JUDGMENTS ON FAMILY COURT MATTERS Adoption … · JUDGMENTS ON FAMILY COURT MATTERS Adoption ... Narayan vs Baba sahib and ors, AIR 2016 SC 1666 Alimony ... Director General of Police

JUDGMENTS ON FAMILY COURT MATTERS

Adoption

Adoption – Hindu Adoptions and Maintenance Act, 1956, Section 16 – Presumption of

validity – Adoption deed signed by the natural father and mother of the child and by the

adopting father – It was approved by examining the scribe, the witnesses and the parents

giving in adoption and was duly registered – Mere fact that it does not bear the

endorsement of the natural father at the time of registration, does not raise any suspicion

as to its execution or as to its legality (Para 14) Karam Singh & Ors Vs Jagsir Singh &

Ors., 2015 (3) RCR (Civil) 45 (P&H)

Adoption – Hindu Adoptions and Maintenance Act, 1956, Section 16 –Presumption of

validity – An adoption deed comes into effect the moment it is signed or thumb marked

by the natural parent and the adopting parent – The only consequence of non registration

or a defective registration is that the presumption of truth, raised under Section 16 of the

Act shall not arise – Adoption deed shall have to be proved like any other ordinary fact or

document. Karam Singh & Ors Vs Jagsir Singh & Ors., 2015 (3) RCR (Civil) 45

(P&H)

Alienation of property by Guardian

Alienation of property by Guardian - Hindu Minority and Guardianship Act, 1956,

Sections 8(1) and 11 – Limitation Act, 1963, Article 60 – Suit by quondam minor to set

aside such alienation – Is governed by Article 60 - Articles 109, 110 or 113 of the

Limitation Act are not applicable – To impeach the transfer of immovable property by the

guardian, the minor must file suit within the prescribed limit of 3 years after attaining

majority. (Para 27) Narayan vs Baba sahib and ors, AIR 2016 SC 1666

Alimony

Alimony/Maintenance – Hindu Marriage Act, 1955, Section 25 – Expression ‘at the

time of passing any decree’ – Encompasses all kinds of decrees such as restitution of

conjugal rights under Section 9, judicial separation under Section 10, declaring marriage

as null and void under Section 11, annulment of marriage as voidable under Section 12

and divorce under Section 13. (Para 18) Rajinder Kaur Versus Kuldeep Singh, 2010

(1) RCR (Civil) 818 P&H.

Civil Procedure Code, 1908

Civil Procedure Code, 1908, Section 13 - Hindu Minority and Guardianship Act, 1956,

Section 6 – Custody of Child – Principle of Comity of Courts – Not appropriate that a

domestic Court having much less intimate contact with the child and having much less

close concern with a child and his or her parents (as against of a foreign Court in a given

case) should take upon itself the onerous task of determining the best interests and

welfare of the child - A foreign Court having the most intimate contact and closest

concern with the child would be better equipped and perhaps best suited to appreciate the

social and cultural values in which the child has been brought up rather than a domestic

Court. (Para 53) Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243

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Section 6 – Custody of Child – Principle of Comity of Courts – Is essentially a principle

of self restraint applicable when a foreign Court is seized of the issue of the custody of a

child prior to the domestic Court – There may be a situation where the foreign Court

though seized of the issue does not pass any effective or substantial order or directions –

In that event, if the domestic Court were to pass an effective or substantial order or

direction prior in point of time then the foreign Court also exercise self restraint and

respect the direction or order of the domestic Court (or vice versa the order, unless there

are very good reasons not to do so). (Para 50) Surya Vadnan Vs State of Tamil Nadu

& Ors, AIR 2015 SC 2243


Section 6 –- Custody of children – Both the parents and children citizens of U.K. – The

parents have been residents of U.K. for several years and worked for gain over there –

Also owning immovable property (jointly) in U.K. – Children born and brought up in

U.K. and elder daughter studying in a school in U.K. until she was brought to India –

Younger daughter also joined a school in U.K. – Mere fact the children were admitted to

school in India, with the consent of father is not conclusive of his consent to be

permanent or long term residents of the children in India – Directions issued to mother

for enabling her to present an effective case before the foreign Court (Paras 72 and 73).

Surya Vadnan Vs State of Tamil Nadu & Ors, AIR 2015 SC 2243

Civil Procedure Code, 1908, Order 22, Rules 3 and 4 – Hindu Marriage Act, 1955,

Sections 7, 11 and 13 – Divorce Proceedings – Wife challenged decree of nullity

declaring the marriage as void – Wife died during the pendency of appeal – Applicant is

the only child from the marriage in question – She wants to pursue the appeal – The

legal right of the applicant to inherit the ancestral property of her parents will be affected

– Her social status will also be at stake – Her matrimonial prospects may also be affected

– Applicant being the affected party from the impugned decree is entitled to pursue the

appeal filed by her mother. (Para 6) Balwinder Kaur Versus Gurmukh Singh, 2007(3)

RCR (Civil) 433 P&H

Constitution of India

Constitution of India, Article 136 – Hindu Marriage Act, 1955, Section 13 – Divorce –

Held that the orders of the Courts below has resulted in grave miscarriage of justice to the

wife who has been constrained into living with a dead relationship for over 13 year –

Resultantly agony and injustice caused to the wife – Fit case for interference under

Article 136 of the Constitution – Findings of the Courts below reversed. (Para 50) Vinita

Saxena Vs Pankaj Pandit, 2006(2) RCR(Civil) 302 (SC)

Constitution of India, Article 226 - Guardians and Wards Act, 1890, Sections 7, 9 and 12

– Custody of minor children – Habeas Corpus petition by father – Interest of the children

– Required full and thorough enquiry – In spite of the orders passed by the Court in USA,

it was not proper for the High Court who has allowed the Habeas Corpus writ petition

and directed the father to hand over the custody of the children to the mother and permit

him to take them away to USA – High Court should have directed the father to initiate

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appropriate proceedings in which said enquiry can be held. (Para 6). Sarita Sharma Vs

Sushil Sharma, 2000 (2) RCR (Civil) 367 (SC)

Criminal Procedure Code, 1973

Criminal Procedure Code, 1973, Section 125 - Family Courts Act 1984, Section 7 -

Applicability to Muslim Women – While relying upon the law laid down in the case of

‘Shamin Bano Vs. Asraf Khan’ , 2014 (2 RCR (Civil) 820), it was held that Section 125

Cr.P.C. has been rightly held to be applicable by the learned Family Judge. (Para 10)

Shamima Farooqui Vs Shahid Khan, 2015(5) SCC 705

Criminal Procedure Code, 1973, Section 125 – Hindu Adoptions and Maintenance Act,

1956 – Maintenance – Once the right under the provisions in Section 125 Cr.P.C. is

established by proof of necessary conditions mentioned therein, it cannot be defeated by

further reference to the personal law. (Para 14) Savitaben Somabhai Bhatiya Versus

State of Gujarat and Ors., 2005 (1) Apex Court Judgments (SC) 541


1956 – Scope – No inconsistency of Section 125 CrPC and the provisions of Hindu

Adoptions and Maintenance Act, 1956 – Scope of the two laws is different. (Para 9)

Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1) Apex

Court Judgments (SC) 541


1956 – Maintenance – Estoppel – Contention that the appellant was not informed about

the respondent’s earlier marriage when she married, repelled – Principle of estoppels can

not be present to the service to defeat the provision of Section 125 Cr.P.C. (Para 16)



Criminal Procedure Code, 1973, Section 125 – Hindu Marriage Act, 1955, Section 24 –

Maintenance – Upon request made by wife of appellant, Director General of Police

directed payment of 50% salary of appellant directly to his wife and two minor children –

Order upheld taking into account the totality of the circumstances – However, 50% of the

salary to be calculated after deducting the amount of Income Tax paid by the appellant.

(Paras 4 to 7) Vijay Kumar Vs State of Punjab & others, 2013(3) RCR (Civil) 323

(P&H)

Criminal Procedure Code, 1973, Section 125 – Maintenance – Enormous delay in

disposal of the proceeding u/s 125 Cr.P.C. – Most of the time the husband had taken

adjournments and some times the Court dealt with the matter showing total laxity – The

circumstances required grant of maintenance from the date of application. (Para 16)

Bhuwan Mohan Singh Vs Meena and others, AIR 2014 SC 2875

Criminal Procedure Code, 1973, Section 125 – Maintenance – For awarding maintenance

from the date of the application, express order is necessary – No special reasons,

however, are required to be recorded by the Court. – Judgment in ‘Shail Kumari Devi

and anr. Vs. Krishan Bhagwal Pathak alias Kishun B. Pathak’ 2008(3) RCR (Crl.) 842,

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relied upon. (Para 15) Bhuwan Mohan Singh Vs Meena and others, AIR 2014 SC

2875

Criminal Procedure Code, 1973, Section 125 – Maintenance – Quantum – Husband took

voluntary retirement – If 40% of the commutation is taken into account then the pension

of the husband amounts to ` 11,535/- - In addition to his pension, he had received

encashment of commutation to the extent of 40% i.e. ` 3,84,500/- and other retiral dues

to the tune of ` 16,01,455/- - Hence, solely because the husband has retired, there was no

justification to reduce the maintenance amount by 50% - Orders passed by the High

Court set aside – Orders of family Court restored . (Paras 19 and 20) Shamima Farooqui

Vs Shahid Khan, 2015(5) SCC 705

Criminal Procedure Code, 1973, Section 125 – Muslim Women (Protection of Rights on

Divorce) Act, 1986, Sections 3 – Muslim wife – Wife had already taken recourse to

Section 3 of the Act after divorce took place and obtained relief which has been upheld

by the High Court – During pendency of her application under Section 125 Cr.P.C.

divorce took place – Wife preferred an application under Section 3 of the Act over grant

of Mahr and return of articles – Magistrate provided for return of articles, payment of

quantum of Mahr and also granted maintenance of Iddat period - In effect, no

maintenance had been granted beyond the Iddat period – Her application under Section

125 CrPC was continuing - Held that even if an application under Section 3 of the Act

was filed, the parameters of Section 125 CrPC would have been made applicable. (Para

15) Shamim Bano Vs Asraf Khan, 2014(2) RCR (Civil) 820 (SC)

Criminal Procedure Code, 1973, Sections 125 and 127 – Maintenance – Enhancement –

Contention that no amendment made to the Claim petition seeking enhancement, repelled

– Section 127 Cr.P.C. permits increase in the quantum – Maintenance amount to the child

enhanced. (Para 22) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors.,

2005 (1) Apex Court Judgments (SC) 541

Criminal Procedure Code, 1973, Section 125 – Maintenance – Expression ‘Wife’ –

Refers to only legally married wife. (Para 7) Savitaben Somabhai Bhatiya Versus


Cruelty

Cruelty - Hindu Marriage Act, 1955, Section 13 – Wife having married during the

subsistence of her first marriage has caused cruelty to the first husband – Husband

entitled to decree of divorce under Section 13 of the Act (Para 20) Swaranjit Kaur

Versus Lt. Col. Avtar Singh & Ors, 2016(5) RCR(Civil) 163 P&H

Cruelty – Hindu Marriage Act, 1955, Section 13(1)(a) – Divorce –Wife leveling false

allegations against the husband regarding his illicit relations – Held that on the basis of

evidence on record, the Trial Court was perfectly justified in holding that the wife had

treated the petitioner with cruelty – Husband entitled to a decree of divorce on the ground

of cruelty besides the ground of desertion. (Para 7) Vijay Kumar Duggal Vs Kamlesh

Kumari, 2005(2) R.C.R.(Civil) 271 (P&H)

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Cruelty – Hindu Marriage Act, 1955, Section 13(1)(a) - Word ‘Cruelty’ has been used in

relation to human conduct or human behavior – It is a conduct in relation to or in respect

of matrimonial duties and obligations adversely affecting the other – Cruelty may be

mental or physical, intentional or unintentional. (Para 29). Vinita Saxena Vs Pankaj

Pandit, 2006(2) RCR(Civil) 302 (SC)

Custom

Custom – Hindu Marriage Act, 1955, Sections 5 and 11 – Void marriage – Custom to be

pleaded and proved – No evidence to prove existence of any such custom in the

community – Parties by which the divorce can be granted – Appellant failed to

substantiate his plea that his earlier marriage stood dissolved by legal means – Order of

Family Court allowing petition under Section 11 filed by the respondent wife – Upheld.

