POCSO

 

Statue

1. Section 9 of Protection of Children from Sexual offences Act, 2012
1. Presume that person has committed or abetted the commission of crime , UNLESS the contrary is proved.

Presumption of Innocence

1. Sachs J in State Vs Coetzee 1997 (2) LRC 593
1. There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty. the more important do constitutional protection of the accused become.
2. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweight the public interest in ensuring that particular criminal is brough to book
3. Presumption of innocence which serves NOT only to protect a particular individual on trail, but to maintain public confidence in enduring integrity and security of the legal system
4. Reference to the prevalence and severity of a certain crime therefore does not add anything new / special to the balancing exercise.
5. if this were NOT SO, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption ... list is unfortunately almost endless and nothing would be left of the presumption of innocence save perhaps for its RELIC status as a doughty defender of rights in the most trivial of case.

Important Points

1. Mere registration of a crime under the provision of the POCSO against parent of ward is NO assurance to a FC that allegation of sexual abuse made against him is nothing but true.
2. Court must necessarily apply its mind and endeavor to find out the true circumstances which activated the registration rather than mere fact of registration.
3. Other wise innocent parent fighting for custody of his own ward  would be victim of false implications of crime u/s POCSO Act

Case Law

1. Dr Jaseer Aboobacker Vs State of Kerala
1. Father granted visitation rights by FC. The objection to Visitation did not have allegation of sexual abuse.
2. after Order mother filed complaint leveling sexual abuse of the child by father.
3. Child has been made a weapon of choice by one of the parent to put fight against the other parent
4. There cannot be doubt that levelling grave allegations of sexual abuse against father would have huge emotional toll on psyche of the minor child.
5. Parents in their determination to fight with each other, have intentionally or otherwise failed to protect their child from damaging emotional consequences that would have caused to child.
2. Suhara Vs Muhammed Jaleel 
1. Father got custody of girl child, grandparents filed perpetual prohibitory injunction against father of child. 
2. Wife died at matrimonial home and 498A, 304B, 302, 201 , 149 IPC were registered against father.
3. Mere registatration of a crime under the provision of the POCSO against parent of ward is NO assurance to a FC that allegataion of sexual abuse made against him is nothing but true.
3. Subhash  Kasinath Mahajan (Dr) Vs State of Maharashtra & another 2018 6 SCC 454
1. Reverse burden vis-a-vis the human rights of accused.
4. Noor Aga Vs State of Punjab (2008) 16 SCC 417
1. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on civil and Political rights, it, however cannot perse be equated with fundamental right and liberty adumbrate in A21 of Constitution of India. 
2. It having regard to the extent therof would not militate against other statutory provisions
3. Para 43
1. Reverse Burden vis-a-vis the Human Rights regime must be noted
2. In Common law the duty of prosecution to prove a person guilty
3. Indisputably, common law principle is subject to parlimentary legislation of the country

Source

Reportable and Non-Reportable Judgments

 

Statue

Important points

Case Law

Source

Inherent Power of Courts

 

J. S. Verma, Justice in the Article "New Dimension of Justice" (1997) 3 SCC J-3

"... Justice is a ideal to be achieved by law. Justice is the goal of law. Law is a set of general rules applied in the administration of justice. Justice is in a cause on application of law to a particular case. Jurisprudence is a philosophy of law. Jurisprudence & law have ultimately to be tested on the anvil of administration of justice. Law as it is may fall short of law as it ought to be for doing complete justice in a cause. The gap between the tow may be described as the field covered by Morality. There is no doubt that the development of the law is influenced by morals. The infusion of morality for reshaping the law is influenced by principles of Equity and Natural Justice, as effective agencies of growth. The ideal State is when the rules of law satisfy the requirements of justice and the gap between the two is bridged. It is this attempt of bridge the gap which occasions the development of New Jurisprudence.

        The Existence of some gap between law and justice is recognized by the existing law itself. This is the reason for the recognition of inherent powers of the Court by express provision made in the Code of civil Procedure code and Code of criminal Procedure. The constitution of India by Article 142 expressly confers on the Supreme Court plenary powers for doing complete justice in any cause or matter before it. Such power in the court of last resort is recognition of the principle that in the justice delivery system, at the end point attempt must be made to do complete justice in every cause, if that result cannot be achieved by the provision of the enacted law. These powers are in addition to the discretionary powers of the courts in certain areas where rigidity is considered inappropriate e.g equitable relief and A226 of Constitution.

 

Proclaimed offender - 82 CrPC

 Statute

1. Section 82 CrPC
1. 82(2)(i) - 
1. 82(2)(i)(a) - Ordinarily resides
1. liberally interpreted to mean not just the official address of accused but also where the accused ordinarily resides i.e any place where he would unofficially spend most of his time.
2. 82(3) - proclamation issued by court
3. 82(4) - specified offense, 30 days after publication, declaration to that effect.
2. Section 83 CrPC
1. Court empowered to attach of the movable / immovable properties of the Proclaimed person at any time AFTER the issuance of the proclamation u/s 82 CrPC.
2. Old Code - where the attachment order could be issued at any time, even simultaneously with order of proclamation
3. New code 2005 - attachment ONLY after order of proclamation has been filed justifiable reason.
1. Exception
1. Property is about to be disposed off
2. Property is about to be removed from the local jurisdiction of court.
3. Section 84 CrPC
1. Claims and Objections regarding attachments.
2. Person who has interest in property to be attached, he may object attachment within 6m
4. Section 85 CrPC 
1. release of attached property on appearance of the proclaimed person within the specified time
5. Section 86 CrPC
1. lay down rule regarding appeal from order rejecting application for restoration or attached property.
6. Section 482 CrPC
1. Empowers Court to make such orders as may be necessary to secure the ends of justice in exercise of the inherent powers
7. Section 483 CrPC
1. Every HC to exercise its continuous superintendence over the Trail courts to ensure that there is expeditious and proper disposal of cases
8. Article 227 of Constitution of India
1. Confers power to Supreme Court the power of superintendence over all subordinate courts in relation to which it exercises jurisdiction.
2. Wide power is to keep the path of justice clear of obstruction which might impede it.
9. Chapter VI CrPC : Process to compel appearance 
1. Part A : Section 60 - 69 : Summons
2. Part B : Section 70 - 81 : Warrant of Arrest
3. Part C : Section 82 - 86 : Proclamation  & Attachment
4. Part D : Section 87 - 90 : Other rules regarding processes
10. IPC 174A 
1. Growing Number of Proclaimed offenders , 174A was inserted of Clause 44 of CrPC Amendment 2005 vide Notification No. SO 923(E) dated 21st June 2006
2. Hoping it would be deterrent for persons fleeing from justice.
3. Punishable with 3-7y of imprisonment.
1. 82(1) - 3y/fine/both
2. 82(4) CrPC u/s 302, 304, 364, 382, 392, 393, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459, 460 IPC - 7y + fine
11. IPC 216 IPC
1. Harbouring and preventing the arrest of proclaimed offender is punishable offence upto 3y
12. IPC 229A - introduced in 23rd June 2006
1. Failure by person released on bail or bond has been made penal offence.

