Archive for the ‘Family and Matrimonial’ Category.

Arneshkumar v/s State of Bihar and another

The Supreme Court in Arneshkumar v/s State of Bihar and another, observed that there is rampant misuse of the provisions of Sec. 498-A of IPC and Sec 3 & 4 of Dowry Prohibition Act. In order to bring the situation under control the Supreme Court has passed the following guidelines.
The Supreme Court, through this judgement ensures that -
i. The Police officers do not arrest accused unnecessarily and
ii. The Magistrate do not authorise detention casually and mechanically.
The State Governments are directed by this Judgement:
1. To instruct the Police officers not to automatically arrest when the case is registered under section 498-A of the IPC and Dowry Prohibition Act, until it satisfies the necessity for arrest under the parameters laid down in section 41 of CrPC.
2. The Police Officers to be provided with the check list containing specified sub-clauses under section 41(1)(b)(ii) of CrPC. The said check list shall be duly filled and the police officer shall furnish the reasons and materials which necessitated the arrest, while producing the accused before magistrate for further detention.
3. The Magistrate on inspecting the report furnished by the Police officer, only after recording its satisfaction, shall authorise the detention of the accused.
4. The decision not to arrest an accused is to be forwarded to the Magistrate within 2 weeks from the date of institution of case with a copy to Superintendent of Police which may be extended by the superintendent of Police for reasons to be recorded in writing.
5. Notice of appearance in terms of section 41 CrPC shall be served to accused within 2 weeks of institution of the case, which may be extended by the Superintendent of Police of District for the reasons to be recorded in writing.
6. Failure to comply with the directions given above, the police officer concerned shall be liable for departmental action and punished and , the contempt of court is to be instituted against them before the High Court having territorial jurisdiction.
7. Authorising detention without recording reasons as above said, by the Judicial Magistrate concerned, shall make the Magistrate liable for departmental action by the appropriate High Court.

The Hon’ble Supreme Court also clarifies that the directions aforesaid shall not only apply to the cases under sec. 498-A of the IPC or sec. 4 of the Dowry Prohibition Act, but also to such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
Authored by:
Shrinivasreddy Mudagannavar
Intern
Mento Associates

Children from live-in relationships

In a recent landmark judgment, the Supreme Court has held that children born out of live-in relationships shall be considered as legitimate off springs. Such kids will have all the rights of children born to legally wedded parents. These children will get the right to inherit the property left behind by their parents. The overall legal position regarding live-in relationships is still fluid in the absence of specific legislation in this regard. However, the Supreme Court through its various judgments have filled this lacuna to some extent.

ADOPTION UNDER JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,2000

The Supreme Court has ordered that any person, including members of minority communities like Christians and Muslims can adopt under the provisions of Juvenile Justice (Care and Protection of Children) Act, even though their personal laws do not permit it. Under the personal laws of Christians and Muslims, the adoption rights are limited. Those who adopt children are deemed only to be their guardian and not legal parents and the children cannot inherit property. The biological parents could also claim their rights over the child. Under the Juvenile Justice (Care and Protection of Children) Act, the adopted children have the same rights and responsibilities as biological children. A per the judgement of Supreme Court, a person has the choice to be governed by the secular law or the personal law. The court has further observed that the Juvenile Justice (Care and Protection of Children),2000 Act is a small step towards the idea of a uniform civil code.

ADOPTION OF INDIAN CHILDREN BY FOREIGNERS

Adoption, to put in simple terms, is a process whereby a person assumes the parenting of another. Unlike guardianship, where only the responsibility for care and protection are vested with the guardian, adoption implies that the adoptive child and adoptive parents shall have towards each other the relationship of parent-child will all rights and responsibility.
In India, the Central Adoption Resource Authority or CARA- an autonomous body under the Ministry of Women and Child Development acts as the Central Authority in matters concerning in-country and inter-country adoption. CARA is also designated as the Central Authority to deal with inter–country adoptions in accordance with the Hague Convention on Adoption 1993, which was ratified by India in 2003.
Accordingly guidelines for adoption of children have been framed and the procedure has been laid down. Parents of foreign origin desirous of adopting a child must obtain permission of the concerned authority in their home country for adopting a child from India and make an application through an Enlisted Foreign Adoption Agency (EFAA). The EFAA is an adoption agency in the home country of the parents, authorized by and enlisted with the CARA for the purpose of inter-country adoption. Upon receiving an application, the EFAA will prepare a Home Study Report (HSR) detailing marital status, stability of relationship, economic stability, standard of living and other criteria of the adoptive parents before forwarding it to the Recognized Indian Placement Agencies (RIPA), which are Child Welfare Organizations authorized by CARA for placement of Indian children in inter country adoption. The application must be accompanied by other documents mentioned in Annexure 2 of the guidelines.
Upon receiving such an application, the RIPA will make attempts to match a child who is legally free for inter country adoption. A child is legally free for inter country adoption, if within a period of 30 days, the Adoption Coordination Agency or ACA is unable to match such a child with suitable Indian parents and the ACA certifies the same. The RIPA will thereafter forward the application along with the clearance certificate from the ACA and other documents prescribed in Annexure 3 to the CARA for a No Objection Certificate (NOC).
On being satisfied of the application, CARA will issue an NOC within a period of 15 days to the RIPA. After receiving the NOC, the RIPA shall file a petition before the competent court for adoption. The court may thereafter place the child with the Foreign Prospective Adoptive Parents (FPAP). As per the directions of the Supreme Court, such a petition must be disposed off within a period of 2 months. Subsequently the RIPA shall apply to the regional passport authority for the issuance of an Indian Passport. The passport authority may issue the same within a period of 10 days after which Visa/ entry permits shall be obtained from the concerned embassy. The adoptive parents shall thereafter accompany the child to their home country.
Authored by
Naqsha H Biliangady
Advocate
Mento Associates

