Custody disputes: Call for India to sign Hague Convention

Custody disputes: Call for India to sign Hague Convention

New Delhi, May 27 (IANS) A Supreme Court judgement affirming the jurisdiction of Indian courts to deal with disputes of children’s custody even if they are foreign citizens has raised demands for the government to accede to the Hague Convention dealing with such disputes and thus protect the rights of non-resident Indians.

In a judgement with far-reaching implications for Indians living abroad, the Supreme Court bench of Justice V.S. Sirpurkar and Justice T.S. Thakur ruled that simply because a foreign court had passed an order, it did not mean that Indian courts should put off deciding on the issue.

“Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor, it 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 wrote in the judgement.

This principle has been upheld by the apex court even earlier, but its reiteration in the recent judgement has raised demands for the government to take steps to accede to the Hague Convention on International Child Abduction.

Bangalore-based Children’s Rights Initiative for Shared Parenting has called for the government to sign the Hague Convention on the Civil Aspects of International Child Abduction.

In cases of one parent taking away the child to another country, the parent left behind is deprived of the custody of the child. The only solution for this crime is to sign the Hague Convention as it involves different aspects of private international law.

Supreme Court advocate Kirti Singh explained that Indian law does not recognise parental child abduction as a crime.

When one parent removes the child from the family home, or throws the mother out of the house – it is an offence against the child. The child is taken away to an alien atmosphere or is deprived of the presence of the mother and the child suffers due to the withdrawal from the familiar environment, Singh added.

The Hague Convention on the Civil Aspects of International Child Abduction, 1980, was a means of settling inter-country custody suits. India is not a party to the Hague Convention but with the large number of Indians living and working abroad, there is need to have amendments to the law to protect the rights of children in marital disputes.

The judgement was given on the appeal of a Delhi-based dentist against a Delhi High Court order overturning an interim order given by a city court in a custodial matter for her minor son.

The petitioner, mother of the 11-year-old son, had been awarded interim custody of the child by the trial court in Delhi.

The couple had been living in the US after their marriage, where their son was born. The appellant returned to India with her son in 2008 and filed an application for custody of the child under the Guardians and Wards Act.

Her US-based husband obtained a decree from a US court granting him custody of the child. He had further filed a case against his estranged wife for running away to India with their son despite a court decree granting him custody.

The Delhi High Court had set aside the trial court order, holding that an Indian court had no jurisdiction to decide on the matter as the father had been given custody of the child by a US court. The mother had appealed to the Supreme Court against the high court order.

The Supreme Court bench said since the interest and welfare of the child was of primary concern, a competent court in India was fully entitled and, indeed, duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. The apex court allowed the trial court to hear the mother’s application for custody of the child.

http://timesofindia.indiatimes.com/topic/article/07SmaRSeM78gP?q=India

Jobless father gets child maintenance from estranged wife

Jobless father gets child maintenance from estranged wife

HYDERABAD: If divorce and child custody laws are loaded against men, at least one such case has taken an objective turn at a city family court. Recently, the additional bench of the Hyderabad family court ruled in favour of a man who after winning the child's custody, sought financial aid from his working wife to raise the child until he was 18. The reason? The man in his petition stated that he had lost his job to make his marriage work thus holding the woman responsible for his jobless state.

The wife, who is a government employee, had filed for a divorce petition when the husband filed a petition simultaneously seeking the child's custody, stating that she had deserted their son. His custody claim was not countered by the wife and hence the court granted him the seven-year-old's custody. It was following this that he sought financial aid from his wife to raise the child, stating that he had been forced to spend considerable time at home to take care of the child and also trying to make his marriage work. In his petition he stated that he put in all possible efforts to save the marriage but his wife refused to listen to him. At a later date, she dumped her husband and child and walked out of their home. The divorce petition filed by her is still pending at the court.

This personal stress, he said, claimed his job of an administrator at a city-based hospital. "The mother has been asked by the court to bear the actual expenses of the child's education," said the lawyer representing the woman on conditions of anonymity. The amount will vary every month depending on the needs of the child.

This is not the first time that a man has sought financial aid from his estranged wife. A couple of months ago, a man moved the court seeking alimony from his wife citing his unemployment as the reason. However, this could well be among the first such verdicts wherein the court has conceded to the man's petition, by asking the woman to financially aid the man.

Nevertheless, lawyers are now speculating if the court would grant the divorce, now that it has made the woman responsible to bear the expenditure of the child's education. Also, lawyers are wondering what the court would do if the father manages to obtain employment by the time it hears the divorce petition. "For this the mother will have to file a petition or state during the hearing that the husband has found a job and that she no longer needs to pay for the child. However, this may take some time,'' a lawyer said.

http://timesofindia.indiatimes.com/city/hyderabad/Jobless-father-gets-child-maintenance-from-estranged-wife/articleshow/6562369.cms#ixzz0zgiTnfYf

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

Wife,a mother of two, kills children to elope with paramour

प्रेमी के लिए मां ने किया अपने दो बच्चों का कत्ल

 

 

also

 

 

हरियाणा के जींद में एक मां ने अपने प्रेमी के लिए अपने ही 2 बच्चों को मौत के घाट उतार दिया।

जींद। हरियाणा के जींद में एक मां ने अपने प्रेमी के लिए अपने ही 2 बच्चों को मौत के घाट उतार दिया। कलयुगी मां घटना को अंजाम देने के बाद अपने प्रेमी के साथ अपने रिश्तेदारों के पास पहुंच गई जहां परिवार वालों ने दोनों को पुलिस के हवाले कर दिया।