Absconder

• Not defined in CrPC
• Occurs in provision - Section 87, 90(a) CrPC and Section 172 IPC
• Object of these provisions as absconder may be said to be one who intentionally makes himself inaccessible to the processes of law.
• if person comes to know about issuance of process against him / anticpates such process and hides or quits the country. He is said to have absconded.
• Who is NOT absconder
• When a person has gone to distant place BEFORE the issuance of a warrant.

Processes for Appearances of accused / Suspect

1. Compulsive
2. non-compulsive

Important Points

1. Statistics 
1. Delhi
1. 18541 Persons declared Proclaimed persons 
2. 6000 are Proclaimed offenders of heinous crimes
2. Issuance of NBW
1. Interferes with personal liberty and courts should be extremely careful before issuing NBW.
2. Warrants either bailable or non-bailable SHOULD never be issue without proper scrutiny of facts and complete application of mind.
1. It has to be ensured that the concerned person was made aware about legal process pending against him
3. NBW  should be issued to bring a person to court when summons or bailable warrants would be unlikely to have desired result. 
1. it is reasonable to believe that person will NOT VOLUNTARILY APPEAR in court.
2. the police authorities are unable to find the person to serve him with a summon; 
3. it is considered that the person could harm someone if not placed into custody immediately.
4. Guidelines where NBW are issued by Courts
1. All HC shall ensure that the subordinate courts use printed and machine numbered FORM 2 for issuing warrant of arrest and each such form is duly accounted for.
2. Before authenticating, the court must ensure that the complete particulars of the case are mentioned on the warrant;
3. the presiding Judge of the Court ( Or responsible officer specially authorised for the purpose in case of HC ) issuing the warrant should put his full and legible signature on the process, also ensuring that court seal baring complete particulars of the court is prominently endorsed theron.
4. The Court must ensure that warrant is directed to a particular police officer and unless intended to be open-ended it must be returnable whether executed or unexecuted on or before the date specified therin;
5. Every court must maintain a register (in the format given below at p 804) in which each warrant of arrest issued must be entered chronologically and serial number of such entry reflected on the top right hand of the process.
6. No warrant of arrest shall be issued without being entered in the register mentioned above and the court concerned shall periodically check / monitor the same to confirm that every such process is always returned to the court with due report and placed on record of the case concerned.
7. A register shall be maintained at Police station concerned. the SHO of police station concerned sSHALL ensure that each warrant of arrest issued by the court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution
8. Ordinarily, the courts SHOULD NOT give a LONG time for return or execution of warrants as experience has shown that WARRANTS are prone to MISUSE  if they remain in control of executing agencies for long.
9. On the date fixed for return of the warrant, the court must insist upon a compliance report on the action taken theron by SHO 
10. The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as facilitating fixing of responsibility in case of misuse
11. In event of warrant for execution beyond jurisdiction of the court issuing it, procedure laid down in Section 78 & 79 of code must be strictly and scrupulously followed.
12. In event of cancellation of arrest warrant by the court, the order cancelling warrant shall be recorded in the case file and register maintained. A copy thereof shall be sent to the authority concerned, requiring the process to be returned unexecuted forthwith.
3. Measures to Enhance the Efficiency and accuracy in Execution of warrants / Proclamations
1. IO/SHO SHALL personally or through one of SI visit address to check correctness before or while seeking a warrant of arrest
2. SHO Shall record name of atleast 2 respectable persons of the locality of accused with contact details  who ratifies the address of accused. 
1. Photograph shall be sufficient and the witness will not be required to the police station 
2. Photocopies any identity proof and photograph of such witness 
3. SHO should ascertain mobile , landline , identity card issued 
4. Take the photo of dwelling unit of accused
5. IO shall ascertain the Job profile of accused and shall obtain his complete address of is workplace 
6. Data of the proclaimed offender in cases Delhi Police is available on ZIPNET and should be made accessible to public
7. Foreign jurisdiction, the trail court must issue a warrant and subsequently a proclamation ONLY upon being satisfied that summons has not be able to be served in spite of following the procedure prescribed under the relevant statue
8. A central data base of proclaimed offenders be prepared similar to crime and criminal tracking n/w & system ( CCTNS ) 
9. if accused is suspected to be abroad, a RED Corder notice may be issued from INTERPOL against him if 
4. Proclaimed Offender - EFFECT
1.  leads to a serious offence under Section 174A IPC
1. Punishment for period of 3-7y
2. Proclamation AFFECTS the life & liberty of a person u/s A21 and it is necessary to ensure process u/s 82 & 83 CrPC is NOT issued in routine manner and Due process is followed.
2. Section 216 IPC
1. Person KNOWINGLY harbours a proclaimed offender to prevent his apprehension is liable to be punished u/s Section 216 IPC with imprisonment up to 7y in certain cases.
2. Enquires should be made from relatives, friends & other person who are likely to be aware of movement and should we warned against harbouring him.
3. Primary responsibility for securing the arrest of a proclaimed offender is local police under whose jurisdiction the accused is a resident.
1. A Proclaimed offender can be arrested by ANY police officer WITHOUT any order from magistrate and without warrant
2. Any private person can also arrest a proclaimed offender and him over
4. Anticipatory Bail - 438 CrPC
1. AB should not  be given to accused who has been declared as absconder and not cooperated with investigation. 
2. Proclaimed offender  u/s 82 CrPC NOT entitled to relief of AB
5. Bail 
1. 437/438/ 439 CrPC - 
2. Conditions to grant bail SHOULD be NOT arbitrary/ capricious - they should be JUST & REASONABLE.
6. 82 CrPC -
1. if court is satisfied that circumstances exist, 
2. Court will give a time of 30 days from date of proclamation within which person has to appear before court. 
3. The issuance of warrant is prerequisite for an order of proclamation.
7. Ministry of External affairs SHALL 
1. NOT issue passport facilites to absconding accused.
2. Passport of such accused should be revoked u/s Section 6 and 10 of Passport Act 1967.
5. Removal as Proclaimed offender
1. Arrest of accused
2. Death of the proclaimed offender or expiry of 30years from date of proclamation
3. Any other good & sufficinet reason e.g trifiling nature of the case or lack of sufficient evidence for a successful proseuction or withdrawal of the case etc.
6. Once a person is declared Proclaimed offender
1. Duty of State to make all reasonable efforts to arrest him and attach his properties 
2. As well launch prosecution u/s 174A IPC.
3. 82(3) of CrPC once a proclamation is issued in accordance with 82(2)(i CrPC  
1. a Statement by the Court issuing proclamation to effect that the proclamation was duly published SHALL be treated as conclusive evidence that the proclamation on such date.
7. Argument against Proclamation
1. Principle
1. Liberty is inalienable right of every human being
2. A21 of Constitution - No one shall be deprived of his liberty except in accordance with procedure prescribed by law.
3. NBW interfere with personal liberty , courts have to be extremely careful before NBW
4. Salutary Duty of court to prevent the abuse of the process, miscarriage of justice and correct the irregularities in judicial process.
5. As far as possible summon/ BW should be preferred 
6. Every person who is NOT immediately available cannot be characterized as an absconder.
7. the court  has to record its satisfaction that the accused has absconded or is concealing in order to avoid the execution of the warrant.
2. Practise
1. Voluntarily appear in court
2. Not a person to harm any one.
3. proper scrutiny of facts & Complete application of mind
4. Careful examination if FIR was filed with Oblique motive.
5. No proclamation shall be issued on the ground of unavailability.
6. The procedure under 82, 83 CrPC not followed
7. Proclamation without sufficient cause would be illegal - order like attachment would be illegal as well.
8. No lookout notice, No Red Corner Notice
9. No affidavit by the police that they visited the place of ordinary residence 
10. before proclamation issue notice to RWA ( Resident welfare association ) 
11. It has to ESTABLISH there is no immediate prospect of arresting the accused.
12. Proclamation u/s 82 CrPC must mention time within which and place at which the absconder should present himself to save the sale of property. 
1. A omission to mention the time & place would render the proclamation a NULLITY.
2. Ineffective if period is less than that is provided in section i.e 30days
13. as proclamation is published by police and a satisfaction is accorde to it by the court. 
1. Only SI or higher rank has to give not Head constable cannot inspire requiste confidence 
14. Provisions of 82 CrPC are mandatory and should be construed strictly
1. 
   
