Joint Parenting

 

Statue

1. Order VII Rule 11 CPC - Summarily dismiss a suit at the threshold
2. Section 9 of GWA, 1890

Section 9 of GWA 1890

1. Court having jurisdiction to entertain application 
1. if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides.
2. if the application is with respect to the guardianship of the property of the minor, it may be made either to the district court having jurisdiction in the place where the minor ordinarily resides or to a district court having jurisdiction in a place where he has property.
3. if an application with respect to guardianship of the property of a minor is made to a District court other than having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.

Section 6(a) of Hindu Minority and Guardianship Ac, 1956

1. Natural guardians of a Hindu minor :- the natural guardian of a Hindu minor, in respect of the minor person as well as in respect of the minor property (Excluding his / her undivided interest in join family property ) are 
1. in the case of a boy or an unmarried girl -- the father and after him, the mother
2. provided that the custody of a minor who has not completed the age of 5y shall ordinarily be with the mother.
2. 
   

Section 10(3) of Family Court Act

1. FC can device its own procedures and is not bound by any watertight compartment of other procedural law.

Comity of Courts

1. Principle of comity of courts or principle of forum of convenience alone cannot determine the threshold bar of jurisdiction.

Notes on Order VII Rule 11 CPC

1. Purpose
1. ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of court and exercise the mind of the respondent.
2. Similar to 227, 239, 245 CrPC
3. Judicial time is precious & ought to be employed in most efficient manner possible
4. Sham litigation are menace that only waste the time of the court
5. Cause unwarranted prejudice and harm to parties arrayed as defendants 
6. Therefore defeating justice.
7. O7 R11 - provides litigants the option to pursue an independent and special remedy, empowering courts to summarily dismiss a suit at the threshold without proceeding to record evidence and conducting trail on 
8. Grounds of application of O7 R11
1. No cause of action is disclosed in the plaint
2. if the suit is barred by limitation
3. Plaint manifestly vexatious and without merit
4. relifs prayed are defective and un-remediable
5. Court would not permit protraction of proceedings, end the sham litigation so further judicial time is not wasted
9. Determination of application filed u/s O7 R11
1. Should restrict itself to the plaint and should not go into the detail facts as provided under the written statment or even application filed u/s O7 R11
2. Dont' got into merits of the case.
3. O7 R11 may be exercised at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant or before conclusion of the trail
4. Plaints providing a prima facie cause of action are not be simply rejected at the threshold. The decision of using option of O7 R11 should therefore be taken with due consideration of the facts and circumstances.
10. What cannot be dismissed u/s O7R11?
1. GWA matter where paramount consideration is welfare of child and same cannot be subject matter of final determination u/s O7 R11
11. Case 
1. Azhar Hussain Vs Rajiv Gandhi
2. Liverpool and London S.P & I association Ltd Vs M.V Sea Success
1. whether the plaint discloses a cause of action or not is essential a question of fact.
2. However  whether it does or does not must be found from the reading of the plaint itself during which the averments made in plaint in their entirety MUST be held to be correct. 
3. Khatri Hotels Private Limited Vs Union of India
1. Period of limitation will begin to run from the date when the 1st right to sue accures
2. Accordingly, it observed that since the suit was filed after expiry of 3y of 1st right to sue occurred, it found the suit to be barred by limitation.

Ordinary Residence

1. Ordinary Resident is matter of evidence 
1. Central Bank of India Vs Ram Narain AIR 1955 SC 36
2. Ruchi Majoo vs Sanjeev Majoo AIR 2011 SC 1952
1. Liberal interpretation is the first and foremost rule of interpretation it would be useful to understand the literal meaning of two words
2. Ordinary : black law dictionary : regular, normal, common, often recurring; according to established order, settled, customary; reasonable NOT characterized by peculiar or unusual circumsntaces
3. Reside : live , dwell, abide, sojourn, stay, remain, lodge
4. To settle oneself or thing in a place to remain or to stay to dwell permanently or continuously 
3. Ordinarily resides u/s Section 9 of GWA does not have same meaning as "residence at the time of the application" - mischief to stealthily remove child to distant place
4. Law provides that the jurisdiction would lie at place where minor would have continued, but for his removal.
5. Temporary shifting or removal of children cannot make a permanent home of children for purpose of GWA Section 9
6. Section 6(1) of HMGA - residence of minor may not necessarily follow the residence of mother
7. Section 6 HMGA and Section 9 GWA operate in different fields
1. Section 6 cannot be imported for the purpose of territorial jurisdiction
2. Section 6 HMGA was enacted to amend & codify certain parts of law relating to guardian ship among hindus & does not apply other class of persons
3. HMGA 1956 is ONLY in addition to GWA 1890 but not in derogation to it

