Criminal Lawyers in Delhi

criminal law

Leges Juris Associates. Our criminal juris are specialized in handling the matters of cheating case, property fraud case, banking fraud, accident case, sexual harassment case,molestration with womens,rape case, criminal trial, anticipatory bail,parol in criminal case, criminal complaint,,,criminal complaint under section 156 crpc, criminal breach of trust, defamation, dowry case, case under section 498A IPC, official secret act case, drugs and cosmetic case, First Information report (FIR) cases, narcotic drugs cases, Registration of FIR cases, criminal law India cases, Indian penal code cases, quashing of FIR in high court cases, criminal revision, criminal appeal, cases under section 482 crpc,bail under section 438 crpc..etc.. our firm offers wide range of legal services in the area of corporate and commercial laws, property and real estate litigations,  criminal law etc. we are one of the top leading law firm located in the capital city of India. It has established a successful International corporate and commercial practice, out of its offices at New Delhi and alliances with local counsels at 50 additional locations across the India in 22 states. We are a team of of specialized attorneys who are best in legal matters such as international extradition, appeals in supreme court, criminal special leave petition (criminal),  criminal writs and special leave petitions in supreme court, transfer petitions, property matters, Intellectual property matters..etc.

 

Criminal Law is the name given to the branch of law that governs an individual’s relationship to the state. It includes the definitions of criminal offenses, which are usually established by Indian parliaments or state legislatures. The term “criminal law” also encompasses the rights of an accused and the criminal process, including arrest, release on bail,our leges criminal juris, pleas, discovery, pretrial hearings, trials, arguments on charge, evidence, motions, and bail . The main purpose of the criminal law is to set forth the punishment for criminal offenses. In order to prove any crime, no matter how serious, the prosecutor must prove that the accused committed a guilty act with a guilty mind beyond a reasonable doubt. Please read on to find a criminal defense attorney, criminal lawyer, criminal attorney or to learn more about criminal law. see in our pages in practice  area.

To know more about criminal Laws and judgements, visit out criminal Law blog after clicking on link:  www.criminallawyersindia.wordpress.com

 

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Distribution of Property Laws in India.

 

General rules of succession in the case of female Hindus.-
 
 
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.
(b) secondly, upon the heirs of the husband.
(c) thirdly, upon the heirs of the father, and
(d) fourthly, upon the heirs of the father, and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father, and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter ) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

Distribution of property after death, if there is no Will.

General rules of succession in the case of males.-
The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule.
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule.
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased, and
(d) lastly, if there is no agnate, then upon the cognate of the deceased

partial partition of joint undivided property

The suit property is claimed to be the joint family property of the plaintiffs and defendants 1 to 3. In 1948, the defendant No. 1 executed a will with the ill motive of bequeathing all the properties to defendants 2 and 3. The plaintiff instituted T.S.2/49 for partition of the ancestral lands located at Angapada. That suit was decreed and the decree was affirmed even by this Court. On the plea that the properties now in the suit which are located . at village Turada are also the joint family properties and have been left out of partition on the earlier occasion, the present suit has been filed. It is claimed that on 27-9-1958 the defendant No. 1 executed the sale deed for the suit land in favour of defendants 4 and 5 which is a void transaction. The plaintiffs claim that they have their 1/4th interest in the suit lands.
The defence of defendants 1, 2 and 3 jointly is that the suit is barred both under Section 11 and under Order 2, Rule 2, Civil Procedure Code. The suit property is not the joint family property, but it is the self-acquired property of defendant No. 1. The plaintiff is not in possession of this property for more than 12 years and as such his present suit is barred by limitation.
 The learned trial Judge came to hold that the suit lands were ancestral joint family property; the suit was not barred under Sec-tion 11 nor under Order 2, Rule 2, Civil Procedure Code; the suit was also not bad on the theory of partial partition. He further found that the sale deed dated 27-9-1958 in favour of defendants 4 and 5 was not binding on the plaintiffs and he accordingly decreed the suit.

 

“Domestic violence in live- in relationship”

 

 

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 2009 OF 2013
              (@ SPECIAL LEAVE PETITION (CRL.) NO.4895 OF 2012)

Indra Sarma                                     ... Appellant
        Versus
V.K.V. Sarma                                    ... Respondent

                               J U D G M E N T

K.S. Radhakrishnan, J.

        Leave granted.

2.      Live-in or marriage like relationship is neither a crime nor  a  sin
though socially unacceptable in this country.   The  decision  to  marry  or
not to marry or to have a heterosexual relationship is  intensely  personal.


3.      We are, in this case, concerned with the question whether  a  "live-
in relationship" would amount to a "relationship in the nature of  marriage"
falling within the definition of "domestic relationship" under Section  2(f)
of the Protection of Women from Domestic Violence Act, 2005 (for short  "the
DV Act") and the disruption of such a relationship by failure to maintain  a
women involved in such a relationship amounts to "domestic violence"  within
the meaning of Section 3 of the DV Act.

FACTS:

4.       Appellant  and  respondent  were  working  together  in  a  private
company.    The Respondent, who was working as a  Personal  Officer  of  the
Company, was a married person having two children and  the  appellant,  aged
33  years,  was  unmarried.    Constant  contacts  between  them   developed
intimacy and in the year 1992,  appellant  left  the  job  from  the  above-
mentioned Company and  started  living  with  the  respondent  in  a  shared
household.  Appellant's family members, including her  father,  brother  and
sister,  and  also  the  wife  of  the  respondent,  opposed  that  live-in-
relationship.  She has also maintained the stand  that  the  respondent,  in
fact, started a business in her name and that they were  earning  from  that
business.  After some time, the  respondent  shifted  the  business  to  his
residence and continued the business with  the  help  of  his  son,  thereby
depriving her right of working and earning.  Appellant has also stated  that
both of them lived  together  in  a  shared  household  and,  due  to  their
relationship, appellant became  pregnant  on  three  occasions,  though  all
resulted in abortion.   Respondent,  it  was  alleged,  used  to  force  the
appellant to take contraceptive methods to  avoid  pregnancy.   Further,  it
was also stated that the respondent took a sum  of  Rs.1,00,000/-  from  the
appellant stating that he would buy a land in her name,  but  the  same  was
not done.  Respondent also took money from the appellant to start  a  beauty
parlour for his wife.  Appellant also alleged that, during  the  year  2006,
respondent took a loan of Rs.2,50,000/-  from  her  and  had  not  returned.
Further, it was also stated that the respondent, all  along,  was  harassing
the appellant by not exposing her as his wife  publicly,  or  permitting  to
suffix his name after the name of the appellant.    Appellant  also  alleged
that the respondent never used to take her anywhere, either  to  the  houses
of relatives or friends or functions.    Appellant  also  alleged  that  the
respondent never used to accompany her to the hospital or  make  joint  Bank
account, execute documents, etc.   Respondent's  family  constantly  opposed
their live-in relationship and ultimately forced him to  leave  the  company
of the appellant and it  was  alleged  that  he  left  the  company  of  the
appellant without maintaining her.

5.      Appellant then preferred  Criminal  Misc.  No.  692  of  2007  under
Section 12 of the DV  Act  before  the  III  Additional  Chief  Metropolitan
Magistrate, Bangalore, seeking the following reliefs:
   1) Pass a Protection Order under Section 18 of the DV Act prohibiting the
      respondent from committing any act of domestic  violence  against  the
      appellant and her relatives, and further  prohibiting  the  respondent
      from alienating the assets both  moveable  and  immoveable  properties
      owned by the respondent;
   2) Pass a residence order under Section 19 of the DV Act and  direct  the
      respondent to provide for an independent residence as  being  provided
      by the respondent or in the alternative a joint residence  along  with
      the respondent where he is residing presently and for the  maintenance
      of Rs.25,000/- per month regularly as being provided earlier or in the
      alternative to pay the permanent maintenance charges at  the  rate  of
      Rs.25,000/- per month for the rest of the life;
   3) Pass a monetary order under Section 20 of the  DV  Act  directing  the
      respondent to pay a sum of Rs.75,000/- towards the operation, pre  and
      post operative medication, tests etc and follow up treatments;
   4) Pass a compensation order under Section 22 of the DV Act to a  sum  of
      Rs.3,50,000/- towards damages for misusing the funds of the sister  of
      the appellant, mental torture and emotional feelings; and
   5) Pass an ex-parte  interim  order  under  Section  23  of  the  DV  Act
      directing the  respondent  to  pay  Rs.75,000/-  towards  the  medical
      expenses and pay the maintenance charges @ Rs.25,000/-  per  month  as
      being paid by the respondent earlier.

6.      Respondent filed detailed  objections  to  the  application  stating
that it was on sympathetical grounds that  he  gave  shelter  to  her  in  a
separate house after noticing  the  fact  that  she  was  abandoned  by  her
parents and relatives, especially after the demise of her father.   She  had
also few litigations against her sister for her father's  property  and  she
had approached the respondent for moral as well as  monetary  support  since
they were working together in a Company.  The respondent has  admitted  that
he had cohabited with the appellant  since  1993.   The  fact  that  he  was
married and had two children was known to the appellant.  Pregnancy  of  the
appellant was terminated with her as well as  her  brother's  consent  since
she was not maintaining good health.  The respondent had  also  spent  large
amounts for her medical treatment and  the  allegation  that  he  had  taken
money from the appellant was denied.  During the month of April,  2007,  the
respondent  had  sent  a  cheque  for  Rs.2,50,000/-  towards  her   medical
expenses, drawn in the name of her sister which was encashed.   Further,  it
was stated, it was for getting further amounts and to tarnish the  image  of
the respondent, the application was preferred under the DV Act.  Before  the
learned Magistrate, appellant examined herself as P.W.1  and  gave  evidence
according to the  averments  made  in  the  petition.   Respondent  examined
himself as R.W.1.  Child Development Project Officer was examined as  R.W.2.
 The learned Magistrate found proof that the parties had lived together  for
a considerable period of time, for about 18 years, and then  the  respondent
left  the  company  of  the  appellant  without  maintaining  her.   Learned
Magistrate took the view that the  plea  of  "domestic  violence"  had  been
established, due to the non-maintenance of  the  appellant  and  passed  the
order  dated  21.7.2009  directing  the  respondent  to  pay  an  amount  of
Rs.18,000/- per month towards maintenance from the date of the petition.

7.      Respondent, aggrieved by the said order of the  learned  Magistrate,
filed an appeal before the Sessions Court under Section 29 of  the  DV  Act.
The Appellate Court, after having noticed that the respondent  had  admitted
the relationship with appellant for over a period  of  14  years,  took  the
view that, due  to  their  live-in  relationship  for  a  considerable  long
period, non-maintenance of the appellant would amount to  domestic  violence
within the meaning of Section 3 of the DV  Act.  The  appellate  Court  also
concluded  that  the  appellant  has  no  source  of  income  and  that  the
respondent is legally obliged  to  maintain  her  and  confirmed  the  order
passed by the learned Magistrate.

8.      The respondent took up the matter in appeal before the  High  Court.
It was contended before the High Court that the appellant was aware  of  the
fact that the respondent was a married person having two children,  yet  she
developed a relationship, in spite of the opposition raised by the  wife  of
the respondent and also  by  the  appellant's  parents.  Reliance  was  also
placed on the judgment of this Court  in  D.  Velusamy  v.  D.  Patchaiammal
(2010) 10 SCC 469 and submitted that the tests laid down  in  Velusamy  case
(supra) had not been satisfied.   The High Court held that the  relationship
between the parties would not fall within the ambit of "relationship in  the
nature of marriage" and the tests laid down in Velusamy  case  (supra)  have
not been satisfied.   Consequently, the High Court allowed  the  appeal  and
set aside the order passed by the Courts  below.   Aggrieved  by  the  same,
this appeal has been preferred.


9.       Shri  Anish  Kumar  Gupta,  learned  counsel  appearing   for   the
appellant, submitted that the relationship  between  the  parties  continued
from 1992 to 2006 and  since  then,  the  respondent  started  avoiding  the
appellant without maintaining her.    Learned  counsel  submitted  that  the
relationship between them constituted  a  "relationship  in  the  nature  of
marriage" within the meaning of Section 2(f) of the DV Act, which  takes  in
every relationship by a man with a woman,  sharing  household,  irrespective
of the fact whether the respondent is a  married  person  or  not.   Learned
counsel also submitted that the tests laid down  in  Velusamy  case  (supra)
have also been satisfied.


10.     Ms. Jyotika  Kalra,  learned  amicus  curiae,  took  us  elaborately
through the provisions of the DV Act as well as the objects and reasons  for
enacting such a legislation.  Learned amicus curiae submitted that  the  Act
is intended to provide for protection of rights of women who are victims  of
violence of any type occurring in the family.  Learned  amicus  curiae  also
submitted that the various provisions of the DV Act are intended to  achieve
the constitutional principles laid down in Article  15(3),  reinforced  vide
Article 39  of the Constitution of India. Learned amicus  curiae  also  made
reference to the Malimath Committee report and  submitted  that  a  man  who
marries a second wife, during the subsistence of the first wife, should  not
escape his liability to maintain his second wife,  even  under  Section  125
CrPC.   Learned amicus curiae also referred to a  recent  judgment  of  this
Court in Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Another  (2013)
2 SCC 137 in support of her contention.