8. Argument in favor of Proclamation
1. Liberty is precious for an individual so is the interest of the society in maintaining law and order
2. Sometime in larger interest of public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then NBW should be issued.
3. No AB for a person who is proclaimed and not cooperating with investigation.
4. sufficient evidence justifying arrest of an accused is collected but accused is evading arrest.
9. Problems with Proclaimed Offenders
1. People made proclaimed offenders without proper service of summons
2. Large number of people who have been declared proclaimed offenders ensure that their trails are indefinitely delayed.
10. Part C of Chapter VI - Proclamation and attachment 
1. Coercive measure to apprehend person in respect of whom a warrant of arrest has been issued u/s Section 73 of CrPC
11. Proclamation Needs to be duly published in some conspicuous part
1. the town / village where such person ordinarily resides
2. House or homestead in which such person ordinarily resides or to some conspicuous part of such town / village
3. Court - house
4. If Courts seems fit, a copy of proclamation shall be published in daily newspaper circulating in the place in which such person ordinarily resides.
1. Copy of newspaper be sent by post to the address of accused as being done in Civil matters Order 5 Rule 10 of CPC
5. Prize money may be declared for inforamation/ apprehension of accused.
12. Necessary condition for Proclamation
1. Court has to satisfied on basis of material that a person despite having knowledge of proceeding is avoiding the process issued.

Guidelines 

• link

Case Law

1. Nachi Exports Vs Thiruvengadam & Sons 2008 CrLJ (NOC) 278
1. Court considered factors such as
1. The accused was well aware of the NBW of arrest, issued against him
2. also regarding the efforts taken by the officer concerned for its execution
3. Obviously the accused was evading arrest by adopting foul play or tactful means
2. Inder Mohan Goswami Vs State of Uttaranchal (2007) 12 SCC 1
1. NBW interfere with the personal liberty and courts should be extremely careful before issuing NBW
2. BW, NBW SHOULD NEVER be issued without proper scrutiny of facts and complete application of mind.
3. What has to be ensured is that the concerned person was made aware of legal process pending against him.
4. Para 50 - Civilized countries have recognized that liberty is the most precious of all human rights. The American Declaration of Independence, 1776 French Declaration of Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and International Covenant of Civil and Political rights 1966 all speak with onc voice - liberty is the natural and inalienable right of every human being. similarly A21 of our constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law
5. Para 51 - The issuance of NBW involve warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of most precious right of an individual. Therefore the courts have to be extremely careful before issuing NBW.
3. Raghuvansh Dewanchand Bhasin Vs State of Maharastra ( 2012 ) 9 SCC 791
1. Guidelines to be adopted in all cases where NBW are issued by courts.
4. Lavesh Vs State (NCT of Delhi _ 2012 8 SCC 730
1. SC - AB not given to accused who is declared as absconder and not cooperated with investigation.
5. Moti ram Vs State of M.P (1978) 4 SCC 47
1. Sureties demanded and what sum should be insisted on are dependent on variable and court should be liberal in releasing them on their own recognizance by imposing reasonable conditions and deprecated the practice of demanding heavy sums by way of bail.
6. Sumit Mehta Vs State ( NCT of Delhi ) (2013) 15 SCC 570
1. While granting bail to an accused, the conditions imposed, if any should not be stringent and be just and reasonable.
2. Stringent conditions if imposed and not capable of compliance, may amount to denial of bail shall further amount of denail and deprivation of personal liberty, violating the constitional right of accused guanratneed under A21 

Source 

Maintenance

 

Important Points

1. No set formula, depends on facts and circumstances of case
2. 125 CrPC 
1. is a measure of social justice and specially enacted to protect women and children
2. Falls within constitutional sweep of A15(3) reinforced by A39 of Constitution of India
3. Speedy remedy for supply of food, clothing & shelter to the deserted wife;
4. Giving effect to fundamental rights and Natural duties of a man to maintain his wife, children and parents
5. It is beneficial provision for upholding the dignity of individual.
3. Objective
1. Compel those who can provide support
2. to those who are unable to support themselves 
3. PREVENT  vagrancy and destitution
4. FACTORS to consider while granting Maintenance
1. STATUS of parties
2. Respective NEEDS
3. Capacity of Husband to pay
4. considering his reasonable EXPENSES
1. for OWN maintenance
2. those he is OBLIGATED u/s law
5. Statutory but involuntary payments / deductions.
5. Quantum of maintenance
1. Such wife can live in reasonable comfort 
1. considering her status
2. mode of life she used to live with husband
2. Should not feel handicapped in prosecution of her case.
3. Cannot be excessive / extortionate
4. Spiraling inflation rate and high cost of living index
6. Date of  order 
1. Uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from date on which application was made before court.
7. Quality of Proof
1. Section 125 CrPC - Strict standard of proof is NOT necessary as it is SUMMARY in nature to prevent vagrancy.
1. Why?
1. Section 125 CrPC does NOT really determine the rights and obligations of the parties as the section is enacted with a view to provide summary remedy to neglected wives to obtain maintenance.
8. Proof of Marriage
1. When parties live together as husband & wife, there is a PRESUMPTION that they are legally married couple for claim of maintenance 
2. Well settled that law presumes in favor of marriage and against concubinage when man & woman have cohabited continuously for a number of years.
3. UNLESS the clearly proved
4. Presumption is REBUTTABLE, heavy burden lies on him who seeks to deprive the relationship the legal origin. 