अपने प्रेमी को पाने के लिए एक मां ने अपने 2 मासूम बच्चों को अपने ही हाथों गला घोंट कर मौत के घाट उतार दिया। खुद हत्या की बात को कबूल कर रही है बबली की आंखों में जरा भी खौफ और शर्म नहीं है। पहले तो बबली अपने प्रेमी के साथ घर से भागी और फिर अपने बच्चों को मार दिया। इसके बाद जब बबली अपने परिजनो के पास पहुंची तो उन्होंने इसे पुलिस के हवाले कर दिया।अपने ही बच्चों की हत्या के आरोप में फंसी इस मां को तो तफ्तीश के बाद सजा मिल जाएगी। लेकिन जिस तरह से इसने अपने प्रेमी को पाने के लिए अपनी ही हाथों से जिगर के टुकड़े का गला घोंट दिया उससे मां की ममता भी तार तार हो गई है।

http://khabar.ibnlive.in.com/news/39100/3?from=rhs

………….

Woman kills children to elope with her lover

JIND: A 35-year-old woman killed her two children aged three and five to elope with her lover, who happened to be her brother-in-law in Julhera village of Jind district.
She fled with her lover on August 31, and then killed the children on way near Ambala and dumped their bodies.
Haryana Police have arrested both, the woman and her brother-in-law, from a village in Patiala district of Punjab.

http://timesofindia.indiatimes.com/city/chandigarh/Woman-kills-children-to-elope-with-her-lover/articleshow/6490740.cms#ixzz0yexhtQnn

Man accused of demanding dowry commits suicide – wife and her relatives booked for abetment to suicide

Man accused of demanding dowry commits suicide

VADODARA: A 33-year-old man committed suicide on Tuesday night after his wife registered a police complaint against him for demanding dowry. Dinesh Helaiya, who worked with a private company in Ahmedabad, consumed poison in a hotel room. Dinesh was taken to Bhailal Amin General Hospital where he died during treatment.

Cops have also registered a complaint against Manisha and her relatives for abetment to suicide. According to police, Dinesh and Manisha got married about seven years back and their marriage was in trouble. "They were at loggerheads for many years and used to fight a lot.

Manisha had filed a police complaint against him on Tuesday night, accusing him of demanding dowry. She alleged that her family had already paid lakhs of rupees in dowry and now he was demanding a car," police officials said.

"Manisha lodged a complaint on Tuesday night and he consumed suicide immediately after that. They have a two-year-old daughter," assistant sub-inspector Prabhudas Purshottam said. Police said the deceased had come down to meet Manisha and also take away his daughter who was staying with her. However, a fight ensued between them following which she approached the cops.

"Five people, including Manisha and her relatives, have been named in the complaint. But no one has been arrested as of yet," police officials said.

http://timesofindia.indiatimes.com/city/vadodara/Man-accused-of-demanding-dowry-commits-suicide-/articleshow/6340997.cms#ixzz0x5FS2WVP

'Get professional help to manage marital stress'

'Get professional help to manage marital stress'

Tuesday, Aug 17, 2010, 8:51 IST
By Soumita Majumdar

Is it quite natural to have violent thoughts against one’s spouse? Dr MJ Thomas, consultant psychiatrist and coordinator, department of psychiatry, Sagar Hospitals spoke to DNA about the rising instances of domestic violence and even murder of spouses, after the recent killing of a schoolteacher by her husband in the city.

Is it natural to have violent thoughts against one’s spouse? And are there ways in which these can be curtailed?
Yes, some people do get violent thoughts about their spouses, just as they get similar thoughts about anyone else. This kind of violence is contemplated when there are marital differences, and both partners think they are in the right. Violence could also be contemplated when one partner feels insecure or suspicious and questions the partner’s fidelity. In either case, if this feeling is prolonged and consistent, the couple should seek professional help.

Are there signs to look out for, so that people in marriages could seek help at the appropriate time?
If either of the partners becomes consistently depressed or aggressive and feels that he or she cannot tolerate the partner anymore, then it is about time that the couple seeks professional help. Also, sometimes, if an outsider tells them that they need help, it means that their quarrel has become too obvious. In such cases the couple should seek help from marriage counsellors. If there are problems like dowry harassment or something like that that is rather grave, the couple should seek the help of the extended family. If there is baseless suspicion or extreme stubbornness, which harms the relationship, there is need to meet a psychiatrist.

Police commissioner Shankar Bidari has urged people to walk out of bad marriages rather than commit murder. Do you think divorce is now an acceptable solution for a bad marriage? About 60% of ‘bad’ marriages can be saved if professional help is taken on time. Those who cannot live together despite counselling sessions should live in separation or get divorced as an alternative. Divorce or separation as a concept is much more acceptable in today’s society.

How could the family help, in such situations? Do you think it might be better for them to remain uninvolved?
An extended family should always be supportive. However, most marriages break down as the conflict between the couple develops into a family quarrel. Family members should be careful and not take sides. The problem might only get worse.
The extended family, could, however, guide the couple to professional help so that the problem is treated at the right time, before it aggravates. Often, that is the best possible support that other family members can offer to a couple going through tension and strife in marriage.

http://www.dnaindia.com/lifestyle/report_get-professional-help-to-manage-marital-stress_1424473

Can’t find your mum through writ, says Supreme Court

Can’t find your mum through writ, says Supreme Court

The Supreme Court on Monday dismissed the petition filed by Arun Dohle, 37, an Indian adopted by German parents, seeking the production of his biological mother. However, his search may have inched closer with the apex court allowing his lawyers access to the original documents of the adoption centre.