(Para 14) Kala Singh Versus Jaspreet Kaur , 2016(3) RCR (Civil) P&H

Custom – Plea of - To be pleaded and proved – In the absence thereof, no presumption

of custom can be drawn. Rajinder Kaur Versus Kuldeep Singh, 2010 (1) RCR

(Civil) 818 P&H.

Customary Divorce

Customary Divorce – Hindu Marriage Act, 1955, Sections 11 and 29 – Nullity of

marriage – Held that it stands established on the record that there is a custom amongst

Jat Sikhs of District Sangrur, permitting dissolution of marriage or divorce through

writing executed by the parties in this regard – As such the divorce would be recognized

in view of Section 29(2) of Hindu Marriage Act, 1955 and the law laid down by Hon’ble

Supreme Court and Delhi High Court – Trial Court rightly found that the marriage

between the parties could not be annulled under Section 11 of the Act, in as much as,

respondent had validly obtained a divorce from her previous husband at the time of her

marriage had taken place with the petitioner - Findings of the Trial Court affirmed, in

this regard. (Paras 18 and 19) Jasbir Singh Versus Inderjeet Kaur, 2003(3) RCR

(Civil) 503 P&H

Custody of Child

Custody of Child - Civil Procedure Code, 1908, Section 13 - Hindu Minority and

Guardianship Act, 1956, Section 6 – Principle of Comity of Courts – Not appropriate

that a domestic Court having much less intimate contact with the child and having much

less close concern with a child and his or her parents (as against of a foreign Court in a

given case) should take upon itself the onerous task of determining the best interests and





Custody of child – Guardians and Wards Act, 1890, Sections 7 and 17 – Hindu Marriage

Act, 1955, Sections 13B and 26 –Principles of law as laid down in ‘Rosy Jacob Vs.

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Jacob Achakramakka’, (1973) 1 SCC 840 are equally applicable in dealing with the

custody of a child under Section 26 of the Hindu Marriage Act. (Para 19) Vikram Vir

Vohra Vs Shalini Bhalla, AIR 2010 SC 1675

Custody of child – Guardians and Wards Act, 1890, Section 7 – Hindu Marriage Act,

1955, Sections 13B and 26 –Parties already obtained divorce on mutual consent – Issue

of custody of minor child – Respondent mother getting better job opportunity in Australia

– She cannot be asked to choose between her child and her career – Separating the child

from his mother will be disastrous to both – Orders passed by the High Court affirming

the order of the Trial Court in favour of the respondent-mother upheld. (Paras 23 to 25).

Vikram Vir Vohra Vs Shalini Bhalla, AIR 2010 SC 1675

Custody of child – Guardians and Wards Act, 1890, Section 25 – Hindu Minority and

Guardianship Act, 1956, Section 6 –Paramount consideration – Welfare of the child and

not rights of the parents. (Para 35) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4)

RCR (Civil) 928

Custody of children – Guardians and Wards Act, 1890, Section 7 – Hindu Marriage Act,

1955, Sections 13B and 26 – Parties already obtained divorce on mutual consent – Issue

as to whether the custody of child should be given to father or the mother or partially to

one and partially to other – Factors to be considered (a) Wishes of the child concerned,

and (b) to assess the psychological impact, if any, on the change in custody after

obtaining the opinion of a child’s Psychiatrist or a child welfare worker. (Para 4)

Mamata Alias Anju Vs. Ashok Jagannath Bharuka, 2005 (12) SCC 452

Custody of child – Guardians and Wards Act, 1890, Section 7 – Hindu Minority and

Guardianship Act, 1956, Section 6 –High Court directing handing over the custody of the

child to the Institution, where the child is admitted for education - Held that handing over

of custody to any Institution, while ignoring the claim of a parent, especially the mother

of the child, is not acceptable. (Para 3) Beata Agnieszka Sobieraj versus State of

Himachal Pradesh, 2016(4) RCR (Civil) 4

Custody of minor child – Guardians and Wards Act, 1890, Section 25 – Hindu Minority

and Guardianship Act, 1956, Section 6 –The Grandmother of the minor, who was given

the custody of the child by virtue of compromise has since expired - Paternal uncle and

paternal aunt have their separate family units to be taken care of by them – Nothing on

record to indicate that the mother had any interest adverse to that of the minor in the

given set of facts – Welfare of child lies with her. (Para 12). Bimla and others Vs

Anita, 2015(3) RCR (Civil) 153 (SC)

Custody of minor child – Guardians and Wards Act, 1890, Section 25 – Hindu Marriage

Act, 1955, Sections 13B and 26 –The word ‘welfare’ used in Section 13 of the Act has to

be construed liberally and must be taken in its widest sense – The moral and ethical

welfare of the child must also weigh with the Court as well as its physical well being –

Though the provisions of the special statutes which govern the rights of the parents or

guardians may be taken into consideration, there is nothing which stands in the way of

the Court exercising its parens patriae jurisdiction arising in such cases. (Para 43)

Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928

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Custody of minor child – Guardians and Wards Act, 1890, Sections 7, 12 and 25 - Hindu

Minority and Guardianship Act, 1956, Sections 6 and 13 – Fitness of father – It is not the

‘negative test’ that the father is not ’unfit’ or disqualified to have custody of his son/

daughter is relevant but the ‘positive test’ that such custody could be in the welfare of the

minor which is material – On that basis the Court could exercise the power to grant or

refuse custody of minor in favour of father, mother or any other guardian. (Para 62) Nil

Ratan Kundu and anr Vs Abhijit Kundu, 2008 (3) RCR (Civil) 936 (SC)

Custody of minor child – Hindu Marriage Act, 1955, Sections 13B and 26 – Guardians

and Wards Act, 1890, Section 25 – Child living since long with the father – Held that by

flouting various orders, even leaving the initiation of contempt proceedings, father has

managed to keep custody of child – He cannot be beneficiary of his own wrongs – Order

of the High Court granting custody of the child to the mother upheld with modification

regarding the aspect the visitation rights of the father. (Paras 44, 45 and 47) Gaurav

Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928

Custody of minor child – Hindu Marriage Act, 1955, Section 26 – Hindu Minority and

Guardianship Act, 1956, Section 6 - Guardians and Wards Act, 1890, Section 25 –

Family Courts Act, 1984, Section 10 – Civil Procedure Code, 1908, Order 7 Rule 11 -

Divorce by mutual consent – By way of judgment and decree of the Trial Court, the

custody of the minor was given to the father – Mother was given visitation rights only –

Mother filed petition for modifying the said judgment and decree to the extent that

exclusive custody of the minor be granted to her and the father be restrained from

forcibly taking away the minor from her custody and she be appointed as guardian for all

purposes – Held that this petition under Section 26 of the Act was maintainable – Order

of the Trial Court dismissing the application filed under Order 7 Rule 11 CPC read with

Section 10 of the Family Courts Act for rejection of the petition upheld. (Para 14)

Mayank bhargava vs Jyoti Bhargava, 2015(2) PLR 15

Custody of child – Hindu Minority and Guardianship Act, 1956, Section 13 – Child

removed by a parent from one country to another in contravention of the orders of the

Court where the parties had set up their matrimonial home – The Court in the country to

which the child has been removed must first consider the question whether the Court

could conduct an elaborate enquiry on the question of custody or by dealing with the

matter summarily order a parent to return custody of the child to the country from which

the child was removed. (Para 20). Dr. V.Ravi Chandran Vs Union of India & others,

2010 (1) SCC 174

Custody of Child - Hindu Minority and Guardianship Act, 1956, Section 6 – Civil

Procedure Code, 1908, Section 13 -– Principle of Comity of Courts – Is essentially a

principle of self restraint applicable when a foreign Court is seized of the issue of the

custody of a child prior to the domestic Court – There may be a situation where the

foreign Court though seized of the issue does not pass any effective or substantial order

or directions – In that event, if the domestic Court were to pass an effective or substantial

order or direction prior in point of time then the foreign Court also exercise self restraint

and respect the direction or order of the domestic Court (or vice versa the order, unless

there are very good reasons not to do so). (Para 50) Surya Vadnan Vs State of Tamil

Nadu & Ors, AIR 2015 SC 2243

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Custody of children - Hindu Minority and Guardianship Act, 1956, Section 6 – Civil

Procedure Code, 1908, Section 13 - Both the parents and children citizens of U.K. – The









Custody of Minor child – Hindu Minority and Guardianship Act, 1956, Sections 5, 6 and

8 – Guardians and Wards Act, 1890, Section 7 – Held that it is the desire, interest,

welfare of the minor which is crucial and ultimate consideration that must guide the

determination required to be made by the Court. (Para 14) Gaytri Bajaj Vs Jiten

Bhalla, 2012(4) RCR (Civil) 603 (SC)

Custody of Minor child – Hindu Minority and Guardianship Act, 1956, Sections 5, 6 and

8 – Guardians and Wards Act, 1890, Section 7 –Visitation Rights – The children, one of

whom is on the verge of attaining majority, do not want to go with their mother – Both

appear to be happy in the company of their father who also appears to be in a position to

look after them – Held that any visitation right to the mother would be adverse to the

interest of the children. (Para 15) Gaytri Bajaj Vs Jiten Bhalla, 2012(4) RCR (Civil)

603 (SC)

Custody of Minor child – Hindu Minority and Guardianship Act, 1956, Sections 6 and 12

–Held that appellant father (Member of Indian Administrative Service) with the help of

his father (Professor) will be able to take very good care of the children – Mother is not in

a position to look after the educational need of the elder son – It would be in the interest

of the children that they stay with the father – Visitation rights given to mother. (Paras 16

to 18) Shaleen Kabra Vs Shiwani Kabra, 2012 (2) RCR (Civil) 974 (SC)

Custody of minor child – Hindu Minority and Guardianship Act, 1956, Sections 6 and 13

– Guardians and Wards Act, 1890, Sections 7, 12 and 25 – Indian Penal Code, 1860,