Habeas Corpus in Child matters

1. Only determine the lawful/unlawful custody of children

Doctrine of Tender years and matrimonial preference

1. developed for the welfare of the children
2. Role of mother in child care is greater than the father, based on tender years
1. Bindhu Philip Vs Sunil Jacob (2018) 12 SCC 2003
3. Statutory presumption in favor of mother under section 6 of HMGA which has be rebutted
4. Maternal preference 
1. ABC Vs State (NCT of delhi ) 2015 10 SCC 1

 

Arguments in favor of father/mother

1. While balancing competing rights even for welfare of the children, the rights of the mother cannot be destroyed.

How can father get custody of child below 5y?

1. Paramount interest is welfare of the child
2. UNLESS father discloses cogent reason that are indicative of likelihood of welfare and interest of child being undermined jeopardized it custody is retained by mother.
3. S6(a) HMGA presumes albeit a rebuttable one, in favor of mother
4. Onus on father to prove that it is not in welfare of child
5. Comparative characteristics of parents would come in play.
6. Roxann Sharma Vs Srun Sharma (2015) 8 SCC 318

What is mental maturity of child?

Role of court

1. Aditya Mahajan Vs Sachi Mahajan 2016
1. Facts
1. Judge noted that during his interaction with child he found child completely hesitant to be with his father. The father says the visitation right is illusory.
2. Para 4
1. One off incident assuming to be true, should not deprive the father the right to meet child and vice versa
2. Trite is always interest of a chilld to bond with both parents notwithstanding the parents being estranged.
3. Para 8
1. if a child is hesitant to be with a parent, it is DUTY of the Presiding Judge of the FC to have the child counseled with help of the counsellors attached to the Court.
2. Every effort has to be made to counsel both parents to spare the child of the agony of their separation.
3. The parents have to be counseled to keep child out of litigation., both spouses should be encouraged to in turn encourage the child to meet the other spouse.
4. Para 9 
1. Child hesitant to meet either parent, SHOULD not be the ground to deny proper access to the souse in Question.
2. Soumitra Kumar Nahar Vs Parul Nahar 2020
1. High courts directs to explore the possibility of negotiated settlement by mediation  
2. The Mediator shall faciliate free and healthy meeting b/w father as well grandparents of the children keeping in view all the sensibilities and welfare of child in mind - respondent shall not obstruct or interfere
3. Child psychologist to have conselling session with children and parents 
4. Counsellor submits sealed cover report - court inclined to note the report and parties and children need counseling
5. Court appointed 4 court commissioners to facilitate admission of children, if either party not complied with order, SUO MOTU contempt petition will be initiated
3. MOhan Kumar Rayana Vs Komal Mohan Rayana - SLP 9821/2009
1. Psychiatric evaluation on direction of HC 
1. Respondent wife was diagnosed with a histrionic personality disorder of a nature that rendered her unfit for having custody of the child
2. Report also mentioned that the respondent wife was highly manipulative and readily spoke Lies seen for trivial  matters and showed trends of psychosis.
2. ON a COMPARATIVE assessment of both the parties, the report concluded that it would not be in the interest of the child to keep her in the custody of respondent mother and contrary, father was more fit and capable to undertaken the upbringing of the child
3. Even the second report stated that there was no evidence to revise the recommendation made in earlier report. 
4. Gaurava Nagpal Vs Sumedha Nagpal (2009) 1 SCC 42
1. Paramaount consideration of the court in determining question of who should be given custody of minor child, is the "Welfare of the Child" and not rights of the parents under the statute for the time being in force or what parties say.
2. Court has to give due weight to child ordinary contentment, health, education, intellectual development and favorable surroundings but over and above physical comfort the moral and ethical values should also be noted.