Shooting down the objections raised by advocate Neela Gokhle representing the Kusumbai Motichand Mahila Seva Gram (KMMSG) where Dohle was reportedly “abandoned” by his biological mother, the court said, “No national secret is involved in it and the days of privileged documents are over.”

Advocate Jamshed Mistry who was part of the legal team representing Dohle said: “The court’s direction reaffirms the Supreme Court guidelines as stated in 1984 and also the Hague convention to which India is a signatory.”

However, while dismissing Dohle’s appeal, justices Markandey Katju and TS Thakur said he could file a suit for seeking relief.
Dohle was two months old when a German couple, Michael and Gertrude Dohle, adopted him in 1973. He contested that he was abandoned by his mother and was given in adoption without her consent. He alleged that his adoptive parents were helped by union minister and NCP leader Sharad Pawar’s brother Pratap Pawar.

The judges said, “You don’t even know the identity of your mother. How can you find her through a writ petition? Unless you know
your mother, how can you say that she is in illegal detention?”
The judges observed that sometimes unwed mothers gave fictitious names to orphanages. On the judges’ query whether the ashram maintained any register, its counsel answered in the negative. Dohle’s counsel Shekhar Naphade said there was something fishy in the whole affair.

 

 

http://www.dnaindia.com/mumbai/report_can-t-find-your-mum-through-writ-says-supreme-court_1424425

A letter for child rights

A letter for child rights

Please find here below the letter issued by MISSION JUSTICE to concerned departments. Please take out print of the same and put a covering letter stating that you support the cause raised by us. I hope that atleast 10000 letters will reach the government and change will happen. I know an individual cannot make a change but atleast you can just send a letter for ensuring that your concerns are registered with concerned persons. HOPE that you will ensure that the voice of the common man like you and me is recognised.
9th August,2010
To,
Hon’ble Smt. Pratibha Patil,
President of India,
Rashtrapati Bhawan, New Delhi – 110 004
Hon’ble Shri Mohammad Hamid Ansari
Vice President of India,
Room No. 208, Parliament House Annexure,
New Delhi – 110 001
Hon’ble Dr. Manmohan Singh,
Prime Minister of India,
Room NO. 152, South Block,
New Delhi – 110 001
Hon’ble Mr. M. Veerappa Moily
Ministry of Law and Justice,
Room No. 402A,
Wing Shastri B,
New Delhi – 110 001
Hon’ble Shri Kapil Sibal
Ministry for Human Resource Development,
Room No. 301, C wing, Shastri Bhavan,
New Delhi – 110 001
Hon’ble Smt. Krishna Tirath
Ministry of Women and Child Right Development
Shastri Bhavan,
New Delhi – 110 001
Hon’ble Mr. Mukul Wasnik,
Ministry of Social Justice & Empowerment
Room No. 250, A wing, Shastri Bhawan,
New Delhi – 110 001
Respected Madam / Sir,

This is to bring to your notice, that in 1992, more particularly on 19.11.1992, we the Nation have ratified articles and resolution passed and convention on the Rights of the Child more particularly adopted by General Assembly of the United Nations bearing Ref. No. A/RES/44/25 of 20-11-1989. Thereafter in 2005 we have passed an Act, The Commission for protection of Child Rights Act 2005, appointing child right commission to look into the matter relating to child rights.

Under the said convention all the signatory Nations have assured international community that they shall be implementing the articles of the said convention and shall play role in improving condition of the children of their Nation. Under the convention members / signatory state parties were bound to implement the rights of the children and for the purpose of convenience we are not reproducing the same but putting the same by way of attachment to this letter. Attached herewith is the copy of the said Resolution of the Child Rights Convention.

However, it has been seen that apart from appointment of commission to look into the said rights, we have done nothing to recognize or implement the said rights as guaranteed by us before international community. The entire articles have been attached herewith but certain facts needs to be highlighted which I am high lighting point by point: -

1. It has been seen that divorce has become very predominant in this Nation. Under threat of penal consequences the child is handed to one party without access to the other and consent terms is filed thereof without considering the rights of the child. The Courts of law without application of mind and without going into details of the custody have been endorsing these Consent Terms making them officio functus. It is only the will, fancies and desire of the parents which are considered and the fundamental rights of the child is never looked into by the Hon’ble Courts of law. The Court rarely looks into the right of the child to be brought up by the best parent and with a right to have access to the other parent and other family members. No parent has a right to renounce his or her duty in favour of the spouse and if done, the same is illegal and against the rights of the child.

2. The child of a very tender age does not know his/her rights and cannot decide is his/her welfare. It is duty of the Courts/ Legislature/ Parent and society to protect rights of the child, as well as to look into the welfare of the child and if need be the same has to be reviewed from time to time. Whenever a right is granted, a corresponding and equal responsibility is caste upon the state and also the judiciary to protect the same. The failure to do so by the state amounts to non fulfillment of requirement of a welfare state and non execution of the same by Courts amount to non adherence of duty cast upon a judge. Thus the state and judge becomes guilty of non performance of duty towards the child.