Case Law

1. Jasbir Kaur Sehgal Vs Distt Judge, Dehredun ( 1997) 7 SCC 7
1. No set formula can be laid for fixing the amount of maintenance.
2. It has, in the very nature of things, to depend on the facts and circumstances of each case.
3. Court has to consider status of parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions
4. The amount of maintenance fixed for the wife should be such as she can live in REASONABLE comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case
5. at the same time, the amount so fixed cannot be excessive or extortionate
2. Chaturbhuj Vs Sita Bai (2008) 2 SCC 316
1. The object of the maintenance proceeding is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves
3. Captain Ramesh Chander Kaushal Vs Veena Kausha ( 1978) 4 SCC 70
1. 125CrPC measure of social justice and is specially enacted to protect women and children.
4. Dwarika Prasad Satpathy Vs Bidyut Prava Dixit 1999 7 SCC 675
1. The standard of proof of marriage in a section 125 proceeding is not as strict as in required in a trail for an offence under 494 IPC
5. Mohabbat Ali Khan Vs Mohd Ibrahim Khan AIR 1929 PC 135 Privy counsel
1. Privy Council laid down the LAW presumes in favor of marriage against concubinage when man and women have cohabited continually for number of years.
6. Badri Prasad Vs Director of Consolidation 1978 3 SCC 527
1. Presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.
7. Tusla Vs Durghtiya (2008) 4 SCC 520
1. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of de facto marriage without undertaking the duties and obligation. 

Injunction

 

Statute 

1. Order XXVIII Rule 5 CPC
1. Attachment before Judgment
2. where the petitioner  seeks to execute order
3. applies to an order which lends finality to the suit and aims at preserving the state of affairs after the interim stage in the suit is over.
2. Order XXXIX Rule 1(b) CPC
1. Temporary Injunction may be granted if it is proved by affidavit or otherwise that the respondent threatens to cause injury to the petitioner in relation to any property in dispute* 
2. Where in the court may restrain such act for the purpose of preventing the alienation of property or any injury caused to the petitioner if court deems it fit to do so untill disposal of suit.
3. Wide berth to the court to grant any injunction of a temporary nature which would give a protective cover to the petitioner from suffering the consequences of any act by respondent to the property in dispute which would result in damage, wasting of or alienation of the property or the petitioner being dispense of the property.

Loan 

• an advance, whether on any monetary terms or in kind, made on condition of repayment with interest and includes any transaction which is in substance a loan but does not include an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881

Negotiable Instrument

• has been defined as promissory note, bill of exchange or cheque payable either to order or to bearer

Case Law

1. Harleen Jirath Vs Prabha Surana 2019(4) CHN(cal) 412
1. Drawing a distinction between Order XXXVIII Rule 5 and Order XXXIX Rule 1(b) CPC 1908
2. Raman Tech & Process Eningeering Co Vs Solanki Traders (2008) 2 SCC 302
1. Purpose of Order XXXVIII Rule 5 is not to convert an unsecured debt into a secured debt

Divorce

 

Section 13B of HMA

1. 13-B - Divorce by Mutual Consent
1. Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both parties to a marriage together, whether such marriage was solemnized before or after the commencement of Act, 1976 on ground that they have been living separately for period of one year or more, that they have NOT been able to live together and that they have mutually agreed that the marriage should be dissolved.
2. On the motion of both the parties made not earlier than 6m after the date of the presentation of the petition referred to in the sub-section (1) and not later than 18m after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.

Important Points

1. Ground of Divorce
1. Desertion
1. Two Essential elements
1. Factum of separation
2. Intention to bring cohabitation to end
2. Two element of deserting spouse to be proved
1. desertion with out consent
2. desertion without reasonable cause to form necessary intention
3. Burden of proof is on the petitioner who has to prove the above
4. Intention has to be INFERED from the facts and circumstances of case.
2. Cruelty
1. What is cruelty?
1. Considering complete matrimonial life, if it would not be possible for parties to live with each other
2. Comprehensive look at matrimonial life, the wronged party cannot be asked to put with the conduct of other spouse.
3. Unilateral decision
1. Sterilization, abortion without consent or knowledge of other spouse
2. Not have children, not to sex 
4. Long period of separate cohabitation 
5. leveling disgusting accusation of unchastity and attributing aspersions of perfidiousness 
1. Should be able to substantiate the imputation made by him
2. What is NOT cruelty?
1. Mere lack of affection or coldness is not cruelty
2. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate
3. What has to be considered to understand cruelty?
1. Sustained, long, grave injury, 
4. By refusing to serve that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties
3. Irretrievable Breakdown of marriage
1. Long sustained litigation 10y and above
2. Absolutely No hope of settlement.
3. Matrimonial Bound beyond repair
4. Mutual Consent Divorce
1. Wavier of 6month 
1. Couple entrapped in irretrievable broken marriage, unnecessarily asked to wait
2. apply U/s A227 of Constitution of India against FC order in HC in MCD - 13-B of HMA
3. Both parties filed wavier of statutory period of 6m
4. all methods of mediation u/s OXXXIIA, R3 CPC, S23(2) HMA, S9 of Family courts have been unsuccessful.
5. Alimony, custody of Child, other matters are genuinely settled.
6. A 142 of Constitution of India - Nikhil Kumar Vs Rupali Kumar 
7. Forcible perpetuation of status of matrimony b/w unwilling partners did not serve any purpose.
2. Waiver of 6m is it not contrary to law
1. Courts are meant to enforce the rule of law and not to pass orders/ directions contrary to what has been injected in law.
2. Order by SC u/s A142 to do complete justice b/w parties must
1. NOT only be consistent with FR 
2. But cannot even be inconsistent with the substantive provisions of the relevant statutory law.
3. SC Bar Association Vs UoI (1998) 4 SCC 409 
3. Waiting period in 13(b)2 is directory and can be waived by the court where proceedings are pending in exceptional situations.
4. 13B(1) - relates to Jurisdiction of court and petition is maintainable only if parties are living separately for a period of 1y or more and if they are not able to live together and have agreed to dissolve marriage. 
5. 13B(2) - is Procedural - guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a long period or contesting proceeding for a period longer than the period mentioned in 13B(2)
3. Court should consider the Question
1. How long parties have been married?
2. How long litigation is pending?
3. How long they have been staying apart? - more than statuary period
4. Are there any other proceeding between the parties?
5. Have the parties attended mediation/ conciliation?
6. Have the parties arrived at genuine settlement which takes care of alimony, custody or any other pending issues b/w parties/
4. why 6m of waiting period
1. to enable the parties to have a rethink so that the courts grants divorce by mutal consent only if there is no chance of reconciliation.
2. Object of cooling of period is to safeguard against a hurried decision , Object is not to perpetuate a purposeless marriage or to prolong the agony of the parties when no chance of reconciliation.
5. MCD - Conducting such proceedings the court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear for any just and valid reason as may satisfy the court, to advance the interest of Justice