THE MARRIAGE LAWS (AMENDMENT) BILL, 2010

The Marriage Laws (Amendment) Bill 2010, proposes certain amendments to the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 with a view to make them more in conformity with the changing social conditions.

Following are the major amendments proposed for the Hindu Marriage Act, 1955:

-The waiting period of 6 months for a Section 13-B petition (mutual consent divorce petition) is proposed to be removed.

-New sections 13-C, D, E are proposed to be inserted making irretrievable breakdown of marriage as a ground for divorce. The parties should have lived apart for a minimum continuous period of 3 years before filing the petition, to avail this ground.

Following are the major amendments proposed to the Special Marriage Act, 1954:

-The waiting period of 6 months for a Section 28 petition (mutual consent divorce petition) is proposed to be removed.

-New Sections 28-A and 28-B are proposed to be inserted after Section 28, making irretrievable breakdown of marriage as a ground for divorce. The parties should have lived apart for a minimum continuous period of 3 years before filing the petition, to avail this ground.

IMPORTANT JUDGMENTS OF THE SUPREME COURT AND KARNATAKA HIGH COURT ON CHILD CUSTODY MATTERS

IMPORTANT JUDGMENTS OF THE SUPREME COURT AND KARNATAKA HIGH COURT ON CHILD CUSTODY MATTERS

Following are certain leading judgments of the Supreme Court of India and The High Court of Karnataka on matters relating to custody of a child.

1. Rosy Jacob v/s Jacob A Chakaramakkal (1973) 1 SCC 840

The Honourable Supreme Court of India held that children are neither mere chattels nor play things in the hands of the parents. In the modern changed social conditions, absolute right of parents over the destinies and lives of their children has yielded to the consideration of their welfare as human beings, so that they may grow up in a balanced manner to be useful members of society.

In matters of custody of children, factor that the father loves his children and is not otherwise undesirable cannot alone give him an edge over the mother who is equally affectionate towards her children. Courts have to distinguish between right of guardianship and right of custody.

2. Mausami Moitra Ganguly v/s Jayant Ganguly AIR 2001 SC 2179

The Honourable Supreme Court of India held that better financial resources of one parent, his or her love for the child may be one of the relevant considerations, but cannot be the sole determining factor for custody.

The Court further stated that stability and consistency in the affairs and routine of the children is also an important consideration.

In this case, custody was granted to the husband.

3. Nil Ratan Kundu and Anr v/s Abhijit Kundu 2008 AIR SCW 5769=(2008)9 SCC 413

The Supreme Court laid down that while dealing with custody, Courts are neither bound by statutes nor by strict rules of evidence and procedure nor by precedent. Paramount considerations are welfare and well being of the child. Strict parameters governing an interim injunction do not have full play in matters of custody.

4. Gaurav Nagpal v/s Sumetha Nagpal (2009) I SCC 42

In deciding matters of custody, the Supreme Court held that, Courts need to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts the moral and ethical values also have to be noted. The welfare and interest of the child is paramount in matters of custody. The principles of law in this regard are well settled. The welfare of the child is superior to the rights of the parent under a statute.

The Court has not only to look into the issue on legalistic basis, in such matters human angles are relevant for deciding the issues.

Though provisions of special statutes which favour the rights of parents/guardians maybe taken into consideration, Court has to exercise its ‘parens patriae’ jurisdiction.

The Supreme Court further recognised that principles of custody under Section 26 of the Hindu Marriage Act are not different to the principles of custody under the Guardians and Wards Act.

5. Athar Hussain v/s Syed Siraj Ahmed and Ors AIR 2010 SC 1417 (from Karnataka)

In matters of custody, welfare of the children is the sole and single yardstick, by which court shall assess the comparative merits of the parties contesting the custody.

The Court held that question of guardianship can be independent of and distinct from that of custody, in facts and circumstances of each case.