3. When the custody is transferred upon divorce no merits about the welfare or rights of child is taken into consideration and/or reviewed and/or evaluated by Courts of law and it is only the dictate of the parents which is enforced upon the child. If welfare of the child is with the particular spouse, then it is right of child to have welfare enforced through the said parent and the parent has no right to transfer the said duty cast upon him/her to any other person including the other divorcee spouse. The Court must review whether the custody has been transferred out of negligence, neglect or by threat and/or force. However, the same is never done. This fact can easily be verified by undergoing various divorce decree passed by the Court situated in different parts of this country, as the divorce decree passed therein generally does not provide even a single reason as to why the child should be given in the custody of the particular parent. Thus the Courts have avoided Justice and are only adjudicating upon matters.

4. The child has a right to know about not only parents but also the extended family from both parents and has right to love, affection and care of the extended family, more particularly grand parents. However, the same right is brutally violated even before the Courts of law and also at the hands of the police and law mechanism. This is in violation of Article 5 of the said convention.

5. Article 3 of the said convention cast the responsibility of the state to ensure that the child gets such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. However, Legislature has failed to pass any act or establish any procedure or Courts for such matters. If a letter is recorded, the Child Right Commission will direct the same to be taken up by the parent ( as per convention there is no need of parent only to be concerned about the child and it is the duty of the state) u/s 6 of Hindu Minority and Guardianship Act. Thus the state fails to discharge its function as laid down in the articles.

6. Article 8 ensures that state shall respect the rights of the child to preserve its identity including nationality, name and family relations as recognized by law without lawful interference. However, today when the custody is transferred to the mother under gender biased laws like 498A and Domestic Violence under the threat of dire penal consequences, identity of that child is hijacked and child is deprived of the name and recognition of father. We have got substantial details of such children and it is prima facie evident that identity, names are being changed illegally and even the school and law in force aid such hijacking of the identity, which might lead the child to identity crises at a later stage in the life and same is also against the welfare of the child. Even the family Courts put very less or no weight to this aspect. When such hijacking of identity and identity crises is being created by one parent, the said parent is acting against the welfare of the child and in such cases the custody has to be transferred to the other parent unless it is proved that the same is against the interest of the child. Even if the welfare is equal then also the custody must be transferred from the parent who acts against the welfare of the child by hiding from the child the true identity and also depriving the child of the other parent and extended family as wrongdoer parent is guilty of murder / assault on the original identity of the child and violation of fundamental rights to life of the child and the said parent must be treated accordingly in law. It is today nothing but “legal terrorism” and apart from the spouse it is the child who is the victim of this terrorism and is an act of cruelty upon the child.

7. Article 9 states that parties must respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both the parents on regular basis. However, in practical the same is never maintained and the Courts take their own sweet time and do not understand gravity of situation and at times show least interest as the same is not found in the statutes in operation in the Nation and International Law is beyond the understanding of Law and Judiciary of many occasion. Infact the reality is that if a judge avoids granting access to one of the parents and lingers the issue then he/she is even guilty of violation of rights of the child and/or aiding the same. Thus, the child goes unheard for years together. Unless a precedent is set holding a judge guilty (may not be punished but atleast must be put on remarks), the Judiciary will not expedite these matters. We wish that higher Judiciary suo moto takes up this issue and takes this stand in a very quick manner.

8. Unless precedents with regard to violation of rights of the child against the violating parent and judge (who keeps such matters pending and fail to decide) is set, the child of this nation cannot be secure. Unless the future is secure all developments and growth is meaningless as it shows incapability of this Nation to honour international commitments, to act as a welfare state and also to protect the fundamental rights of the speechless children of the Nation. We expect that atleast some judge shall take suo moto action and shall dispose it as a landmark precedent with regard to rights and also the time frame in which it is decided.

With this we request you to look into this aspect of the voice of voiceless i.e. children, who are the future of this Nation and necessary measures / steps be taken with regard to protecting the interest of these children. We call upon the state to implement the said rights and also other rights by codifying all the children laws in one enactment of “FAMILY, WOMEN AND CHILD PROTECTION ACT” and also transfer all criminal and civil provision in one single piece of legislation with regard to the family and child.

We the NGO have legal resources and sound people, who understand the gravity of situation and are willing to assist Government in formulating right policy with regard to the child rights and extend our full cooperation. We look forward to the esteemed Judicial members to take up such causes suo moto as stated earlier and establish the rights immediately and we assure them to provide data or an example case immediately.

Thanking you in anticipation.
Yours truly,
SIDDHARTH MURARKA
Convener
Copy to:
1. Chief Justice of India
2. Chief Justice Bombay High Court
3. Chief Justice Calcutta High Court
4. Chief Justice Madras High Court
5. Chief Justice Delhi High Court
6. Smt. Sonia Rajiv Gandhi
Media, Other NGO, Public
Encl : A/A

 

drafted by Siddharth Murarka

http://themissionjustice.blogspot.com/2010/08/letter-for-child-rights.html

CHILD CUSTODY LAWS-Fathers denied child custody-demand SHARED PARENTING - p7 news

PART 1/2 - CHILD CUSTODY LAWS-Fathers denied child custody-demand SHARED PARENTING - p7 news 8aug10

 

 

 

 

PART 2/2 - CHILD CUSTODY LAWS-Fathers denied child custody-demand SHARED PARENTING - p7 news 8aug10

 

Abused hubby gets divorce, Son’s Custody

 

Abused hubby gets divorce, Son’s Custody

August 8, 2010

Purushottam Mahajan got divorce from his wife Pallavi and was also granted custody of his son after he recorded the daily abuse he got from his wife, using spy cameras and presented them as evidence in court.