11.     Mr. Nikhil Majithia, learned counsel appearing for  the  respondent,
made  extensive  research  on  the  subject  and  made  available   valuable
materials.   Learned  counsel  referred  to   several   judgments   of   the
Constitutional Courts of South Africa, Australia, New Zealand, Canada,  etc.
and  also  referred  to  parallel  legislations  on  the  subject  in  other
countries. Learned  counsel  submitted  that  the  principle  laid  down  in
Velusamy case (supra) has been correctly applied by the High Court  and,  on
facts,  appellant  could  not  establish  that  their  relationship   is   a
"relationship in the nature of marriage" so as to fall within  Section  2(f)
of the DV Act.  Learned counsel also submitted that  the  parties  were  not
qualified to enter into a legal marriage and the  appellant  knew  that  the
respondent was a married person.  Further, the appellant was  not  a  victim
of any fraudulent or bigamous marriage and it  was  a  live-in  relationship
for mutual benefits, consequently, the High Court was right in holding  that
there has not been any domestic violence, within the scope of Section  3  of
the DV Act entitling the appellant to claim maintenance.


12.     We have to examine whether the non maintenance of the  appellant  in
a broken live-in-relationship, which is stated to be a  relationship not  in
the nature of a marriage, will amount  to  "domestic  violence"  within  the
definition of Section 3 of the DV Act, enabling the appellant  to  seek  one
or more reliefs provided under Section 12 of the DV Act.


13.     Before examining the various issues raised  in  this  appeal,  which
have far reaching consequences with regard to the rights and liabilities  of
parties indulging in live-in  relationship,  let  us  examine  the  relevant
provisions of the DV  Act  and  the  impact  of  those  provisions  on  such
relationships.

D.V. ACT

14.     The D.V.  Act has been enacted to provide a remedy in Civil Law  for
protection of women from being victims of domestic violence and  to  prevent
occurrence of domestic violence in  the  society.    The  DV  Act  has  been
enacted also to provide an effective  protection  of  the  rights  of  women
guaranteed under the Constitution, who are victims of violence of  any  kind
occurring within the family.


15.     "Domestic Violence" is undoubtedly a human rights issue,  which  was
not properly taken care of in this country even  though  the  Vienna  Accord
1994 and  the  Beijing  Declaration  and  Platform  for  Action  (1995)  had
acknowledged that domestic violence was undoubtedly a  human  rights  issue.
UN Committee on Convention on Elimination of  All  Forms  of  Discrimination
Against Women in its general recommendations had also  exhorted  the  member
countries to take steps to protect  women  against  violence  of  any  kind,
especially that occurring within the family, a phenomenon  widely  prevalent
in India.  Presently, when a woman is subjected to  cruelty  by  husband  or
his relatives, it is an offence punishable  under  Section  498A  IPC.   The
Civil Law, it was noticed, did not address this phenomenon in its  entirety.
 Consequently, the Parliament,  to  provide  more  effective  protection  of
rights of women guaranteed under the Constitution under Articles 14, 15  and
21, who are victims of  violence  of  any  kind  occurring  in  the  family,
enacted the DV Act.


16.     Chapter IV is the heart and soul  of  the  DV  Act,  which  provides
various reliefs to a woman who has or  has  been  in  domestic  relationship
with any adult male person and seeks one or more reliefs provided under  the
Act.   The Magistrate, while entertaining an application from  an  aggrieved
person under Section 12 of the DV Act, can grant the following reliefs:
1) Payment of compensation or damages without  prejudice  to  the  right  of
   such person to institute a suit for compensation or damages for  injuries
   caused by the acts of domestic  violence  committed  by  the  adult  male
   member, with a prayer for set off against  the  amount  payable  under  a
   decree obtained in Court;
2) The Magistrate, under Section 18 of the DV Act, can  pass  a  "protection
   order" in favour of the aggrieved  person  and  prohibit  the  respondent
   from:
     a) committing any act of domestic violence;


     b) aiding or abetting in the commission of acts of domestic violence;


     c) entering the place of employment of the aggrieved person or, if  the
        person  aggrieved  is  a  child,  its  school  or  any  other  place
        frequented by the aggrieved person;


     d)  attempting  to  communicate  in  any  form,  whatsoever,  with  the
        aggrieved person, including personal, oral or written or  electronic
        or telephonic contact;


     e) alienating any assets, operating bank lockers or bank accounts  used
        or held or enjoyed by both the parties,  jointly  by  the  aggrieved
        person and the respondent or singly by the respondent, including her
        stridhan or any other property held either jointly by the parties or
        separately by them without the leave of the Magistrate;


     f) causing violence to the dependants, other relatives  or  any  person
        who give the aggrieved person assistance from domestic violence;


     g) committing any other act as specified in the protection order.


3) The Magistrate, while disposing of an application under Section 12(1)  of
   the DV Act, can pass a "residence order" under Section 19 of the DV  Act,
   in the following manner:
    "19. Residence orders.- (1) While disposing of an application under sub-
    section (1) of section 12, the Magistrate may, on being satisfied  that
    domestic violence has taken place, pass a residence order-


         a) restraining the respondent from dispossessing or  in  any  other
            manner disturbing the possession of the  aggrieved  person  from
            the shared household, whether or not the respondent has a  legal
            or equitable interest in the shared household;


         b) directing the respondent  to  remove  himself  from  the  shared
            household;


         (c) restraining the  respondent  or  any  of  his  relatives  from
            entering any portion of  the  shared  household  in  which  the
            aggrieved person resides;


         (d) restraining the respondent from alienating or disposing off the
            shared household or encumbering the same;


         (e) restraining the respondent from renouncing his rights  in  the
            shared household except with the leave of the Magistrate; or


         (f) directing the respondent to secure  same  level  of  alternate
            accommodation for the aggrieved person as enjoyed by her in the
            shared  household  or  to  pay  rent  for  the  same,  if   the
            circumstances so require:


         Provided that no order under clause (b) shall be passed against any
    person who is a woman.


         xxx            xxx             xxx
         xxx            xxx             xxx"

(4)     An aggrieved person,  while  filing  an  application  under  Section
    12(1) of the DV Act, is also entitled, under Section 20 of the DV  Act,
    to get "monetary reliefs" to meet  the  expenses  incurred  and  losses
    suffered by the aggrieved person and any child of the aggrieved  person
    as a result of the domestic violence and such relief may  include,  but
    is not limited to,-
    "20. Monetary reliefs.-  (1) While disposing of an  application  under
    sub-  section  (1)  of  section  12,  the  Magistrate  may  direct  the
    respondent to pay monetary relief to meet  the  expenses  incurred  and
    losses suffered by the aggrieved person and any child of the  aggrieved
    person as a result  of  the  domestic  violence  and  such  relief  may
    include, but not limited to,-


    (a) the loss of earnings;


    (b) the medical expenses;


    (c) the loss caused due to the destruction, damage or  removal  of  any
    property from the control of the aggrieved person; and


    (d) the maintenance for the aggrieved person as well as her  children,
    if any, including an  order  under  or  in  addition  to  an  order  of
    maintenance under section 125 of the Code of Criminal  Procedure,  1973
    (2 of 1974 ) or any other law for the time being in force.


                xxx             xxx            xxx
                xxx             xxx            xxx"

    The monetary reliefs granted under the above mentioned section shall be
    adequate, fair, reasonable and consistent with the standard  of  living
    to which an aggrieved person is accustomed and the Magistrate  has  the
    power to order an appropriate lump sum payment or monthly  payments  of
    maintenance.
(5)     The Magistrate, under Section 21 of the DV Act,  has  the  power  to
    grant temporary custody of any  child  or  children  to  the  aggrieved
    person or the person making an application on her behalf  and  specify,
    if necessary, the arrangements for visit of such child or  children  by
    the respondent.
(6)     The Magistrate, in addition to other reliefs, under  Section  22  of
    the DV  Act,  can  pass  an  order  directing  the  respondent  to  pay
    compensation and damages for the injuries, including mental torture and
    emotional distress, caused by the acts of domestic  violence  committed
    by the respondent.


17.     Section 26 of the DV Act provides that any  relief  available  under
Sections 18, 19, 20, 21 and 22 may also be sought in any  legal  proceeding,
before a Civil Court, family  court  or  a  criminal  court,  affecting  the
aggrieved person and the respondent whether such  proceeding  was  initiated
before or after the commencement of this Act.  Further, any relief  referred
to above may be sought for in addition to and along with any  other  reliefs
that the aggrieved person may seek in such suit or legal  proceeding  before
a civil or criminal court.  Further, if any relief has been obtained by  the
aggrieved person in any proceedings other than a proceeding under this  Act,
she shall be bound to inform the Magistrate of the grant of such relief.

18.     Section 3 of the DV Act deals with "domestic violence" and reads  as
under:
         "3. Definition of domestic violence.- For the purposes of this Act,
    any act, omission or commission or  conduct  of  the  respondent  shall
    constitute domestic violence in case it-
         (a) harms or injures or endangers the health, safety, life, limb or
            well-being, whether mental or physical, of the aggrieved person
            or tends to do so and includes causing physical  abuse,  sexual
            abuse, verbal and emotional abuse and economic abuse; or
         (b) harasses, harms, injures or endangers the aggrieved person with
            a view to coerce her or any other person related to her to meet
            any unlawful demand for any dowry or other property or valuable
            security; or
         (c) has the effect of  threatening  the  aggrieved  person  or  any
            person related to her by any conduct mentioned in clause (a) or
            clause (b); or
         (d) otherwise injures or causes harm, whether physical or  mental,
            to the aggrieved person.


    Explanation I.- For the purposes of this section,-


         (i)  "physical abuse" means any act or conduct which is of  such  a
             nature as to cause bodily pain, harm, or danger to life, limb,
             or health or impair the health or development of the aggrieved
             person  and  includes  assault,  criminal   intimidation   and
             criminal force;
         (ii) "sexual abuse" includes any conduct of a  sexual  nature  that
             abuses, humiliates, degrades or otherwise violates the dignity
             of woman;
         (iii) "verbal and emotional abuse" includes-
             (a) insults, ridicule, humiliation, name calling and  insults
                 or ridicule specially with regard to not having a child  or
                 a male child; and


             (b) repeated threats to cause physical pain to any person  in
                 whom the aggrieved person is interested.


         (iv) "economic abuse" includes-


             (a) deprivation of all or any economic or financial resources
                 to which the aggrieved person is entitled under any law  or
                 custom whether  payable  under  an  order  of  a  court  or
                 otherwise or which the aggrieved  person  requires  out  of
                 necessity  including,  but  not   limited   to,   household
                 necessities for the aggrieved person and her  children,  if
                 any, stridhan, property, jointly or separately owned by the
                 aggrieved person, payment of rental related to  the  shared
                 household and maintenance;
             (b) disposal of household effects, any alienation  of  assets
                 whether   movable   or   immovable,   valuables,    shares,
                 securities, bonds and the like or other property  in  which
                 the aggrieved person has an interest or is entitled to  use
                 by virtue of the domestic  relationship  or  which  may  be
                 reasonably required by the aggrieved person or her children
                 or her stridhan or any other property jointly or separately
                 held by the aggrieved person; and
             (c) prohibition  or  restriction  to  continued  access   to
                 resources or  facilities  which  the  aggrieved  person  is
                 entitled  to  use  or  enjoy  by  virtue  of  the  domestic
                 relationship including access to the shared household.


         Explanation II.- For the purpose of determining  whether  any  act,
         omission, commission or  conduct  of  the  respondent  constitutes"
         domestic violence"  under  this  section,  the  overall  facts  and
         circumstances of the case shall be taken into consideration."

19.     In order to examine as to whether there has been any act, omission,
or commission or conduct so as  to  constitute  domestic  violence,  it  is
necessary to examine some of the definition clauses under Section 2 of  the
DV Act.  Section 2(a) of the  DV  Act  defines  the  expression  "aggrieved
person" as follows:
         "2(a). "Aggrieved person" means any woman who is, or has been, in a
    domestic relationship with the respondent and who alleges to have  been
    subjected to any act of domestic violence by the respondent."

Section 2(f) defines the expression "domestic relationship" as follows:
         "2(f). "Domestic relationship" means  a  relationship  between  two
    persons who live or have, at any point of time,  lived  together  in  a
    shared household, when they are related by consanguinity, marriage,  or
    through a relationship in the  nature  of  marriage,  adoption  or  are
    family members living together as a joint family."

Section 2(q) defines the expression "respondent" as follows:
         "2(q). "Respondent" means any adult male  person  who  is,  or  has
    been, in a domestic relationship with the aggrieved person and  against
    whom the aggrieved person has sought any relief under this Act:
         Provided that an aggrieved wife or female living in a  relationship
    in the nature of a  marriage  may  also  file  a  complaint  against  a
    relative of the husband or the male partner."

Section 2(s)  defines  the  expression  "shared  household"  and  reads  as
follows:
         "2(s). "shared  household"  means  a  household  where  the  person
    aggrieved lives or at any stage has lived in  a  domestic  relationship
    either singly  or  along  with  the  respondent  and  includes  such  a
    household whether owned or tenanted either  jointly  by  the  aggrieved
    person and the respondent, or owned or tenanted by either  of  them  in
    respect of which either the aggrieved person or the respondent or  both
    jointly or singly  have  any  right,  title,  interest  or  equity  and
    includes such a household which may belong to the joint family of which
    the respondent is a member, irrespective of whether the  respondent  or
    the aggrieved person has any right, title or  interest  in  the  shared
    household."

