Friday, September 29, 2017

Welfare of the Minor is the paramount consideration of Child Custody

The minors should not be treated as “Chattel” for claiming custody.
In the present matter, the six-year Jhanvi was staying with her father. Jhanvi’s mother deserted her husband and her young daughter on 23rd March 2012. At that time, Jhanvi was only 2- year old. Subsequently, Jhanvi’s father filed for a divorce and sought permanent custody of their daughter.
During the pendency of this above petition, Jhanvi was allowed to meet her mother twice a week and during summer and winter vacations.
Petitioner claims that her daughter was physically abused by her mother on multiple occasions. Also, her medical reports confirm that she suffered “multiple bruises, apart from tenderness over her arms, roots of nose and back” after meeting her mother on January, 28.
Again, she suffered similar injuries on February 18. Later she informed her father that she does not intend to meet her mother as she use to hit and pinch her.
The petitioner pleads that since his daughter has been physically tortured and traumatized by her mother, she should not be allowed to meet her mother. At the same time, he also requested the court to get his daughter evaluated by a child psychologist.  
Subsequent to the request of the petitioner, the family court appointed Dr. Harish Shetty who is a  psychiatrist as Jhanvi’s psychologist. However, the petitioner vehemently objected to this as Dr. Harish was a psychiatrist and not psychologist.
Jhanvi's mother blatantly denied all the allegations and stated that Jhanvi was not with her when such incidents are claimed to have occurred.
The Bombay High Court observed that this was a clear case of child abuse and “It is well settled that welfare of minor is paramount consideration for deciding even a temporary custody of a minor. Minors cannot be treated as chattel for claiming custody.”
Considering Jhanvi’s apprehension and looking into her safety and well-being, the court has stayed the order passed by Family Court which permitted her mother to meet her.
Article by Advocate K.P.Satish Kumar M.L. leading child custody advocate in Chennai
for legal queries contact Daniel & Daniel @ 9884883318


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One Night Stand cannot be considered as Marriage under Hindu Law

The physical relationship between a man and woman by choice or by chance or by accident cannot be termed as “marriage” under Hindu Laws.
It was also held by this Court that a baby born out of this relationship will have no rights over the father’s property if no marriage can be proved in the court.

Justice Mridula Bhatkar said that “Broadly either customary solemnisation of marriage is required or performance of legal formality is a condition precedent to label that matter relationship as a marriage. Any sexual intercourse that took place by choice or chance or by accident is not considered as marriage.”
The court does take a note of that our society is going through a sea change as to how marriage is seen in today’s scenario and as defined under Section 16 of the Hindu Marriage Act. It held that “In some countries, homosexual unions are  accepted as marriages, so also live-in relationships and children born within such relationships have posed as complicated issues and a challenge to legal thinkers to define the term of marriage, whether in wider or narrow meaning.”


The rights of a child are determined only on the basis of the institution of marriage even though it has been subsequently held void. In a leading case, the man had married twice. As per Hindu Laws, his second marriage was void as he has not divorced the first one. Though in the instant case the second marriage was considered void but the daughter from his second wife had legitimate rights in the share of his property. 
Article by Advocate K.P.Satish Kumar M.L. leading divorce lawyer in Chennai
for free legal queries call Daniel & Daniel @ 9884883318.


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Biological father taking away of child does not amount to Kidnapping

The biological father cannot be charged for kidnapping his own child.
In the instant matter, the court was hearing a petition filed by Mumbai’s businessman, Sajid Shah for challenging his extradition request from the Netherlands to India. His estranged wife Nazneen has filed a complaint against him for abducting their 2-year-old daughter from Amsterdam. After kidnapping the daughter he brought her back to India in September 2016. She has accused Sajid Shah of “violently kidnapping their daughter” from her house and also launched an online campaign for the child’s return. Subsequently,  an Interpol notice was issued for Sajid’s arrest. Following the Interpol notice, the Netherlands government approached the Indian authorities.
Nazneen and Sajid married in 2011 and got separated in 2016.  After the couple separated, a Dutch court awarded Nazneen their daughter’s custody in 2016. Meanwhile, Sajid filed a divorce and custody petition before Bandra family court. Sajid claimed he was trying to protect his daughter from his “abusive wife”.


The MEA, in it’s May 5, 2017, letter, rejected the extradition request. The center in its affidavit submitted “Since the taking away of a child by her biological father does not amount to kidnapping, it is not an extraditable offence.”  MEA has rejected the extradition request while stating that Sajid shall not be arrested and no corrective steps will be taken against him and his daughter.
Article by Advocate K.P.Satish Kumar M.L. leading Child Custody Advocate
for free legal queries call Daniel & Daniel @ 9884883318.


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No relief of restitution of conjugal rights to husband who remarried during pendency of the suit

Right to conjugal rights or right to stay together can be enforced against the husband or the wife who is living away from the spouse without any good reason. One can file a suit for restitution of conjugal rights and if the suit is successful then the married couple will be required to stay together.  
In the instant matter, the marriage was solemnized between the parties on 20.09.1981 and subsequently, the appellant-wife has left the matrimonial home without any justifiable cause and hence the husband filed a suit for restitution of conjugal rights.
The High Court of Madras refused to grant the relief of restitution of conjugal rights to a man who had remarried during the pendency of the suit.
When the husband filed the petition before the trial court of Tirunelveli, the court granted the relief of restitution of conjugal rights ignoring the fact of a second marriage by the husband and observed that being a Muslim, the husband was permitted to contract more than one marriage.
However, the Madras High Court, accepted the arguments presented by the wife and observed, “When the husband proceeds against for wife for restitution conjugal rights and also contracted second marriage during the pendency of the suit for restitution of conjugal rights and also contracted second marriage during the pendency of the suit for restitution of conjugal rights and in the instant case, the wife also complained of physical cruelty to extract money, after 18 years of matrimonial life. Then the burden proof is on the plaintiff husband who takes a second wife to explain his action to prove that, his taking of a second wife involves no cruelty to the first wife, by adducing necessary evidence to that effect.”


