Father lost custody in HC because is only X passed and he has also to lookafter a child born out of his second wife, maternal-grand-father gets custody

Haresh vs Bhikhubhai on 18 October, 2011

Author: Jayant Patel, R.M.Chhaya,

Gujarat High Court Case Information System 

Print

http://indiankanoon.org/doc/1250403/ 

FA/2991/2011 4/ 4 ORDER

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

FIRST

APPEAL No. 2991 of 2011

=========================================================

HARESH

@ HARSUKH JAYANTI SOLANKI – Appellant(s)

Versus

BHIKHUBHAI

DEVSIBHAI PARMAR – Defendant(s)

========================================================= Appearance :

MR

HITESH S PADHYA for Appellant(s) : 1, MR ASHISH M DAGLI for Defendant(s) : 1,

=========================================================

CORAM

:

HONOURABLE

MR.JUSTICE JAYANT PATEL

and

HONOURABLE

MR.JUSTICE R.M.CHHAYA

Date

: 18/10/2011

ORAL

ORDER

(Per

: HONOURABLE MR.JUSTICE JAYANT PATEL)

The

present appeal is directed against the order passed by the Family Court in Civil Misc. Application No.14/10, whereby the application of the applicant father to get the custody of the minor children has been rejected.

The

relevant facts are that the appellant had married with Anitaben and out of the wedlock, there were two children, one was minor son Sumit and the another was daughter Manisha. After marriage, on 19.08.2005, wife Anita committed suicide and against the appellant, criminal complaint was also filed under sections 498A, 306 and 114 of the IPC and when the matter was pending before the Sessions Court, there was some settlement and thereafter, the appellant has been acquitted. Some lumpsum amount for maintenance of the children was also deposited out of the settlement. It is thereafter, the present appellant preferred application under the Guardians and Wards Act and Minor Guardians Act for getting the custody of the minor children. The Family Court at the conclusion of the proceeding found that it would not be in the interest and welfare of the children to give the custody to the father and therefore, has declined the custody by rejecting the application.

Under these circumstances, the present appeal before this Court.

We have heard Mr.Padhya for the applicant and Mr.Viral Vyas for Mr.Dagli upon the advance copy.

The approach on the part of the Family Court to take into consideration the welfare of the children as of prime importance cannot be faulted with and the same is rather in consonance with the well settled principles of law. We may also record that at paragraph 19, the learned Judge observed thus -

“19.

After considering the rival submissions and considering the facts of the case, both minor children Sumit and Manisha were called before this Court and at that time, maternal-grand-father/opponent and both Ld.Advocates for the parties were present. It appears that both the children are intelligent children. They are more mature than their age. I talked to the children exclusively for about 15 to 20 minutes in the Court. It appears that they are happy with their maternal-grand-father and they have stated that they are lookafter very well. They have categorically stated that they are not willing to live with their father. I tried to pursue the children to go and live with their father, but they refused to do so. After talking with the children and assessing their mind, it would not be in the interest and welfare of the children to handover their custody to their father/applicant.”

Thereafter, the Court has recorded the finding at paras 21 to 23 as under:

“21. In the present case, factual aspect are different, both the children are in custody of maternal-grand-father/opponent since the year 2005. The opponent/maternal-grand-father is retired principal and he is keeping eyes in the education of minor children. As against this, the applicant is only X standard pass and he has also to lookafter a child born out of his second wife.

22. Under these circumstances, I am of the view that welfare of the child is paramount consideration for this Court. If the children are kept with the maternal-grand-father considering the wishes of the minor children and financial and education status of the maternal-grand-father/opponent, children would get bring future. Section-19 of the Guardians and Wards Act empowers Courts to make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. In the matters of custody, as well settled by judicial precedents, welfare of the children is the sole and single yardstick by which the court shall assess the comparative merit of the parties contesting for custody.

23.Under the circumstances, bearing in mind the paramount consideration of the welfare of the children, I am of the view that interest and welfare would be served best if the children continue to be in the custody of maternal-grand-father. In my view, at present, it is not desirable to disturb the custody of the minor children and therefore, exclusively custody of both children i.e. Sumit and Manisha alias Mahek are required to be kept with the maternal-grand-father/opponent and the father/applicant is given visitation right to the children. …..”

We do not find any infirmity in the approach of the Family Court keeping in view the welfare of the children.

Under the circumstances, the appeal is meritless. Hence, dismissed.

(JAYANT

PATEL, J.)

(R.M.

CHHAYA, J.)

*bjoy

Top

Karnataka HC: Wife can claim maintenance from two husbands !!!