20.     We are, in this  case,  concerned  with  a  "live-in  relationship"
which, according to the aggrieved person, is a "relationship in the  nature
of marriage" and it is that relationship which has been  disrupted  in  the
sense that the respondent failed to maintain the aggrieved  person,  which,
according  to  the  appellant,  amounts  to  "domestic   violence".     The
respondent  maintained  the  stand  that  the   relationship  between   the
appellant and the respondent was  not  a  relationship  in  the  nature  of
marriage but  a  live-in-relationship  simplicitor  and  the  alleged  act,
omission, commission or conduct of  the  respondent  would  not  constitute
"domestic violence" so as to claim any protection orders under Section  18,
19 or 20 of the DV Act.


21.      We have to first examine whether the appellant was involved  in  a
domestic relationship with the respondent.  Section  2(f)  refers  to  five
categories of relationship, such as, related  by  consanguinity,  marriage,
relationship in the nature of marriage,  adoption,  family  members  living
together as a joint family, of which we are, in this case,  concerned  with
an alleged relationship in the nature of marriage.


22.     Before we examine whether the respondent has committed any  act  of
domestic violence, we  have  to  first  examine  whether  the  relationship
between them was a "relationship in the  nature  of  marriage"  within  the
definition of Section 3 read with Section  2(f)  of  the  DV  Act.   Before
examining the term "relationship in the nature of  marriage",  we  have  to
first examine what is "marriage", as understood in law.

MARRIAGE AND MARITAL RELATIONSHIP:

23.     Marriage is often described as one of the  basic  civil  rights  of
man/woman, which is voluntarily undertaken by the parties in  public  in  a
formal way, and once concluded, recognizes the parties as husband and wife.
Three elements of common law marriage are (1) agreement to be  married  (2)
living together as husband and wife, (3) holding out  to  the  public  that
they are married.   Sharing a common household and duty  to  live  together
form part of the 'Consortium Omnis Vitae" which  obliges  spouses  to  live
together, afford each other reasonable marital privileges and rights and be
honest and faithful to each other.  One of the  most  important  invariable
consequences of marriage is the reciprocal support and  the  responsibility
of maintenance of the common household, jointly and severally.  Marriage as
an institution has great legal significance  and  various  obligations  and
duties flow out of marital relationship, as  per  law,  in  the  matter  of
inheritance of property, successionship, etc. Marriage, therefore, involves
legal requirements of formality, publicity, exclusivity and all  the  legal
consequences flow out of that relationship.

24.     Marriages in India take place either following the personal Law  of
the Religion to which a party is belonged or following  the  provisions  of
the Special Marriage Act.   Marriage, as per the Common Law, constitutes  a
contract between a man and a woman, in which the parties undertake to  live
together and  support  each  other.    Marriage,  as  a  concept,  is  also
nationally and internationally recognized.   O'Regan,  J.,  in  Dawood  and
Another v. Minister of Home Affairs and Others 2000 (3) SA 936  (CC)  noted
as follows:

         "Marriage  and  the  family  are  social  institutions   of   vital
    importance. Entering into and sustaining a  marriage  is  a  matter  of
    intense private significance to the parties to that marriage  for  they
    make a promise to one another to establish  and  maintain  an  intimate
    relationship for the rest of their lives which they acknowledge obliges
    them to support one another, to live together and to be faithful to one
    another.   Such relationships  are  of  profound  significance  to  the
    individuals concerned. But such relationships have more  than  personal
    significance at least in part because human beings  are  social  beings
    whose humanity is expressed through their  relationships  with  others.
    Entering into marriage therefore is to enter into a  relationship  that
    has public significance as well.


         The institutions of marriage and the family  are  important  social
    institutions that provide for the security, support  and  companionship
    of members of our society and bear an important role in the rearing  of
    children. The celebration of a marriage gives rise to moral  and  legal
    obligations, particularly the reciprocal duty of  support  placed  upon
    spouses and their  joint  responsibility  for  supporting  and  raising
    children born of the  marriage.  These  legal  obligations  perform  an
    important social function. This importance is symbolically acknowledged
    in part by the fact that marriage is celebrated generally in  a  public
    ceremony, often before family and close friends...."


25.     South African Constitutional Court in various judgments  recognized
the above mentioned principle.  In Satchwell v. President of  the  Republic
of South Africa and Another 2002 (6) SA 1 (CC),  Du  Toit  and  Another  v.
Minister of Welfare and Population Development and Others (Lesbian and  Gay
Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC), the Constitutional
Court of South Africa recognized the right "free  to  marry  and  to  raise
family".   Section 15(3)(a)(i) of the  Constitution  of  South  Africa,  in
substance makes provision for the recognition of "marriages concluded under
the tradition, or a system of religious, personal or family law."   Section
9(3) of the Constitution of South Africa reads as follows:
         "The State may not unfairly  discriminate  directly  or  indirectly
    against anyone on one or more grounds,  including  race,  gender,  sex,
    pregnancy, marital status, ethnic  or  social  origin,  colour,  sexual
    orientation, age, disability, religion,  conscience,  belief,  culture,
    language and birth."

26.     Article 23 of the International Covenant  on  Civil  and  Political
Rights, 1966 (ICCPR) provides that:
    "1. The family is the natural and fundamental group unit of society and
         is entitled to protection by society and the State.
    2.  The right of men and women of marriageable  age  to  marry  and  to
         found a family shall be recognized.
    3.  No marriage shall be entered into without the free and full consent
         of the intending spouses.
    4.  States Parties to the present Covenant shall take appropriate steps
         to ensure equality of rights and responsibilities of spouses as to
         marriage, during marriage and at its dissolution.  In the case  of
         dissolution, provision shall be made for the necessary  protection
         of any children."


27.     Article 16 of the  Universal  Declaration  of  Human  Rights,  1948
provides that:
    "1. Men and women of full age, without  any  limitation  due  to  race,
         nationality or religion, have the right to marry and  to  found  a
         family.  They are entitled to equal rights as to marriage,  during
         marriage and at it dissolution.
    2.  Marriage shall be entered into only with the free and full  consent
         of the intending spouses.
    3.  The family is the natural and fundamental group unit of society and
         is entitled to protection by society and the State."

28.     Parties in the present case are Hindus by religion and are governed
by the Hindu Marriage Act,   1955.  The expression "marriage",  as  stated,
is not defined under the Hindu Marriage Act,  but  the  "conditions  for  a
Hindu marriage" are dealt with in Section 5 of the Hindu Marriage  Act  and
which reads as under:
         "5. Conditions for a Hindu marriage - A marriage may be  solemnized
    between any two hindus, if  the  following  conditions  are  fulfilled,
    namely:-
    (i)    neither party has a spouse living at the time of the marriage
         (ii) at the time of the marriage, neither party-
             (a) is  incapable  of  giving  a  valid  consent  to  it  in
                 consequence of unsoundness of mind; or
             (b) though capable  of  giving  a  valid  consent,  has  been
                 suffering from mental disorder of such a kind or to such an
                 extent as to be unfit for marriage and the  procreation  of
                 children; or
             (c) has been subject to recurrent attacks of insanity;
    (iii) the bridegroom has completed the age of  twenty- one  years  and
         the bride the age of  eighteen years at the time of the marriage;
    (iv) the parties are not within the degrees of prohibited  relationship
         unless the custom or usage governing each  of  them  permits  of  a
         marriage between the two;
    (v)   the parties are not sapindas of each other, unless the custom  or
         usage governing each of them permits  of  a  marriage  between  the
         two."


29.     Section 7 of the Hindu Marriage Act deals with the "Ceremonies  for
a Hindu marriage" and reads as follows:
         "7. Ceremonies for a Hindu marriage. -


         (1) A Hindu marriage may be  solemnized  in  accordance  with  the
            customary rites and ceremonies of either party thereto.


         (2) Where such rites and ceremonies include the saptapadi (that is,
            the taking of seven steps  by  the  bridegroom  and  the  bride
            jointly before the sacred fire), the marriage becomes  complete
            and binding when the seventh step is taken."


30.     Entering into a  marriage,  therefore,  either  through  the  Hindu
Marriage Act or the  Special  Marriage  Act  or  any  other  Personal  Law,
applicable to the parties, is  entering  into  a  relationship  of  "public
significance", since marriage being a social institution, many  rights  and
liabilities flow out of that legal relationship.  The concept  of  marriage
as a "civil right" has been recognised  by  various  courts  all  over  the
world, for example, Skinner v. Oklahoma 316 US 535 (1942), Perez v. Lippold
198 P.2d 17, 20.1 (1948), Loving v. Virginia 388 US 1 (1967).

31.     We have referred to, in extenso, about the concept of "marriage and
marital relationship"  to indicate that the law has  distinguished  between
married and unmarried people, which cannot be said to  be  unfair  when  we
look at the rights and obligations which flow out  of  the  legally  wedded
marriage.  A married couple has to discharge  legally  various  rights  and
obligations, unlike the case of persons  having  live-in  relationship  or,
marriage-like relationship or defacto relationship.

32.     Married couples who choose to  marry  are  fully  cognizant  of  the
legal obligation which arises by the operation of law  on  solemnization  of
the marriage and the rights and duties they owe to their  children  and  the
family as a  whole,  unlike  the  case  of  persons  entering  into  live-in
relationship.   This Court in Pinakin Mahipatray Rawal v. State  of  Gujarat
(2013) 2  SCALE  198  held  that  marital  relationship  means  the  legally
protected marital interest of one spouse to another  which  include  marital
obligation to another  like  companionship,  living  under  the  same  roof,
sexual relation and the exclusive  enjoyment  of  them,  to  have  children,
their up-bringing, services in the home, support,  affection,  love,  liking
and so on.

RELATIONSHIP IN THE NATURE OF MARRIAGE:

33.     Modern Indian society through the  DV  Act  recognizes  in  reality,
various other forms of familial  relations,  shedding  the  idea  that  such
relationship can only be through some acceptable modes hitherto  understood.
Section 2(f), as already indicated, deals with a  relationship  between  two
persons (of the opposite sex) who live or have lived together  in  a  shared
household when they are related by:
   a)  Consanguinity
   b) Marriage
   c) Through a relationship in the nature of marriage
   d) Adoption
   e) Family members living together as joint family.


34.      The  definition   clause   mentions   only   five   categories   of
relationships which exhausts itself since the expression "means",  has  been
used.  When a definition clause is defined to  "mean"  such  and  such,  the
definition is prima facie restrictive and exhaustive.  Section 2(f) has  not
used the expression "include" so as to make the definition  exhaustive.   It
is in that context  we  have  to  examine  the  meaning  of  the  expression
"relationship in the nature of marriage".


35.      We  have  already  dealt  with   what   is   "marriage",   "marital
relationship" and "marital obligations".   Let us now  examine  the  meaning
and scope of the expression "relationship in the nature of  marriage"  which
falls within the definition of Section 2(f) of the DV Act.  Our  concern  in
this case is of the third enumerated category that is "relationship  in  the
nature of marriage" which means a relationship which has  some  inherent  or
essential characteristics of  a  marriage  though  not  a  marriage  legally
recognized, and, hence, a comparison of both will have to  be  resorted,  to
determine  whether  the  relationship  in  a  given  case  constitutes   the
characteristics of a regular marriage.

36.     Distinction between the relationship in the nature of  marriage  and
marital relationship has to be  noted  first.     Relationship  of  marriage
continues, notwithstanding the fact that there are differences of  opinions,
marital unrest etc., even if they are not sharing a shared household,  being
based on law.   But live-in-relationship is purely  an  arrangement  between
the  parties  unlike,  a  legal  marriage.   Once  a  party  to  a  live-in-
relationship determines that  he/she  does  not  wish  to  live  in  such  a
relationship,  that  relationship  comes  to  an   end.    Further,   in   a
relationship in the nature of marriage, the party  asserting  the  existence
of the relationship, at any stage or at any point of time,  must  positively
prove  the  existence   of   the   identifying   characteristics   of   that
relationship, since the legislature has used the expression "in  the  nature
of".