After considering the evidence the Court ruled in the favor of the wife and Justice RMT Teeka Raman observed  “In the circumstances, it could not be unreasonable to hold that after the plaintiff-husband contracted a second marriage, the appellant wife is reasonable and justifiable in staying away from her husband. This Court while bearing in mind, the right of Muslim husband as to contract of marriage more than once, however, it has to be borne in mind that the decision in a suit for restitution of conjugal rights does not entirely depend upon the right of the Muslim husband. The Court should also consider whether it make it inequitable for it to compel the wife to live with her husband. Our notions of law in that regard have to be held in such a way so as to bring them in conformity with modern social condition”.
Article by Advocate K.P.Satish Kumar M.L. leading family court advocate in Chennai
for free legal queries call Daniel & Daniel @ 9884883318


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Husband is obligated to maintain minor child even if wife leaves him

 The father cannot run away from the responsibility nor can he be allowed to skip his obligations to maintain his son or daughter and father is duty-bound to provide all facilities, including better facilities for education and health for his minor child.

Applicant’s advocate argued that it was his client’s wife who had voluntarily withdrawn from the company of her husband and hence was not entitled to maintenance


Also, his client has filed a petition filed under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights which was allowed by a Bhopal Court on January 16, 2016.

The Court held that it is the duty of every father duty to maintain his minor child, the court said: “In the present case, it is established on record that from 12.6.2012 present applicant, who is a father of minor son Aryan, has not shouldered his responsibility to provide even the basic amenities to his son. It is not the case of applicant/father that he has provided any financial aid to his wife in order to show that he has shouldered his responsibility as a father. In that view of the matter, the present applicant cannot agitate the issue before this Court on the ground that his wife has withdrawn her company from his society. The wife may withdraw the company, but that does not absolve the responsibility of the father to provide maintenance to his son or daughter.”

In the instant matter court passed an order of maintenance of INR 7,000 per month and an additional cost of INR 25,000 was imposed.
Article by Advocate K.P.Satish Kumar M.L. Top child custody lawyer in Chennai
for free legal queries call Daniel & Daniel @ 9884883318


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Divorce decree by Singapore court does not negate Domestic Violence Case

The couple has taken divorce by a Singapore sharia court on a plea filed by the husband, the domestic violence case filed by the wife in India was still maintainable.
The husband who was based in Singapore was directed to pay INR 2.40 lakhs monthly maintenance to his minor son and divorced wife.
In the opinion of the court, the husband cannot shy away from his obligations to maintain his estranged wife and their minor children, if she was not in a position to maintain herself and the children when the husband was “gainfully employed”. Deciding in the favour of the children, the court observed, “No order in relation to the maintenance of the minor children has been passed by the Singapore court and it is the obligation of the husband to maintain them as a complainant is currently unemployed.”
The wife has filed a complaint through her counsel Prabhjit Jauhar alleging that she was subjected to domestic violence while she was residing with her husband. She alleged that she was forced to leave Singapore on August 28, 2013 after which she filed the present case on May 27, 2014.
Jauhar argued that court cannot escape “punishment” for domestic violence meted out to the wife just because divorce is granted. Hence, the wife and the children were entitled to compensation under Domestic Violence Act.

The husband claimed that the petition filed by the wife in an Indian court is infructuous and the Singaporean courts were competent to adjudicate the dispute.  
Metropolitan Magistrate Preeti Parewa refused to grant any interim maintenance sought by the wife noting that the alimony granted by the Singapore Court was sufficient to maintain her case.
The Court held that even when the divorce is granted, claim under domestic violence act is maintainable.
Article by Mr.K.P.Satish Kumar M.L. leading Domestic violence lawyer in Chennai
For free legal queries call Daniel & Daniel @ 9884883318

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Living with another woman and not maintaining wife amounts to Domestic Violence

The omission of the husband is neglecting to maintain the wife and living with another woman amounts to “economic” and “emotional” abuse and wife is entitled to protection under Domestic Violence Act.
In the present matter, the wife has filed a petition for maintenance after three decades. Considering this the husband contended that his wife had no grievance from past 30 years about his second marriage and hence her claim is barred by limitation.
The court observed, the question of limitation raised by the husband cannot be accepted mechanically only on the point that the petition for maintenance was filed after three decades.
Justice Rathnakala said, “the obligation of the husband continues throughout the marriage and the husband cannot get away with the excuse that for many years the wife did not make any request for maintenance.”
The court explained that “Domestic violence” as defined under Section 3 of the Act among others take into fold “economic abuse” as well. The omission of the husband to maintain the wife during the matrimonial life comes within the ambit of Section 3 of the Act. The very fact that he has led life with another woman and begot children from her amounts to “emotional abuse” as contemplated under the Act.
This affects the physical and the mental well being of the aggrieved person and this can be termed as domestic violence under the Act.
In this case, the court held that the husband is guilty of domestic violence and the wife is entitled to protection under Domestic Violence Act. The limitation cannot be a ground for the husband to escape limitation.
Author Mr.K.P.Satish Kumar M.L. is the leading Domestic violence Advocate in Chennai
for Free legal queries call Daniel & Daniel @ 9884883318

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