Case Law

1. Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511
1. SC had succinctly carved out some instances of human behavior relevant in dealing with the cases of mental cruelty which are illustrative and not exhaustive
2. Appellant and Respondent were senior IAS officer, Respondent-wife had a female child from her 1st marriage and even had custody of child. 
3. Appellant and Respondent there after married in 1984, respondent-wife declared her decision unilaterally not to give birth to a child for 2y and appellant should be kept to himself long from herself as far as possible.
4. Appellant suffered a prolonged illness, further respondent left him and went to other place where there were non to look after her. The Respondent refused to cohabit and also stopped sharing bed with appellant. 
5. Appellant was not permitted to show his normal affection to the daughter of the respondent.
6. Trail court granted divorce which found 6 instances constituting mental cruelty
7. SC by way of this judgement found that the matrimonial bond had ruptured beyond repair because of mental cruelty caused by the respondents. 
8. It was clear case of irretrievable break down of marriage and it was impossible to preserve the same.
9. Salient features / instances of human behavior relevant in dealing the case of mental cruelty - complete, comprehensive, long, sustained , miserable life, grave danger , conjugal unkindness, without consent operation, 
1. On consideration of complete matrimonial life of the parties,  acute mental pain, agony and suffering as would not make possible for the parties to live with each other come within the broad parameters of mental cruelty
2. On comprehensive appraisal of the entire matrimonial life of the parties it becomes abundantly clear that situation is such that wronged party cannot reasonably be asekd to put up with such conduct and continue to life with other party.
3. Mere coldness of lack of affection cannot amount to cruelty frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
4. Mental cruelty is a state of mind. The feeling of deep anguish, disappointment frustation in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
5. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of spouse.
6. Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave and substantial and weighty.
7. Sustained reprehensible conduct, studied neglect, indifference or total departure from normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty
8. The conduct must be much more than jealously selfishness, possessiveness which causes unhappiness and dissatisfaction and emotional upset may not be ground for grant of divorce on the ground of mental cruelty.
9. mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
10. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount of cruelty. The ill-conduct must be persistent for fairly lengthy period, where the relationship has deteriorated to an extend that because of the acts and behaviour of a spouse the wrong party finds it extremely difficult to live with other party any longer, may amount to mental cruelty
11. if a husband submits himself for a operation of sterilization without medial reasons and without consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medial reason or without the consent or knowledge of her husband such an act of the spouse may lead to mental cruelty.
12. Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty
13. Unilateral decision of either husband or wife after marriage not to have child from marriage may amount to cruelty
14. where there has been long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction thought supported by al legal tie. By refusing to serve that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
2. Puneet Kumar Trivedi Vs Nitika Pathak III (2020) DMC< 150 (DB) ALL MR
1. Irretrievable break down of the marriage. Litigation lasted as long as 14y
2. absolutely No hope of settlement or reunion b/w the parties and matrimonial bond was beyond repair.
3. bipinchandra Jaisinghbhai Shah Vs Prabhavati AIR 1957 SC 176
1. Essential requisites of DESERTION were set out 
1. For the offence of desertion, so far as the deserting spouse is concerned,  TWO ESSENTIAL conditions must be there 
1. the factum of separation
2. the intention to bring cohabitation permanently to an end ( animus deserendi )
2. TWO ELEMENTS are essential so far as the deserted spouse is concerned.
1. the absence of consent
2. absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
3. The petitioner for divorce bears the burden to prove those elements 
4. Desertion is a matter of inference to be drawn from facts and circumstances of each case
4. Vijaykumar Ramchandra Bhate Vs Neela VijayKumar Bhate ( AIR 2003 SC 2462 )
1. Unsubstantiated disgusting accusations made by one spouse against the other in WRITTEN statements constitutes mental cruelty for sustaining the claim for divorce.
5. K. Srinivas Rao Vs D . A . Deepa ( AIR 2013 SC 2176 )
1. Making unfounded indecent defamatory allegations against the spouse or his / her relatives in the pleadings amount to causing mental cruelty to the other spouse.
6. Dr N.G Dastane Vs Mrs S. Dastane ( AIR 1995 SC 1534 )
1. Standard of proof in matrimonial cases would be same as in civil cases  i.e court has to decide the cases based on preponderance of probabilities.
7. Amardeep Singh Vs Harveen Kaur, 2017 8 SCC 746
1. Wavier 6 month Statutory waiting period
1. Statutory period of 6m specified S13-B(2), in addition to statutory period of one year under Section 13-B(1) of separation of parties is already over before 1st motion itself
2. all efforts for mediation/ conciliation including efforts in terms of Order XXXIIA, Rule 3 CPC/S.23(2) of the Act/Section 9 of Family Courts Act to reunite parties have failed and there is not likelihood of success in that direction by any further efforts;
3. parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties
4. waiting period will only prolog their agony.
8. Sunita v. Yogesh Kumar, 2021 SCC OnLine P&H 1057
1. Temperamental difference and living separately unable to reconciliation
2. Only daughter already married
3. Money already settled

Lokadalat

Termination of Pregnancy

 

Statute

1. Medical termination of Pregnancy Act, 1971
1. Section 3
1. Subsection 2
1. Subject to provision of sub-section (4), a pregnancy may be terminated by registered medical practitioner
2. Where the LENGHT of the pregnancy DOES NOT EXCEED 20weeks, of such medical practitioner is, or
3. Where the LENGTH of the pregnancy EXCEEDS 20 weeks BUT DOES NOT EXCEED 24 Weeks in case of such category of women as may be prescribed by rules made under this Act 
1. if not less than 2 registered medical practitioners are of the opinion, formed in GOOD FAITH that
1. the continuation of the pregnancy would involve a RISK to life of the pregnant woman or grave injury to her physical or mental health.
2. there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
4. Explanation 1 :- for the purpose of clause (a) where any pregnancy occurs as a result of failure of any device or method used by any women or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be PRESUMED to constitute a grave injury to the mental health of the pregnant women.
5. Explanation 2 :- For the purpose of clause (a) & (b) where any pregnancy is alleged by pregnant women to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant women.
1. (2A) The norms of the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age SHALL be such as may be prescribe by rules made under this Act
2. (2B) The provision of subsection(2) relating to the LENGHT of pregnancy SHALL NOT apply to the termination of pregnancy by the medial practitioner where such termination is necessary by the diagnosis of any of the SUBSTANTIAL foetal abnormalities diagnosed by the Medical board.
3. (2C) Every State Govt or Union Territory as the case may be SHALL be notification in official Gazette constitute a board to be called a Medial Board for the purpose of this Act to exercise such powers and function as may be prescribed by rule made under this act.
4. (2D) The Medical Board SHALL consist of following
1. A Gynaecologist
2. a Pediatrician
3. a Radiologist or Sonologist
4. Such other number of members as may be notified in Offical Gazett

Important Points

1. A woman's right to make Reproductive choice is also dimension of personal liberty as understood under A21 of the Constitution.
2. CONSENT of women is ESSENTIAL requirement for proceeding with the termination of pregnancy.
3. Reproductive rights include a woman's' entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children
4. allowed reasons for Termination of pregnancy 
1. Rape victim, 
1. if forced to give birth to a child in social scenario she has to face a life time anguish
1. Impact mental health
2. Apart from fact the child who is born will also have to face disdain of the society
5. Prerequisites for Termination of Pregnancy
1. Medical Reports of District Medical Board 
2. Section 3 of MTP Acr, 1971
1. Regarding section 3 would show that the length of pregnancy can be terminated in opinion of registered medical practitioner formed in good faith that pregnancy would cause GRAVE INJURY to Physical & mental health of women and where the length of pregnancy does not exceed 20weeks.
2. Explanation 2 the same is prescribed wherein it is stated that the pregnancy which is caused by RAPE would PRESUMED to cause grave injury to mental health of the pregnant women. 
6. DNA of the Child SHALL also be preserved considering the facts - report under Section 373  which will be eventually required at future date.