37.     Reference to certain situations, in which the  relationship  between
an aggrieved person referred to in Section 2(a) and the respondent  referred
to in Section  2(q)  of  the  DV  Act,  would  or  would  not  amount  to  a
relationship in the nature of marriage, would be  apposite.   Following  are
some of the categories of cases which are only illustrative:
   a)  Domestic  relationship  between  an  unmarried  adult  woman  and  an
      unmarried adult male:    Relationship between an unmarried adult woman
      and an unmarried adult male who lived or, at any point of  time  lived
      together in a shared household, will  fall  under  the  definition  of
      Section 2(f) of the  DV  Act  and  in  case,  there  is  any  domestic
      violence, the same will fall under Section 3 of the  DV  Act  and  the
      aggrieved person can always seek reliefs provided under Chapter IV  of
      the DV Act.
   b) Domestic relationship between an unmarried woman and a  married  adult
      male:  Situations may arise when an unmarried  adult  women  knowingly
      enters into a relationship with a married adult male.  The question is
      whether such a relationship  is  a  relationship  "in  the  nature  of
      marriage" so as to fall within the definition of Section 2(f)  of  the
      DV Act.
   c) Domestic relationship between a married adult woman and  an  unmarried
      adult male:   Situations may also arise where an adult married  woman,
      knowingly enters into a relationship with an unmarried adult male, the
      question  is  whether  such  a  relationship  would  fall  within  the
      expression relationship "in the nature of marriage".
   d) Domestic relationship between an unmarried  woman  unknowingly  enters
      into a relationship with a married adult male:    An  unmarried  woman
      unknowingly enters into a relationship with a married adult male, may,
      in a given situation, fall within the definition of  Section  2(f)  of
      the DV Act and such a  relationship  may  be  a  relationship  in  the
      "nature of marriage", so far as the aggrieved person is concerned.
   e) Domestic relationship between same sex partners  (Gay  and  Lesbians):
       DV Act does not recognize such a relationship and  that  relationship
      cannot be termed as a relationship in the nature of marriage under the
      Act.  Legislatures in some countries,  like  the  Interpretation  Act,
      1984 (Western Australia), the Interpretation Act, 1999 (New  Zealand),
      the Domestic Violence Act, 1998 (South Africa), the Domestic Violence,
      Crime and Victims Act, 2004 (U.K.), have recognized  the  relationship
      between the same sex couples and have brought these relationships into
      the definition of Domestic relationship.




38.     Section  2(f)  of  the  DV  Act  though  uses  the  expression  "two
persons", the expression "aggrieved person"  under  Section  2(a)  takes  in
only "woman", hence, the Act does not recognize  the  relationship  of  same
sex (gay or lesbian) and, hence, any act, omission,  commission  or  conduct
of any of the parties, would not lead to domestic  violence,  entitling  any
relief under the DV Act.


39.     We should, therefore, while determining whether any  act,  omission,
commission or conduct of the  respondent  constitutes  "domestic  violence",
have a  common  sense/balanced  approach,  after  weighing  up  the  various
factors  which  exist  in  a  particular  relationship  and  then  reach   a
conclusion as to whether a particular relationship is a relationship in  the
"nature of marriage".  Many a times, it  is  the  common  intention  of  the
parties to that relationship as to what their relationship is to be, and  to
involve  and  as  to  their  respective  roles  and  responsibilities,  that
primarily governs that relationship.  Intention may be expressed or  implied
and  what  is  relevant  is  their  intention  as  to   matters   that   are
characteristic of a marriage.   The expression "relationship in  the  nature
of marriage", of course, cannot be construed in the abstract, we  must  take
it in the context in which it appears and apply the  same  bearing  in  mind
the purpose and object of the Act as well as the meaning of  the  expression
"in the nature of marriage".  Plight of a vulnerable  section  of  women  in
that relationship needs  attention.  Many  a  times,  the  women  are  taken
advantage of and essential  contribution  of  women  in  a  joint  household
through labour and emotional support have been lost sight of  especially  by
the women who fall in  the  categories  mentioned  in  (a)  and  (d)  supra.
Women, who fall under categories (b) and (c), stand on a different  footing,
which we will deal with later.  In the present  case,  the  appellant  falls
under category (b), referred to in paragraph 37(b) of the Judgment.


40.      We  have,  therefore,  come  across   various   permutations   and
combinations, in such relationships,  and  to  test  whether  a  particular
relationship would fall within the expression "relationship in  the  nature
of marriage", certain guiding principles  have  to  be  evolved  since  the
expression has not been defined in the Act.


41.     Section 2(f) of the DV Act defines "domestic relationship" to mean,
inter alia, a relationship between two  persons  who  live  or  have  lived
together  at  such  point  of  time  in  a  shared  household,  through   a
relationship in the nature of marriage. The expression "relationship in the
nature of marriage" is also described as defacto relationship,  marriage  -
like  relationship,   cohabitation,   couple   relationship,   meretricious
relationship (now known as committed intimate relationship) etc.


42.     Courts and legislatures of various countries  now  began  to  think
that denying certain benefits to a certain class of persons on the basis of
their marital status is unjust where the need of those benefits is felt  by
both unmarried and married cohabitants.  Courts in various  countries  have
extended  certain   benefits   to   heterosexual   unmarried   cohabitants.
Legislatures too, of late, through legislations started giving benefits  to
heterosexual cohabitants.

43.     In U.K. through the Civil Partnership Act, 2004, the rights of even
the same-sex couple have been recognized.   Family Law Act,  1996,  through
the Chapter IV, titled 'Family Homes and  Domestic  Violence',  cohabitants
can seek reliefs if there is domestic violence.  Canada  has  also  enacted
the Domestic Violence Intervention Act, 2001.  In USA, the violence against
woman is a crime with far-reaching consequences under the Violence  Against
Women Act, 1994 (now Violence Against Women Reauthorization Act, 2013).

44.     The Interpretation Act, 1984  (Australia)  has  laid  down  certain
indicators to determine the meaning of "de facto relationship",  which  are
as follows:
           "13A . De facto relationship and de facto partner, references to


           (1) A reference in a written law  to  a  de  facto  relationship
           shall be construed as a reference to a relationship (other  than
           a legal marriage) between 2  persons  who  live  together  in  a
           marriage-like relationship.
           (2) The following factors are indicators of whether or not a  de
           facto  relationship  exists  between  2  persons,  but  are  not
           essential -
              (a) the length of the relationship between them;
              (b)    whether the 2 persons have resided together;
              (c)   the nature and extent of common residence;
              (d)   whether there is, or has  been,  a  sexual relationship
              between them;
              (e) the degree of financial  dependence  or  interdependence,
              and any arrangements for financial support, between them;
              (f)  the ownership, use and  acquisition  of  their  property
              (including property they own individually);
              (g)  the degree of mutual commitment  by  them  to  a  shared
              life;
              (h)  whether they care for and support children;
              (i)  the reputation, and public aspects, of the  relationship
              between them.
              xxx               xxx             xxx
              xxx               xxx             xxx"


45.     The Domestic and Family Violence Protection Act,  2012  (Queensland)
has defined the expression "couple relationship" to mean as follows":
      "18. Meaning of couple relationship


           1)     xxx      xxx  xxx


           2) In deciding whether a couple relationship exists, a court may
              have regard to the following -


                 a)  the  circumstances  of  the  relationship  between  the
                    persons, including, for example-


                     (i)        the degree of trust  between  the  persons;
                         and


                     (ii) the level of each  person's  dependence  on,  and
                         commitment to, the other person;
                 b) the length  of  time  for  which  the  relationship  has
                    existed or did exist;
                 c) the frequency of contact between the persons;
                 d) the degree of intimacy between the persons.

           3)  Without limiting sub-section (2), the court may consider the
              following factors in deciding whether a  couple  relationship
              exists-


                 a) Whether the trust, dependence or commitment is  or  was
                    of the same level;
                 b) Whether one  of  the  persons  is  or  was  financially
                    dependent on the other;
                 c) Whether the persons jointly own or owned any property;
                 d) Whether the persons have or had joint bank accounts;
                 e)  Whether  the  relationship  involves  or  involved   a
                    relationship of a sexual nature;
                 f) Whether the relationship is or was exclusive.


           4) A couple relationship may exist even if  the  court  makes  a
              negative finding in relation to any or  all  of  the  factors
              mentioned in subsection (3).


           5) A couple relationship may exist between two  persons  whether
              the persons are of the same or a different gender.


           6) A couple relationship  does  not  exist  merely  because  two
              persons date or dated each other on a number of occasions."




46.     The Property  (Relationships)  Act,  1984  of  North  South  Wales,
Australia also provides for some guidelines with regard to the meaning  and
content of the expression "de facto relationship", which reads as follows:

1 "4 De facto relationships

      (1) For the purposes of  this  Act,  a  de  facto  relationship  is  a
      relationship between two adult persons:
           (a)  who live together as a couple, and
           (b) who are not married to one another or related by family.
      (2) In determining whether two persons are in a de facto relationship,
      all the circumstances  of  the  relationship  are  to  be  taken  into
      account, including such of the following matters as may be relevant in
      a particular case:
           (a)  the duration of the relationship,
           (b) the nature and extent of common residence,
           (c)  whether or not a sexual relationship exists,
           (d) the degree of financial dependence or  interdependence,  and
               any arrangements for financial support, between the parties,


           (e)  the ownership, use and acquisition of property,
           (f)   the degree of mutual commitment to a shared life,
           (g)  the care and support of children,
           (h)  the performance of household duties,
           (i) the reputation and public aspects of the relationship.
      (3) No  finding  in  respect  of  any  of  the  matters  mentioned  in
      subsection (2) (a)-(i), or in respect of any combination of  them,  is
      to  be  regarded  as  necessary  for  the  existence  of  a  de  facto
      relationship, and a court  determining  whether  such  a  relationship
      exists is entitled to have regard to such matters, and to attach  such
      weight to any matter, as may seem appropriate  to  the  court  in  the
      circumstances of the case.
      (4) Except as provided by section 6, a reference  in  this  Act  to  a
      party to a de facto relationship includes a reference to a person who,
      whether before or after the commencement of  this  subsection,  was  a
      party to such a relationship."

47.     "In Re  Marriage  of  Lindsay,  101  Wn.2d  299  (1984),  Litham  v.
Hennessey 87 Wn.2d 550 (1976), Pennington 93 Wash.App. at  917,  the  Courts
in United States took the view that  the  relevant  factors  establishing  a
meretricious relationship include continuous cohabitation, duration  of  the
relationship, purpose of the relationship, and the pooling of resources  and
services for joint projects.  The Courts  also  ruled  that  a  relationship
need not be "long term" to be characterized  as  meretricious  relationship.
 While a long term relationship is not a threshold requirement, duration  is
a significant factor.  Further, the Court also noticed  that  a  short  term
relationship may be characterized as a meretricious, but a number  of  other
important factors must be present.

48.     In Stack v. Dowden [2007] 2 AC 432, Baroness Hale of Richmond said:
      "Cohabitation comes  in  many  different  shapes  and  sizes.   People
      embarking on their first serious relationship  more  commonly  cohabit
      than marry.  Many of these relationships may be quite short-lived  and
      childless.  But most people these days  cohabit  before  marriage.....
      So many couples are cohabiting with a view to marriage at  some  later
      date - as long ago as 1998 the British Household  Panel  Survey  found
      that 75% of current cohabitants expected to  marry,  although  only  a
      third had  firm  plans:   John  Ermisch,  Personal  Relationships  and
      Marriage Expectations (2000) Working Papers of the Institute of Social
      and Economic Research:  Paper 2000-27.    Cohabitation  is  much  more
      likely to end in separation than is marriage, and cohabitations  which
      end in separation tend to last for a shorter time than marriages which
      end in divorce.   But increasing numbers of couples cohabit  for  long
      periods without marrying and their reasons  for  doing  so  vary  from
      conscious rejection of marriage as a legal  institution  to  regarding
      themselves 'as good as married' anyway:  Law Commission,  Consultation
      Paper No 179, Part 2, para 2.45."


49.     In MW v. The  Department  of  Community  Services  [2008]  HCA  12,
Gleeson, CJ, made the following observations:
      "Finn J was correct to stress the difference between  living  together
      and living together 'as a couple in a relationship in  the  nature  of
      marriage or civil union'.    The relationship between two  people  who
      live together, even though it is a sexual relationship,  may,  or  may
      not, be a relationship in the nature of marriage or civil union.   One
      consequence of relationships of the former kind  becoming  commonplace
      is that it may now be more difficult, rather  than  easier,  to  infer
      that they have the nature of marriage or civil union, at  least  where
      the care and upbringing of children are not involved."



50.     In Lynam v. The Director-General of Social Security (1983)  52  ALR
128, the Court considered whether a man and a  woman  living  together  'as
husband and wife on a bona fide domestic basis' and Fitzgerald, J. said:
      "Each element of a relationship draws its colour and its  significance
      from the other elements, some of which may point in one direction  and
      some in the other.   What must be looked at is the composite  picture.
       Any attempt to isolate individual factors and to  attribute  to  them
      relative degrees of materiality or importance  involves  a  denial  of
      common experience and will almost inevitably be productive  of  error.
      The endless scope for differences in human  attitudes  and  activities
      means that there will be an almost infinite variety of combinations of
      circumstances which may fall for  consideration.   In  any  particular
      case, it will be a question of  fact  and  degree,  a  jury  question,
      whether a relationship between two unrelated persons of  the  opposite
      sex meets the statutory test."




51.     Tipping, J. in Thompson v. Department of  Social  Welfare  (1994)  2
SZLR 369 (HC), listed few characteristics which are  relevant  to  determine
relationship in the nature of marriage as follows:
      "(1)       Whether and how frequently the parties  live  in  the  same
           house.
      (2)        Whether the parties have a sexual relationship.
      (3)        Whether the parties give each other emotional  support  and
           companionship.
      (4)        Whether the parties socialize together or attend activities
           together as a couple.
      (5)         Whether  and  to  what  extent  the  parties   share   the
           responsibility for  bringing  up  and  supporting  any  relevant
           children.
      (6)        Whether the parties  share  household  and  other  domestic
           tasks.
      (7)         Whether  the  parties  share  costs  and  other  financial
           responsibilities by the pooling of resources or otherwise.
      (8)        Whether the parties run a common household, even if one  or
           other partner is absent for periods of time.
      (9)        Whether the parties go on holiday together.
      (10)       Whether the parties conduct  themselves  towards,  and  are
           treated by friends, relations and  others  as  if  they  were  a
           married couple."



