Indian courts can decide NRI couples' matrimonial and guardianship rows: SC

Indian courts can decide NRI couples' matrimonial and guardianship rows: SC

16 may 2011

New Delhi Indian courts have jurisdiction to deal with custodial disputes of minor children even if a foreign court has passed an order in favour of either of the parents, the Supreme Court has ruled in a matrimonial dispute of an NRI family.

A bench of justices V S Sirpurkar and T S Thakur said in a judgement said that simply because a foreign court has passed an order, Indian courts cannot "abjectly surrender" to it and shirk its duty of deciding the dispute.

"Simply because a 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. Objectivity, and not abject surrender, is the mantra in such cases," Justice Thakur, writing the judgement, said.

The apex court passed the judgement while upholding an appeal filed by Ruchi Majoo challenging a Delhi High Court judgement that Indian courts have no jurisdiction under the doctrine of "comity of courts" to entertain any petition if a decree or order has already been passed by any foreign court.

A superior court in California had issued a red corner notice against Ruchi in a suit filed by her estranged US-based husband Sanjeev Majoo who had alleged his wife had fled with their minor son to India despite a decree by the US court granting him custody of the child.

The couple were living with the kid in the US before she returned to India in 2008. A Delhi court had on Ruchi's application granted her custody of the child under the Guardians and Wards Act.

The Delhi High Court had, however, struck down the trial court's order and asked the couple to submit themselves to the Californian court as all the three possessed US citizenship.

Aggrieved, the wife appealed through her counsel Ashish Bhan in the apex court where she accused her husband of being involved in pornography and adulterous relationship. The husband, while denying the allegations, maintained that Indian courts had no jurisdiction since a decree had already been passed by the Californian court.

Rejecting the husband's arguments, the apex court said "recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of Criminal Procedure 1908 as amended by the Amendment Act of 1999 and 2002.

"The duty of a court exercising its Parens Patraie (legal guardian) jurisdiction as in cases involving custody of minor children is all the more onerous. Welfare of the minor in such cases being the paramount consideration, the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully.

The bench hastened to add that it does not, however, mean that the order passed by a foreign court need not be considered by Indian courts.

"But it is one thing to consider the foreign judgement to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision.

"We must make it clear that no matter a court is exercising powers under the Guardian & Wards Act, it can choose to hold a summary inquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under Section 9(1) of the Act.

The apex court reiterated that in matters dealing with custodial rights, the interest of the minor should be paramount.

The bench said the interest of the minor shall be better served if he continued in the custody of his mother, especially when the father has contracted a second marriage and did not appear to be keen for having actual custody of the minor.

The apex court, however, minced no words in expressing displeasure at the conduct of the wife and her parents in poisoning the mind of the kid against their father.

"For a boy so young in years, these and other expressions suggesting a deep-rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant or her parents can hardly be appreciated.

"What the appellant ought to appreciate is that feeding the minor with such dislike and despise for his father does not serve his interest or his growth as a normal child. It is important that the minor has his father¿s care and guidance, at this formative and impressionable stage of his life," the bench said.

The apex court said the father should be allowed to talk through telephone or video conference, "which too shall not only be permitted but encouraged by the appellant," Justice Thakur added.

http://www.expressindia.com/latest-news/Indian-courts-can-decide-NRI-couples%5C-matrimonial-rows-SC/791624/

Don't bring kids to court, Bombay high court tells couple

Don't bring kids to court, Bombay high court tells couple

Saturday, May 14, 2011, 4:10 IST
Place: Mumbai | Agency: DNA

The Bombay high court on Friday, admonished a couple fighting for the custody of their two sons during their summer holiday.
Vacation bench of justice Mridula Bhatkar and justice RG Ketkar were hearing a habeas corpus petition filed by Shanti Mirchandani (name changed). “It is in the interest of children never to be seen in courts,” they added.

The principal of Prudence International School, Panvel, gave custody of the boys, aged 6 and 9 years, to their paternal uncle Satish (name changed) on a written request by the father Shyam (name changed).Shanti’s advocate Manjula Rao argued that in the absence of the father, the mother is the natural guardian. She said the whereabouts of the children are unknown.

