Daily Archives: April 4, 2017

“Child Custody – Mother or father “

1994 (3) SCC J-42

  1. Custody of child after break-up of marriage — More often custody is given to the mother when the child is below 7 years — Modern tendency — Judges show understanding and compassion and moved away from earlier pattern of judgments — Reference made to a few Indian decisions wherein custody was given to the father even when the child was below 7 years — Welfare of the minor is the paramount consideration — A note on a movie in connection with the discussion — Conclusion — Whether the custody of a minor child is to be with the father or mother is a question of fact — Approach of the Indian courts to be welcomed.

  2. When marriages break up, bitter and prolonged battles often follow over the custody of minor children.

  3. More often than not, the custody of minor children particularly of children under 7, is given to the mother. Questions such as whether she is psychologically fit to rear the child or whether the psychological growth of the child will be better if the custody is given to the father, raise relevant factors to which more judicial attention could be usefully given.

  4. The modern tendency in child custody cases is to avoid any decisions based on any a priori assumption that for the welfare of the child the custody should be given to the mother. Increasingly judges show understanding and compassion in their decisions and have moved away from the earlier pattern of judgments which unwittingly tended in the words of Dr Arnold A. Hutschnecker to be cruel, stereotyped and void of any genuine psychological awareness of the child’s needs or interests.

  5. A few Indian decisions show how the much spoken of paramount welfare of the child has been safeguarded by the custody of minors being given to the fathers and their families.

  6. In Shoib @ Shebu v. Sabir Ali1 the Allahabad High Court while conceding the entitlement of the mother the custody of her male child until he has completed the age of seven years held that the welfare of the child would be kept in view before deciding the custody. In that case in fact the son who was only 4 years of age was allowed to remain with the father and the Court without arriving at any adverse conclusions regarding the mother’s character or conduct decided that it was in the paramount interest of the 4 year old son to allow him to remain with the father and the father’s family.

  7. In Bilkis w/o Munne Khan v. Munne Khan2, a Mohammedan wife who was living separately from her husband filed a petition for custody of her minor son aged about 21/2 years. It was found that she was residing at a distance from the husband’s home and neglecting the child even when their relations were cordial. On these facts the court held that it was not in the interest of the welfare of the child though the child was of tender years to give his custody to the wife. Custody of the child therefore was given to the father.

  8. In Y. Varalakshmi v. Kanta Durga Prasad3, the Division Bench of the Andhra Pradesh High Court gave custody of 5 year old boy to the father in the interests of the child. The child had been happily residing with the father and his parents when the mother had applied for custody. The trial court refused custody to the mother and the appeal court upheld the refusal.

  9. This decision contrasts favourably with the fictional decision in the much talked about movie, Kramer v. Kramer, where the father and not the mother was bringing up the son aged about 6 years. In the film, the husband, a young, ambitious vice-president of a company, is not aware of the emotional needs of his very attractive wife. In her quest for ”fulfilment”, she chooses to leave her husband and her young child with seemingly no previous quarrel. She goes to California, sees a psychiatrist, enters fresh liaisons and after about two years returns to New York to sue for custody of her son. The Judge proceeds on the patently erroneous basis that it should be routine procedure to award the custody of a child to a mother, whether she is psychologically fit to rear the child or not.

  10. The Judge awards the mother the custody of the child, a decision that is depicted in the film, as cruel and void of humanity. The mother is at first triumphant. But then comes a dramatic change of heart. Perhaps seeing the pain of the defeated ex-husband (or is it a flash of guilt or magnanimity), she allows the child to stay with the father.

  11. This film as commented on by Dr Hutschnecker, reflects a modern trend that corrodes, if not the sanctity of marriage, then at least a deeper meaning of a commitment.

  12. Why did this woman marry this particular man? His looks? His future that seemed secure? Did she use him for a start in her own life? And why did she not talk to him if she left dissatisfied? Both were educated people. Why, instead of trying to communicate and come to an understanding, did she, like an angry and irresponsible child, run away to satisfy her own selfish needs? Was it for survival or simply an ego tussle or a power play?

