Woman ticks HC Judge off for 'making' her nine-year-old son cry

 Thursday, November 03, 2011 at 12:39:42 AM

The boy, whose parents are separated, started sobbing when the judge told the kid that he should spend time with his father. If he did not follow the order — or stop crying — “we will send you to the police station.” The sobbing continued for more than an hour outside the court

A mother took on a High Court judge on Wednesday for trying to scare her nine-year-old son into spending his weekends and holidays with his father and threatening him with jail if he didn’t. Justice N K Patil and Justice C R Kumaraswamy were hearing a case between Raja Lakshmi and Subraya Manja over the custody of their son and were trying to convince the woman to send her son to meet his father on weekends and school holidays. The boy, however, started crying when he heard this. “We are telling you to meet your father on the last Saturday and Sunday of the month and half of the vacation. If you don’t, we will send you to the police station. Your father has the same affection for you. Do not act like this. He is your father, he is also human. Your father is not your enemy. You can meet him once in a month,” Justice Patil told the boy. On seeing the boy’s tears, he said, “We are not disturbing your stay with your mother. You can stay with her, but meet your father also. If not, we will send you permanently with your father.” By this time, the boy was howling loudly, saying, “Please, please.” But Justice Patil told the boy, “If you cry, we will send you to jail. Is it not your duty to tell your mother that you want to meet your father and discuss things with him?” The judge then turned to the mother’s counsel: “It is your duty to tell your client that she should let the boy meet his father. Otherwise, you will kill the future of the child. If you people cannot arrive at a compromise, we will pass an order as per the facts of the case. We are tired of such things. Unless we pass the order, you won’t understand the trouble.” The couple had separated after a year of marriage and have been living apart for 10 years now. A lower court had ordered for the restitution of conjugal rights but Lakshmi had refused to go back to her husband. During Wednesday’s hearing, Justice Patil asked both the parties to talk to each other and arrive at a compromise. But their counsel said that the couple was not on talking terms and was incompatible. The judge said, “It is a problem they have created. If they do not talk face to face, the matter won’t be decided. Neither he nor she will be happy. Let them live together for four months and see if they can lead a compatible life. The husband may now realise the importance of a wife. Many who have made mistakes have become model citizens and better human beings. Unfortunately, our society has not developed family counsellors.” The judge then adjourned the case for some time and asked the parties to talk to each other.   Sympathy all around During the adjournment, the boy continued to cry outside the court as his mother tried to console him. “Amma please, let us go home. I do not want to go inside again,” the boy kept repeating. Other clients, advocates and even the policeman on duty tried to console the boy but to no avail. When the court resumed at 4.30 pm, both mother and boy stayed outside.   Dad’s version Manja, the boy’s father, told the court that he and his son would earlier play cricket and lagori, but his wife was not letting them meet. He told the court, “She did not even invite her father to our wedding. I earn Rs 40,000 per month and can take care of the child. I can take care of her like a queen. After marriage, the luck of her brother and sister turned for good and they kept me away. She left me nine years ago and did not come back.” At this point, Lakshmi who was consoling her son outside the court hall, stormed in. “I was in hospital during childbirth but he did not once come to see me. He should have fed me when I was carrying. You will not understand how tough it is for a woman to become a second wife to a man. I will not go with him. I have brought up my son,” she told the court. Justice Patil told her that her husband was repenting. She countered, “Repentance is different and leading a life is different. Even I will repent, but how will anyone understand how I agreed to become his second wife and how badly he treated me. He used me like a worker. For two years, he produced xerox copies in court, showing that he had sent me alimony. But he didn’t. He should have fed me when the child was born. Why else would the child fear going with him? After you scared him, he is still crying after one hour.” After this outburst, the court sent both of them out of the court and read out the judgment. It ordered that since the child was of a tender age, he should not be deprived of the love and affection of both the parents. It ordered that the boy spend the last weekend of every month and half his vacations with the father. “Tell your client to motivate the child to meet the father, otherwise he will get full custody,” the judge told the mother’s advocate. http://www.bangaloremirror.com/index.aspx?page=article&sectid=1&contentid=2011110320111103003955358442f5eaa&mid=51

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

Welfare of child is of utmost importance in giving custody: SC

15/09/2010

Welfare of child is of utmost importance in giving custody: SC

New Delhi, Sept 14 (PTI) Though father is the natural guardian, maternal grand parents or other relatives can be given custody of the child as "welfare of the minor" is of paramount consideration, the Supreme Court has ruled.

A Bench of Justices P Sathasivam and B S Chauhan in a judgement set aside a Bombay High Court order and entrusted the custody of a minor to maternal grandparents as the father had re-married within a short period of the death of his first wife and was also not in a proper position to look after the child.

"One thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section 13 of the Act 1956(Hindu Guardians and Wards) has to be construed literally and must be taken in its widest sense.

The Bench passed the judgement while allowing the appeal filed by the child''s maternal grandfather Shyamrao Maroti Korwate challenging the High Court''s decision to entrust the custody to the father Deepak Kisanrao Tekam.
The apex court said it is true that under the Guardians and Wards Act, 1890 the father is the guardian of the minor child until he is found unfit to be a guardian of the minor.