Case Law

1. Meera Santosh Pal Vs UoI (2017) 3 SCC 462
1. Para 9 - In Suchita Srivastava Bench of 3 J held a "women right to make reproductive choice is also dimension  of personal liberty as understood under A21 of Constitution "
2. The court there dealt with the importance of the consent of the pregnant women as an essential requirement for proceeding with termination of pregnancy.
3. There is no doubt that a woman's right to make reproductive choice is also a dimension of "personal liberty" as understood under A21 of Constitution. it is imp to recognize that Reproductive choices can be exercised to procreate as well as to abstain from procreating.
4. The crucial consideration is that woman's right to privacy, dignity and bodily integrity should be respected. 
5. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. 
6. Further more women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's' entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.
2. Suchita srivaatava Vs Chandigarh Adm (2009) 9 SCC 1

Source

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

Exception from Appearance

 

Statue

1. Civil
2. Criminal
1. 205 CrPC  Chapter XVI - Commencement of Proceedings before Magistrates
1. Magistarte MAY dispense with personal attendance of accused
1. Whenever a Magistrate issues a summons, he MAY , if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
2. But the Magistrate inquiring into or trying the case may, in his DISCRETION, at any stage of the proceedings, direct the personal attendance of the accused, and if necessary, enforce such attendance in the manner hereinbefore provided.
2. 317 CrPC Chapter XXIV , General Provisions as to Enquires and Trails . 
1. Provisions for the inquiries and trail being held in the absence of accused in certain cases
1. At ANY Stage of an inquiry or trail under this code, if the Judge or Magistrate is satisfied for reason to be recorded, that the personal attendance of the accused before the Court is NOT necessary in the interests of Justice. or that the accused persistently disturbs the proceedings in the court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trail in his absence, and may at any subsequent stage of the proceedings, direct the personal attendance of such accused.
2. if the accused in any such case is not represented by a pleader or if the Judge/ Magistrate consider his personal attendance necessary, he may if he thinks fit and for reason to be recorded by his, either adjourn such inquiry or trail or order that the case of such accused be taken up or tried separately.

Importan Points

1. Dispense with personal attendance
2. 205 CrPC -
1. Even before Charges are yet to be framed
2. Dispence  with appearance during trail/enquiry IF represented by counsel duly authorized by petitioner.
3. Proceeding before Magistrate 
4. Even the FIRST appearance through a counsel
5. Exempting personal attendance of accused would continue ever 
1. after charges have been framed and 
2. Till conclusion of the trail
6. Discretion on the court to exempt from appearance 
1. TILL such time his appearance is considered not necessary during the trial.
2. Bear in mind the Nature of the case and conduct of the person summoned.
3. Whether useful purpose is served by requiring the personal attendance of accused
4. Or progress of the trail is likely to be hampered on account of his absence.
7. 205 CrPC  - Nature of Special vakalat to represent the petitioner / accused and the counsel can answer to the questions put to him including his examination, so also examination under Section 313 CrPC
8. Plea of Guilty
1. Plea of the counsel can be taken for on behalf of accused even if the plea of one of guilty
2. Plea can be recorded through his counsel
3. 317 CrPC
1. During the trial stage i.e after charges have been framed.
2. Proceeding before Magistrate & Judge
3. Can be done for ONLY adjourning the case 
4. and NOT for proceeding with trial or enquiry of cases in absence
5. Absence of petitioner can be condoned either during trail or enquiry or trial
6. Being represented by advocate not a requirement.
4. 205, 317 CrpC - Don't apply to Complainant
1. Personal attendance may not always be insisted upon if represented by advocate
2. EXCPET in private complaint
1. Presence of complainant is considered to be NECESSARY if not by advocate.
2. in absence - case cannot proceed further.
3. Section 256 CrPC - if complaint fails to appear, Magistrate shall acquit the accused - discharge on default.
3. 
   