  13. True, the man pursuing his own American dream was so busy building his career that he perhaps did not notice his wife’s dissatisfaction. Evidently they did not communicate and thus were unaware of each other’s needs and feelings.

  14. It is the story of many people who thought they were in love, which dynamically means they move towards one another. But contrary to usual experience, when people begin to fall out of love, for whatever reasons, they move against one another. That is, they either fight or make adjustments. In the film they move away from each other — a breaking away or, symbolically death!

  15. It is heartening to note that Indian Courts in many respects show a greater awareness of human needs and do not blindly or short-sightedly follow the ”mother first” principle while deciding custody cases.

  16. In Lekh Raj Kukreja v. Smt Raymon4, the Court was concerned with the question of the interim custody of a minor male child aged 11 years. The trial court gave the custody to the mother on the ground that the minor son would then be in the company of his sister whose custody was with the mother.

  17. In revision it was held that the father was the natural guardian and that the welfare of the child also demanded that he should be in the custody of his father especially as the child himself also showed an inclination to stay with the father.

  18. On the same lines, in Tara Chand Mavar v. Basanti Devi5, the Division Bench of the Rajasthan High Court in appeal reversed the decision of the Family Court giving custody of a 7 year old minor son to his mother stating that sentimental considerations in favour of the mother ought not to prevail over the welfare of the minor where the father was a fit person to be a guardian and in the opinion of the Court it was in the interest of the minor son that he should be with the father and the father’s family.

  19. In Shailaja J. Erram v. Jayant V. Erram6 once again the same question was decided by a Bench of the Bombay High Court in the same manner. In this case the mother was a working woman and remained outside the home until 4 p.m. The minor — a son — expressed his desire to reside with his father. The Court found that the minor was getting his education properly and that the aged parents of the father were in a position to look after the minor for the whole of the day. In these circumstances the Court came to the conclusion that the welfare of the minor demanded that he should be with the father and his family and not with the mother.

  20. It is not intended to suggest that in every case, or in most cases, it is in the interest of the minor that he should remain with the father and his family. Any such proposition would be as unjust and unsupportable as the opposite proposition viz. that in every case, or in most cases, the custody of the minor should remain with the mother.

  21. There can be no general presumption to the effect either that the female of the species is deadlier than the male, or that she is more beneficient than the male when it comes to the question of the custody of these unfortunate minors.

  22. In each case it is a question of fact, and should be a matter of anxious consideration for the Court as to where the welfare of the child lies. The Indian Courts’ approach has therefore to be welcomed.
    ———

  23. 1986 (II) DMC 505 at 506 (All, HC)

  24. 1987 (32) M.P.L.J. 430

  25. (1989) 1 DMC 379

  26. 1989 (38) DLT 137

  27. 1989 (1) DMC 402 (Raj)

  28. 1990 (2) Mah LR 492

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Minor variations between medical evidence and ocular evidence do not take away the primacy of the latter.

Criminal Trial — Appreciation of evidence — Medical evidence vis-à-vis ocular evidence: Minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. [Baleshwar Mahto v. State of Bihar, (2017) 3 SCC 152]

Child Custody – Mother or father 1994 (3) SCC J-42

  1. Custody of child after break-up of marriage — More often custody is given to the mother when the child is below 7 years — Modern tendency — Judges show understanding and compassion and moved away from earlier pattern of judgments — Reference made to a few Indian decisions wherein custody was given to the father even when the child was below 7 years — Welfare of the minor is the paramount consideration — A note on a movie in connection with the discussion — Conclusion — Whether the custody of a minor child is to be with the father or mother is a question of fact — Approach of the Indian courts to be welcomed.

  2. When marriages break up, bitter and prolonged battles often follow over the custody of minor children.

  3. More often than not, the custody of minor children particularly of children under 7, is given to the mother. Questions such as whether she is psychologically fit to rear the child or whether the psychological growth of the child will be better if the custody is given to the father, raise relevant factors to which more judicial attention could be usefully given.