52.      Live-in  relationship,  as  such,  as  already  indicated,  is   a
relationship which has not been socially accepted  in  India,  unlike  many
other countries.  In Lata Singh v. State of U.P.  [AIR 2006 SC 2522] it was
observed that a live-in  relationship  between  two  consenting  adults  of
heterosexual sex does not amount to any  offence  even  though  it  may  be
perceived as immoral. However, in order to provide a remedy  in  Civil  Law
for protection of women, from being victims of such  relationship,  and  to
prevent the occurrence of domestic violence in the society, first  time  in
India, the DV Act has been enacted to cover the couple having  relationship
in the nature of marriage, persons related by consanguinity, marriages etc.
 We have few other legislations also where reliefs have  been  provided  to
woman placed in certain vulnerable situations.


53.     Section 125 Cr.P.C., of  course,  provides  for  maintenance  of  a
destitute wife and Section 498A IPC is related to mental cruelty  inflicted
on women by her husband and in-laws.  Section  304-B  IPC  deals  with  the
cases relating to dowry death.  The Dowry Prohibition Act, 1961 was enacted
to deal with the cases of dowry demands by the husband and family  members.
 The Hindu Adoptions and  Maintenance  Act,  1956  provides  for  grant  of
maintenance to a legally wedded Hindu wife, and also deals with  rules  for
adoption.  The Hindu Marriage Act, 1955 refers to  the  provisions  dealing
with solemnization of marriage also deals with the provisions for  divorce.
  For the first time, through, the DV Act, the Parliament has recognized  a
"relationship in the nature of marriage" and  not  a  live-in  relationship
simplicitor.

54.     We have already stated, when we examine whether a relationship will
fall within the expression "relationship in the nature of marriage"  within
the meaning of Section 2(f) of the DV Act, we should have a close  analysis
of the entire relationship, in other words, all facets of the interpersonal
relationship need to be taken into account.  We cannot  isolate  individual
factors, because there may  be  endless  scope  for  differences  in  human
attitudes and activities and a variety  of  combinations  of  circumstances
which may fall for consideration. Invariably, it may be a question of  fact
and degree, whether a relationship between two  unrelated  persons  of  the
opposite sex meets the tests judicially evolved.

55.     We may, on the basis of above discussion cull out  some  guidelines
for testing under what  circumstances, a  live-in  relationship  will  fall
within the expression  "relationship  in  the  nature  of  marriage"  under
Section 2(f) of the DV Act.  The guidelines, of course, are not exhaustive,
but will definitely give some insight to such relationships.
1) Duration of period of relationship
      Section 2(f) of the DV Act has used the expression "at any  point  of
      time", which means a  reasonable  period  of  time  to  maintain  and
      continue a relationship which may vary from case to  case,  depending
      upon the fact situation.
(2)     Shared household
      The expression has been defined under Section 2(s) of the DV Act and,
      hence, need no further elaboration.
(3)     Pooling of Resources and Financial Arrangements
      Supporting each other, or any one of them, financially, sharing  bank
      accounts, acquiring immovable properties in joint  names  or  in  the
      name of the woman, long  term  investments  in  business,  shares  in
      separate and joint names, so as to have a long standing relationship,
      may be a guiding factor.
(4)     Domestic Arrangements
      Entrusting the responsibility, especially on the  woman  to  run  the
      home, do the household activities like cleaning, cooking, maintaining
      or upkeeping the house, etc. is an indication of  a  relationship  in
      the nature of marriage.
(5)     Sexual Relationship
      Marriage like relationship refers to sexual  relationship,  not  just
      for pleasure,  but  for  emotional  and  intimate  relationship,  for
      procreation  of  children,  so  as   to   give   emotional   support,
      companionship and also material affection, caring etc.
(6)     Children
      Having children is a strong  indication  of  a  relationship  in  the
      nature of marriage.   Parties,  therefore,  intend  to  have  a  long
      standing relationship.  Sharing the responsibility  for  bringing  up
      and supporting them is also a strong indication.
(7)     Socialization in Public
      Holding out to the public and socializing with friends, relations and
      others, as if they are husband and wife is a strong  circumstance  to
      hold the relationship is in the nature of marriage.
(8)     Intention and conduct of the parties
      Common intention of parties as to what their relationship  is  to  be
      and  to   involve,   and   as   to   their   respective   roles   and
      responsibilities,   primarily   determines   the   nature   of   that
      relationship.

STATUS OF THE APPELLANT

56.     Appellant, admittedly, entered into a live-in-relationship with the
respondent knowing that he was married person, with wife and two  children,
hence,  the  generic  proposition  laid  down  by  the  Privy  Council   in
Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy,  AIR  1927
PC 185,   that where a man and a woman are proved to have lived together as
husband and wife, the  law  presumes  that  they  are  living  together  in
consequence of a valid marriage will not apply and, hence, the relationship
between the appellant and the respondent was  not  a  relationship  in  the
nature of a marriage, and the  status  of  the  appellant  was  that  of  a
concubine. A concubine cannot maintain a  relationship  in  the  nature  of
marriage because such a relationship will not have exclusivity and will not
be monogamous in character.  Reference may also be made to the judgments of
this Court in Badri Prasad v. Director of Consolidation 1978  (3)  SCC  527
and Tulsa v. Durghatiya 2008 (4) SCC 520.  In Gokal Chand v. Parvin  Kumari
AIR 1952 SC 231 this Court held that the continuous cohabitation of man and
woman as husband and wife may raise the presumption of  marriage,  but  the
presumption which may be drawn from long cohabition is a rebuttable one and
if there are circumstances which weaken and destroy that  presumption,  the
Court cannot ignore them.  Polygamy, that is a relationship or practice  of
having more than one wife or husband at the same time, or a relationship by
way of a bigamous marriage that is marrying someone while  already  married
to another and/or maintaining an adulterous  relationship  that  is  having
voluntary sexual intercourse between a married  person  who  is  not  one's
husband or wife, cannot be said to be  a  relationship  in  the  nature  of
marriage.

57.     We may note, in the instant case, there is no  necessity  to  rebut
the presumption, since the appellant was aware that the  respondent  was  a
married person even before the commencement of  their  relationship,  hence
the status of the appellant is that of  a  concubine  or  a  mistress,  who
cannot enter into relationship in the nature of a marriage.  Long  standing
relationship as a concubine, though not a relationship in the nature  of  a
marriage, of course, may at times, deserves protection because  that  woman
might not be financially independent, but we are afraid that  DV  Act  does
not take care of such relationships which may perhaps call for an amendment
of the definition of Section 2(f) of the DV Act, which is  restrictive  and
exhaustive.


58.     Velusamy case (supra) stated that instances are many where  married
person maintain and support such types of women, either for sexual pleasure
or sometimes for emotional support.  Woman, a party  to  that  relationship
does suffer social disadvantages and prejudices, and historically,  such  a
person has been regarded as less worthy than the married woman.   Concubine
suffers social ostracism through the denial of  status  and  benefits,  who
cannot, of course, enter into a relationship in the nature of marriage.


59.     We cannot, however, lose sight of the fact that inequities do exist
in such relationships and on breaking down  such  relationship,  the  woman
invariably is the sufferer.  Law of Constructive Trust developed as a means
of recognizing the contributions, both pecuniary and non-pecuniary, perhaps
comes to their aid in such situations, which may remain as a  recourse  for
such a woman who find herself unfairly disadvantaged.  Unfortunately, there
is no express  statutory  provision  to  regulate  such  types  of  live-in
relationships upon termination or disruption since those relationships  are
not in the nature of marriage.  We can also come  across  situations  where
the parties entering into  live-in-relationship  and  due  to  their  joint
efforts or otherwise acquiring  properties,  rearing  children,  etc.   and
disputes may also arise when one of the parties dies intestate.


60.     American Jurisprudence, Second Edition, Vol. 24  (2008)  speaks  of
Rights and Remedies  of  property  accumulated  by  man  and  woman  living
together in illicit relations or under void marriage, which reads as under:
      "Although the courts have recognized the property  rights  of  persons
      cohabiting without benefit of marriage, these rights are not based  on
      the equitable distribution provisions of the marriage and divorce laws
      because the judicial recognition of  mutual  property  rights  between
      unmarried cohabitants  would  violate  the  policy  of  the  state  to
      strengthen and preserve the integrity of marriage, as demonstrated  by
      its abolition of common-law marriage."




61.     Such relationship, it may be noted, may endure for a long time  and
can result pattern of dependency and vulnerability, and  increasing  number
of  such  relationships,  calls  for  adequate  and  effective  protection,
especially to the woman and children born out of that live-in-relationship.
 Legislature, of course, cannot promote pre-marital sex, though, at  times,
such relationships are intensively personal and people  may  express  their
opinion, for and against.  See S. Khushboo v. Kanniammal and another (2010)
5 SCC 600.

62.     Parliament has  to  ponder  over  these  issues,  bring  in  proper
legislation or make a proper amendment of the Act, so that  women  and  the
children, born out of such kinds  of  relationships  be  protected,  though
those types of relationship might not be a relationship in the nature of  a
marriage.


63.     We may now consider whether the tests, we have laid down, have been
satisfied in the instant case.  We have found that the  appellant  was  not
ignorant of the fact that the respondent was a married person with wife and
two children, hence, was party to an adulterous and bigamous  relationship.
Admittedly, the relationship  between  the  appellant  and  respondent  was
opposed by the wife of the respondent,  so  also  by  the  parents  of  the
appellant and her brother and sister and they knew that they could not have
entered into a legal marriage or maintained a relationship in the nature of
marriage.   Parties never entertained any intention to rear children and on
three occasions the pregnancy was terminated.  Having children is a  strong
circumstance to indicate a relationship  in  the  nature  of  marriage.  No
evidence has been adduced to show that the parties gave each  other  mutual
support and companionship.   No material has been produced to show that the
parties have ever projected or conducted themselves as husband and wife and
treated by friends, relatives and others, as if they are a married  couple.
On the other hand, it is the  specific  case  of  the  appellant  that  the
respondent had never held out to the public that she  was  his  wife.    No
evidence of socialization in public has been produced.  There is nothing to
show that there was pooling of resources or financial arrangements  between
them.  On the other hand, it is the specific case of the appellant that the
respondent had never opened any joint account or executed any  document  in
the joint name.  Further, it was also submitted that the  respondent  never
permitted to suffix his name after the name of the appellant.  No  evidence
is forthcoming, in this case, to show that the respondent  had  caused  any
harm or injuries or endangered the health,  safely,  life,  limb  or  well-
being, or caused any physical or sexual abuse on the appellant, except that
he did not maintain her or continued with the relationship.

ALIENATION OF AFFECTION

64.     Appellant had entered into this relationship knowing well that  the
respondent was a married person and encouraged  bigamous  relationship.  By
entering  into  such  a  relationship,  the  appellant  has  committed   an
intentional tort,  i.e.  interference  in  the  marital  relationship  with
intentionally alienating respondent from his  family,  i.e.  his  wife  and
children.  If the case set up by the appellant  is  accepted,  we  have  to
conclude that there has been an attempt on the part  of  the  appellant  to
alienate  respondent  from  his  family,  resulting  in  loss  of   marital
relationship, companionship, assistance, loss of consortium etc., so far as
the legally wedded wife and children of the respondent are  concerned,  who
resisted the relationship from the very inception.  Marriage and family are
social institutions of vital importance.   Alienation of affection, in that
context, is  an  intentional  tort,  as  held  by  this  Court  in  Pinakin
Mahipatray Rawal case (supra), which gives a cause of action  to  the  wife
and children of the respondent to sue  the  appellant  for  alienating  the
husband/father from the company of his wife/children,  knowing  fully  well
they are legally wedded wife/children of the respondent..


65.     We are, therefore, of the view  that  the  appellant,  having  been
fully aware of the fact that the respondent was a married person, could not
have entered into a live-in relationship in the nature  of  marriage.   All
live-in-relationships are not relationships  in  the  nature  of  marriage.
Appellant's  and  the  respondent's  relationship  is,  therefore,  not   a
"relationship in the nature of marriage" because  it  has  no  inherent  or
essential characteristic of a marriage, but a relationship other  than  "in
the nature of marriage" and the appellant's status is lower than the status
of a wife and that relationship would not fall  within  the  definition  of
"domestic relationship" under Section 2(f) of the DV Act.   If we hold that
the relationship between the appellant and the respondent is a relationship
in the nature of a marriage, we will be doing an injustice to  the  legally
wedded wife and children who opposed that relationship.  Consequently,  any
act, omission or commission or conduct of the respondent in connection with
that type of relationship, would not amount to  "domestic  violence"  under
Section 3 of the DV Act.