One alimony no bar to a woman getting another

Husband’s counsel tells court that estranged wife is already getting alimony from another ex-husband. Judge retorts: “What is your problem if he is paying? You too will have to pay”

 

S Shyam Prasad

Posted On Tuesday, October 18, 2011 at 04:43:28 AM

A man tried to evade paying alimony to his estranged wife by pointing out that she was already getting an allowance from another previous husband. But the judge retorted, “What is your problem if he is paying? You too will have to pay.”The rather unusual situation cropped up in the High Court of Karnataka on Monday, with the man’s counsel arguing, “She is being paid Rs 6,000 per month as alimony by a former husband as well.” Taken by surprise, the division bench of Justice N K Patil and Justice C R Kumaraswamy asked the counsel which husband he was talking about. The advocate explained that the woman had been married earlier and the case in question  was related to her second marriage. It led to Justice Patil retorting, “What is your problem if he is paying? You too will have to pay.” The divorce case, which was being heard in a lower court, reached the high court, with concerned parties disputing the alimony amount. When told that the first husband was paying the woman Rs 6,000 per month, the judge asked, “Does she have a child?” When told that she had a seven-year-old daughter, he asked, “How much of the Rs 6,000 is for the mother and how much is for the child?” He was told that the amount was for both of them. PROPERTY IS A LIABILITY The husband’s counsel told the court that his client had agreed to pay a one-time lumpsum amount to his estranged wife. “So, solve the problem. Let the parties talk and come to a mutual agreement. If they do not come to an agreement, you can argue the case on merits. He will have to then pay 50 per cent of his property to her if arguments are done,” the court said. This prompted the husband’s counsel to tell the court that he had no property. “I do not have anything. I have no property,” the husband’s counsel said. The court said that these were human problems and there should be trust in the marriage. The husband’s counsel said, “If she goes about filing criminal complaints on charges of dowry and domestic violence, there is no trust left. No marriage is a benefit. It is always a problem. Acquiring property is a liability in marriages now.” Justice Patil put an end to the argument saying, “Every couple quarrels, but not all end up in court and jail… Loud arguments will not help anyone in personal problems. The question here is only about maintenance. Is there any problem with the first husband?” When told there was none, the court asked the couple to meet, along with their counsels, and arrive at a mutually-agreed alimony amount by October 21. WHAT THE LAW SAYS Advocate Nagendra Naik says that the wife’s income will decide the alimony. “When calculating the maintenance, the income earned comes into play. Whether the wife is earning is important, but it does not matter if it is as alimony from a previous husband, salary from a job or profit from business. The thumb rule is that the husband has to pay as much to maintain the lifestyle that he himself is enjoying. The idea of alimony is not to punish anyone or make a profit out of the divorce. The judge will balance all these things,” Naik said. However, there is no definite statute that calls for a lumpsum payment. “Maintenance is allowed under Section 125 of the Criminal Procedure Code and Section 18 of the Hindu Adoption and Maintenance Act. Since there is no rule for a one-time payment, it has to come from the general consensus of both parties,” Naik said.

http://www.bangaloremirror.com/article/1/2011101820111018044358126b2a9682f/One-alimony-no-bar-to-a-woman-getting-another.html

Husband lost appeal in CIC under RTI for disclosing info of wife account in DV Case

Mr.Shabeer Ahmed Sayeed vs Oriental Bank Of Commerce on 29 September, 2011

CENTRAL INFORMATION COMMISSION

Club Building (Near Post Office),

Old JNU Campus, New Delhi – 110067.

Tel: +91-11-26161796

Decision No. CIC/SM/A/2011/000915/SG/14935

Appeal No. CIC/SM/A/2011/000915SG

Relevant Facts emerging from the Appeal

Appellant : Mr. Shabeer Ahmed Sayeed, B2/T2, Rohini Garden Enclave,

Pattabiraman, Pillai street,

Teennnur, Trichy-620017

Tamil Nadu.

Respondent : Mr. Chandra Pal, Chief Manager & CPIO,

Oriental Bank of Commerce,

1st Floor, Land mark, No.21/15,

M.G Road, Bangalore-560001

RTI application filed on : 01/02/2011 PIO replied : 08/02/2011 First appeal filed on : 12/02/2011 First Appellate Authority order : 17/02/2011 Second Appeal received on : 08/03/2011

The Appellant in his RTI Application has sought information about his wife’s Account (No. 10572011000524) in OBC as she had filed a case of domestic violence against the Appellant and had claimed that “she was not given any monetary support”. The queries are as follows: S.No. Queries: 1 Provide a account statement of Smt. Seema Ahad who has a savings account in the Indira Nagar branch, from the date of opening of account to till date. 2 Is it a singly operated account or a Jointly operated account? 3 Provide certified photo copies of the Account no. 10572011000524, Savings bank account opening form?

PIO’s Reply:

Information cannot be provided since it is exempted under section 8 (1) (d) of the RTI Act 2005.

Grounds for First appeal:

Dissatisfied with the reply of the PIO.

The First Appellant Authority’s Order:

He seconds the decision of the PIO.

Grounds For Second Appeal:

The Appellant is aggrieved with the decision of the FAA.