  4. The modern tendency in child custody cases is to avoid any decisions based on any a priori assumption that for the welfare of the child the custody should be given to the mother. Increasingly judges show understanding and compassion in their decisions and have moved away from the earlier pattern of judgments which unwittingly tended in the words of Dr Arnold A. Hutschnecker to be cruel, stereotyped and void of any genuine psychological awareness of the child’s needs or interests.

  5. A few Indian decisions show how the much spoken of paramount welfare of the child has been safeguarded by the custody of minors being given to the fathers and their families.

  6. In Shoib @ Shebu v. Sabir Ali1 the Allahabad High Court while conceding the entitlement of the mother the custody of her male child until he has completed the age of seven years held that the welfare of the child would be kept in view before deciding the custody. In that case in fact the son who was only 4 years of age was allowed to remain with the father and the Court without arriving at any adverse conclusions regarding the mother’s character or conduct decided that it was in the paramount interest of the 4 year old son to allow him to remain with the father and the father’s family.

  7. In Bilkis w/o Munne Khan v. Munne Khan2, a Mohammedan wife who was living separately from her husband filed a petition for custody of her minor son aged about 21/2 years. It was found that she was residing at a distance from the husband’s home and neglecting the child even when their relations were cordial. On these facts the court held that it was not in the interest of the welfare of the child though the child was of tender years to give his custody to the wife. Custody of the child therefore was given to the father.

  8. In Y. Varalakshmi v. Kanta Durga Prasad3, the Division Bench of the Andhra Pradesh High Court gave custody of 5 year old boy to the father in the interests of the child. The child had been happily residing with the father and his parents when the mother had applied for custody. The trial court refused custody to the mother and the appeal court upheld the refusal.

  9. This decision contrasts favourably with the fictional decision in the much talked about movie, Kramer v. Kramer, where the father and not the mother was bringing up the son aged about 6 years. In the film, the husband, a young, ambitious vice-president of a company, is not aware of the emotional needs of his very attractive wife. In her quest for ”fulfilment”, she chooses to leave her husband and her young child with seemingly no previous quarrel. She goes to California, sees a psychiatrist, enters fresh liaisons and after about two years returns to New York to sue for custody of her son. The Judge proceeds on the patently erroneous basis that it should be routine procedure to award the custody of a child to a mother, whether she is psychologically fit to rear the child or not.

  10. The Judge awards the mother the custody of the child, a decision that is depicted in the film, as cruel and void of humanity. The mother is at first triumphant. But then comes a dramatic change of heart. Perhaps seeing the pain of the defeated ex-husband (or is it a flash of guilt or magnanimity), she allows the child to stay with the father.

  11. This film as commented on by Dr Hutschnecker, reflects a modern trend that corrodes, if not the sanctity of marriage, then at least a deeper meaning of a commitment.

  12. Why did this woman marry this particular man? His looks? His future that seemed secure? Did she use him for a start in her own life? And why did she not talk to him if she left dissatisfied? Both were educated people. Why, instead of trying to communicate and come to an understanding, did she, like an angry and irresponsible child, run away to satisfy her own selfish needs? Was it for survival or simply an ego tussle or a power play?

  13. True, the man pursuing his own American dream was so busy building his career that he perhaps did not notice his wife’s dissatisfaction. Evidently they did not communicate and thus were unaware of each other’s needs and feelings.

  14. It is the story of many people who thought they were in love, which dynamically means they move towards one another. But contrary to usual experience, when people begin to fall out of love, for whatever reasons, they move against one another. That is, they either fight or make adjustments. In the film they move away from each other — a breaking away or, symbolically death!

  15. It is heartening to note that Indian Courts in many respects show a greater awareness of human needs and do not blindly or short-sightedly follow the ”mother first” principle while deciding custody cases.

  16. In Lekh Raj Kukreja v. Smt Raymon4, the Court was concerned with the question of the interim custody of a minor male child aged 11 years. The trial court gave the custody to the mother on the ground that the minor son would then be in the company of his sister whose custody was with the mother.

  17. In revision it was held that the father was the natural guardian and that the welfare of the child also demanded that he should be in the custody of his father especially as the child himself also showed an inclination to stay with the father.