 

   

A man who was thrashed by his wife and had recorded the abuse using spy cameras to present it as evidence in his divorce proceedings has won the case and the legal custody of his 11-year-old son.

Purushottam Mahajan, 44, who was locked in divorce and custody battle with his wife Pallavi for over two years, installed secret cameras at their Aarey Colony house to capture how she abused him physically in his son’s presence. In November 2009, the video was uploaded on YouTube by an NGO to show how law was heavily loaded against men in cases of marital discord.
Eight months after the video went up, the Bandra Family Court last month handed over the custody of the child, Aum, to his father. The battered husband fought his case himself armed with the video evidence. He argued Aum’s future was more secure in his custody than his wife’s.

 

The couple got married in 1999, but the relationship soured within a year. Purushottam alleges that there  were regular fights and he would often get beaten up. While he would talk about the violence to his friends, no one believed him.
Fed up of the violence and desperate to gather evidence, Purushottam, who claims to have worked with Subhash Ghai as an assistant director, installed a spy camera in his place.The camera captured everything that went on in the house, including Purushottam's physical torture, for three months. What eventually went up on YouTube was an edited 30-minute video. The video that has no sound, shows Pallavi slapping and kicking Purushottam. It later shows them animatedly discussing something even as a child looks on.On July 23, 2008, Pallavi left the couple's Aarey Colony house with Aum. Since the marriage had irrevocably broken, Purushottam filed for divorce and Aum's custody on July 27.

On August 29, Pallavi lodged a complaint of dowry harassment and torture against him at Dindoshi police station. However, Purushottam's spy video recordings and other evidence he presented in the court tilted the divorce and custody case in his favour.
During the two-year battle, Purushottam says he went through a lot. "I lost a job in a multi-national bank because cops would be constantly calling me. But I had decided, I would fight till the end as I loved Aum more than anything else. When I saw my lawyer was not arguing the case properly, I read law books and argued my case without a lawyer."

Purushottam meticulously collected evidence to make his case stronger. He showed the court how his child had suffered severe weight loss after his mother took him away. "I presented medical evidence that also showed that he had injuries on his hands and legs and that he lived in unhygienic conditions.

 

 

 

 

 

 

 

 

Mahajan watching his son’s video

 

After he was separated from me, he wasn't sent to school for months," said Purushottam, who alleged in the court that he was not allowed to meet Aum on one pretext or the other even though the court had directed a meeting every fortnight. His wife's lawyer, Amol Sutrale, who played a crucial role in bringing the couple to the negotiating table, said, "We realised there was no need to drag the case unnecessarily.

I advised Pallavi and Purushottam to settle the matter. Pallavi agreed to give Aum's custody to Purushottam. Thus the matter was settled with mutual consent. At least, the child will not have to suffer anymore."

http://www.mumbaimirror.com/article/15/2010080720100807021302130878e2d1b/Abused-hubby-gets-divorce-Son%E2%80%99s-Custody.html?pageno=1

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

State sponsored legalising extortion of husband - Bill to add Irretrievable breakdown new ground for divorce amending the Hindu Marriage Act, 1955, Special Marriage Act, 1954

Bill to add Irretrievable breakdown new ground for divorce amending the Hindu Marriage Act, 1955, Special Marriage Act, 1954

Wed, Aug 4 08:02 PM

New Delhi, Aug 4 (PTI) Getting a divorce from marriage, which has broken down for all practical purposes, could become easier, as the government today introduced a bill in the Rajya Sabha to amend marriage laws. The amendments proposed in the Hindu Marriage Act and Special Marriage Act will also make divorce through mutual consent easier, according to the Marriage Laws (Amendment) Bill, introduced by Law Minister M Veerappa Moily.

The amendment bill also provides for an additional grounds for seeking divorce in case of "irretrievable breakdown of marriage". It seeks to do away with the provision of second joint appearance before the court after six to 18 months of filing of divorce petition, with mutual consent.

The present clause of joint appearance for seeking decree of divorce creates problem as often one of the parties fails to appear before the court on some pretext or the other. This leaves one of them "hapless and remediless", according to the objects and reasons of the bill.

The bill also seeks to insert a new clause under which either husband or wife can seek divorce if the couple have not lived together continuously for three years. However, in case the husband seeks divorce, the wife will be entitled to oppose it on the ground that the dissolution of marriage would result in financial hardship to her.

Similarly, a provision has been made to restrict grant of divorce on the ground of irretrievable breakdown of marriage in the absence of adequate provision for maintenance of children. The amendment bill has been prepared on the basis of recommendations of the Law Commission as well as the Supreme Court, Moily said.

The clause of irretrievable breakdown of marriage will be in addition to the existing grounds for divorce. At present, various grounds for dissolution of marriage are laid down in law.