Section 498A - Complaint against father alleging and attributing death of mother and a

case under Section 498A IPC – A relevant factor – Upon enquiry by the Supreme Court,

the minor unequivocally refused to go with his father or to stay with him – Stated that he

was very happy with his maternal grand-parents and would like to continue to stay with

them – Not proper to give custody of the minor to his father. (Paras 72, 83 and 84) Nil


Custody of minor child – Hindu Minority and Guardianship Act, 1956, Section 6 – Order

of High Court runs counter to the provisions contained in Section 6 as it incorrectly shifts

the burden on the mother to show her suitability for temporary custody of the minor child

– Order set aside. (Para 18) Roann Sharma Vs Arun Sharma, AIR 2015 SC 2232

Custody of minor child – Hindu Minority and Guardianship Act, 1956, Section 6 –

Visitation rights – Distinct from custody or interim custody orders – Essentially they

enable the parent who does not have interim custody to be able to meet the child without

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removing him/ her from the custody of other parent – If a child is allowed to spend

several hours, or even days away from the parent, who has been granted custody by the

Court, temporary custody of the child stands temporarily transferred. (Para 18) Roann

Sharma Vs Arun Sharma, AIR 2015 SC 2232


Minor an American citizen – Spent his initial years there – Parties obtained series of

consent orders concerning his custody/ parenting rights, maintenance etc. from competent

Court of jurisdiction in America – Merely because the child has been brought to India,

the custody issue concerning him does not deserve to be gone into by the Court in India –

It would be in accord with the principles of comity as well as on facts to return the child

back to USA and enable the parties to establish the case before the Courts in USA. (Para

21) Dr. V.Ravi Chandran Vs Union of India & others, 2010 (1) SCC 174


Earlier, husband, was directed to provide the initial expenses of wife and minor child for

travelling to and studying in UK for atleast a month to attend and contest the proceedings

initiated by the husband before the Court in UK – Further directions issued to the

husband regarding bearing of various expenses. (Para 9) Mrs.Shilpa Aggarwal Vs

Mr.Aviral Mittal & anr, 2010(3) RCR (Civil) 433 (SC)


Paramount Consideration – Welfare and custody of the child and not rights of the parents

under a statute – Each case has to be decided on its own facts and other decided cases can

hardly serve as binding precedents in so far as the factual aspects of the case are

concerned (Para 14). Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR

(Civil) 551(SC)


Nothing on record to suggest that the welfare of the child is in any way in peril in the

hands of the father – Minor has been living and studying in Allahabad in a good school –

Dislocation of minor, at this stage, from Allahabad would not only impede his schooling,

it may also cause emotional strain and depression on him – Interest and welfare will be

best served if he continues to be in the custody of the father. (Para 17) Mausami Moitra

Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil) 551 (SC)

Custody of minor children – Constitution of India, Article 226 - Guardians and Wards

Act, 1890, Sections 7, 9 and 12 –Habeas Corpus petition by father – Interest of the

children – Required full and thorough enquiry – In spite of the orders passed by the Court

in USA, it was not proper for the High Court who has allowed the Habeas Corpus writ

petition and directed the father to hand over the custody of the children to the mother and

permit him to take them away to USA – High Court should have directed the father to

initiate appropriate proceedings in which said enquiry can be held. (Para 6). Sarita

Sharma Vs Sushil Sharma, 2000 (2) RCR (Civil) 367 (SC)

Custody of minor children – Hindu Marriage Act, 1955, Section 26 –Minors are in the

care and custody of the mother – Receiving maintenance under Section 125 Cr.P.C. from

the father – Both the children are school going – Very difficult to dislocate them from the

place like Chandigarh, where the education facilities are comparatively better than

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Faridabad, and send them to the place of the father, where none is there to look after them

at his back – Moreover, due to long separation from their father, the children have lost

interest in him – Orders granting custody of the children to her mother upheld. (Paras 5 to

7) Rajan Jairath Vs Mrs.Monita Mehta, 2013 (1) RCR (Civil) 546 (P&H)

Custody of minor girl – Hindu Minority and Guardianship Act, 1956, Section 6 -

Guardians and Wards Act, 1890, Sections 7 and 25 – After having obtained the custody

of the minor child, the father does not appear to have neglected the minor or to look after

all her needs – The child appears to be happy in his company and is also doing

consistently well in school – Father appears to be financially stable and is also not

disqualified in any way from being the guardian of the minor child – The child also

expressed her preference to be with the father with whom she feels more comfortable –

Interest of the minor child will be best served, if she remains with the father. (Paras 27 to

29) Sheila B.Das Vs P.R.Sugasree, 2006 (1) RCR (Civil) 758 (SC)

Decree of Foreign Court

Decree of foreign Court – Hindu Minority and Guardianship Act, 1956, Section 6 –

Hindu Marriage Act, 1955, Section 13 – Conflict of laws – This theory prefers the

jurisdiction of the State which has the most intimate contact with the issues arising in the

case – No relief could be granted to the appellant given her conduct in removing the

minor child from USA in defiance of the Court of competent jurisdiction. (Para 21)

Arathi Bandi Vs Bandi Jagadrakshaka Rao, 2013 (3) RCR (Civil) 968 (SC)

Decree of foreign Court – Guardians and Wards Act, 1890, Section 9 – Jurisdiction –

Simply because the Foreign Court has taken a particular view on any aspect concerning

the welfare of the minor is not enough for the Courts in this country to shut out an

independent consideration of the matter. (Para 31) Ruchi Majoo Vs Sanjeev Majoo,

AIR 2011 SC 1952

Decree of nullity

Decree of nullity – Hindu Marriage Act, 1955, Sections 5, 11 and 12 –Using of the words

that the marriage was annulled by a decree of nullity ipso facto does not mean that the

marriage was annulled under Section 12 of the Act – Wrong mentioning of this Section in

the petition and the impugned order will not make any difference. (Para 4) Vinod Versus

Smt. Reetu, 2012(1) Law Herald 901

Disposal of property

Disposal of property – Hindu Marriage Act, 1955, Section 27 –Interim relief – Family

Court directed Court Receiver to take possession of the flat from husband and induct wife

in the flat during the pendency of the appeal – Held that the family Court, by way of

interim relief, has granted main relief itself – Not sustainable – Order set aside. (Paras 3

to 6) Mehul Mahendra Thakkar Vs Meena Mehul Thakkar, 2009 (14) SCC 48

Disposal of property – Hindu Marriage Act, 1955, Section 27 – The direction for disposal

by Matrimonial Court – Can be only in relation to the property which may belong jointly

to both the husband and wife – Exclusive property to one of the spouses cannot be a

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subject of direction under Section 27 of the Act. (Para 3) Anita Vs Rakesh, 2010(5)

Law Herald 3579

Divorce

Divorce – Constitution of India, Article 136 – Hindu Marriage Act, 1955, Section 13 –






Divorce – Hindu Marriage Act, 1955, Section 13(1)(a) – Cruelty – Wife leveling false






Divorce – Hindu Marriage Act, 1955, Section 11 and 13 (1)(vii) - Evidence Act 1872,

Section 108 –Person not heard alive for seven years – Just because a spouse was not

heard of for seven long years, the other spouse cannot contract second marriage – A party

taking such plea should first establish such a plea – It was established that the first

husband was very much alive when the wife contracted second marriage – Such a

marriage is taken illegal, null and void. (Paras 12 and 14) Swaranjit Kaur Versus Lt.

Col. Avtar Singh & Ors, 2016(5) RCR(Civil) 163 P&H

Divorce - Hindu Marriage Act, 1955, Section 13 –Mental Cruelty – Willful or intentional

denial of sexual relation by a spouse – Amounts to mental cruelty – Particularly when

parties are young and newly married – Can form basis for divorce. (Para 13) Sanjay

Kumar Vs Bhateri, (2013) 3 RCR (Civil) 223 (P&H)

Divorce Proceedings

Divorce Proceedings – Hindu Marriage Act, 1955, Sections 7, 11 and 13 – Civil

Procedure Code, 1908, Order 22, Rules 3 and 4 – Wife challenged decree of nullity

declaring the marriage as void – Wife died during the pendency of appeal – Applicant is

the only child from the marriage in question – She wants to pursue the appeal – The

legal right of the applicant to inherit the ancestral property of her parents will be affected

– Her social status will also be at stake – Her matrimonial prospects may also be affected

– Applicant being the affected party from the impugned decree is entitled to pursue the

appeal filed by her mother. (Para 6) Balwinder Kaur Versus Gurmukh Singh, 2007(3)

RCR (Civil) 433 P&H

Enhancement of maintenance

Enhancement of maintenance – Hindu Marriage Act, 1955, Section 26 – Change in

circumstances – Party can approach the Family Court again as an order under Section 26

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of the Act is never final – Decree passed thereunder is always subject to modification.

(Para 9) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC)

Estoppel

Estoppel – Criminal Procedure Code, 1973, Section 125 – Hindu Adoptions and

Maintenance Act, 1956 – Maintenance –Contention that the appellant was not informed

about the respondent’s earlier marriage when she married, repelled – Principle of

estoppels can not be present to the service to defeat the provision of Section 125 Cr.P.C.

(Para 16) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1)

Apex Court Judgments (SC) 541

Evidence Act 1872

Evidence Act 1872, Section 108 – Hindu Marriage Act, 1955, Section 11 and 13 (1)(vii) -

Divorce – Person not heard alive for seven years – Just because a spouse was not heard of

for seven long years, the other spouse cannot contract second marriage – A party taking

such plea should first establish such a plea – It was established that the first husband was

very much alive when the wife contracted second marriage – Such a marriage is taken

illegal, null and void. (Paras 12 and 14) Swaranjit Kaur Versus Lt. Col. Avtar Singh

& Ors, 2016(5) RCR(Civil) 163 P&H

Family Courts Act, 1984

Family Courts Act 1984, Section 7, Criminal Procedure Code, 1973, Section 125 –

Applicability to Muslim Women – While relying upon the law laid down in the case of

‘Shamin Bano Vs. Asraf Khan’ , 2014 (2 RCR (Civil) 820), it was held that Section 125

Cr.P.C. has been rightly held to be applicable by the learned Family Judge. (Para 10)

Shamima Farooqui Vs Shahid Khan, 2015(5) SCC 705

Family Courts Act, 1984, Sections 7 and 8 - Jurisdiction - In case, there is a dispute on

the matrimonial status of any person, a declaration in that regard has to be sought only

before the Family Court – It makes no difference as to whether it is an affirmative relief

or a negative relief – What is important is the declaration regarding the matrimonial

status. (Para 7) Balram Yadav vs Fulmaniya Yadav, AIR 2016 SC 2161

Family Courts Act, 1984, Section 10 – Hindu Marriage Act, 1955, Section 26 – Hindu

Minority and Guardianship Act, 1956, Section 6 - Guardians and Wards Act, 1890,

Section 25 – Civil Procedure Code, 1908, Order 7 Rule 11 - Custody of minor child –