Relevant Facts emerging during Hearing:

The following were present:

Appellant : Mr. Shabeer Ahmed Sayeed on video conferencing from NIC Studio Trichy; Respondent : Mr. Chandra Pal, Chief Manager & CPIO Oriental Bank of Commerce on video conferencing from NIC Studio Bengaluru

The Appellant has sought information about his wife’s bank account form the PIO. The Bank has claimed exemption from providing the information. The Appellant states that he needs the details of the said bank account to present it in Court in certain cases filed by his wife against him. This cannot be considered as a matter in larger public interest. The Bank holds information about its customers in a fiduciary relationship and the same is exempted under Section 8 (1) (e)

Section 8 (1) (e) of the RTI Act exempts from disclosure ‘information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;’

The traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter’s benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as those that attend a particular profession or role, e.g. doctor, lawyer, financial analyst or trustee. Another important characteristic of such a relationship is that the information must be given by the holder of information who must have a choice, – as when a litigant goes to a particular lawyer, a customer chooses a particular bank, or a patient goes to particular doctor. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the one who is providing the information. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. Information provided in discharge of a statutory requirement, or to obtain a job, or to get a license, cannot be considered to have been given in a fiduciary relationship.

In the instant case very clearly a fiduciary relationship exists, since customers of a Bank come to it because of the implicit trust they have; and they provide information to the Bank for their own benefit. Customers also have a choice of which bank they wish to approach. Hence unless a large public interest is shown the information is exempted from disclosure.

Decision:

The Appeal is dismissed.

This decision is announced in open chamber.

Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.

Shailesh Gandhi

Information Commissioner

29 September 2011

(In any correspondence on this decision, mention the complete decision number.) (ved)

Man acquitted in rape case must pay for kid

MUMBAI: Nine years after a Wardha resident was acquitted of rape charges, the Bombay High Court, in a rare order, has asked him to shell out Rs 1,500 as monthly maintenance to the child who was born to the ‘victim’.

Justice A P Bhangale upheld a sessions court order that as Sunil Katole (45) “was a man of sufficient means, he was bound to maintain his illegitimate son”.

“There is no need to interfere with the quantum (of compensation) granted, particularly, considering the basic needs of the child like food, clothing, shelter and education,” said the judge, while refusing to quash the compensation awarded by a sessions court. The high court said that Katole was free to prove that the child was not his or seek cancellation of the maintenance if he had substantial reasons by either moving a civil court or a subordinate court.

Eleven years ago, Katole was arrested for allegedly raping a girl 10 years younger than him. A sessions court in 2002, though, acquitted Katole of rape charges, saying it was consensual – the victim had consented to sexual intercourse on the promise of marriage.

Last year, the victim filed an application seeking maintenance for herself and her child under Section 125 of the Criminal Procedure Code. The provision says that the court can order maintenance if a man refuses or neglects to maintain his wife, children or parents. The protection of the law is also available to a man’s illegitimate children.

While a magistrate dismissed the application, a sessions judge ordered Katole to pay monthly maintenance for the upkeep of the child. The mother’s plea for maintenance, though, was rejected.

Katole, in his petition, denied that the child was his or that he had any liability to maintain him. “This contention will have to be substantiated by (Katole) by adopting appropriate remedy to prove the circumstances,” said the high court, adding that “no manifest injustice or any miscarriage of justice appears to have occurred”, to warrant its intervention. Katole’s lawyer’s plea to reduce the maintenance amount was also dismissed by the high court.

http://timesofindia.indiatimes.com/city/mumbai/Man-acquitted-in-rape-case-must-pay-for-kid/articleshow/9713990.cms

Suicide threats ground for divorce: SC

NEW DELHI: Repeated threats to commit suicide is a ground for divorce, the Supreme Court ruled on Friday and dissolved the marriage of a couple from Punjab after the husband proved that he was traumatised by his wife’s incessant suicide threats.

A bench of Justices P Sathasivam and B S Chauhan said: “Giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully.”

The court departed from judiciary’s traditionally lenient approach towards an estranged wife mainly because of the glaring facts of mental and physical hardship and humiliation faced by Pankaj Mahajan at the hands of his wife Dimple.

The trial court had granted divorce to Mahajan in April 2006, but the Punjab and Haryana High Court by its August 6, 2009 order set aside the divorce decree.

Appearing for the husband, senior advocate Nidesh Gupta placed material to prove before the apex court that Dimple used to give repeated threats to commit suicide. On one occasion, she also tried to commit suicide by jumping from the terrace.

Accepting his arguments, the bench said cruelty in marriage meant that the treatment meted out by one spouse made the other apprehend danger to his life and limb while living in a conjugal relationship.

“The acts of the respondent wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the appellant husband which amounted to cruelty in matrimonial law,” said Justice Sathasivam, writing the judgment for the bench.

Making out 12 grounds of cruel behaviour on the wife’s part, the bench said: “She caused grave mental cruelty to him and it is not possible for the parties to live with each other, therefore, a decree of divorce deserves to be granted in favour of the husband.”

The court directed the husband to pay Rs 2 lakhs to the wife and deposit Rs 3 lakhs in the name of the couple’s minor daughter, who is living with the mother.