These include adultery, cruelty, desertion, conversion to another religion and unsoundness of mind.

http://in.news.yahoo.com/20/20100804/1416/tnl-irretrievable-breakdown-new-ground-f_1.html

 

more news at

http://timesofindia.indiatimes.com/india/Bill-in-Rajya-Sabha-to-make-divorce-easier/articleshow/6257265.cms

NEW DELHI: A bill seeking to make divorce easier in case of "irretrievable breakdown of marriage" was introduced in the Rajya Sabha on Wednesday.
The Marriage Laws (Amendment) Bill, moved by law minister M Veerappa Moily, aims at mitigating hardships by allowing divorce in cases of complete failure of marriages.
At present, the petition for a divorce on the ground of mutual consent could be presented by the spouses together before the court under the Hindu Marriage Act 1955 and the Special Marriage Act 1954.
While both parties have to move a motion jointly before the court between six and 18 months of the original petition, it has been observed in several cases that one of them does not turn up.
This leaves parties desirous of obtaining decree of divorce hapless and remediless. In order to mitigate such hardships and to allow divorce in cases of complete failure of such marriages, the bill seeks to amend the Hindu Marriage Act and the Special Marriage Act.
The condition of moving the motion before the court subsequent to the first petition would be done away with, it said.
However, in case the wife happens to be the respondent to the petition, she is entitled to oppose it on the ground that the dissolution of marriage would result in grave financial hardship to her.
Similarly, a provision has been made to restrict grant of divorce on the ground of irretrievable breakdown of marriage if the court is satisfied that adequate provision for maintenance of children has not been made.
The amendment bill has been prepared on the recommendations of the Law Commission as well as the Supreme Court.
The clause of irretrievable breakdown of marriage will be in addition to the existing grounds for divorce.

 

Full text available @

http://164.100.24.219/BillsTexts/RSBillTexts/asintroduced/marrge%20law%20as%20intro.pdf

http://legalmanthandivorce.blogspot.com/2010/08/irretrievable-breakdown-of-marriage-as.html

Delhi High court stays lower court order on child custody

Delhi High court stays lower court order on child custody

2010-07-29 20:30:00

The Delhi High Court Thursday put a stay on a trial court's order allowing interim custody of two minor children to their father after the mother alleged it was being forced on the children.

The direction came on a petition filed by Mandira (name changed), working as a director in the cabinet secretariat, against the lower court order alleging that the court passed the order despite the explicit unwillingness of the children to see their father.

The Mandira's children had earlier thrice recorded their statement in the court stating their disinclination to meet their father. Mandira married Sunil (name changed), an industrialist in 1996.

The couple have two children, aged 13 and 6, from their marriage. Mandira had filed a Domestic Violence Act case against her husband in May 2008. The court handed custody of the children to their mother, but allowed the father to see the children on Sundays for two hours. Later the court handed interim custody of the children to their father.

Prabhjit Jauhar, counsel for the petitioner, said: 'The court did not consider the wishes of the children and handed over custody to the father.' He cited that earlier an Additional District Judge had interviewed the children for the purpose of grant of visitation rights and the children showed their disinclination to meet their father.

'The judge noted that there is no finding that the children were either tutored or turned acrimonious by the mother. Three times the children have recorded their statement before a judge,' contended Jauhar.

Thereafter, Mandira moved the court alleging that her daughter has developed suicidal tendencies as she is unhappy meeting her father on visitation. She even placed a psychologist's report as record

 

http://sify.com/news/high-court-stays-lower-court-order-on-child-custody-news-national-kh3u4cbibgc.html

Single mothers need easy laws for adoption

 

Single mothers need easy adoption laws

http://www.deccanchronicle.com/bengaluru/single-mothers-need-easy-laws-004

July 4: Former Miss Universe and actor Sushmita Sen made waves by her decision to adopt not one but two baby girls as a single parent. But she has hardly set off a trend as women like her are still few and far between in the country. Santhosh Vas, former chairperson, Child Welfare Committee (CWC), says she has not come across many single women in Karnataka adopting children although there are plenty of abandoned babies in the state.

But could this situation be about to change? Are we likely to see more single mothers with the government likely to amend the Guardians and Wards Act, 1890 and the Hindu Adoptions and Maintenance Act, 1956, to bring in more gender equality in matters of adoption? Legal experts, who report that an increasing number of girls are filing for divorce today, bolstered by their more financially independant status, feel it’s only a matter of time before they begin to want the joys of motherhood too without a husband in tow.

While there is already a provision under the Hindu Adoptions and Maintenance act, 1956, for a woman who is not married, or whose marriage has been dissolved or who is a widow to adopt a child, the new amendment, among other things, allows married women fighting lengthy divorce battles to adopt children without their partner’s consent, in the years between.

Noted advocate, Hemalatha Mahishi feels that the new law is bound to help women as many more of them are opting for divorce today since they are financially independent and unable to accept traditional male dominance. “They can no longer accept insults or humiliation and as parents too are supportive today, more of them see divorce as a way out of unhappy marriages. Now with the planned amendment allowing them to adopt a child even before the divorce gets through, they could opt for it so as to not miss the joys of motherhood while waiting to be free of their spouses,” she says. Former chairperson of the state women’s commission Pramila Nesargi too thinks that with marriage no longer being the only goal of women these days and as they are usually able to support themselves, more of them may opt to adopt children while still single in their quest to find an heir for their property and also enjoy the joys of parenthood. “With girls delaying marriage in pursuit of a career, more of them could adopt children even when not married,” agrees filmmaker Kavitha Lankesh, a single mother herself.