Inernational

Greece

1. Joint custody make difference, dull the pain in the process of divorce & separation.
2. Support the children and support the parents
3. personal is political and political is personal as feminist taught in 70's
4. saddens so many fellow fathers- learn to live without children her and outside
5. pain and despair suffered by thousands of people outside
6. forced to drink poison too, this reconciliation  inhuman idea that you cannot  live without kids
7. Personal experience of sitting in car outside and not being able to meet , anger grows inside you some people use child against you
8. Sadness that 

Case Law

1. J K vs N S - link
1. Nov 2016 - 
1. Mother seeking maintenance under Section 125 CrPC r/w Section 18(1)(b) of Hindu Adoption and Maintenance Act, 1956.
2. GWA Section 7,9,11 & 25 r/w Section 6(a) of Hindu Minority and Guardianship Act, 1956 and Section 7(g) of Family courts act
1. FC DISMISSED GWA on lack of territorial jurisdiction u/s Order VII Rule 11 CPC
2. Wife filed appeal in HC MAT 3/2017 - Division Bench of HC dismissed it upheld FC order
2. Nov 2016 - Father was granted temporary custody of children ex-parte, 2017 - Father granted permanent custody by US court
3. 2018 - Wife file SLP - SC set aside division Bench order - paramount consideration is the welfare of the child and same cannot be subject matter of final determination in O7 R11
4. 2018 - husband filed writ of habeas corpus - directed appellant to return to USA with respondent and children subject to certain conditions to secure rights of the wife.
1. Husband in superior court of USA, recall orders of custody of children
2. Once landed in USA, children not be removed form mother custody
3. Given liberty to have visitation right 
4. husband provide legal expenses of wife 
5. Husband was directed to file affidavit of undertaking in terms of directions
6. Husband satisfied conditions, Division bench orders return of mother in 3 weeks failing which children will be handed over to father
5. Wife files SLP(Crl) 4858-4859/2018
6. Immigration law - residing without permit
1. Settled principle Immigration laws - children below 16y of age are not considered in conflict with law.
2. Yogesh Bhardwaj Vs State of UP AIR 1991 SC 356
1. Ordinary residence of child follows the ordinary residence of the mother by virtue of statutory presumption. Mother given custody of children of tender age.
1. CATEGORICALLY DISSENTED by AP, Gujarat, HP, Rajasthan Court
1. Harihar Pershad Jaiswal vs Suresh Jaiswal AIR 1978 AP 13
2. Harshadbhi zinabhia Vs Bhavnaben Harhadbhai AIR 2003 Guj 74
3. Himanshu Mahanjan Vs Rashu Mahajan AIR 2008 HP 38
2. ordinary residence has not tenure attached to it.
3. Citizenship of the parties and their children is irrelevant and same is not related to being a residnet. A citizen of one country can be ordinary resident anywhere in the world
3. The remedy to seek custody and guardianship is NOT BY WAY of habeas corpus, the parties should resort to a substantive law in appropriate forum. Only examine at the threshold whether the minor is in lawful/unlawful custody
1. Kanika Goel Vs The State (NCT of Delhi ) ( 2018 SCC Online 709 )
2. Nithya Anand Raghavan Vs State of NCT ( 2017) 8 SCC 454
4. Vikram Vir Vohra Vs Shalini Bhall 2010 (4) SCC 409
1. Right to development is a basic human right
2. Respondent mother cannot be asked to choose b/w her child and her career.
3. if custody of the child is denied to her, she may not be able to pursue her career and may not be conducive either to development of her career or to the future prospects of child.
4. Separating the child from his mother will be disastrous to both.
5. Ramji Yadav V Dalip K. Yadav 76 ( 1998( DLT 526
1. Children in the instant case are NOT old enough to form an intention.
6. Prateek Gupta Vs Shilpi Gupta 2018 (2) SCC 309 
1. Court would have to see if ANY Harm is being caused to the child before shifting the custody of the child to the other parent.
7. Roxann Sharma Vs Srun Sharma (2015) 8 SCC 318
1. Custody of a child aged below 5y should be given to his/her mother UNLESS
1. father discloses cogent reasons that
1. likelihood of welfare and interest of child being undermined or jeopardized if custody is retained by mother
2. Ordinarily in Section 6(a) of Hindu Minority and Guardianship Act ordains a presumption albeit a REBUTTABLE one in favor of mother.
3. Onus on father to prove that it is not in welfare of child to be placed in custody of his/her mother
4. Comparative characteristic of the person would come into play
5. Section 6(a) of HMGA preserves the right of father to be guardian of the property of minor child but not the guardian of their person whilst the child is below 5y of age.
6. GWA does not disqualify the mother to custody of child even after the latter cross the age of 5y
8. Yashita Sahu Vs State of Rajasthan and Other (2020) 3 SCC 67

Source 

1. Greece adopts shared parenting law - link