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Family Courts Act, 1984, Section 20 – Overriding effect – The Act has an overriding

effect on other laws. (Para 7) Balram Yadav vs Fulmaniya Yadav, AIR 2016 SC

2161

Guardians and Wards Act, 1890

Guardians and Wards Act, 1890, Sections 7, 9 and 12 - Constitution of India, Article 226

-– Custody of minor children – Habeas Corpus petition by father – Interest of the

children – Required full and thorough enquiry – In spite of the orders passed by the Court

in USA, it was not proper for the High Court who has allowed the Habeas Corpus writ

petition and directed the father to hand over the custody of the children to the mother and

permit him to take them away to USA – High Court should have directed the father to

initiate appropriate proceedings in which said enquiry can be held. (Para 6). Sarita

Sharma Vs Sushil Sharma, 2000 (2) RCR (Civil) 367 (SC)

Guardians and Wards Act, 1890, Sections 7 and 17 - Custody of child – Custody orders –

Nature – Custody orders are always considered interlocutory orders – By the nature of

such proceedings custody orders cannot be made rigid and final – Capable of being

altered and moulded keeping in mind the needs of the child. (Para 16). Vikram Vir


Guardians and Wards Act, 1890, Sections 7 and 17 – Hindu Marriage Act, 1955, Sections

13B and 26 – Custody of child – Principles of law as laid down in ‘Rosy Jacob Vs. Jacob

Achakramakka’, (1973) 1 SCC 840 are equally applicable in dealing with the custody of

a child under Section 26 of the Hindu Marriage Act. (Para 19) Vikram Vir Vohra Vs

Shalini Bhalla, AIR 2010 SC 1675

Guardians and Wards Act, 1890, Section 7 – Hindu Marriage Act, 1955, Sections 13B

and 26 – Custody of child – Parties already obtained divorce on mutual consent – Issue of

custody of minor child – Respondent mother getting better job opportunity in Australia –

She cannot be asked to choose between her child and her career – Separating the child





and 26 – Custody of children – Parties already obtained divorce on mutual consent –

Issue as to whether the custody of child should be given to father or the mother or

partially to one and partially to other – Factors to be considered (a) Wishes of the child

concerned, and (b) to assess the psychological impact, if any, on the change in custody

after obtaining the opinion of a child’s Psychiatrist or a child welfare worker. (Para 4)



and 26 – Custody of minor child – Child living since long with the father – Held that by

flouting various orders, even leaving the initiation of contempt proceedings, father has

managed to keep custody of child – He cannot be beneficiary of his own wrongs – Order

of the High Court granting custody of the child to the mother upheld with modification

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regarding the aspect the visitation rights of the father. (Paras 44, 45 and 47) Gaurav

Nagpal Vs Sumedha Nagpal, 2008(4) RCR (Civil) 928

Guardians and Wards Act, 1890, Section 25 – Hindu Marriage Act, 1955, Section 26 –

Hindu Minority and Guardianship Act, 1956, Section 6 - Custody of minor child –

Divorce by mutual consent – Whether a separate petition under Section 26 of the Hindu

Marriage Act for variation of the order of the custody of child is maintainable or an

application in the earlier petition is required to be filed – Held that both the remedies are

available – It is only after having chosen one remedy that it is incumbent upon the party

to pursue the remedies thereunder in accordance with law. (Para 7) Mayank bhargava

vs Jyoti Bhargava, 2015(2) PLR 15

Guardians and Wards Act, 1890, Section 25 - Hindu Marriage Act, 1955, Section 26 –

Hindu Minority and Guardianship Act, 1956, Section 6 - Family Courts Act, 1984,











Guardians and Wards Act, 1890, Section 7 – Hindu Minority and Guardianship Act,

1956, Section 6 – Custody of child – High Court directing handing over the custody of

the child to the Institution, where the child is admitted for education - Held that handing

over of custody to any Institution, while ignoring the claim of a parent, especially the

mother of the child, is not acceptable. (Para 3) Beata Agnieszka Sobieraj versus State

of Himachal Pradesh, 2016(4) RCR (Civil) 4

Guardians and Wards Act, 1890, Sections 7, 15 and 19 – Hindu Minority and

Guardianship Act, 1956, Section 6(b) – Issuance of birth certificate – If a single parent /

unwed mother applies for the issuance of the birth certificate for a child born from her

womb, the Authorities concerned may only require her to furnish the affidavit to this

effect – Must thereupon issue the birth certificate, unless there is a Court direction to the

contrary – It is the responsibility of the State to ensure that no citizen suffers any

inconvenience or disadvantage, merely because the parents failed or neglect to register

the birth. (Para 19) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR

(Civil) 766 (SC)


Guardianship Act, 1956, Sections 6 and 13 – Indian Penal Code, 1860, Section 498A -

Custody of minor child – Complaint against father alleging and attributing death of

mother and a case under Section 498A IPC – A relevant factor – Upon enquiry by the

Supreme Court, the minor unequivocally refused to go with his father or to stay with him

– Stated that he was very happy with his maternal grand-parents and would like to

continue to stay with them – Not proper to give custody of the minor to his father. (Paras

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72, 83 and 84) Nil Ratan Kundu and anr Vs Abhijit Kundu, 2008 (3) RCR (Civil)

936 (SC)


1956, Section 6 – Custody of child – Paramount consideration – Welfare of the child and

not rights of the parents. (Para 35) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4)

RCR (Civil) 928


Guardianship Act, 1956, Section 6(b) – Whether it is imperative for an unwed mother to

specifically notify the putative father of the child, whom she has given birth to of her

petition for appointment as guardian of a child? – Held No - If a single parent / unwed

mother applies for the issuance of the birth certificate for a child born from her womb,

the Authorities concerned may only require her to furnish the affidavit to this effect –

Must thereupon issue the birth certificate, unless there is a Court direction to the contrary.

(Paras 1 and 19) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil)

766 (SC)

Guardians and Wards Act, 1890, Sections 7 and 25 – Hindu Minority and Guardianship

Act, 1956, Section 6 - Custody of minor girl – After having obtained the custody of the

minor child, the father does not appear to have neglected the minor or to look after all

her needs – The child appears to be happy in his company and is also doing consistently

well in school – Father appears to be financially stable and is also not disqualified in any

way from being the guardian of the minor child – The child also expressed her preference

to be with the father with whom she feels more comfortable – Interest of the minor child

will be best served, if she remains with the father. (Paras 27 to 29) Sheila B.Das Vs

P.R.Sugasree, 2006 (1) RCR (Civil) 758 (SC)


1956, Sections 5, 6 and 8 – Custody of Minor child – Held that it is the desire, interest,





1956, Sections 5, 6 and 8 – Guardians and Wards Act, 1890, Section 7 – Custody of

Minor child – Visitation Rights – The children, one of whom is on the verge of attaining

majority, do not want to go with their mother – Both appear to be happy in the company

of their father who also appears to be in a position to look after them – Held that any

visitation right to the mother would be adverse to the interest of the children. (Para 15)

Gaytri Bajaj Vs Jiten Bhalla, 2012(4) RCR (Civil) 603 (SC)

Guardians and Wards Act, 1890, Sections 7, 12 and 25 - Hindu Minority and

Guardianship Act, 1956, Sections 6 and 13 – Custody of minor child – Fitness of father –

It is not the ‘negative test’ that the father is not ’unfit’ or disqualified to have custody of

his son/ daughter is relevant but the ‘positive test’ that such custody could be in the

welfare of the minor which is material – On that basis the Court could exercise the power

to grant or refuse custody of minor in favour of father, mother or any other guardian.

(Para 62) Nil Ratan Kundu and anr Vs Abhijit Kundu, 2008 (3) RCR (Civil) 936

(SC)

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Guardianship Act, 1956, Section 6(b) – Guardianship Petition – Duty of the Court –

Parens patriae jurisdiction – Upon a guardianship petition being laid before the Court,

the concerned child ceases to be in the exclusive custody of the parents; thereafter, until

attainment of majority, the child continues in curial curatorship. (Para 20) ABC (Karuna

Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC)

Guardians and Wards Act, 1890, Section 9 – Jurisdiction – Solitary test – ‘Ordinary

Residence’ of the minor – Whether the minor is ordinarily residing at a given place is

primarily a question of intention which in turn is a question of fact – It may at best be

mixed question of law and fact, but unless jurisdictional facts are admitted it can never be

a pure question of law, capable of being answered without an enquiry into the factual

aspects of the controversy. (Para 14) Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC

1952

Guardians and Wards Act, 1890, Section 9 – Jurisdiction – Whether the High Court was

justified in dismissing the petition for custody of the minor on the ground that the Court

at Delhi had no jurisdiction to entertain the same – Held No – High Court was not right in

holding that the respondent’s version regarding the letter in question having been

obtained under threat and coercion was unacceptable – If the letter was under duress and

coercion, there was no reason why the respondent should not have repudiated the same

no sooner he landed in America and the alleged duress and coercion had ceased – Far

from doing so the respondent continued to support that decision even when he was far

away from any duress and coercion alleged by him till the time he suddenly changed his

mind and started accusing the appellant of abduction. (Para 30) Ruchi Majoo Vs

Sanjeev Majoo, AIR 2011 SC 1952

Guardians and Wards Act, 1890, Section 9 – Jurisdiction – Decree of foreign Court –




AIR 2011 SC 1952

Guardians and Wards Act, 1890, Section 9 – Jurisdiction – Principle of Comity of Courts

– Held that in the light of the circumstances of this case, repatriation of the minor to the

USA, principle of ‘comity of Courts’ does not appear to be an acceptable option worthy

of being exercised at the stage – Interest of the minor shall be better served if he

continued in the custody of his mother, especially when the respondent has contracted the

second marriage and do not appear to be keen for having actual custody of the minor.