But Ms Mahishi warns that single mothers in their quest for parenthood, must not forget to legally adopt the child as otherwise he or she will not be able to inherit property. “They must make sure the adoption is legal in the interest of the children they bring into their lives,” she cautions

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the law may be about to make it easier for women to adopt children while saying goodbye to their spouses, but it's obviously a step that cannot be taken without careful thought.
"Will a woman going through a divorce be in a state of mind to take on the additional responsibility of an adopted child when she is going through her own trauma," asks filmmaker Kavitha Lankesh, a single mother herself.
Kumar Jahgirdhar, president, Child Rights Initiative for Shared Parenting, comes up with yet another pitfall. In his view a woman who adopts a child during her divorce, may find it difficult to patch things up with her husband, should she want to do so later, as he may not want to take on the additionally responsibility thrust on him without his consent.
"Adopting a child is a life time responsibility," warns Ms Lankesh, explaining that women will need some family support, and a fatherly figure for their adopted child to be able to raise him or her successfully. "They may find that grandparents may be happy to play with the child, but not help them take care of it," she says..
"My entire career changed after Isha was born. I work late in the night after she sleeps and still need to be fresh when she wakes up. How much ever you do, a mother always feels that something more needs to be done. But women are good at multi-tasking, and as they usually handle most of the responsibility of bringing up children even in a normal family, single mothers are certainly upto the job, " she adds.
Dr Sathyanarayana, a psychiatrist, suggests that as the child needs both parents for all round development, a single woman should try to see there is someone her adopted child can look upto as a father figure.
Senior advocate Hemalatha Mahishi feels that if creches are provided at the workplace and if employers are more flexibile in their outlook single women will find it easier to bring up their children.
---------------------------------------
With the government mooting the amendment of The Guardians and Wards Act, 1890 and the Hindu Adoptions and Maintenance Act, 1956, the state is likely to witness an increase in the number of single women opting for adoption. Experts too feel that with marriage no longer being the priority of career driven, financially stable women these days, more may go in for adoption to find an heir for their property and also enjoy the joys of parenthood, reports Shilpa P.Former Miss Universe and actor

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Women may get adoption rights

http://www.deccanchronicle.com/national/women-may-get-adoption-rights-857

Chennai, June 19: A Bill seeking to make it easier for women to adopt children is likely to be tabled in the Monsoon Session of Parliament.

Some amendments have been proposed to remove discrimination against women, especially unmarried women and widows, said Ms Jayanthi Natarajan, chairperson of the Parliamentary Committee on personnel, public grievances and law and justice, on Saturday.

Amendments would be brought to the Hindu Adoption and Maintenance Act 1956 and Hindu Guardians and Wards Act to remove the discrimination, she said.

Speaking to mediapersons after chairing the meeting of the committee here, Ms Natarajan said the amendments would facilitate the appointment of women as “guardians” of children. Stating that most states favoured the proposed amendment, she was hopeful that the Bill would be passed in the Monsoon Session.

On Saturday’s meeting, she said the committee was entrusted with the job of conducting a nationwide study about the status of women employees, with a specific mandate to assess aspects like women employees’ promotion in public sector undertakings.

A policy has been proposed for women employees and public sector units have assured to consider the suggestions.

--------------------------

Adoption to get gender neutral

 

It’s good news for women who want to adopt a child in our country sans a man as a guardian of the child. According to a recent report, the Union Cabinet is contemplating amendments to the Guardians and Wards Act, 1890 (GAWA) and Hindu Adoption Maintenance Act, 1956 (HAMA).

As per the current adoption laws, when any couple adopts a child, it is the man who is the guardian. These amendments will make the status of the guardian gender neutral. These changes will also make adoption easier for men and women who have separated from their spouse. Women welcome this move to make changes in the existing adoption laws.
The proposed amendments for adoption laws aim to make the tedious procedure of guardianship more amicable for single women. Soumya Chandran, a PR professional who wants to adopt a child in the future, says, “With these amendments, single women in our patriarchal society can also raise a child on their own. It will be a great change and strengthen women power because now they won’t need a man anymore to raise a child.”

Earlier, for women who had separated from their husbands due to conflict or personal disputes, getting legal guardianship of their children from the father was a Herculean task.

Smita Sinha (name changed on request), an IT professional and a mother of a 10-year-old boy expresses her delight at this decision. She says, “I am happy that the laws for adoption and guardianship are being amended. A few years ago, when I was getting divorced, I had a tough time getting my son’s custody. Now I think women won’t have to fight and go through the tedious procedures in the court to get legal rights of their own children.”

Many women feel that these revisions in the existing adoption laws will bring them at par with their male counterparts and give them equal rights.

Sutapa Sen, a GIS analyst at a private firm is thrilled with this move. “These amendments seem to be good and if implemented, this would go on to become a milestone in the history of women’s empowerment. It will also be beneficial to the child, since he/she will not face any legal problem regarding custody and guardianship if the couple is getting divorced,” she says.

Child custody disputes: Whose interest is paramount?

 

By S Susheela Chinthamani

Disputes between spouses for the custody of their child is taking the form of a battle fought with vengeance inside and outside the court rooms.

In the midst of groups of fathers, mothers, lawyers and the judges — talking, screaming, shouting, listening and ordering — the children are seen hearing about their ‘paramount interest’ being discussed at length.
Someday, these children will look back and question what was their ‘paramount interest?’ Was it independent of the interest of the father, mother, lawyers or the judge? Why were they not allowed to enjoy their childhood and left to be unsafe? Was it not interference with their rights in the guise of protection of their ‘paramount interest?’ The troubling answer may make them lose respect for society, including their parents.