  18. On the same lines, in Tara Chand Mavar v. Basanti Devi5, the Division Bench of the Rajasthan High Court in appeal reversed the decision of the Family Court giving custody of a 7 year old minor son to his mother stating that sentimental considerations in favour of the mother ought not to prevail over the welfare of the minor where the father was a fit person to be a guardian and in the opinion of the Court it was in the interest of the minor son that he should be with the father and the father’s family.

  19. In Shailaja J. Erram v. Jayant V. Erram6 once again the same question was decided by a Bench of the Bombay High Court in the same manner. In this case the mother was a working woman and remained outside the home until 4 p.m. The minor — a son — expressed his desire to reside with his father. The Court found that the minor was getting his education properly and that the aged parents of the father were in a position to look after the minor for the whole of the day. In these circumstances the Court came to the conclusion that the welfare of the minor demanded that he should be with the father and his family and not with the mother.

  20. It is not intended to suggest that in every case, or in most cases, it is in the interest of the minor that he should remain with the father and his family. Any such proposition would be as unjust and unsupportable as the opposite proposition viz. that in every case, or in most cases, the custody of the minor should remain with the mother.

  21. There can be no general presumption to the effect either that the female of the species is deadlier than the male, or that she is more beneficient than the male when it comes to the question of the custody of these unfortunate minors.

  22. In each case it is a question of fact, and should be a matter of anxious consideration for the Court as to where the welfare of the child lies. The Indian Courts’ approach has therefore to be welcomed.
    ———

  23. 1986 (II) DMC 505 at 506 (All, HC)

  24. 1987 (32) M.P.L.J. 430

  25. (1989) 1 DMC 379

  26. 1989 (38) DLT 137

  27. 1989 (1) DMC 402 (Raj)

  28. 1990 (2) Mah LR 492

4/4/17, 9:51:41 PM: +91 85528 22666: *When an accused moves for adjournment on ground of illness of his senior counsel,the court cannot refuse to adjourn the case on the ground that the accused can avail the services of his junior counsel.*

Somappa hanamantappa vs state of karnataka

1986 Cri. L. J. 1201

When and elected chief minister spoke against the judiciary and was fined Rs.50…!!!!

Equivalent Citation: 1970 AIR 2015; 1971 SCR (1) 697; 1970 SCC (2) 325
Supreme Court of India
(BEFORE HIDAYATULLAH, M. (CJ); MITTER, G.K.; RAY, A.N., JJ)
E. M. SANKARAN NAMBOODIRIPAD .. Petitioner
Versus
T. NARAYANAN NAMBIAR .. Respondent
Criminal Appeal No. 56 of 1968, decided on 31 July, 1970
ACT: Contempt of Court – What is – Chief Minister of State making Remarks in public derogatory of the Judiciary and courts – Sought to justify making them in terms of his political ideology based on the teachings of Marx and Engels – If guilty of contempt – Constitution of India, Art. 19(1) and (2) – Scope of in relation to contempt of court.
HEADNOTE:
The appellant, who was the Chief Minister of Kerala at the time, at a press conference held by him on November 9, 1967, made various critical remarks relating to the judiciary.
These remarks were reported in the newspapers as under:
“Marx and Engels considered the judiciary as an instrument of oppression and even today when the State set up his (sic) not undergone any change it continues to be so, Mr. Nambudiripad told a news conference this morning. He further said that Judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well dressed pot-bellied rich man and a poor ill-dressed and illiterate person the judge instinctively favors the former, the Chief Minister alleged. The Chief Minister said that election of Judges would be a better arrangement, but unless the basic state set up is changed, it could not solve the problem.
Referring to the Constitution the Chief Minister said the oath he had taken was limited only to see that the constitutional provisions are practiced. ‘I have not taken any oath’ the Chief Minister said “that every word and every clause in the Constitution is sacred”.