66.     We have, on facts, found that the appellant's status was that of  a
mistress, who is in distress, a survivor of a live-in relationship which is
of serious concern, especially when such persons are poor  and  illiterate,
in the event of which vulnerability is more pronounced, which is a societal
reality.  Children born out of such relationship  also  suffer  most  which
calls for bringing in remedial measures by the Parliament,  through  proper
legislation.

67.     We are conscious of the fact that if any direction is given to  the
respondent to pay maintenance or monetary consideration to  the  appellant,
that would be at the cost of the legally wedded wife and  children  of  the
respondent, especially when they had opposed that relationship and  have  a
cause of action against the appellant for alienating the companionship  and
affection of the husband/parent which is an intentional tort.


68.     We, therefore, find no reason to interfere with the judgment of the
High Court and the appeal is accordingly dismissed.




                                                    ......................J.
                              (K.S. Radhakrishnan)






                                                    ......................J.
                              (Pinaki Chandra Ghose)
New Delhi
November 26, 2013
                                                                   CORRECTED
ITEM NO.1A (For Judgment)   COURT NO.8    SECTION IIB

            S U P R E M E   C O U R T   O F   I N D I A
                         RECORD OF PROCEEDINGS

Crl. A. No..........................@
Petition(s) for Special Leave to Appeal (Crl) No(s).4895/2012

(From the judgement and order  dated 12/08/2011 in CRLR No.856/2010 of The
HIGH COURT OF KARNATAKA AT BANGALORE)


INDRA SARMA                               Petitioner(s)

                 VERSUS

V.K.V.SARMA                               Respondent(s)


Date: 26/11/2013        This appeal was called on for
pronouncement of judgment.

Amicus Curiae           Ms. Jyotika Kalra,Adv.

For Petitioner(s)       Mr. Anish Kumar Gupta,Adv. (SCLSC)

For Respondent(s)       Mr. Nikhil Majithia,Adv.
                        Mr. Rameshwar Prasad Goyal,Adv.


                Hon'ble  Mr.  Justice  K.S.  Radhakrishnan  pronounced  the
           judgment of the Bench comprising His Lordship  and  Hon'ble  Mr.
           Justice Pinaki Chandra Ghose.
                Leave granted.
                The appeal is dismissed in terms of the signed judgment.




           |(NARENDRA PRASAD)                      | |(RENUKA SADANA)                       |
|COURT MASTER                           | |COURT MASTER                          |


              (Signed "Reportable" judgment is placed on the file)

 

Domestic Violence Act 2005 Cases Lawyers in Delhi

download (1)

Definition of domestic violence.

—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it— tc “3. Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—”

(a) harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or tc” (a) harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or”

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or tc” (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or”

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or tc” (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or”

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. tc” (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.” Explanation I.—For the purposes of this section,— tc “Explanation I.—For the purposes of this section,—”

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force; tc” (i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;”

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman; tc” (ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;”

(iii) “verbal and emotional abuse” includes— tc” (iii) “verbal and emotional abuse” includes—”

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and tc” (a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and”

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested. tc” (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.”

(iv) “economic abuse” includes­— tc” (iv) “economic abuse” includes­—”

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance; tc” (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;”

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and tc” (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and”

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. tc” (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.” Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

 

“domestic relationship” means

 

(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family; tc” (f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

Section 2(q) in The Protection of Women from Domestic Violence Act, 2005

(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: tc” (q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act\:” Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. tc” Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

 

 

Section 12 in The Protection of Women from Domestic Violence Act, 2005

. Application to Magistrate.

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: tc “12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act\:” Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. tc “Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.”

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: tc “(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent\:” Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after s uch set off. tc “Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.”

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. tc “(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.”

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. tc “(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.”

(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing. tc “(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days

 

Section 17 in The Protection of Women from Domestic Violence Act, 2005

 Right to reside in a shared household.

 

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. tc “(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.”

 

Section 19 in The Protection of Women from Domestic Violence Act, 2005

 Residence orders.—

(1) While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order— tc “19. Residence orders.—(1) While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—”

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; tc” (a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;”

(b) directing the respondent to remove himself from the shared household; tc” (b) directing the respondent to remove himself from the shared household;”

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; tc” (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;”

(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same; tc” (d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;”

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or tc” (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or”

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: tc” (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require\:” Provided that no order under clause (b) shall be passed against any person who is a woman. tc “Provided that no order under clause (b) shall be passed against any person who is a woman.”

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person. tc “(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.”

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence. tc “(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.”

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly. tc “(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.”

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order. tc “(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.”

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties. tc “(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.”

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order. tc “(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.”

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to. tc “(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.”

 

 

Section 20 in The Protection of Women from Domestic Violence Act, 2005

 Monetary reliefs.

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to— tc “20. Monetary reliefs.—(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—”

(a) the loss of earnings; tc” (a) the loss of earnings;”

(b) the medical expenses; tc” (b) the medical expenses;”

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and tc” (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and”

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force. tc” (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.”

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. tc “(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.”

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. tc “(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.”

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides. tc “(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.”

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub‑section (1). tc “(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub‑section (1).”

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub‑section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent. tc “(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub‑section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.”

Section 21 in The Protection of Women from Domestic Violence Act, 2005

Custody orders.

Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent: tc “21. Custody orders.—Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent\:” Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit. tc “Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.”

 

Section 22 in The Protection of Women from Domestic Violence Act, 2005

 Compensation orders.—In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

 

Section 23 in The Protection of Women from Domestic Violence Act, 2005

. Power to grant interim and ex parte orders.

(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. tc “23. Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.”

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent. tc “(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”

 

Section 23(2) in The Protection of Women from Domestic Violence Act, 2005

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent. tc “(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”

 

. Penalty for breach of protection order by respondent.

(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. tc “31. Penalty for breach of protection order by respondent.—(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.”

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. tc “(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.”

(3) While framing charges under sub-section (1), the Magistrates may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions. tc “(3) While framing charges under sub-section (1), the Magistrates may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”

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Litigation Law Firms in Delhi,India

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www.legesjurisassociates.com

Leges Juris Associates Law offices is a trusted law firm located in the capital City of India at Delhi (South Delhi). It has been successfully established for Criminal Law, Civil Law, Property Law, Arbitration Law, Commercial Contract litigation, Family Law, Divorce Law and for Company Law. Out of it’s our office at Delhi we have alliances/associated with other local counsels at 20 additional locations within India.

We are among the practicing lawyers in Delhi and practicing on different areas of law in India. We give legal consultancy and have lawyers for cases of debt recovery/money suit, property & real estate matters, shipping arrest & release, National and International arbitration , copyrights Litigation , objections to awards of arbitration, special leave petition, divorce and child custody matters, dowry harassment cases, contracts and agreement s drafting and Litigation matters, wills and Probate Cases, company Law Cases. Business Law and commercial law litigation, Inter country adoption, Civil disputes litigation, criminal trial and bail etc..Our lawyers are experts in giving legal assistance to our clients and suggest best ways out of their legal problems

The Firm has varied experience of representing its clients in all practice areas viz Banking & Finance, Commercial Laws, Personal Laws, Real Estate, Succession Laws, Administrative Laws, Fiscal Laws, Competition Laws, Consumer Laws, Patent & Trade Mark, Information & Technology, Land Acquisition, Infrastructure Laws and the laws pertaining to foreign exchange. A dedicated team of Lawyers in the Firm specialize in dealing with the cases pertaining to Economic Offences. The Firm represents its clients before Supreme Court of India, various High Courts all over the country and lower courts including judicial and quasi judicial authorities, established under various Enactments like Debt Recovery Tribunal, Appellate Tribunal, Forum established under Consumer Protection Laws, Board of Industrial & Financial Reconstruction including Appellate Authorities, Board established under Foreign Exchange Laws, Company Law Board etc. The lawyers in the firm appear before Arbitral Tribunal, comprising of retired Supreme Court Judges and High Court Judges. The firm has represented its client under international arbitration formed under the rules of International Chambers of Commerce and Singapore International Arbitration Centre.

NRI-Inter Country Adoption Lawyers in Delhi,India

adoption

Inter-country adoption is an increasingly common form of family formation. Inter-country adoption can be defined as adoption of a child by a person of another country. Inter-Country adoption may be more viable choice than domestic adoption for many families especially those who want to adopt a healthy infant.

Over the last 10 years, the numbers of children who are adopted by families who live outside of the child’s birth country has more than tripled. Our increasingly globalize world is blurring the edges of racial, ethnic or national identity. No where is this phenomena more actualized than in the act of building a family through inter-country adoption.

The adoption of Indian children by foreign nationals is a controversial issue. To some people it is incomprehensible why Indian children should be sent abroad at all. This situation arises because adoption is still a bit of a stigma in India. Indians are not very open to the idea of adoption.

In foreign countries, there is the opposite problem where children are in short supply for adoption. While there are innumerable cases of Indian orphans being given a secure and loving home in another country, newspapers have reported a number of cases where the child has gone to an alien land only to be mistreated. Such children have been used as domestic servants, beggars and even for prostitution. In other cases, so-called adoption agencies have demanded exorbitant amounts from foreign nationals in consideration of giving a child in adoption and often this is under the label of maintenance charges and medical expenses supposed to have been incurred for the child. It is these cases that leave a bad taste in the mouth and make people wary of adoption by foreign nationals. In the matter of L.K. Pandey vs. Union of India, the Supreme Court of India has laid down certain guidelines that have to be followed in the case of foreign adoption in an attempt to safeguard the interests of the children.

A foreign national adopts an Indian child under the provisions of the Guardian and Wards Act, 1890. The Indian court will appoint the foreigner as the child’s guardian. The foreign national will take the child to his own country and adopt him or her as per the laws of his country.

PROCEEDURE FOR INTER-COUNTRY ADOPTION

The Supreme Court of India has laid down that every application from a foreigner/NRI/PIO (as applicable) desiring to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the Government or a Department of the Foreign Govt. to sponsor such cases in the country in which the foreigner is resident. The foreign agency should also be an agency ‘authorised’ by CARA, Ministry of Social Justice & Empowerment, Govt. of India. No application by a foreigner/NRI/PIO for taking a child in adoption should be entertained directly by any social or child welfare agency in India.

     Criteria for Foreign Prospective Adoptive Parent/s (FPAP):

  • Married couple with 5 years of a stable relationship, age, financial and health status with reasonable income to support the child should be evident in the Home Study Report.
  • Prospective adoptive parents having composite age of 90 years or less can adopt infants and young children. These provisions may be suitably relaxed in exceptional cases, such as older children and children with special needs, for reasons clearly stated in the Home Study Report. However, in no case should the age of any one of the prospective adoptive parents exceed 55 years.
  • Single persons (never married, widowed, divorced) up to 45 years can also adopt.
  • Age difference of the single adoptive parent and child should be 21 years or more.
  • A FPAP in no case should be less than 30 years and more than 55 years.
  • A second adoption from India will be considered only when the legal adoption of the first child is completed.
  • Same sex couples are not eligible to adopt

Foreign nationals living in India

In case of foreigners who have been living in India for one year or more, the HSR and other connected documents may be prepared by the RIPA which is processing the application of such foreigners for the guardianship of the child. An undertaking should be given by the concerned Embassy/High Commission that the child will be legally adopted in that country and also mention an agency/orgn. who would send the progress reports and take care of the child in case of any disruption as and when the child is taken abroad. However a certificate is required from the competent authority in the country of permanent residence of the FPAP indicating that the child shall be allowed to enter the country and get adopted in due course.

 Rights of the child taken abroad

When the Court makes an order appointing adoptive parents as the guardians of the child, the order shall contain an undertaking of the adoptive parents that they shall protect and safeguard the best interest of the child and that the child would be legally adopted in the receiving State not later than two years from the date of the order. On such adoption in the receiving State, subject to the Laws of the country the child would have all rights recognized under International Law.

The required documentation for adoption cases dealing in foreign nationals is as follows:

The prospective adoptive parent(s) have to submit the required supporting documents along with their application like a recent family photograph, his marriage certificate, a declaration of the applicants’ physical fitness duly certified by a medical doctor, a declaration of the applicants’ financial status with corroborating documents such as an employment certificate, income-tax returns, bank references, and particulars of property owned by them.

Another important annexure to the application is a declaration of willingness. This document will state that the foreigner is willing to be appointed as the child’s guardian.  He will also haveto furnish an undertaking that he will adopt the child in accordance with the law of the country in which he resides at the earliest, but not later than two years from the date of the child’s arrival in his country.  The applicant must also declare that he will maintain the child and provide it with necessary education and upbringing according to their status. The foreign national is also required to sign an undertaking that states that he will send the Indian agency and the court a progress report and a photograph of the child monthly in the first year, quarterly in the second year, and half yearly up to five years. In addition, the foreigner is expected to sign a power of attorney in favour of an officer of the Social or Child Welfare Agency in India so that the officer can process the case.

 

All the certificates, declarations and documents that are attached to the foreigner’s application are required to be duly notarized by a Notary Public. The notary’s signature, in turn, will have to be duly attested either by an officer of the Ministry of External Affairs or Justice or Social Welfare of the country of which the foreigner is a resident. An officer of the Indian Embassy or High Commission or Consulate in that country can also attest the notary’s signature.