Satish’s advocate countered that Shyam who works in Dubai will be returning to India on May 21, and wants the custody of his children since Shanti had taken them for the past two summer and winter vacations. “She vanishes with the children and deprives their father of meeting them,” he added.Rao submitted that it was done “due to a mutual agreement between the father and mother”.
“You (uncle) have no case. You are not the father,” said justice Bhatkar.“Don’t treat children as stooges to settle your dispute,” she added.

The judges took note of the fact that the Mirchandanis have neither filed a petition for custody of the children nor divorce proceedings for divorce under the Hindu Marriage Act. “This is the first petition before this court in respect of custody,” they noted in the order.

In a “workable solution”, the judges directed Satish, who resides in Bhayander, to “peacefully” handover the children to Shanti on Friday evening without the involvement of police.

They took note of Shanti’s undertaking to the court not to take the boys outside the limits of the court’s jurisdiction.Since it is a habeas corpus petition to produce the children, the judges posted the matter to May 23, 2011 with an explicit direction, “Don’t produce the children inside the court.”

http://www.dnaindia.com/mumbai/report_don-t-bring-kids-to-court-bombay-high-court-tells-couple_1543022

Gone in 60 seconds-Ex-wives whisking away their children to undisclosed locations to prevent father's visitation rights-trend on the rise-Contempt of Court

Publication: Bangalore Mirror;
Date: Sep 7, 2010;
Section: City;
Page: 10

Gone in 60 seconds

Ex-wives whisking away their children to undisclosed locations in a bid to thwart their ex-husbands’ visiting rights is a trend that’s fast catching up in the city

Shyam Prasad shyam.prasad1@timesgroup.com
    Even though a family court in Bangalore granted Raghuram S the permission to visit his son Tarun once every 15 days, Raghuram woke up one fine day to the news that his ex-wife had relocated to Jaipur along with their four-yearold son, without informing him. He was informed of the development by his ex-wife Suma Hanumanthappa’s advocate, that too through e-mail.
    In another case, John Varghese went to visit his two children aged 14 and 8 only to be informed that they had moved to the US along with his ex-wife. “How do I contact them? I don’t even know which state they have relocated to. This, despite a court decree that gives me the right to visit my children,” said Varghese.
    Interestingly, both these cases were settled by the Mediation Centre after a referral from the respective family courts. The Bangalore Mediation Centre claims a success rate of 80.73 per cent out of the 5,094 cases it has handled so far. The average time taken to settle a divorce dispute is 259.35 minutes or just over four hours.
    ”The high-profile case of Adita Chandra whose parents went to the Supreme Court and finally to a court in the US, to fight over his custody, made headlines. But there are so many such cases in Bangalore. Nobody is ready to even acknowledge that it is the fathers who suffer in such cases,” said Kumar Jahgirdar of Children’s Rights Initiative for Shared Parenting (CRISP).
    Raghuram works in Hyderabad and used to visit his son once every fortnight in Bangalore. He was shocked to hear from his ex-wife’s advocate that she had moved to Jaipur along with their child. “Somebody informed me of my ex-wife’s intentions and I immediately moved court. The court said the case was maintainable and took it up. Weeks before the hearing, I came to meet the child and found the house vacated. Her phones were switched off and her advocate informed me through email that she had moved to Jaipur. How can I go to Jaipur twice a month? The court has been informed of this development,” he said.
    ”In cases where a dispute over a child’s custody is as yet to be settled, the court becomes the guardian of the child and not the father or mother. If the mother or father takes away the child to some other place during the hearing without informing the court or the other party, it legally amounts to abduction. But even otherwise, the custodial parent has to inform the other parent of the child’s whereabouts at all times,” said Jahgirdar.
    Kumar Jahgirdar said that cases of custodial parents whisking away their children to undisclosed locations without informing the other parent were on the rise. “Ever since the case of Aditya Chandra became big news, such incidents are on the rise. It is an abuse of the child’s rights when the other parent who is available and fit is not given the right to visit the child,” he said.

A file photo of Raghuram with his son Tarun. The boy’s mother suddenly relocated to Jaipur without informing the father

Personal Laws (Amendment) Bill, passed unanimously ,Women’s Bill to be brought in LS soon: Govt

Personal Laws (Amendment) Bill, passed unanimously ,Women’s Bill to be brought in LS soon: Govt

NEW DELHI: The Government has said that the much-awaited Women’s Reservation Bill will be brought to the Lok Sabha soon.