5. Court should take PRECAUTION
1. To take undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case 
2. Counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence.
3. Section 273 CrPC - Except as otherwise EXRPESSLY provided, all evidence taken in course of trail or other proceeding SHALL be taken in the presence of accused or when his personal attendance is dispensed with, in presence of his pleader.
1. Purpose of attendance of accused at trial is NOT merely a formality or compulsion but for the reason that the trail be allowed to be conducted in an expedient manner.
2. Such precaution in the interest of the accused so that the accused is able to know about the incriminating material if any, being produced in court against him at end of prosecution 
3. Further facilitate proper identification of the accused as evidence, identification before the court is SUBSTANTIVE piece of evidence.
4. Section 273 CrPC - Contemplates CONSTRUCTIVE PRESENCE - actual physical presence is not required 
5. Evidence
1. ALL statements which the court permits or requires to be made before it by witness in relation to matter of act under inquiry; such statements are called oral evidence 
2. ALL DOCUMENTS including electronic records produced for the inspection of the Court ; such documents are called documentary evidence;
6. IMPORTANCE & HISTORY OF 273 CRPC - LINK
7. A21 of Constitution of India - fair trial - Concept of ex-parte trail is alient
1. accused is NECESSARY both for 
1. framing charge and  - 228 CrPC
2. Recording of evidence  - 273 CrPC
6. What happens if the counsel engaged by the accused does not appear / co-operate ?
1. 205(2) - Magistrate can in his discretion direct the personal attendance of accused at any stage 
2. 317(1) - Confers a discretion on the magistrate to direct the personal attendance of the accused at any subsequent stage of proceedings. 
3. Under 313 CrPC - power to examine the accused - insist the presence 
4. Issue Notice, BW, NBW,  Proclamation , sale of property to recover dues, 
7. Additional support for exemption
1. Petitioner to appear before the court on every date of adjournment is NOTHING but harassment to the petitioner.
2. ill Health, age, Physical disability
3. if other have been exempted
4. Security
5. Distance, hardship , expenses 
6. member of security forces
7. Travel often
8. Other good reason in the interest of Justice
9. Apply multiple times
10. Multiple case in different jurisdictions
8. What is Power  of court?
1. The question is one basically of attitudes and mind set
1. Traditional criminal courts would shudder at the though of criminal trail being held without the personal presence of the accused from stage of cognizance to stage of pronouncement of judgment.
2. Courts have to cognizant of changing times and the new breezes which sweep through the system of administration of Justice.
3. New generation courts will not and should not cause any avoidable inconvenience to any party, litigant or witness. 
4. The system exist not for the lawyer or the Judge but for the litigants- the seekers of Justice.
5. Undeserved truma CANNOT be inflicted on the litigants. 
6. The mandate of A21 of Constitution of India that procedural law MUST also be fair, reasonable and just and should not be arbitrary, capricious or oppressive will have to be borne in mind while considering & contemplating the procedures advantages to the litigants.
7. More reasons persuade the court to adopt suh a course
1. Corridors of the Criminal court in the state are thronged unncessarily by the litigants and not a day passes in this court in this jurisdiction u/s 482 CrPC without accused persons coming to lament before this court that they could not wade theri way through the crowd and reach the Magistrate in time when case was called.
2. By then their absence is noted and warrant of arrest are issued against them.
3. Need of the hours is FREELY INVOKE discretion u/s Section 205 CrPC - unless facts of a case give reason NOT to extend the benefit to accused.
2. Main Concern of Court is administration of Justice and court proceeding should register progress.
3. in cases of offence punishable with FINE ALONE, and involved NO MORAL TURPITUDE the EXCEMPTION should be RULE 
4. Serious / grave offense,  Court shall NOT ordinarily grant exemption to the accused from appearance before 
5. Serves Useful purpose requiring the personal attendance of accused
6. Progress of trail is likely to be hampered on account of absence.
1. if progress of trail is achieved even in ABSENCE of accused , the court can certainly take into account the MAGNITUDE of the sufferings which could be born in order to make himself present in court.
7. If warrant is issued for appearance i.e because he was not available warrant was issued
8. Don't favour application of 205CrPC in Serious offense  ( Gravity of offence )
9. Court should not be too technical or stringent although discretion should not be used liberally for mere asking of it.
10. It not only dispense with appearance but also can DIRECT the personal attendance of the accused at any stage of proceeding.
11. If at any stage court comes to conclusion that the accused person is trying to DELAY the completion of trail, it shall be free to refuse the prayer for dispensing personal attendance.
1. Cancel the bail bound and issue warrant of arrest 
12. Long delay in trail - Not grant exemption u/s 317 CrPC
13. 205 CrPC -  Discretionary power has to be exercised depending on  circumstances WITHOUT Subjecting the accused to any unnecessary harassment.
14. Court should not hesitate to dispense personal appearnce of accused UNLESS the interest of the prosecution would there by suffer or under Code itself the presence of accused is mandatory.
9. What to do if 205/ 317 CrPC are not accepted?
1. 482 CrPC - Session. / High Court
2. 397(2) CrPC - Power of revision shall not be exercised in relation to any interlocutory order
1. Sole Test of Interlocutory order is NOT Whether such order was passed during the interim stage
2. The feasible test is whether by upholding the objections raised by part, it would result in culmination of proceedings, if so any order passed on such objection would not be merely interlocutory in nature as envisaged in 397(2) CrPC
3. 362 CrPC : 
1. No Court when it has Signed its judgment or final order disposing of a case, SHALL alter or REVIEW the same EXCEPT to correct a clerical or arithmetical error.
10. Guidelines for exercising such discretion - Sheela Kumar Vs State of Bihar 
1. Where summons is issued at first instance, whether it may be summons case or warrant case, application under 205 CrPC can be allowe in categories as follows
1. If accused resides or carries on business at a far off place
2. On account of Physical reasons
3. If insistence of his personal presence would implicit enormous suffering or tribulation on him and comparative advantage of disallowing such petition would be less
4. Purdanashin woman
5. Old and Sick person
6. Factory workers and labourers
7. Busy business people or public functionaries
8. Corporate employees

Case Laws

1. TGN Kumar Vs State of Kerala & Ors MANU/SC1646/2011
1. Exempting personal attendance of accused would continue ever 
1. after charges have been framed and
2.  Till conclusion of the trail
2. Bhaskar Industries Ltd Vs Bhiwandi Denim & Apparels Ltd Ord MANU/SC/0489/2001
1. 205 CrPC - even on FIRST appearance through a counsel.
3. Sandeep Kumar Tekriwal vs The State of Bihar & Anr 2009 (2) PLJR 260
1. Issue warrant of arrest and proceed according to chapter VI CrPC ( Process to compel appearance ) , cancel bail and bail bond and proceed according to Chapter XXXIII CrPC ( Provisions of bail and bonds )
2. It should NOT be composite order of NBW, Cancellation of bail and bail bond
4. Raman Nair Vs State of Kerala ( 1999(3) KLT 714 ]
1. 205 CrPC can be invoked in summon/ warrant cases ever before or after personal physical appearance of accused before court.
5. Noorjahan Vs Moideen (2000 (2) KLT 756
1. Plea of guilt can be taken by the counsel of the accused when 205 CrPC & accused is exempted from appearance.
6. Jain babu Vs K.J. Joseph 
1. Discretion u/s 205 CrPC - Freely invoked.
7. Shir Chandramauli Prasad Vs State of Delhi
8. Sultan Singh Jain Vs The State
1. There is NO SECTION in CrPC which provides that the accused must be present at every hearing of the case, though there are several section sin the code which show that presence of the accused at certain stages of proceeding is specifically provided for. It is however, one of the vital principles of the administration of criminal justice, which is universal acknowledged that a criminal trail the court should not proceed exe parte againt an accused.
9. Rameshwar Yadav Vs State of Bihar
1. 498A & DP4 - Petition by business mand who has to travel 1700km sough exemption from appearing before court u/s 205 CrPC
2. Grant of exemption from personal appearance in court on each and every date was required to be considered in view of fact that application was filed much before appearnce in court and finally granted exemption.
10. Sushila Devi Vs Sharad Devi - MP HC
1. Excemption u/s 205 CrPC should be the rule
2. UNLESS it involves No moral turpitude and offence punishable only with fine.
11. Sheela Kumar Vs State of Bihar 
1. Guidelines when such power has to be exercised by Magistrate
2. Categories are illustrative not exhaustive
12. Jagadgureu Sachidanand Vs State of Mysore - 1968 - link

Source

1. https://www.mondaq.com/india/court-procedure/721810/dispensing-attendance-in-person-of-accused-differences-between-section-205-and-317-of-code-of-criminal-procedure-1973

41A CrPC

 