Second marriage of husband, is a factor to be taken into consideration while considering custody of child.

6. S. Anand v/s Smt. Lakshmi ILR 2012 Kar.2334

The Honourable High Court of Karnataka upheld the view of The Supreme Court that that the welfare interest of the child is paramount in matters of custody. The principles of law in this regard are well settled. The welfare of the child is superior to the rights of the parent under a statute.

The Court further held that the question of welfare needs to be considered in the background of relevant facts and circumstances. Each case has to be decided on its own facts. Better financial resources of one parent, his or her love for the child may be one of the relevant considerations, but cannot be the sole determining factor for custody.

Following the ruling of the Supreme Court, the High Court said that Courts need to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts the moral and ethical values also have to be noted.

In the given case, there was an allegation of immoral life by wife against the husband. The custody was granted to the wife.

Author: Naqsha Biliangady,Advocate, Mento Associates.

MUTUAL CONSENT DIVORCE

Section 13 B of Hindu Marriage Act, 1955 provides for the relief of divorce by mutual consent between a Hindu wife and husband. The conditions for filing of this petition are:

1) A Petition of this nature can be filed only after 1 year from the date of marriage.
2) Parties should have been living separately for a period of 1 year or more.

Once the Petition is filed, parties have to wait for 6 months before the court can take up further proceedings in the matter. The period of 6 months cannot be dispensed by the family court or High court. The same can be done only by the Supreme Court. Court needs to give the decision on the matter before 18 months from the date of filing of the petition.

The Petition for a mutual consent divorce needs to be filed before the jurisdictional family court where:
a. The parties got married or
b. The parties last resided together as husband and wife.
The presence of both parties will be required at the time of filing and some other important hearings.

The basic documents required for the process includes:
1) Marriage photo.
2) Marriage Invitation card.
3) Marriage Certificate.
4) Address Proof of parties.

On an average it will take about 6-8 months for the conclusion of the mutual consent divorce process.

THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937

1. As per this act, matters regarding intestate succession, special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, Gifts, Trust and Wakfs, where the parties are Muslims, shall be decided on Muslim Personal Law ( Shariat)

2. A Muslim may by making declaration according to the sec.3 of the act, can bring in matters of adoption, wills and legacies under the purview of Shariat, binding himself, his minor children and their descendants.

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT 1986

1. This Act protects the rights of Muslim Women who have been divorced by their husbands or who have obtained the divorce from their husbands.

2. A divorced Muslim women is entitled to reasonable and fair provision and maintenance within Iddat period from her former husband. Similarly the divorced Muslim woman is entitled to all the properties given to her before or at the time of marriage or after her marriage by her relatives, friends, husband, relatives of husband and friends of the husband.

3. A Divorced Muslim Women is also entitled to an amount equal to the sum of dower agreed to be paid to her at the time of her marriage or at any time there after.

4. If a divorced Muslim Women herself maintains the children born to her before or after her divorce, the husband shall make her a reasonable and fair provision and pay her maintenance for 2 years from the date of birth of children.

5. If the husband fails to discharge his duties under this act, the wife is entitled to make an application to jurisdictional magistrate for suitable orders. If a husband fails to comply with the order of the magistrate, the magistrate is empowered to sentence such person to an imprisonment for a term which may extend to 1 year.

6. A magistrate can also pass necessary orders of maintenance, against the relatives of divorced Muslim Women who has not remarried and who is not able to look after herself. The relatives may include children, parents etc. If a divorced woman has no relatives the magistrate can order the state Wakf board to pay such maintenance.

In Daniel Latif –vs- Union of India, AIR 2001 SC 3958 the Supreme Court held that the husband is duty bound to give maintenance to the divorced wife and she is entitled for lifelong post divorce maintenance within iddat period

LEGAL EFFECTS OF MUSLIM DIVORCE

1. If the marriage was consummated, the wife may marry another husband after the completion of iddat. If the marriage was not consummated she can marry immediately. If the marriage was consummated and if the husband had up to 4 wives at the time of divorce (including the divorced wife) he may marry another wife after the completion of iddat of the divorced wife.

2. If the marriage was consummated the wife is entitled to immediate payment of the whole of the unpaid Dower. If the marriage was not consummated and the amount of Dower is specified then she is entitled to half of the amount. If the marriage was consummated and no amount is specified she is only entitled to 3 articles of dress. If marriage is dissolved upon the apostasy of the wife she is entitled to the whole of dower if consummation has taken place.

3. When the divorce becomes irrevocable, mutual rights of the inheritance comes to an end. If the divorce was pronounced during the death illness, the wife’s right to inheritance continues to the expiry of her iddat.

4. After the divorce has become irrevocable, if the divorced couple engages in sexual intercourse the same is unlawful. Children as a result of such intercourse are illegitimate.

5. The parties are generally permitted to remarry after the divorce.