And thereafter in proceedings commenced in the High Court, the appellantwas called upon to show cause why he should not be committed for contempt. In an affidavit in reply, the appellant statedthat the reports were “substantially correct”, though incomplete in some respects. He supplied some omissions and pleaded want of intention to show disrespect to thejudiciary and justification on the ground that the offence charged could not be held to be committed, in view ofthe guarantees of freedom of speech and expression under theConstitution. He claimed that his observations did no morethan give expression to the Marxist philosophy and what was contained in the programme of the Communist Party of India. By a majority judgement the appellant was convictedfor contempt of court and fined Rs.1000/- or simpleimprisonment for one month.
In appeal to this Court, it was contended on behalf of theappellant that the law of contempt must be read withoutencroaching upon the guarantee of freedom of speech andexpression in Article 19(1)(a) and that the intention ofthe appellant in making his remarks at the press conferenceshould be examined in the light of his political views whichhe was at liberty to put before the people; he sought tojustify the remarks as an exposition of his ideology whichhe claimed was ‘based on the teachings of Marx and Engelsand on this ground claimed protection of The first clause of Art. 19(1).
HELD: The law punishes not only act which do not fact interfere with the courts and administration of justice but also thosewhich have that tendency, that is to say, are likely to produce a particular result. Judged from the angle of courts and administration of justice, there was no doubtthat the appellant was guilty of contempt of court. Whetherhe misunderstood the teachings of Marx and Engels ordeliberately distorted them was not too much purpose. The likely effect of his words must be seen and they clearly hadthe, effect of lowering the prestige of judges and courtsin the eyes of the people. That he did not intend any such result may be a matter for consideration in the sentence tohe imposed on him but could not serve as a justification. It was obvious that the appellant had misguided himself about the true teachings of Marx, Engles and Lenin. He had misunderstood the attack by them on state and the laws asinvolving an attack on the judiciary. No doubt the courts,while upholding the laws and enforcing them, do give support to the state but they do not do so out of any impuremotives. They do not range themselves on the side of the exploiting classes and indeed resist, them when the law does not warrant an encroachment. To charge the judiciary as aninstrument of oppression, the judges as guided and dominatedby class hatred, class interests and class prejudices, instinctively favoring the rich against the poor is to drawa very distorted and poor picture of the judiciary. It was clear that the appellant bore an attack upon judges which was calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions. It weakened the authority of law and law courts.
While the spirit underlying Art 19)(1)(a), must have dueplay, the Court could not overlook the provisions of the second clause of that Article. Its provisions are to beread with Arts. 129 and 215 which specially confer on thisCourt and the High Courts the power to punish for contempt of themselves. Although Art. 19(1)(a) guarantees complete freedom of speech and expression, it also makes an exception in respect of contempt of court. While the right is essential to a free society, the Constitution has itself imposed restrictions in relation to contempt of court and it cannot therefore be said that the right abolishes the law of contempt or that attacks upon judges and courts will be condoned.
While it is true that Lord Morris in Mcleod v. St. Aubyn L.R. [1899] A.C. 549 at p. 561 observed that the contempt ofcourt known from the days of the Star Chamber as Scandalum Justiciae Curiae or scandalising the Judges, had fallen intodisusein England, as pointed out by Lord Atkin in Andre Paul Terence Ambard v. The Attorney General of Trinidad, and Tobago, A.I.R. 1936 P.C. 141 at 143, the observations of Lord Morris were disproved within a year in The Queen v.Gray. [1900] 2 Q.B. 36 at 40. Since then many convictions had taken place in which offence was held to be committed when the act constituted scandalizing a Judge.

For those who think that the laws are defective, the path of reform is open but in a democracy such as ours to weaken the judiciary is to weaken democracy itself. Where the law is silent, the courts have discretion. The existence of law containing its own guiding principles, reduces the discretion of courts to a minimum. The courts must do their duty according to their own understanding of the laws and the obligations of the Constitution. They cannot take their cue from sentiments of politicians nor even indirectly give support to something which they consider to be wrong against the Constitution and the laws. The good faith of the judges is the firm bed-rock on which any system of administration securely rests and attempt to shake the people’s confidence in the courts, is to strike at the very-root of our system of democracy.

Upholding the appellant’s conviction it was held – The ends of justice in this case are amply served by exposing the appellant’s ignorance about the true teachings of Marx and Engels (behind whom he shelters) and by sentencing him to a nominal fine. We accordingly reduce the sentence of fine to Rs.50/-.