Statute

1. 41 CrPC - Chapter V - When Police may arrest WITHOUT warrant
1. exigencies and circumstances under which a police office may arrest any one without warrant.
2. Any police officer may without an order from Magistrate and without a warrant, arrest any person
1. Who commits, in the presence of a police officer, a cognizable offence;
2. against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than 7y or which may extend to 7y whether with or without fine, if the following conditions are satisfied
1. The police officer has reason to believe on the basis of such compliant, information or suspicion that such person has committed the said offence;
2. the police officer is satisfied that such arrest is necessary
1. to prevent such person from committing any further offence;
2. for proper investigation of the offence.
3. to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner;
4. to prevent such person from making any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the police office - Intimidation of witness
5. as unless such person is arrested, his presence in the court whenever required cannot be ensured, and the police officer SHALL record while making such arrest, his reason in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section record the reasons in writing for NOT making the arrest.
6. against whom credible information has been received that imprisonment for a term which may extend to more than 7y whether with or without fine or with death sentence and the police officer has reasons to believe on basis of that information that such person has committed the said offence.
3. who has been proclaimed as offender either under this code or by order of the State Government ; or
4. in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;
5. who obstructs a police officer while in execution of his duty, or who has escaped or attempts to escape from lawful custody or
6. who is reasonable suspected of being a deserted from ANY of the armed forces of the union; or
7. who has concerned in, or against whom a reasonable complaint has been made, or credible information has been received or reasonable suspicion exist of his having been concerned in any act committed at any place out of India, which, if committed in India, would have been punishable as an offence, and for which he is under any law relating to extradition or otherwise, liable to be apprehended or detained in custody of India
8. who being a released convict, commits a breach of any rule made under sub-section (5) of Section 365
9. for whose arrest any requisition, whether written or oral has been received from another police officer, provided that the requisition specifies that person to be arrested and the offence or other cause for which the arrest is to be made and it appear therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
3. Subject to the provisions of Section 42, no person concerned in a non-congnizale offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exist of his having so concerned, shall be arrested EXCEPT under a warrant or order of a magistrate.
2. 41A CrPC - Notice of appearance before police officer
1. Police officer SHALL, in all cases where the arrest of person is NOT required under provision of 41(1) issue a notice directing the person against whom a reasonable complaint has been received or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or such other place as may be specified in the notice.
2. Where such a notice is issued to any person, it SHALL be the duty of that person to comply with the terms of notice.
3. Where such person complies and continues to comply with the notice, he SHALL NOT BE ARRESTED in respect of the offence referred to in the notice UNLESS, for reasons to be recorded the police officer is of the opinion that he ought to be arrested.
4. Where such person, at any time fails to comply with the terms of the notice or is unwilling to identify himself, the police office may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offenses mentioned in the notice.

Important Points

1. 41A CrPC - Investigation Officer issues Notice calling upon the petitioner to appear before him for Investigation
2. 41A CrPC - if police officer, is of the opinion that he ought to arrest, he has to record the reasons
3. 41A94) CrPC - failing to comply with the terms of notice, the Investigation officer MAY arrest him for the offense in notice
4. in New scheme of code - under BOTH circumstances i.e
1. When he decides to arrest or when he decides NOT to arrest
2. There has to be SATISFACTION of the police office  - Such satisfaction is Judicially reviewable
3. Record what reasons for arrest to believe he had for coming to a conclusion that 
1. person has Committed the offence
2. Further also required as under what exigencies, arrest is necessary 
1. Exigencies are provided in 41(1)(b)(ii)(a-e) CrPC
5. Intent behind the introduction of 41A CrPC - Statement of objects and reasons
1. Legislative intended to make it COMPULSORY for the police to record reasons for making an arrest
2. Not make arrest in respect of a cognizable offence with max imprisonment up to 7y
3. Compulsory for Police to issue a NOTICE in such cases Where arrest is NOT REQUIRED u/s 41(1)(b)
4. Unwillingness of a person who has not been arrested to identify himself and whom notice has been issue under 41A would be ground for arrest.
6. Notice of Appearance is in line with 
1. Right to Life and liberty of the citizens and 
2. seeks to bring down the number of arrest
3. Decongest the crowded Indian Jails
4. Innocent too can feel secure in cases they stand a chance to exposure to implication in fake case.
7. Under 170(1) of CrPC, on completion of investigation, if sufficient evidnece has been collected
1. the accused shall be forwarded in custody to the Magistrate concerned
2. Unless he has been released on bail
3. in  which even security may be taken for his appearance before Magistrate.
8. Apprehension of being arrested
1. When notice is issued under 41A(1) CrPC
2. After complying the terms of Noice the police officer forms an opinion that such person OUTHG to be arrested
3. such person fails to comply the terms of Notice or unwilling to identify himself.
4. In all these situations - Anticipatory Bail application is maintainable
1. Till the Time the person is NOT arrested
2. he is ENTITLED to maintain an application for grant of anticipatory Bail 
3. Subject to of course applicability of any other law to contrary. 
4. 41A DEFERS arrest until and Unless sufficient evidence is collected so as to produce or forward the accused to the custody of court.

Apprehensions

1. In the guise of 41A notice, likelihood of being arrested. 

Questions?

1. Can AB ( anticipatory bail ) applied u/s 438 CrPC when 41A Notice is issued?
1. Yes
2. Till the time person is NOT arrested, he is entitled to maintain application for grant of AB
3. Subject to other laws to contrary
4. 41A defers arrest until and unless sufficient evidence is collected so as produce or forward the accused to the custody of court.
5. Apprehension of arrest does not completely vanish away on issuance of notice  of appearance u/s 41A
6. Case link - Karnataka HC

Case Law

1. Gauri Shankar Roy & Others Vs The State of Bihar 2015 (3) PLJR 618
1. Para 22 - Elaborate discussion over Section 41, 41A
1. From perusal of the scheme of section 41 CrPC as it stands now after being substituted by code of criminal Procedure (Amendment) Act 2008 ( 5 of 2009 ), it transpires that the POWER OF ARREST available to the to a police officer in connection with commission of a cognizable offence may be categorized under 3 heads
1. Under the first Head, the Police officer has been conferred a power to arrest any person who has committed a cognizable offence in his presence.
1. This power is WITHOUT any qualification, exception and prerequisite
2. The ONLY  SINE QUA NON is commission of a cognizable offence in presence of a police officer
2. Second category of the case have been mentioned in 41(1)(b). Those cases are included which are punishable with imprisonment for a term which may be less than 7y or which may extend to seven year whether with or without fine and the police officer has received a reasonable complaint or a credible information regarding any one having committed such offence or a reasonable suspicion exists that any one has committed such a cognizable offence
1. Power to arrest for the offence under this category is, however NOT ABSOLUTE and UNQUALIFIED.
2. In order to exercise the power of arrest in these category of cases, the police officer MUST have a reason to believe on the basis of complaint, information or suspicion that any person has committed the said offence and the police officer should be satisfied that such arrest is necessary in terms of any or all of the grounds mentioned in under Section 41(a)(b)(ii)(a, b, c, d, e) of the Code.
2. Arnesh Kumar Vs State of Bihar AIR 2014 SC 2756
3. Jerry Paul Vs State of Karnataka 2021(1) Kar.L.J 550

Source