 

Role of the foreign welfare agency is also crucial. The Social and Child Welfare Agency sponsoring the application of the foreigner must certify that the foreigner seeking to adopt a child is permitted to as per the laws of his country. The agency must undertake to ensure the adoption of the child by the foreigner according to the law of his country within a period of two years. Once the adoption procedure is complete, it is the duty of the agency to send two certified copies of the adoption order to the Social and Child Welfare Agency in India through which the application for guardianship was processed. One copy of the adoption order will have to be filed in court and the other will remain with the Indian agency for their records. The agency sponsoring the guardianship application must also agree to send progress reports of the child to the Indian agency. These reports will be quarterly in the first year and half yearly in the following years till the adoption has been effected. The foreign agency will also have to undertake that in the event of the disruption of the adopting family before the completion of the adoption procedure, it will take care of the child and find a suitable alternative placement for it with the approval of the Indian agency. In the case of an alternative placement becoming necessary, this development will be reported to the court handling the guardianship proceedings and this information will be passed on by the court and the Indian agency to the Secretary, Ministry of Social Welfare, Government of India, New Delhi.

NRI-Child Custody Lawyers in Delhi,India

 

CUSTODY OF FOREIGN NATIONAL CHILD ORDER IN INDIA

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See the entire judgements:

 

Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.112/2007
Dr. V. Ravi Chandran ..Petitioner

Versus

Union of India & Ors. ..Respondents

JUDGMENT
R.M. LODHA, J.
Adithya is a boy of seven, born on July 1, 2002, in the

United States of America. He is a foreign national. The petition before

us is by the father – Dr. V . Ravi Chandran–praying for a writ of

habeas corpus for the production of his minor son Adithya and for

handing over the custody and his passport to him.
2. On August 28, 2009, this Court passed an order

requesting Director, Central Bureau of Investigation (CBI) to trace

minor Adithya and produce him before this Court. The necessity of

such order arose as despite efforts made by the police officers and
officials of different states, Adithya and his mother – respondent

no. 6–Vijayasree Voora–could not be traced and their whereabouts

could not be found for more than two years since the notice was

issued by this Court. In pursuance of the order dated August 28,

2009, CBI issued look out notices on all India basis through heads of

police of States, Union Territories and Metropolitan Cities and also

alert notices through Deputy Director, Bureau of Immigration

(Immigration), Ministry of Home Affairs, New Delhi and flashed

photographs of the child Adithya and his mother Vijayasree Voora.

Ultimately with its earnest efforts, CBI traced Adithya and his mother

Vijayashree Voora in Chennai on October 24, 2009 and brought them

to Delhi and produced the child along with his mother at the

residential office of one of us (Tarun Chatterjee, J.) on October 25,

2009. On that day, the CBI authorities were directed to keep the child

under their custody and produce him before the Court on October 27,

2009. Respondent no. 6 was also directed to be produced on that

date. On October 27, 2009, the matter was adjourned for November

4, 2009 since respondent no.6 wanted to engage a lawyer and file a

counter affidavit. On November 4, 2009, matter was adjourned to

November 10, 2009 and then to November 12, 2009. The petitioner
2
was permitted to meet the child for one hour on November 10, 2009

and November 12, 2009. In the meanwhile, respondent no. 6 has

filed counter affidavit in opposition to the habeas corpus petition and

petitioner has filed rejoinder affidavit to the counter affidavit filed by

respondent no.6.
3. We heard Ms. Pinky Anand, learned senior counsel for

the petitioner and Mr. T.L.V. Iyer, learned senior counsel for

respondent no. 6. Now since minor Adithya has been produced, the

only question that remains to be considered is with regard to the

prayer made by the petitioner for handing over the custody of minor

Adithya to him with his passport.
4. But before we do that, it is necessary to notice few

material facts. Dr. V. Ravi Chandran – petitioner – is an American

citizen. He and respondent no. 6 got married on December 14, 2000

at Tirupathi, Andhra Pradesh according to Hindu rites. On July 1,

2002, Adithya was born in United States of America. In the month of

July 2003, respondent no. 6 approached the New York State

Supreme Court for divorce and dissolution of marriage. A consent

order governing the issues of custody and guardianship of minor
3
Adithya was passed by the New York State Supreme Court on April

18, 2005. The Court granted joint custody of the child to the

petitioner and respondent no. 6 and it was stipulated in the order to

keep the other party informed about the whereabouts of the child.

On July 28, 2005, a Separation Agreement was entered between the

petitioner and respondent no.6 for distribution of marital property,

spouse maintenance and child support. As regards custody of the

minor son Adithya and parenting time, the petitioner and respondent

no. 6 consented to the order dated April 18, 2005. On September 8,

2005, the marriage between the petitioner and respondent no.6 was

dissolved by the New York State Supreme Court. Child custody order

dated April 18, 2005 was incorporated in that order.
5. Upon the petition for modification of custody filed by the

petitioner and the petition for enforcement filed by him and upon the

petition for enforcement filed by respondent no.6 before the Family

Court of the State of New York, on June 18, 2007, upon the consent

of both parties, inter – alia, the following order came to be passed:
“ORDERED, the parties shall share joint legal and
physical custody of the minor child; and it is further
4
ORDERED, that commencing during August 2007,
Adithya shall reside in Allen, Texas; and it is further

ORDERED, that the parties acknowledge that it is
the intention of the parties to reside within the same
community. As such, it is the mother’s current intention to
relocate to Texas, within a forty (40) mile radius of the
father’s residence. If the mother does relocate to a forty (40)
mile radius of the father’s residence (which shall be within
a twenty (20) mile radius from the child’s school),, the parties
shall equally share physical custody of Adithya. The parties
shall alternate physical custody on a weekly basis, with the
exchange being on Friday, at the end of the School day, or
at the time when school would ordinarily let out in the event
that there is no school on Friday; …………….
……………………………………………………………
……………………………………………………………

ORDERED, that in the event that the mother does
not relocate within forty (40) miles from the father’s
residence located in Allen, Texas (and within twenty (20)
miles of Adithya’s school), the mother shall have custodial
time with the minor child, as follows:

A. On Alternating weekends from Friday, at the end of the
school day until Monday, prior to the beginning of
school, commencing during the first week of
September, 2007. Such periods of custodial time shall
take place within forty (40) miles from the father’s
residence located in Allen, Texas. In the event that
there is no school on the Friday of the mother’s
weekend, she shall have custodial time with the child
beginning at 7.00 a.m. on Friday morning, and, in the
event that there is no school on Monday of the mother’s
custodial weekend, she shall have custodial time until
5.00 p.m. on Monday, and

B. For ten (10) consecutive days during Spring vacation
from school; and

C. For the entirety of the Christmas recess from School,
except for Christmas Eve and Christmas day, which
shall be with the father. In the event that the school
recess is prior to Christmas Eve, the mother shall have
the right to have custodial time during those recessed
5
days to long as she produces the child at the father’s
residence for Christmas Eve and Christmas day ; and

D. During the following holidays:

i) Mother’s birthday, which is on April 25;

ii) Mother’s Day;

iii) Hindu Festival of Diwali and Deepavali;

iv) Adithya’s birthday (July 1) in alternating years;

v) Thanks giving in alternating years (so that the
mother has custodial time during even –
numbered years and the father has custodial
time during odd – numbered years);

vi) New Year’s Day in alternating years (so that
the mother has custodial time during even –
numbered years and the father has custodial
time during odd -numbered years) ;…………
……………..
……………………………………………………
ORDERED, that the parties shall share the
summer recess from school so that the mother has
custodial time for a total of up to fifty (50) days on a
schedule so that each party has custodial time for 4
consecutive weeks, with the mother’s custodial time
commencing on the Monday following the final day of
school……….

ORDERED, for the summer of 2007, the
mother shall have custodial time from June 18 until
June 20; the father shall have custodial time from
June 20 until June 24; the mother shall have custodial
time from June 25 until July 1; the father shall have
custodial time from July 1 until July 6; and the mother
shall then have custodial time from July 6 until
August 3 and she shall be solely responsible for
transporting the child to the father’s residence in
Allen, Texas on August 3. The father shall have
custodial time until the commencement of school.
Thereafter the father shall continue to have custodial
time until such time as the mother either a) returns
from India and/or begins her alternating weekly
6
schedule as set froth herein, or b) moves within 40
miles of the father’s residence in Allen, Texas and
commences her custodial time during alternating
weeks;………………………………
…………………………………………………….
…………………………………………………….

ORDERED, that each party agrees that they
shall provide the other parent with a phone number
and address where the child will be located at all time,
and that the other parent shall have reasonable and
regular telephone communication with the minor child;
and it is further

ORDERED, that each party agrees to provide
the other party with the child’s passport during each
custodial exchange of the minor child, and that each
party shall sign and deliver to the other, whatever
written authorization may be necessary for travel with
the child within the Continental United States or
abroad;”……………………………………….
6. On June 28, 2007 respondent no.6 brought minor Adithya

to India informing the petitioner that she would be residing with her

parents in Chennai. On August 08, 2007, the petitioner filed the

petition for modification (Custody) and Violation Petition (Custody)

before the Family Court of the State of New York on which a show

cause notice came to be issued to respondent no.6. On that very

day, the petitioner was granted temporary sole legal and physical

custody of Adithya and respondent no. 6 was directed to immediately

turn over the minor child and his passport to the petitioner and further

her custodial time with the minor child was suspended and it was

7
ordered that the issue of custody of Adithya shall be heard in the

jurisdiction of the United States Courts, specifically, the Albany

County Family Court.
7. It transpires that the Family Court of the State of New

York has issued child abuse non-bailable warrants against

respondent no.6.
8. In the backdrop of the aforenoticed facts, we have to

consider–now since the child has been produced–what should be

the appropriate order in the facts and circumstances keeping in mind

the interest of the child and the orders of the courts of the country of

which the child is a national.
9. In re B–‘s Settlement,1 Chancery Division was concerned

with an application for custody by the father of an infant who had

been made a ward of court. The father was a Belgian national and

the mother a British national who took Belgian nationality on marriage

to him. The infant was born in Belgium. The mother was granted a

divorce by a judgment of the Court in Belgium, but the judgment was

reversed and the father became entitled to custody by the common

1
{1940} Ch. 54
8
law of Belgium. The mother, who had gone to live in England, visited

Belgium and was by arrangement given the custody of the infant for

some days. She took him to England and did not return him. The

infant had been living with mother in England for nearly two years.

The father began divorce proceedings in Belgium, and the Court

appointed him guardian. Pending the proceedings, the Court gave

him the custody and ordered the mother to return the infant within

twenty-four hours of service of the order on her. She did not return

the infant. The Correctional Court in Brussels fined her for

disobedience and sentenced her to imprisonment should the fine be

not paid. The Correctional Court also confirmed the custody order.

In the backdrop of these facts, the summons taken out by the father

that custody of the infant be given to him came up before Morton, J.

who after hearing the parties and in view of the provisions of the

Guardianship of Infants Act, 1925 observed thus:
“…At the moment my feeling is very strong that, even
assuming in the father’s favour that there is nothing in his
character or habits which would render him unfitted to have
the custody of the child, the welfare of the child requires, in
all the circumstances as they exist, that he should remain in
England for the time being…………………………
9
In the present case the position is that nearly two years ago,
when the child was already in England, an interlocutory
order was made by the Divorce Court in Belgium giving the
custody of the child to the father I do not know how far, if at
all, the matter was considered on the footing of what was
best for the child at that time, or whether it was regarded as
a matter of course that the father, being the guardian by the
common law of Belgium and the applicant in the divorce
proceedings and the only parent in Belgium, should be
given the custody. I cannot regard that order as rendering
it in any way improper or contrary to the comity of nations if I
now consider, when the boy has been in this country for
nearly two years, what is in the best interests of the boy. I
do not think it would be right for the Court, exercising its
jurisdiction over a ward who is in this country, although he is
a Belgian national, blindly to follow the order made in
Belgium on October 5, 1937. I think the present case differs
from Nugent v. Vetzera {FN10}, the case that was before
Page Wood V.-C., and it is to be observed that even in that
case, and in the special circumstances of that case, the
Vice-Chancellor guarded himself against anything like
abdication of the control of this Court over its wards. It does
not appear what the Vice-Chancellor’s view would have
been if there had been evidence, for example, that it would
be most detrimental to the health and well-being of the
children if they were removed from England and sent to
Austria…………………………………………..

……..I ought to give due weight to any views formed by the
Courts of the country whereof the infant is a national. But I
desire to say quite plainly that in my view this Court is
bound in every case, without exception, to treat the
welfare of its ward as being the first and paramount
consideration, whatever orders may have been made by
the Courts of any other country.”……………… ………………
………….
10. In Mark T. Mc.Kee vs. Eyelyn McKee2, the Privy Council

was concerned with an appeal from the Supreme Court of Canada.

That was a case where the parents of the infant were American

2
{1951} A.C. 352
10
citizens. They were married in America and to whom a son was born

in California in July 1940. They separated in December 1940 and on

September 4, 1941, executed an agreement which provided,

inter- alia, that neither of them should remove the child out of the

United States without the written permission of the other. By a

judgment of December 17, 1942, in divorce proceedings before the

Superior Court of the State of California, the custody of the child was

awarded to the father. On August 1, 1945, following applications by

the father and the mother, the previous order as to custody was

modified to provide full custody of the child to the mother with right of

reasonable visitation to the father. Thereafter, and without the

consent or knowledge of the mother, the father went from the

United States of America with the child into the Province of Ontario.