(Para 45). Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC 1952

Custody of minor child – Guardians and Wards Act, 1890, Section 25 – Hindu Minority

and Guardianship Act, 1956, Section 6 –Merely because there is no defect in his personal

care and his attachment for his children - which every parent normally has, father would

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not be granted custody. (Para 40) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4) RCR

(Civil) 928


and 26 – Custody of minor child – The word ‘welfare’ used in Section 13 of the Act has

to be construed liberally and must be taken in its widest sense – The moral and ethical

welfare of the child must also weigh with the Court as well as its physical well being –

Though the provisions of the special statutes which govern the rights of the parents or

guardians may be taken into consideration, there is nothing which stands in the way of

the Court exercising its parens patriae jurisdiction arising in such cases. (Para 43)



1956, Section 6 – Custody of minor child – Merely because there is no defect in his

personal care and his attachment for his children - which every parent normally has,

father would not be granted custody. (Para 40) Gaurav Nagpal Vs Sumedha Nagpal,

2008(4) RCR (Civil) 928


1956, Section 6 – Custody of minor child – The Grandmother of the minor, who was

given the custody of the child by virtue of compromise has since expired - Paternal uncle

and paternal aunt have their separate family units to be taken care of by them – Nothing

on record to indicate that the mother had any interest adverse to that of the minor in the



Guardianship Petition

Guardianship Petition – Guardians and Wards Act, 1890, Sections 7, 15 and 19 – Hindu

Minority and Guardianship Act, 1956, Section 6(b) – Duty of the Court – Parens patriae

jurisdiction – Upon a guardianship petition being laid before the Court, the concerned

child ceases to be in the exclusive custody of the parents; thereafter, until attainment of

majority, the child continues in curial curatorship. (Para 20) ABC (Karuna Purti) Vs

State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC)

Hindu Adoptions and Maintenance Act, 1956

Hindu Adoptions and Maintenance Act, 1956 – Criminal Procedure Code, 1973, Section

125 – Maintenance – Estoppel – Contention that the appellant was not informed about the

respondent’s earlier marriage when she married, repelled – Principle of estoppels can not

be present to the service to defeat the provision of Section 125 Cr.P.C. (Para 16)




125 – Scope – No inconsistency of Section 125 CrPC and the provisions of Hindu

Adoptions and Maintenance Act, 1956 – Scope of the two laws is different. (Para 9)



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125 –Maintenance – Once the right under the provisions in Section 125 Cr.P.C. is




Hindu Adoptions and Maintenance Act, 1956 - Hindu Marriage Act, 1955 - Hindu

Minority and Guardianship Act, 1956 - Hindu Succession Act, 1956 – Interpretation of

statutes – All the Acts are to be read in conjunction with one another and interpreted

accordingly – Definition of a particular word could be lifted from any of the four Acts

constituting the law to interpret a certain provision, unless there is anything repugnant to

the context. (Para 10) Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590

(SC)

Hindu Adoptions and Maintenance Act, 1956, Section 16 – Adoption – Presumption of

validity – Adoption deed signed by the natural father and mother of the child and by the

adopting father – It was approved by examining the scribe, the witnesses and the parents

giving in adoption and was duly registered – Mere fact that it does not bear the

endorsement of the natural father at the time of registration, does not raise any suspicion

as to its execution or as to its legality (Para 14) Karam Singh & Ors Vs Jagsir Singh &

Ors., 2015 (3) RCR (Civil) 45 (P&H)

Hindu Adoptions and Maintenance Act, 1956, Section 16 – Adoption – Presumption of

validity – An adoption deed comes into effect the moment it is signed or thumb marked

by the natural parent and the adopting parent – The only consequence of non registration

or a defective registration is that the presumption of truth, raised under Section 16 of the

Act shall not arise – Adoption deed shall have to be proved like any other ordinary fact or

document. Karam Singh & Ors Vs Jagsir Singh & Ors., 2015 (3) RCR (Civil) 45

(P&H)

Hindu Adoptions and Maintenance Act, 1956 Sections 18 and 20 – Hindu Marriage Act,

1955, Section 26 –Maintenance for children – Both the parents are employed – if the

approximate salary of the husband is twice as much as that of the wife, they are bound to

contribute for maintenance of their child in that proportion. (Para 11) Padmja Sharma

Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC)

Hindu Marriage Act, 1955

Hindu Marriage Act, 1955 - Hindu Minority and Guardianship Act, 1956 - Hindu

Adoptions and Maintenance Act, 1956 - Hindu Succession Act, 1956 – Interpretation of





(SC)

Hindu Marriage Act, 1955, Sections 5, 11 and 12 – Decree of nullity – Using of the

words that the marriage was annulled by a decree of nullity ipso facto does not mean that

the marriage was annulled under Section 12 of the Act – Wrong mentioning of this

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Section in the petition and the impugned order will not make any difference. (Para 4)

Vinod Versus Smt. Reetu, 2012(1) Law Herald 901

Hindu Marriage Act, 1955, Sections 5(i), 11 and 12 – Nullity of marriage – A marriage

which was null and void from the very inception could not be held valid even if the

complaining spouse knew about the previous marriage of the other spouse. (Para 19)

Manpreet Kaur Versus Balkar Singh, 2015(5) RCR (Civil) 510 (P&H)

Hindu Marriage Act, 1955, Sections 5(i), 11 and 12 – Nullity of marriage – When the

appellant was married to the respondent, her first marriage was in subsistence and she

had a living spouse – Marriage between the parties in violation of Section 5 (i) of the Act

– Rightly declared null and void by the Trial Court. (Paras 21 and 22) Manpreet Kaur

Versus Balkar Singh, 2015(5) RCR (Civil) 510 (P&H)

Hindu Marriage Act, 1955, Sections 5, 11 and 12 – Void marriage – Wife sought

declaration to the effect that the marriage between her and appellant (husband) be

declared void by decree of nullity on the ground of being in contravention of clause (i) of

Section 5 of the Act – Held that such marriage can be declared void at any time – Merely

because while filing the petition the wife had mentioned that the petition was filed under

Section 12 or the learned Additional District Judge has ordered that the marriages

annulled under Section 12 will not mean that the marriage was declared void by decree of

nullity under Section 12. (Para 4) Vinod Versus Smt. Reetu, 2012(1) Law Herald 901.

Hindu Marriage Act, 1955, Sections 5 and 11 – Void marriage – Custom – To be






Hindu Marriage Act, 1955, Sections 7, 11 and 13 – Civil Procedure Code, 1908, Order

22, Rules 3 and 4 – Divorce Proceedings – Wife challenged decree of nullity declaring

the marriage as void – Wife died during the pendency of appeal – Applicant is the only

child from the marriage in question – She wants to pursue the appeal – The legal right of

the applicant to inherit the ancestral property of her parents will be affected – Her social

status will also be at stake – Her matrimonial prospects may also be affected – Applicant

being the affected party from the impugned decree is entitled to pursue the appeal filed

by her mother. (Para 6) Balwinder Kaur Versus Gurmukh Singh, 2007(3) RCR

(Civil) 433 P&H

Hindu Marriage Act, 1955, Sections 7, 11, and 13 – Nullity of marriage – Factum of

performance of essential ceremonies at the time of previous marriage not even pleaded

by the respondent – The witness who proved marriage certificate, has not stated anything

about performance of the marriage ceremonies at the time of the alleged previous

marriage – Held that respondent has failed to prove that prior to the marriage in question,

the appellant had performed valid marriage with another party and the said marriage was

subsisting at the time of marriage in question – Decree of nullity passed by the Trial

Court liable to be set aside. (Paras 11 and 13) Balwinder Kaur Versus Gurmukh

Singh, 2007(3) RCR (Civil) 433 P&H

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Hindu Marriage Act, 1955, Sections 9 and 24 – Maintenance – Grant of decree for

restitution of conjugal rights in favour of a husband – Cannot create a legal bar to claim

maintenance by a destitute wife. (Para 17) Sanjay Kumar Vs Bhateri, (2013) 3 RCR

(Civil) 223 (P&H)

Hindu Marriage Act, 1955, Section 11 – Nullity of marriage – Appellant wife earlier

married to someone else – Said marriage not shown to have been dissolved – Even if it is

assumed that her second husband was already married and, therefore, she was not

required to obtain divorce, she was ineligible to marry the respondent-husband –

Respondent-husband having married appellant wife without any misrepresentation or

fraud by her, filed a petition for annulling the marriage – It would amount to taking

advantage of his own wrong. (Paras 4 and 5) Sunita Versus Jugal Kishore, 2004(4)

RCR (Civil) 784 (P&H)

Hindu Marriage Act, 1955, Section 11 and 13 (1)(vii) - Evidence Act 1872, Section 108 –

Divorce – Person not heard alive for seven years – Just because a spouse was not heard of

for seven long years, the other spouse cannot contract second marriage – A party taking

such plea should first establish such a plea – It was established that the first husband was

very much alive when the wife contracted second marriage – Such a marriage is taken

illegal, null and void. (Paras 12 and 14) Swaranjit Kaur Versus Lt. Col. Avtar Singh

& Ors, 2016(5) RCR(Civil) 163 P&H

Hindu Marriage Act, 1955, Sections 11, 13 and 25 – Interim maintenance – Cannot be

declined at the interim stage by coming to the conclusion that marriage between the

parties is a nullity – That is the final relief claimed by respondent in the petition – Even

when the petition is decided finally, the Court can still grant permanent alimony. (Para 6)

Smt. Lata Versus Neeraj Pawar, 2009(1) RCR (Civil) 872 P&H

Hindu Marriage Act, 1955, Section 11 – Nullity of marriage – No evidence was led to

establish that there was any custom or usage prevalent in the community of the appellant

under which divorce through writing by Panchayatnama was permissible – Matrimonial

Court held that on the date of marriage, the appellant had not obtained divorce from her

previous husband from any competent Court having jurisdiction – Decree declaring the

second marriage null and void upheld. (Paras 10, 11 and 18) Rajinder Kaur Versus

Kuldeep Singh, 2010 (1) RCR (Civil) 818 P&H.

Hindu Marriage Act, 1955, Sections 11 and 23(1)(a) – Nullity of marriage – Remedy

under Section 11 of the Act is available to "any party" and not to the aggrieved party –

Cannot be said that the party who is performing second marriage and seeking declaration

of that marriage to be a nullity, is precluded from filing petition under Section 11 of the

Act – Provisions of Section 23(1)(a) would not debar such spouse from presenting a

petition under Section 11 of the Act seeking declaration that the second marriage is a

nullity and void. (Para 9) Kiran Kaur Versus Jagir Singh Bamrah, 2015(2) PLR 380

P&H

Hindu Marriage Act, 1955, Sections 11 and 29 – Nullity of marriage – Customary

Divorce – Held that it stands established on the record that there is a custom amongst Jat

Sikhs of District Sangrur, permitting dissolution of marriage or divorce through writing

https://indiankanoon.org/doc/1243269/

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executed by the parties in this regard – As such the divorce would be recognized in view

of Section 29(2) of Hindu Marriage Act, 1955 and the law laid down by Hon’ble






(Civil) 503 P&H

Hindu Marriage Act, 1955, Section 13 – Constitution of India, Article 136 – Divorce –






Hindu Marriage Act, 1955, Section 13 – Cruelty - Wife having married during the

subsistence of her first marriage has caused cruelty to the first husband – Husband

entitled to decree of divorce under Section 13 of the Act (Para 20) Swaranjit Kaur

Versus Lt. Col. Avtar Singh & Ors, 2016(5) RCR(Civil) 163 P&H

Hindu Marriage Act, 1955, Section 13 – Divorce - Mental Cruelty – Willful or intentional




Hindu Marriage Act, 1955, Section 13 – Hindu Minority and Guardianship Act, 1956,

Section 6 –Decree of Foreign Court – Conflict of laws – This theory prefers the





Hindu Marriage Act, 1955, Sections 13, 25 and 27 – Permanent Alimony – Husband

getting salary of `7500/- per month – Grant of maintenance amount of ` 2500/- per

month is reasonable and adequate – Wife already received a sum of ` 40,000/- as full and

final settlement – Therefore, not entitled to anything under Section 27 of the Act – In the

absence of any evidence to suggest regarding increase in salary, amount of permanent

alimony cannot be enhanced. (Paras 12 and 13) Smt Raj Bala Vs Krishan Avtar

Kaushik, 2012(8) RCR (Civil) 51 (P&H)

Hindu Marriage Act, 1955, Section 13(1)(a) – Cruelty – Word ‘Cruelty’ has been used in

relation to human conduct or human behavior – It is a conduct in relation to or in respect

of matrimonial duties and obligations adversely affecting the other – Cruelty may be

mental or physical, intentional or unintentional. (Para 29). Vinita Saxena Vs Pankaj

Pandit, 2006(2) RCR(Civil) 302 (SC)

Hindu Marriage Act, 1955, Section 13(1)(a) – Divorce – Cruelty – Wife leveling false



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Hindu Marriage Act, 1955, Section 13(1)(a) – Mental disorder – Trial Court directing

setting up of Medical Board to examine the husband – Husband refused to submit himself

for examination and to go before the Medical Board – Held that this would but confirm

the contention of the wife that the husband is suffering from Paranoid Schizophrenia and

the Court can draw adverse inference in the conduct of the husband (Para 44) Vinita


Hindu Marriage Act, 1955, Sections 13B and 26 – Guardians and Wards Act, 1890,

Sections 7 and 17 – Custody of child – Principles of law as laid down in ‘Rosy Jacob Vs.

