicature at Madras Dated : 28.3.2011 Coram : The Honourable Mr.Justice K.MOHAN RAM CIVIL REVISION PETITION (PD) NO.3396 OF 2009 AND MP.NOs.1 and 2 OF 2009 Dr.M.J.John …Petitioner Vs 1.Mrs.Elizabeth John 2.Golden Construction, rep.by its Proprietor Mr.Balasingh George …Respondents PETITION under Article 227 of The Constitution of India to call … Continue reading

even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.

Crl.A. @ SLP(Crl.)NO.717/09 -1- REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2309 OF 2009 [Arising out of S.L.P.(Crl.) No.717 of 2009] Shabana Bano ….Appellant Versus Imran Khan ….Respondent J U D G M E N T Deepak Verma, J. 1. Leave granted. 2. Appellant Shabana Bano was married to the … Continue reading

Blog Stats

  • 2,881,342 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com