"Though father is the natural guardian in respect of a minor child, taking note of the fact that welfare of the minor is of paramount consideration inasmuch as the respondent-father got married within a year after the death of his first wife Kaveri and also having a son through the second marriage, Justice Sathasivam, writing the judgement, said.

http://ibnlive.in.com/generalnewsfeed/news/welfare-of-child-is-of-utmost-importance-in-giving-custody-sc/320188.html

full text @

http://legalmanthandivorce.blogspot.com/2010/09/welfare-of-child-is-of-utmost.html

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

The inheritance of loss

The inheritance of loss

by Preeti Singh, of Hindustan Times

Remember Amar Akbar Anthony? Three tragically-separated brothers grow up following different faiths  after being taken in by kindly souls who bring them up as their own. Nearly a quarter-century later, its idealism seems grossly out of place as current adoption laws in India continue to give more credence to religious beliefs over the secular right of every child to grow up in a loving home.

Only Hindus were allowed to legally adopt till a decade ago, under the Hindu Adoptions and Maintenance Act, 1956. Even now, if non-Hindus wish to adopt from within the gene pool, they can't. Till 2000, non-Hindus could only become guardians of a child under the Guardian and Wards Act (Gawa), 1890, which also applies to all foreigners wishing to adopt an Indian child. The lesser-known Juvenile Justice Act of 2000 (JJA) plugged a vital gap by allowing anyone to legally adopt any number of abandoned or destitute children, but still not from within the family.

Under Gawa, the adoptive parents are only guardians and the child has no automatic legal rights, unlike Hindu adoptees who are treated on a par with 'biological' siblings. Also, the guardian-ward relationship ceases to exist once the child turns 18, and any inheritance claims must be explicitly willed. Passports and visas are difficult to obtain since they carry no provision for a guardian's name; family insurance covers are tricky to negotiate and school admissions become tougher than they already are.

Continuing opposition from various religious communities — who view any proposed changes in the current laws as a Trojan trick to ease in the Uniform Civil Code — often forces prospective parents to sneak around under the radar. Pushing many adoptions underground, this has also opened the floodgates for predators looking to make a quick buck, spawning transnational adoption rackets.

The logic of demand and supply creates its own opportunities and pitfalls but, despite this, feels Bharati Dasgupta, managing trustee of the Pune-based Catalysts for Social Change, "even though we have a good system of checks and balances, the biggest problem today is the lack of imaginative interpretation of existing laws like the JJA, which prevents the State from reaching out to those that are already in its care."

The proposed Personal Laws (Amendment) Bill, 2010 seeks to correct a long-standing anomaly, by finally allowing married women to adopt, give up a child for adoption, and become guardians (albeit with consent from their husbands). For now, a woman can adopt only if she is single, divorced or widowed. But any legislation is bound to fall short unless there's a level playing field for all — potential parents and children alike.

The equal measure of desperation and hope that mark every parent-in-waiting's quest for a child, as well as the psychological impact of rejection and abandonment on children, make adoption a highly emotive issue. Heart-rending stories of babies dumped in trash-cans, abandoned at hospitals or sold for paltry sums of money vie with tales of the decrepit conditions in our State-run homes, even as there are couples desperately seeking that one child to complete the family portrait. Why can't the twain meet?

Says Vinita Bhargava, author of the pioneering book, Adoption in India (and an adoptive mom herself), "The lack of a special, uniform law, coupled with corruption at several levels, political appointments of non-experts in regulatory bodies and the paucity of both funds and sensitivity have ensured that our approach to adoption is far from being child-centric." Previous attempts to introduce a common law have only raised religious red-flags but then as long as a law does not challenge a faith's core beliefs, why shouldn't the State's edicts apply to all?

Parents may get to choose which boxes they tick when seeking to adopt, but the child has little choice in deciding his/her future. By taking a long, hard look at our laws and ensuring that a child's welfare precedes all else, it's time to give these invisible children at least a fighting chance.

 

http://www.hindustantimes.com/The-inheritance-of-loss/Article1-582852.aspx

Women to get equal rights to adopt kids?

NEW DELHI: In a big step forward towards empowering the women across religious divide, a parliamentary Standing Committee has unanimously recommended that women be given equal rights in guardianship and adoption of children.

In its report on the Personal Laws Amendment Bill, 2010 -- introduced in the Rajya Sabha on April 22 -- the Standing Committee on Law and Justice has said personal laws cannot be kept away from the principles of gender equality and gender justice. "The committee is of the view that the amendments proposed in the bill would place the mother on an equal footing with the father with respect to the right of guardianship and the right to adopt," it said.

The bill, which seeks to amend the Guardians and Wards Act (GWA), 1890, and the Hindu Adoption Maintenance Act, 1956, is likely to be tabled in the Lok Sabha during the ongoing monsoon session.

According to GWA, which applies to Christians, Muslims, Parsis and Jews, if a couple adopts a child, the father is the natural guardian.

The proposed amendment to the 120-year-old Act allows the mother along with the father to be appointed as a guardian, making the process gender neutral. The bill provides for the mother to be appointed as a guardian along with the father so that the courts do not appoint anyone else in case the father dies.

The second amendment, proposed in the Hindu Adoption Maintenance Act, 1956, (applicable to Hindus, Jains, Buddhists and Sikhs) aims to remove the hurdles in the way of a married woman to adopt and also give a child for adoption. At present, unmarried and divorced women as also widows are allowed to adopt a child but women separated from their husbands and engaged in lengthy divorce battles cannot adopt a child.

The amendment would allow a married woman separated from her husband to adopt with the consent of her husband even during the time of divorce proceedings. However, if he changes his religion or is declared to be of unsound mind, no consent from the estranged husband will be required.

http://timesofindia.indiatimes.com/india/Women-to-get-equal-rights-to-adopt-kids-/articleshow/6257721.cms