Jacob Achakramakka’, (1973) 1 SCC 840 are equally applicable in dealing with the

custody of a child under Section 26 of the Hindu Marriage Act. (Para 19) Vikram Vir



Section 7 –Custody of child – Parties already obtained divorce on mutual consent – Issue

of custody of minor child – Respondent mother getting better job opportunity in Australia

– She cannot be asked to choose between her child and her career – Separating the child





Section 25 – Custody of minor child – The word ‘welfare’ used in Section 13 of the Act

has to be construed liberally and must be taken in its widest sense – The moral and

ethical welfare of the child must also weigh with the Court as well as its physical well

being – Though the provisions of the special statutes which govern the rights of the

parents or guardians may be taken into consideration, there is nothing which stands in the

way of the Court exercising its parens patriae jurisdiction arising in such cases. (Para 43)


Hindu Marriage Act, 1955, Sections 13B and 26 - Guardians and Wards Act, 1890,

Section 7 –– Custody of children – Parties already obtained divorce on mutual consent –

Issue as to whether the custody of child should be given to father or the mother or

partially to one and partially to other – Factors to be considered (a) Wishes of the child

concerned, and (b) to assess the psychological impact, if any, on the change in custody

after obtaining the opinion of a child’s Psychiatrist or a child welfare worker. (Para 4)


Hindu Marriage Act, 1955, Section 24 – Criminal Procedure Code, 1973, Section 125 –

Maintenance – Upon request made by wife of appellant, Director General of Police





(P&H)

-23-

Hindu Marriage Act, 1955, Section 25 – Alimony/ Maintenance – Expression ‘at the

time of passing any decree’ – Encompasses all kinds of decrees such as restitution of

conjugal rights under Section 9, judicial separation under Section 10, declaring marriage

as null and void under Section 11, annulment of marriage as voidable under Section 12

and divorce under Section 13. (Para 18) Rajinder Kaur Versus Kuldeep Singh, 2010

(1) RCR (Civil) 818 P&H.

Hindu Marriage Act, 1955, Section 26 – Custody of minor children – Minors are in the

care and custody of the mother – Receiving maintenance under Section 125 Cr.P.C. from

the father – Both the children are school going – Very difficult to dislocate them from the

place like Chandigarh, where the education facilities are comparatively better than

Faridabad, and send them to the place of the father, where none is there to look after them

at his back – Moreover, due to long separation from their father, the children have lost

interest in him – Orders granting custody of the children to her mother upheld. (Paras 5 to

7) Rajan Jairath Vs Mrs.Monita Mehta, 2013 (1) RCR (Civil) 546 (P&H)

Hindu Marriage Act, 1955, Section 26 – Enhancement of maintenance – Change in

circumstances – Party can approach the Family Court again as an order under Section 26

of the Act is never final – Decree passed thereunder is always subject to modification.



Section 6 - Guardians and Wards Act, 1890, Section 25 – Custody of minor child –








Section 6 - Guardians and Wards Act, 1890, Section 25 – Custody of minor child –








Section 6 - Guardians and Wards Act, 1890, Section 25 – Family Courts Act, 1984,








-24-




Hindu Marriage Act, 1955, Section 26 – Hindu Adoptions and Maintenance Act, 1956

Sections 18 and 20 – Maintenance for children – Both the parents are employed – if the




Hindu Marriage Act, 1955, Section 27 – Disposal of property – The direction for disposal

by Matrimonial Court – Can be only in relation to the property which may belong jointly

to both the husband and wife – Exclusive property to one of the spouses cannot be a

subject of direction under Section 27 of the Act. (Para 3) Anita Vs Rakesh, 2010(5)

Law Herald 3579

Hindu Marriage Act, 1955, Section 27 – Disposal of property – Interim relief – Family

Court directed Court Receiver to take possession of the flat from husband and induct wife

in the flat during the pendency of the appeal – Held that the family Court, by way of

interim relief, has granted main relief itself – Not sustainable – Order set aside. (Paras 3

to 6) Mehul Mahendra Thakkar Vs Meena Mehul Thakkar, 2009 (14) SCC 48

Hindu Minority and Guardianship Act, 1956

Hindu Minority and Guardianship Act, 1956 - Hindu Marriage Act, 1955 - Hindu

Adoptions and Maintenance Act, 1956 - Hindu Succession Act, 1956 – Interpretation of





(SC)

Hindu Minority and Guardianship Act, 1956, Sections 5, 6 and 8 – Custody of Minor

child – Visitation Rights – The children, one of whom is on the verge of attaining

majority, do not want to go with their mother – Both appear to be happy in the company

of their father who also appears to be in a position to look after them – Held that any

visitation right to the mother would be adverse to the interest of the children. (Para 15)

Gaytri Bajaj Vs Jiten Bhalla, 2012(4) RCR (Civil) 603 (SC)

Hindu Minority and Guardianship Act, 1956, Sections 5, 6 and 8 – Guardians and Wards

Act, 1890, Section 7 – Custody of Minor child – Held that it is the desire, interest,




Hindu Minority and Guardianship Act, 1956, Section 6 – Civil Procedure Code, 1908,

Section 13 - Custody of children – Both the parents and children citizens of U.K. – The


-25-









Section 13 - Custody of Child – Principle of Comity of Courts – Is essentially a principle

of self restraint applicable when a foreign Court is seized of the issue of the custody of a







& Ors, AIR 2015 SC 2243


Section 13 - Custody of Child – Principle of Comity of Courts – Not appropriate that a








Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of minor child –

Earlier, husband, was directed to provide the initial expenses of wife and minor child for

travelling to and studying in UK for atleast a month to attend and contest the proceedings

initiated by the husband before the Court in UK – Further directions issued to the

husband regarding bearing of various expenses. (Para 9) Mrs.Shilpa Aggarwal Vs

Mr.Aviral Mittal & anr, 2010(3) RCR (Civil) 433 (SC)

Hindu Minority and Guardianship Act, 1956, Sections 6 and 12 – Custody of Minor child

– Held that appellant father (Member of Indian Administrative Service) with the help of

his father (Professor) will be able to take very good care of the children – Mother is not in

a position to look after the educational need of the elder son – It would be in the interest

of the children that they stay with the father – Visitation rights given to mother. (Paras 16

to 18) Shaleen Kabra Vs Shiwani Kabra, 2012 (2) RCR (Civil) 974 (SC)

Hindu Minority and Guardianship Act, 1956, Sections 6 and 13 – Guardians and Wards

Act, 1890, Sections 7, 12 and 25 – Indian Penal Code, 1860, Section 498A - Custody of

minor child – Complaint against father alleging and attributing death of mother and a




-26-



Hindu Minority and Guardianship Act, 1956, Sections 6 and 13 – Guardians and Wards

Act, 1890, Sections 7, 12 and 25 – Custody of minor child – Fitness of father – It is not

the ‘negative test’ that the father is not ’unfit’ or disqualified to have custody of his son/

daughter is relevant but the ‘positive test’ that such custody could be in the welfare of the

minor which is material – On that basis the Court could exercise the power to grant or

refuse custody of minor in favour of father, mother or any other guardian. (Para 62) Nil


Hindu Minority and Guardianship Act, 1956, Section 6 - Guardians and Wards Act,

1890, Sections 7 and 25 – Custody of minor girl – After having obtained the custody of

the minor child, the father does not appear to have neglected the minor or to look after

all her needs – The child appears to be happy in his company and is also doing

consistently well in school – Father appears to be financially stable and is also not

disqualified in any way from being the guardian of the minor child – The child also

expressed her preference to be with the father with whom she feels more comfortable –

Interest of the minor child will be best served, if she remains with the father. (Paras 27 to

29) Sheila B.Das Vs P.R.Sugasree, 2006 (1) RCR (Civil) 758 (SC)

Hindu Minority and Guardianship Act, 1956, Section 6 – Guardians and Wards Act,

1890, Section 7 – Custody of child – High Court directing handing over the custody of

the child to the Institution, where the child is admitted for education - Held that handing

over of custody to any Institution, while ignoring the claim of a parent, especially the

mother of the child, is not acceptable. (Para 3) Beata Agnieszka Sobieraj versus State

of Himachal Pradesh, 2016(4) RCR (Civil) 4


1890, Section 25 – Custody of child – Paramount consideration – Welfare of the child

and not rights of the parents. (Para 35) Gaurav Nagpal Vs Sumedha Nagpal, 2008(4)

RCR (Civil) 928


1890, Section 25 – Custody of minor child – The Grandmother of the minor, who was

given the custody of the child by virtue of compromise has since expired - Paternal uncle

and paternal aunt have their separate family units to be taken care of by them – Nothing

on record to indicate that the mother had any interest adverse to that of the minor in the




1890, Section 25 –Custody of minor child – Merely because there is no defect in his

personal care and his attachment for his children - which every parent normally has,

father would not be granted custody. (Para 40) Gaurav Nagpal Vs Sumedha Nagpal,

2008(4) RCR (Civil) 928

-27-

Hindu Minority and Guardianship Act, 1956, Section 6 – Custody of minor child – Order

of High Court runs counter to the provisions contained in Section 6 as it incorrectly shifts

the burden on the mother to show her suitability for temporary custody of the minor child

– Order set aside. (Para 18) Roann Sharma Vs Arun Sharma, AIR 2015 SC 2232

Hindu Minority and Guardianship Act, 1956, Section 6 - Hindu Marriage Act, 1955,

Section 26 –Guardians and Wards Act, 1890, Section 25 – Custody of minor child –







Hindu Minority and Guardianship Act, 1956, Section 6 – Hindu Marriage Act, 1955,

Section 13 – Decree of Foreign Court – Conflict of laws – This theory prefers the





Hindu Minority and Guardianship Act, 1956, Section 6 - Hindu Marriage Act, 1955,

Section 26 –Guardians and Wards Act, 1890, Section 25 – Family Courts Act, 1984,











Hindu Minority and Guardianship Act, 1956, Section 6(b) – Guardians and Wards Act,

1890, Sections 7, 15 and 19 – Issuance of birth certificate – If a single parent / unwed



Must thereupon issue the birth certificate, unless there is a Court direction to the contrary

– It is the responsibility of the State to ensure that no citizen suffers any inconvenience or

disadvantage, merely because the parents failed or neglect to register the birth. (Para 19)

ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC)


1890, Sections 7, 15 and 19 – Guardianship Petition – Duty of the Court – Parens patriae

jurisdiction – Upon a guardianship petition being laid before the Court, the concerned

child ceases to be in the exclusive custody of the parents; thereafter, until attainment of

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majority, the child continues in curial curatorship. (Para 20) ABC (Karuna Purti) Vs

State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC)


1890, Sections 7, 15 and 19 – Whether it is imperative for an unwed mother to

specifically notify the putative father of the child, whom she has given birth to of her

petition for appointment as guardian of a child? – Held No - If a single parent / unwed



Must thereupon issue the birth certificate, unless there is a Court direction to the contrary.