“The Women’s Reservation Bill will be a reality soon under the Chairmanship of Madam Speaker. Any amendment will also be taken up at a subsequent period. The House should not reflect a male chauvinist approach,” the Law Minister, Mr M. Veerappa Moily, sa id in the Lok Sabha, replying to a debate on the Personal Laws (Amendment) Bill 2010.

The amendments to the proposed bill are required to meet the demands of parties like RJD and SP, who are seeking quota within quota for women belonging to scheduled castes, tribes, OBCs and minorities.

The Constitution (Amendment) Bill has already been passed by the Rajya Sabha with the Congress, BJP and Left joining hands much to the discomfiture of several other parties seeking a sub-quota.

Referring to a large number of pending cases which affected women and children, Mr Moily said his Ministry was working on classifying the pending cases pertaining to women and children.

“We will do prioritisation of such cases, whether they are pending in local courts or the Supreme Court. This needs to be done so that women and children do not have to wait too long to get justice,” he said.

With all parties supporting the Personal Laws (Amendment) Bill, the House unanimously passed the measure which paves the way for women to get equal rights in guardianship and adoption of children.

Among other things, the amendment would help “fit” mothers to become guardians of minor which was not the case so far.

The Bill, passed in Rajya Sabha earlier this week, amends the Guardians and Wards Act (GWA) 1890 and the Hindu Adoptions and Maintenance Act (HAMA) 1956.

It aims at including “mother along with father as a fit person to be appointed as guardian so that courts shall not appoint any other person as a guardian of minor if either of the parents is fit to be the guardian of such minor.” The measure, which would make the process gender-neutral, also aims at removing hurdles in the way of a married woman to adopt. She can also give a son or daughter for adoption. — PTI

 

http://www.thehindubusinessline.com/blnus/14211404.htm

Minor husband can be guardian of minor wife: Delhi High Court

Minor husband can be guardian of minor wife

New Delhi, Aug 11 – ‘A husband who is a minor can be the guardian of his minor wife,’ the Delhi High court Wednesday said, coming to the rescue of a minor couple by setting aside criminal cases filed against the boy by his wife’s family.

‘No other person can be appointed as the guardian of a minor girl, unless we find that her husband is unfit to act as her guardian for reasons other than his minority,’ said the court.

The court also told the government to educate youth about the ills of early marriage.

Despite their marriage, the two were not allowed to live together after the girl’s family raised serious objection to the marriage.

Providing relief to the couple, Sunil (18) and Neena (16), both names changed, a division bench of Justice Badar Durrez Ahmed and Justice V.K. Jain set aside the rape and abduction cases filed against the boy and allowed the girl to stay with him.

‘Neena’s welfare is of paramount importance, we are of the view that her welfare would be best served if she were to live with her husband. She would get the love and affection of her husband,’ observed the bench.

‘She would have the support of her in-laws who, as we have mentioned earlier, welcomed her. She cannot be forced or compelled to continue to reside at Nirmal Chhaya or some other such institution as that would amount to her detention against her will and would be violative of her rights guaranteed under article 21 of the constitution (protection of liberty),’ the court said.

The court also suggested that the state must take measures to educate the youth that getting married early places a huge burden on their development.

It also said that at the same time, when such marriages occur, they should be treated in a different manner.

‘The sooner the legislature examines these issues and comes out with a comprehensive and realistic solution, the better, or else courts will be flooded with habeas corpus petitions and judges would be left to deal with broken hearts, weeping daughters, devastated parents and petrified young husbands running for their lives chased by serious criminal cases, when their sin is that they fell in love,’ observed the bench.

Sunil and Neena got married May 3 at Sahibabad in Uttar Pradesh. Immediately after their marriage, Neena’s father lodged a first information report against Sunil accusing him of rape and abduction.

Three days later, police apprehended the couple from Rampur in Uttar Pradesh.

A trial court sent Sunil to a juvenile welfare home and Neena was handed over to her parents.

In her statement before a magistrate, she did not say anything against Sunil.

Later, she again ran away from her home and told a court that she did not wish to stay with her parents after which she was sent to a welfare home.

Her father moved the court challenging the marriage saying it was invalid as both of them were minors.

But the court rejected his plea and said: ‘Her natural guardian is no longer her father but her husband. A husband who is a minor can be the guardian of his minor wife.’

http://www.vattal.com/news/minor-husband-can-be-guardian-of-minor-wife-court/