Each of the separated parents suffering from ‘parent  alienation syndrome’ tries to have exclusive custody of the child, highlighting how dangerous it is for the child to be with the other parent. Children are asked to tell lies, forced to write letters to judges about their unwillingness to go with the other parent, compelled to give their opinions about their choice of a parent, etc. The volition of the children are given more importance than their actual paramount interest.
The parent, having limited custody rights, tries to play the role of an ‘entertainment-provider’ for the child in order to attract the child. The children are compelled to pose for hectic photo and video sessions to collect evidence to be placed before the courts. They are lured by expensive gifts and foreign trips, excellent holidays provided by a parent as against the other with whom they have to stay, study, be disciplined and learn the hard lessons of life. Without giving much thought, the children often express their wish to stay with the ‘entertainment providers.’

Children are treated as joint properties and demand for shared parenting and equal rights is common. The situation is worse when both the parents are busy with their career goals and the children stay with care-takers or grandparents. Grandparents, who develop attachment to the young children, fight for custody through their children. Everyone is focusing on parenting rights — rights of parents, of father, of mother, sentiments of grandparents, duty of a judge, etc — brushing aside ‘the paramount interest of the child.’

The child’s rights over parents begins with its birth. No one, much less a parent, can curtail this right over the other parent. The child has a right not to choose between the parents, not to judge its parents. It has a right to live in its little world full of fun, play, enjoyment, studies and unobstructed growth, unmindful of the mutual dislike and hatred between the parents. No one has a right to trespass and encroach upon their rights. Who can compensate the mother’s sweet kiss, screams, scoldings, warnings or the father’s hugs, kicks, or shouts?

Subjects of dispute

Frequent shuttling of children between the parents under the directions of the court, repeated contempt petitions between the parents alleging ‘disobedience’ instill a sense of panic among the children who do understand that they are made the subjects of dispute between their parents, and that the fight was against each other through them.

Only in the absence of dispute between the parents can the child stay happily with one of the parents, understanding it as a family arrangement. Each disputing parent fails to understand the indispensable need of the contribution of the other for the welfare of the child.

They forget that they are the only ones standing together who can safeguard the paramount interest of the child. When one of them doubts the bonafide of the other and suspects that the other would not stick to the accepted terms, problems arise. It is in this scenario, that the role of courts becomes indispensable in giving a binding force for the arrangements regarding the custody rights between the disputing parents.

The legislature in its wisdom has left the solution uncovered in the statutes. Even the courts find it difficult to choose between the equally capable and responsible parents of the unfortunate children. Any order passed by the court irritates either of the parents. Judges are often called ‘pro-women’ or ‘anti-women’ or those addressing to please the gallery.

It is high time the parents move from their interest towards the paramount interest of the child. All that a parent has to consider without prejudice is “is the company of the other parent dangerous to my child?” Shared parenting is a misnomer. Parenting cannot be shared with any one much less with the other parent. Each parent plays a unique role in the life of a child.
Ultimately, both the parents need to understand that notwithstanding their relationship as husband and wife no longer being cordial or having come to an end, they continue to be a father and a mother for the child and no statute can change that status.
(The writer is an advocate at the Karnataka High Court)

http://www.deccanherald.com/content/78894/

Feud over Fernandes: wife takes care his property and money but not his health- Court steps in

http://www.ndtv.com/article/india/feud-over-fernandes-court-steps-in-34967

 

Feud over Fernandes: wife takes care his property and money but not his health- Court steps in

New Delhi: The man India knew as the Giant Killer is now reduced to a battle between his wife and long time friend.
A day after Jaya Jaitly was stopped from entering the former Defence Minister's home, today a twist to the battle. The Delhi High court has ordered that George Fernandes appear in court on Monday. (Read: Jaya Jaitly kept out of Fernandes' home)
The court was hearing a petition filed by Fernandes' brothers, Richard and Michael, who want custody of their brother alleging that the former Union minister, who is suffering from Alzheimer's disease, is not being properly treated by his wife.
The court now wants to see for itself what George's condition is like.

The 80-year-old former Defence Minister is rarely seen outside. He lives with his wife, Leila Kabir, at a private house in South Delhi.
Fernandes brothers, supported by Jaya, have been locked with Kabir over George's property, which is believed to be more than 20 crores. (Watch: Fight over Fernandes' legacy)
"I am fighting for Fernandes' value system. I am fighting for the right to my own simple ordinary property, and I am fighting for justice for the sake of a man who has fought for it for everybody else all his life. I think they are undermining and humiliating Fernandes and that is what the shame is, and obviously the people who are doing this don't know what he stands for so, they don't deserve to be looking after him today," said former president of the Samata Party, Jaya Jaitly. (Read: I am fighting for George's values, says Jaya Jaitly)
"It's a not a question of money. I am a professional nurse and I want to ensure he is getting the best treatment," said Leila Kabir.
George's brothers also allege that Leila and her sons are not allowing them to meet him.
On Monday, the court will decide who gets custody of George, the man who once took crucial decisions for India, now has to depend on the court to decide for him.

Read more at: http://www.ndtv.com/article/india/feud-over-fernandes-court-steps-in-34967?cp