(Paras 1 and 19) ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil)

766 (SC)


Visitation rights – Distinct from custody or interim custody orders – Essentially they

enable the parent who does not have interim custody to be able to meet the child without

removing him/ her from the custody of other parent – If a child is allowed to spend

several hours, or even days away from the parent, who has been granted custody by the

Court, temporary custody of the child stands temporarily transferred. (Para 18) Roann

Sharma Vs Arun Sharma, AIR 2015 SC 2232

Hindu Minority and Guardianship Act, 1956, Section 8 – Powers of Natural Guardian –

Death of father – Property shared amongst each member of the family – Recorded in

Mutation Register having 1/4th

share each – Provisions of sub Section (3) of Section 8

shall attract as the mother sold the property without previous permission of the Court –

Both the sale deeds shall become voidable at the instance of the minor. (Para 13) Saroj

Vs Sunder Singh and others, 2014(1) Apex Court Judgments (SC) 08

Hindu Minority and Guardianship Act, 1956, Sections 8(1) and 11 – Limitation Act,

1963, Article 60 – Alienation of property by Guardian – Suit by quondam minor to set

aside such alienation – Is governed by Article 60 - Articles 109, 110 or 113 of the

Limitation Act are not applicable – To impeach the transfer of immovable property by the

guardian, the minor must file suit within the prescribed limit of 3 years after attaining

majority. (Para 27) Narayan vs Baba sahib and ors, AIR 2016 SC 1666

Hindu Minority and Guardianship Act, 1956, Sections 8(1) and 11 – Limitation Act,

1963, Section 7, Article 60 – Disability of one of several persons - First plaintiff was 20

years old – Second defendant was still a minor – Plaintiffs 3, 4 and 5 (married daughters)

were aged 29, 27, 25 respectively, on the date of institution of suit – Plaintiffs 3 and 5

though majors as on the date of institution of suit will not fall under Explanation 2 of

Section 7 of the Limitation Act as they are not the Manager or Karta of the joint family –

The first plaintiff was 20 years old as on the date of institution of the suit – No evidence

forthcoming to arrive at a different conclusion with regard to age of the first plaintiff –

Suit is instituted well within three years of limitation from the date of attaining majority

as envisaged under Article 60 of the Act. (Para 32) Narayan vs Baba sahib and ors,

AIR 2016 SC 1666

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Hindu Minority and Guardianship Act, 1956, Section 13 – Welfare of child – Better

financial resources of either of the parents or their love for the child may be one of the

relevant considerations but cannot be the sole determining factor for the custody of the

child. (Para 14) Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil)

551 (SC)


Nothing on record to suggest that the welfare of the child is in any way in peril in the

hands of the father – Minor has been living and studying in Allahabad in a good school –

Dislocation of minor, at this stage, from Allahabad would not only impede his schooling,

it may also cause emotional strain and depression on him – Interest and welfare will be

best served if he continues to be in the custody of the father. (Para 17) Mausami Moitra

Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil) 551 (SC)

Hindu Minority and Guardianship Act, 1956, Section 13 – Custody of child – Child

removed by a parent from one country to another in contravention of the orders of the

Court where the parties had set up their matrimonial home – The Court in the country to

which the child has been removed must first consider the question whether the Court

could conduct an elaborate enquiry on the question of custody or by dealing with the

matter summarily order a parent to return custody of the child to the country from which

the child was removed. (Para 20). Dr. V.Ravi Chandran Vs Union of India & others,

2010 (1) SCC 174


Paramount Consideration – Welfare and custody of the child and not rights of the parents

under a statute – Each case has to be decided on its own facts and other decided cases can

hardly serve as binding precedents in so far as the factual aspects of the case are

concerned (Para 14). Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR

(Civil) 551(SC)


Minor an American citizen – Spent his initial years there – Parties obtained series of

consent orders concerning his custody/ parenting rights, maintenance etc. from competent

Court of jurisdiction in America – Merely because the child has been brought to India,

the custody issue concerning him does not deserve to be gone into by the Court in India –

It would be in accord with the principles of comity as well as on facts to return the child

back to USA and enable the parties to establish the case before the Courts in USA. (Para

21) Dr. V.Ravi Chandran Vs Union of India & others, 2010 (1) SCC 174

Hindu Succession Act, 1956

Hindu Succession Act, 1956 – Hindu Marriage Act, 1955 - Hindu Minority and

Guardianship Act, 1956 - Hindu Adoptions and Maintenance Act, 1956 Interpretation of





(SC)

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Interim maintenance

Interim maintenance – Hindu Marriage Act, 1955, Sections 11, 13 and 25 – Interim

maintenance cannot be declined at the interim stage by coming to the conclusion that

marriage between the parties is a nullity – That is the final relief claimed by respondent

in the petition – Even when the petition is decided finally, the Court can still grant

permanent alimony. (Para 6) Smt. Lata Versus Neeraj Pawar, 2009(1) RCR (Civil)

872 P&H

Indian Penal Code, 1860

Indian Penal Code, 1860, Section 498A - Hindu Minority and Guardianship Act, 1956,

Sections 6 and 13 – Guardians and Wards Act, 1890, Sections 7, 12 and 25 – Custody of

minor child – Complaint against father alleging and attributing death of mother and a






Interpretation of statute

Interpretation of statutes – Hindu Marriage Act, 1955 - Hindu Minority and Guardianship

Act, 1956 - Hindu Adoptions and Maintenance Act, 1956 - Hindu Succession Act, 1956 –

All the Acts are to be read in conjunction with one another and interpreted accordingly –

Definition of a particular word could be lifted from any of the four Acts constituting the

law to interpret a certain provision, unless there is anything repugnant to the context.


Interpretation of statute – Main principle – Inconvenience and hardship to a person will

not be decisive factor while interpreting the provision – When the provision makes it very

clear and unequivocally gives a meaning, it was to be interpreted in the same sense as the

maxim says ‘dulo lex sed lex’, which means the law is hard but it is a law and there

cannot be any departure from the words of the law. (Para 30) Narayan vs Baba sahib

and ors, AIR 2016 SC 1666

Issuance of birth certificate

Issuance of birth certificate – Guardians and Wards Act, 1890, Sections 7, 15 and 19 –

Hindu Minority and Guardianship Act, 1956, Section 6(b) – If a single parent / unwed



Must thereupon issue the birth certificate, unless there is a Court direction to the contrary

– It is the responsibility of the State to ensure that no citizen suffers any inconvenience or

disadvantage, merely because the parents failed or neglect to register the birth. (Para 19)

ABC (Karuna Purti) Vs State (NCT of Delhi), 2015(3) RCR (Civil) 766 (SC)

Jurisdiction

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Jurisdiction - Family Courts Act, 1984, Sections 7 and 8 - In case, there is a dispute on

the matrimonial status of any person, a declaration in that regard has to be sought only

before the Family Court – It makes no difference as to whether it is an affirmative relief

or a negative relief – What is important is the declaration regarding the matrimonial

status. (Para 7) Balram Yadav vs Fulmaniya Yadav, AIR 2016 SC 2161

Jurisdiction – Guardians and Wards Act, 1890, Section 9 –Decree of foreign Court –




AIR 2011 SC 1952

Jurisdiction – Guardians and Wards Act, 1890, Section 9 – Principle of Comity of Courts







Jurisdiction – Guardians and Wards Act, 1890, Section 9 - Solitary test – ‘Ordinary

Residence’ of the minor – Whether the minor is ordinarily residing at a given place is

primarily a question of intention which in turn is a question of fact – It may at best be

mixed question of law and fact, but unless jurisdictional facts are admitted it can never be

a pure question of law, capable of being answered without an enquiry into the factual

aspects of the controversy. (Para 14) Ruchi Majoo Vs Sanjeev Majoo, AIR 2011 SC

1952

Jurisdiction – Guardians and Wards Act, 1890, Section 9 – Whether the High Court was

justified in dismissing the petition for custody of the minor on the ground that the Court

at Delhi had no jurisdiction to entertain the same – Held No – High Court was not right in

holding that the respondent’s version regarding the letter in question having been

obtained under threat and coercion was unacceptable – If the letter was under duress and

coercion, there was no reason why the respondent should not have repudiated the same

no sooner he landed in America and the alleged duress and coercion had ceased – Far

from doing so the respondent continued to support that decision even when he was far

away from any duress and coercion alleged by him till the time he suddenly changed his

mind and started accusing the appellant of abduction. (Para 30) Ruchi Majoo Vs

Sanjeev Majoo, AIR 2011 SC 1952

Limitation Act, 1963

Limitation Act, 1963, Article 60 – Hindu Minority and Guardianship Act, 1956, Sections

8(1) and 11 – Alienation of property by Guardian – Suit by quondam minor to set aside

such alienation – Is governed by Article 60 - Articles 109, 110 or 113 of the Limitation

Act are not applicable – To impeach the transfer of immovable property by the guardian,

the minor must file suit within the prescribed limit of 3 years after attaining majority.

(Para 27) Narayan vs Baba sahib and ors, AIR 2016 SC 1666

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Limitation Act, 1963, Article 60 - Hindu Minority and Guardianship Act, 1956, Sections

8(1) and 11 – Alienation of property by Guardian – Suit by quondam minor to set aside

such alienation – Is governed by Article 60 - Articles 109, 110 or 113 of the Limitation

Act are not applicable – To impeach the transfer of immovable property by the guardian,

the minor must file suit within the prescribed limit of 3 years after attaining majority.

(Para 27) Narayan vs Baba sahib and ors, AIR 2016 SC 1666

Limitation Act, 1963, Section 7, Article 60 - Hindu Minority and Guardianship Act,

1956, Sections 8(1) and 11– Disability of one of several persons - First plaintiff was 20

years old – Second defendant was still a minor – Plaintiffs 3, 4 and 5 (married daughters)

were aged 29, 27, 25 respectively, on the date of institution of suit – Plaintiffs 3 and 5

though majors as on the date of institution of suit will not fall under Explanation 2 of

Section 7 of the Limitation Act as they are not the Manager or Karta of the joint family –

The first plaintiff was 20 years old as on the date of institution of the suit – No evidence

forthcoming to arrive at a different conclusion with regard to age of the first plaintiff –

Suit is instituted well within three years of limitation from the date of attaining majority

as envisaged under Article 60 of the Act. (Para 32) Narayan vs Baba sahib and ors,

AIR 2016 SC 1666

Limitation Act, 1963 – Nature – The Limitation Act neither confers a right nor an

obligation to file a suit, if no such right exists under the substantive law – Only provides

for a period of limitation for filing the suit. (Para 28) Narayan vs Baba sahib and ors,

AIR 2016 SC 1666

Maintenance

Maintenance - Criminal Procedure Code, 1973, Section 125 – Enormous delay in

disposal of the proceeding u/s 125 Cr.P.C. – Most of the time the husband had taken

adjournments and some times the Court dealt with the matter showing total laxity – The

circumstances required grant of maintenance from the date of application. (Para 16)

Bhuwan Mohan Singh Vs Meena and others, AIR 2014 SC 2875

Maintenance - Criminal Procedure Code, 1973, Section 125 – For awarding maintenance

from the date of the application, express order is necessary – No special reasons,

however, are required to be recorded by the Court. – Judgment in ‘Shail Kumari Devi

and anr. Vs. Krishan Bhagwal Pathak alias Kishun B. Pathak’ 2008(3) RCR (Crl.) 842,

relied upon. (Para 15) Bhuwan Mohan Singh Vs Meena and others, AIR 2014 SC

2875

Maintenance – Criminal Procedure Code, 1973, Section 125 – Expression ‘Wife’ –

Refers to only legally married wife. (Para 7) Savitaben Somabhai Bhatiya Versus


Maintenance – Criminal Procedure Code, 1973, Sections 125 and 127 –Enhancement –

Contention that no amendment made to the Claim petition seeking enhancement, repelled

– Section 127 Cr.P.C. permits increase in the quantum – Maintenance amount to the child

enhanced. (Para 22) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors.,

2005 (1) Apex Court Judgments (SC) 541

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Maintenance – Hindu Marriage Act, 1955, Sections 9 and 24 –Grant of decree for

restitution of conjugal rights in favour of a husband – Cannot create a legal bar to claim

maintenance by a destitute wife. (Para 17) Sanjay Kumar Vs Bhateri, (2013) 3 RCR

(Civil) 223 (P&H)

Maintenance – Criminal Procedure Code, 1973, Section 125 – Hindu Adoptions and

Maintenance Act, 1956 – Once the right under the provisions in Section 125 Cr.P.C. is




Maintenance – Criminal Procedure Code, 1973, Section 125 – Hindu Adoptions and

Maintenance Act, 1956 – Estoppel – Contention that the appellant was not informed

about the respondent’s earlier marriage when she married, repelled – Principle of

estoppels can not be present to the service to defeat the provision of Section 125 Cr.P.C.

(Para 16) Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 (1)

Apex Court Judgments (SC) 541

Maintenance – Hindu Marriage Act, 1955, Section 24 – Criminal Procedure Code, 1973,

Section 125 –Upon request made by wife of appellant, Director General of Police





(P&H)

Maintenance - Quantum - Criminal Procedure Code, 1973, Section 125 – Husband took

voluntary retirement – If 40% of the commutation is taken into account then the pension

of the husband amounts to ` 11,535/- - In addition to his pension, he had received

encashment of commutation to the extent of 40% i.e. ` 3,84,500/- and other retiral dues

to the tune of ` 16,01,455/- - Hence, solely because the husband has retired, there was no

justification to reduce the maintenance amount by 50% - Orders passed by the High

Court set aside – Orders of family Court restored . (Paras 19 and 20) Shamima Farooqui

Vs Shahid Khan, 2015(5) SCC 705

Maintenance for children – Hindu Marriage Act, 1955, Section 26 – Hindu Adoptions

and Maintenance Act, 1956 Sections 18 and 20 –Both the parents are employed – if the




Mental Cruelty

Mental Cruelty – Hindu Marriage Act, 1955, Section 13 – Divorce - Willful or intentional




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Mental Disorder

Mental disorder – Hindu Marriage Act, 1955, Section 13(1)(a) – Trial Court directing

setting up of Medical Board to examine the husband – Husband refused to submit himself

for examination and to go before the Medical Board – Held that this would but confirm

the contention of the wife that the husband is suffering from Paranoid Schizophrenia and

the Court can draw adverse inference in the conduct of the husband (Para 44) Vinita


Muslim wife

Muslim wife – Criminal Procedure Code, 1973, Section 125 – Muslim Women

(Protection of Rights on Divorce) Act, 1986, Sections 3 –Wife had already taken recourse

to Section 3 of the Act after divorce took place and obtained relief which has been upheld









Muslim Women (Protection of Rights on Divorce) Act, 1986

Muslim Women (Protection of Rights on Divorce) Act, 1986, Sections 3 – Criminal

Procedure Code, 1973, Section 125 –Muslim wife – Wife had already taken recourse to

Section 3 of the Act after divorce took place and obtained relief which has been upheld









Nullity of marriage

Nullity of marriage – Hindu Marriage Act, 1955, Sections 5(i), 11 and 12 –When the

appellant was married to the respondent, her first marriage was in subsistence and she

had a living spouse – Marriage between the parties in violation of Section 5 (i) of the Act

– Rightly declared null and void by the Trial Court. (Paras 21 and 22) Manpreet Kaur

Versus Balkar Singh, 2015(5) RCR (Civil) 510 (P&H)

Nullity of marriage – Hindu Marriage Act, 1955, Sections 5(i), 11 and 12 –A marriage

which was null and void from the very inception could not be held valid even if the

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complaining spouse knew about the previous marriage of the other spouse. (Para 19)

Manpreet Kaur Versus Balkar Singh, 2015(5) RCR (Civil) 510 (P&H)

Nullity of marriage – Hindu Marriage Act, 1955, Sections 7, 11, and 13 –Factum of

performance of essential ceremonies at the time of previous marriage not even pleaded

by the respondent – The witness who proved marriage certificate, has not stated anything

about performance of the marriage ceremonies at the time of the alleged previous

marriage – Held that respondent has failed to prove that prior to the marriage in question,

the appellant had performed valid marriage with another party and the said marriage was

subsisting at the time of marriage in question – Decree of nullity passed by the Trial

Court liable to be set aside. (Paras 11 and 13) Balwinder Kaur Versus Gurmukh

Singh, 2007(3) RCR (Civil) 433 P&H

Nullity of marriage – Hindu Marriage Act, 1955, Sections 11 and 29 –Customary

Divorce – Held that it stands established on the record that there is a custom amongst Jat

Sikhs of District Sangrur, permitting dissolution of marriage or divorce through writing

executed by the parties in this regard – As such the divorce would be recognized in view

of Section 29(2) of Hindu Marriage Act, 1955 and the law laid down by Hon’ble






(Civil) 503 P&H

Nullity of marriage – Hindu Marriage Act, 1955, Sections 11 and 23(1)(a) – Remedy

under Section 11 of the Act is available to "any party" and not to the aggrieved party –

Cannot be said that the party who is performing second marriage and seeking declaration

of that marriage to be a nullity, is precluded from filing petition under Section 11 of the

Act – Provisions of Section 23(1)(a) would not debar such spouse from presenting a

petition under Section 11 of the Act seeking declaration that the second marriage is a

nullity and void. (Para 9) Kiran Kaur Versus Jagir Singh Bamrah, 2015(2) PLR 380

P&H

Nullity of marriage – Hindu Marriage Act, 1955, Section 11 – Appellant wife earlier

married to someone else – Said marriage not shown to have been dissolved – Even if it is

assumed that her second husband was already married and, therefore, she was not

required to obtain divorce, she was ineligible to marry the respondent-husband –

Respondent-husband having married appellant wife without any misrepresentation or

fraud by her, filed a petition for annulling the marriage – It would amount to taking

advantage of his own wrong. (Paras 4 and 5) Sunita Versus Jugal Kishore, 2004(4)

RCR (Civil) 784 (P&H)

Nullity of marriage – Hindu Marriage Act, 1955, Section 11 – No evidence was led to

establish that there was any custom or usage prevalent in the community of the appellant

under which divorce through writing by Panchayatnama was permissible – Matrimonial

Court held that on the date of marriage, the appellant had not obtained divorce from her

previous husband from any competent Court having jurisdiction – Decree declaring the

https://indiankanoon.org/doc/1243269/

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second marriage null and void upheld. (Paras 10, 11 and 18) Rajinder Kaur Versus

Kuldeep Singh, 2010 (1) RCR (Civil) 818 P&H.

Permanent Alimony

Permanent Alimony – Hindu Marriage Act, 1955, Sections 13, 25 and 27 – Husband

getting salary of `7500/- per month – Grant of maintenance amount of ` 2500/- per

month is reasonable and adequate – Wife already received a sum of ` 40,000/- as full and

final settlement – Therefore, not entitled to anything under Section 27 of the Act – In the

absence of any evidence to suggest regarding increase in salary, amount of permanent

alimony cannot be enhanced. (Paras 12 and 13) Smt Raj Bala Vs Krishan Avtar

Kaushik, 2012(8) RCR (Civil) 51 (P&H)

Powers of Natural Guardian

Powers of Natural Guardian – Hindu Minority and Guardianship Act, 1956, Section 8 –

Death of father – Property shared amongst each member of the family – Recorded in

Mutation Register having 1/4th

share each – Provisions of sub Section (3) of Section 8

shall attract as the mother sold the property without previous permission of the Court –

Both the sale deeds shall become voidable at the instance of the minor. (Para 13) Saroj

Vs Sunder Singh and others, 2014(1) Apex Court Judgments (SC) 08

Principle of Comity of Courts

Principle of Comity of Courts - Civil Procedure Code, 1908, Section 13 - Hindu Minority

and Guardianship Act, 1956, Section 6 – Custody of Child - Not appropriate that a








Principle of Comity of Courts - Guardians and Wards Act, 1890, Section 9 – Jurisdiction







Principle of Comity of Courts – Hindu Minority and Guardianship Act, 1956, Section 6 –

Civil Procedure Code, 1908, Section 13 - Custody of Child –Is essentially a principle of

self restraint applicable when a foreign Court is seized of the issue of the custody of a





-37-



& Ors, AIR 2015 SC 2243

Void marriage

Void marriage – Hindu Marriage Act, 1955, Sections 5 and 11 – Custom – To be






Void marriage – Hindu Marriage Act, 1955, Sections 5, 11 and 12 –Wife sought

declaration to the effect that the marriage between her and appellant (husband) be

declared void by decree of nullity on the ground of being in contravention of clause (i) of

Section 5 of the Act – Held that such marriage can be declared void at any time – Merely

because while filing the petition the wife had mentioned that the petition was filed under

Section 12 or the learned Additional District Judge has ordered that the marriages

annulled under Section 12 will not mean that the marriage was declared void by decree of

nullity under Section 12. (Para 4) Vinod Versus Smt. Reetu, 2012(1) Law Herald 901.

Welfare of child

Welfare of child – Hindu Minority and Guardianship Act, 1956, Section 13 –Better

financial resources of either of the parents or their love for the child may be one of the

relevant considerations but cannot be the sole determining factor for the custody of the

child. (Para 14) Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil)

551 (SC)

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Documents

JUDGMENTS ON FAMILY COURT MATTERS Adoption … · JUDGMENTS ON FAMILY COURT MATTERS Adoption ... Narayan vs Baba sahib and ors, AIR 2016 SC 1666 Alimony ... Director General of Police