The mother thereupon instituted habeas corpus proceedings in the

Supreme Court of Ontario seeking to have the child delivered to her.

Wells, J., before whom the matter came held that infant’s best

interests would be served in the custody of his father. The Court of

Appeal for Ontario dismissed the appeal preferred by the mother.

However, the Supreme Court of Canada by majority judgment

allowed the appeal of the mother and set aside the order of custody
11
of child to the father. On appeal from the Supreme Court of Canada

at the instance of the father, the Privy Council held as follows:
“……….For, after reaffirming “the well established general
rule that in all questions relating to the custody of an infant
the paramount consideration is the welfare of the infant”,
he observed that no case had been referred to which
established the proposition that, where the facts were
such as he found them to exist in the case, the salient
features of which have been stated, a parent by the simple
expedient of taking the child with him across the border into
Ontario for the sole purpose of avoiding obedience to the
judgment of the court, whose jurisdiction he himself invoked,
becomes “entitled as of right to have the whole question
retried in our courts and to have them reach a anew and
independent judgment as to what is best for the infant”. and
it is, in effect, because he held that the father had no such
right that the judge allowed the appeal of the mother, and
that the Supreme Court made the order already referred to.
But with great respect to the judge, this was not the
question which had to be determined. It is possible that a
case might arise in which it appeared to a court, before
which the question of custody of an infant came, that it was
in the best interests of that infant that it should not look
beyond the circumstances in which its jurisdiction was
invoked and for that reason give effect to the foreign
judgment without further inquiry. But it is the negation of
the proposition, from which every judgment in this case has
proceeded, namely, that the infant’s welfare is the
paramount consideration, to say that where the trial judge
has in his discretion thought fit not to take the drastic
course above indicated, but to examine all the
circumstances and form an independent judgment, his
decision ought for that reason to be overruled. Once it is
conceded that the court of Ontario had jurisdiction to
entertain the question of custody and that it need not blindly
follow an order made by a foreign court, the consequence
cannot be escaped that it must form an independent
judgment on the question, though in doing so it will give
proper weight to the foreign judgment. What is the proper
weight will depend on the circumstances of each case. It
may be that, if the matter comes before the court of Ontario
within a very short time of the foreign judgment and there is
no new circumstance to be considered, the weight may be

12
so great that such an order as the Supreme Court made in
this case could be justified. But if so, it would be not
because the court of Ontario, having assumed jurisdiction,
then abdicated it, but because in the exercise of its
jurisdiction it determined what was for the benefit of the
infant.

It cannot be ignored that such consequences might follow as
are suggested by Cartwright, J. The disappointed parent
might meet stratagem by stratagem and, taking the child
into the Province of Manitoba, invoke the protection of its
courts, whose duty it would then be to determine the
question of custody. That is a consideration which, with
others, must be weighed by the trial judge. It is not,
perhaps, a consideration which in the present case should
have weighed heavily.

It has been said that the weight or persuasive effect of a
foreign judgment must depend on the circumstances of
each case. In the present case there was ample reason for
the trial judge, in the first place, forming the opinion that he
should not take the drastic course of following it without
independent inquiry and, in the second place, coming to a
different conclusion as to what was for the infant’s
benefit.”……………………………..
11. The aforesaid two cases came up for consideration in

Harben vs. Harben3, wherein Sachs J. observed as follows:
“It has always been the practice of this court to
ensure that a parent should not gain advantage by the use
of fraud or force in relation to the kidnapping of children
from the care of the other spouse, save perhaps where
there is some quite overwhelming reason in the children’s
interest why the status quo should not be restored by the
court before deciding further issues. In the present case I
am concerned with three young children, two of whom are
girls and the youngest is aged only three. It is a
particularly wicked thing to snatch such children from the
care of a mother, and, in saying that, I have in mind not
merely the mother’s position but the harm that can be done
3
{1957} 1. W.L.R. 261
13
to the children. No affidavit of the husband tendering
either his regrets or any vestige of excuse for his action has
been proffered. Further, as I have already mentioned, when
first I asked Mr. Syms what was the nature of the case
which he might wish to make, if so minded, for depriving
these children of a mother’s care, he only spoke of her
association with a certain man and never suggested that
she had in any way whatsoever failed to look after the
children properly.”
12. In Kernot vs. Kernot4 , the facts were thus: In May 1961,

the plaintiff mother, an Italian lady, married an English man in Italy

where both were residents. A boy was born there on March 29, 1962.

On October 19, 1963, they obtained in Italian Court a separation

order by consent providing therein that custody of the child would

remain with father, with rights of access to the mother . On October

29, 1963, the father brought the infant to England with intention to

make England his home. The mother commenced wardship

proceedings in which she brought a motion for an order that the

father return the infant to her in Italy. She also prayed for restraint

order against him from taking the infant out of her care. Buckley, J. in

these facts held thus:
“So that even where a foreign court has made an order on
the merits – which is not the present case, because the only
order which has been made was a consent order without
any investigation of the merits by the Italian court – that
domestic court before whom the matter comes (the Ontario
4
{1965} Ch.217
14
court in the case to which I have just referred, or this court
in the case before me) is bound to consider what is in the
best interests of the infant; and although the order of the
foreign court will be attended to as one of the
circumstances to be taken into account it is not conclusive
one way or the other. How much stronger must the duty of
this court be to entertain the case where the foreign court
has not made any order based on any investigation of the
case on its merits.”
13. In re H. (Infants)5, the Court of Appeal was concerned

with two American boys whose divorced parents were both citizens

of United States of America. On December 11, 1964, the Supreme

Court of New York State made a consent order directing that the

two boys whose custody had been given to the mother should be

maintained in her apartment in New York and not be removed from

a 50 miles’ radius of Peekskill without the prior written consent of

the father. However, the mother in March 1965 brought these boys

to England and bought a house for herself and children in June

1965. On June 15, 1965, the New York Court ordered the children

to be returned to New York. The mother started wardship

proceedings in the English court. The father took out motion asking

the mother that the two children should be delivered into his care,

that he should be at liberty to convey them to New York and that the

wardship of the children should be discharged. The Trial Judge held
5
(1966) 1 W.L.R. 381 = (1966) 1 All.E.R. 886
15
that the justice of the case required the children to be returned

without delay to the jurisdiction of the New York court, so that the

question of where and with whom they should live might be decided

as soon as possible by that court. The mother appealed to the Court

of Appeal. Willmer L.J. and Harman L.J. by their separate judgments

affirmed the view of the Trial Judge and held that the proper order

was to send these two boys back to their State of New York, where

they belong (and where the Supreme Court is already seized of their

case), and more especially so having regard to the fact that they

have been kept in flagrant contempt of New York Court’s order.

Willmer L.J. agreed with the remark of Cross J. where he said:
“The sudden and unauthorized removal of children from
one country to another is far too frequent nowadays, and as
it seems to me it is the duty of all courts in all countries to
do all they can to ensure that the wrongdoer does not gain
an advantage by his wrongdoing.”
Willmer L.J. went on to hold:

“The judge took the view (and I think it was the right view)
that in a case such as the present it was not necessary to
go into all the disputed questions between the parents, but
that he ought to send these boys back to their own country
to be dealt with by the court of their own country, provided
that he was satisfied (as he was satisfied, having seen the
father himself, and having had the benefit of the view
expressed on behalf of the Official Solicitor) that they would
come to no harm if the father took them back to the United
States; and that this was so, even though it might
16
subsequently turn out, after all the merits of the case had
been thoroughly thrashed out in the court in New York, that
it would perhaps be better after all for the boys to reside in
England and see little or nothing of their father.”

Harman L.J. in his separate judgment held thus:
“…….But if he chose to take the course which the judge
here took in the interests of the children , as he thought, of
sending them back to the United States with no more inquiry
into the matter than to ensure, so far as he could, that there
was no danger to their moral or physical health in taking that
course, I am of opinion that he was amply justified, and that
that was the right way in which to approach the issue.

These children had been the subject of an order (it
is true made by consent) made in the courts of their own
country in December, 1964. It was only three months later
that the mother flouted that order, deceived her own
advisers and deceived the court , and brought the children
here with the object of taking them right out of their father’s
life and depriving him altogether of their society. The interval
is so short that it seems to me that the court inevitably was
bound to view the matter through those spectacles; that is to
say, that the order having been made so shortly before, and
there being no difference in the circumstances in the three
months which had elapsed , there was no justification for
the course which the mother had taken, and that she was
not entitled to seek to bolster her own wrong by seeking
the assistance of this court in perpetuating that position, and
seeking to change the situation to the father’s disadvantage.”
14. In re. L (minors)6, the Court of Appeal was

concerned with the custody of the foreign children who were

removed from foreign jurisdiction by one parent. That was a

case where a German national domiciled and resident in

Germany married an English woman. Their matrimonial home
6
(1974) 1 All ER 913
17
was Germany and the two children were born out of the

wedlock and brought up in Germany. The lady became

unhappy in her married life and in August, 1972, she brought

her children to England with an intention of permanently

establishing herself and the children in England. She obtained

residential employment in the school in England and the

children were accommodated at the school. The children not

having returned to Germany, the father came to England to find

them. On October 25, 1972, the mother issued an originating

summons making them wards of court. The trial judge found

that the children should be brought up by their mother and

treating the case as a `kidnapping’ class of case, approached

the matter by observing that in such a case where the children

were foreign children, who had moved in a foreign home, their

life should continue in what were their natural surroundings,

unless it appeared to the court that it would be harmful to the

children if they were returned. He concluded that in view of the

arrangements which their father could make for them, the

children would not be harmed by being returned. He,

accordingly, ordered that they be returned to Germany and that
18
they remain in their father’s custody until further order. The

mother appealed, contending that in every case the welfare of

the child was the first and paramount consideration and that the

welfare of the children would be best served by staying with

their mother in England. Buckley, LJ in his detailed

consideration of the matter, wherein he referred to the

aforenoticed decisions and few other decisions as well, held as

follows :

“…….Where the court has embarked on a full-scale
investigation of that facts, the applicable principles, in my view, do
not differ from those which apply to any other wardship case. The
action of one party in kidnapping the child is doubtless one of the
circumstances to be taken into account, any may be a
circumstance of great weight; the weight to be attributed to it must
depend on the circumstances of the particular case. The court may
conclude that notwithstanding the conduct of the `kidnapper’ the
child should remain in his or her care (McKee v. McKee, Re E (an
infant) and Re. T.A. (infants), where the order was merely interim);
or it may conclude that the child should be returned to his or her
native country or the jurisdiction from which he or she has been
removed. Where a court makes a summary order for the return of a
child to a foreign country without investigating the merits, the same
principles, in my judgment apply, but the decision must be justified
on somewhat different grounds.
……………………………………………………………………
………..The judge may well be persuaded that it would be better for
the child that those merits should be investigated in a court in his
native country than that he should spend in this country the period
which must necessarily elapse before all the evidence can be
assembled for adjudication here. Anyone who has had experience
of the exercise of this delicate jurisdiction knows what
complications can result from a child developing roots in new soil,
and what conflicts this can occasion in the child’s own life. Such
roots can grow rapidly. An order that the child should be returned
forthwith to the country from which he has been removed in the
expectation that any dispute about his custody will be satisfactorily
19
resolved in the courts of that country may well be regarded as
being in the best interests of the child……”
15. In re. L. (minors)6, the Court of Appeal has made a

distinction between cases, where the court considers the facts and

fully investigates the merits of a dispute, in a wardship matter in

which the welfare of the child concerned is not the only consideration

but is the first and paramount consideration, and cases where the

court do not embark on a full-scale investigation of the facts and

make a summary order for the return of a child to a foreign country

without investigating the merits. In this regard, Buckley, L.J. noticed

what was indicated by the Privy Council in McKee v. McKee2 that

there may be cases in which it is proper for a court in one jurisdiction

to make an order directing that a child be returned to a foreign

jurisdiction without investigating the merits of the dispute relating to

the care of the child on the ground that such an order is in the best

interest of the child.
16. This Court in Smt. Surinder Kaur Sandhu v. Harbax Singh

Sandhu and Another7 was concerned with the custody of a child–

British citizen by birth–to the parents of Indian citizens, who after

7
(1984) 3 SCC 698
20
their marriage settled in England. The child was removed by the

husband from the house when the wife was in the factory where she

was working and brought him to India. The wife obtained an order

under Section 41(English) Supreme Court Act, 1981 whereby the

husband was directed to handover the custody of the boy to her. The

said order was later on confirmed by the High Court in England. The

wife then came to India and filed a writ petition under Article 226 in

the High Court praying for production and custody of the child. The

High Court dismissed her writ petition against which the wife

appealed before this Court. Y.V. Chandrachud, C.J. (as he then was)

speaking for the Court held thus :

“The modern theory of Conflict of Laws recognises and, in
any event, prefers the jurisdiction of the State which has the most
intimate contact with the issues arising in the case. Jurisdiction is
not attracted by the operation or creation of fortuitous
circumstances such as the circumstance as to where the child,
whose custody is in issue, is brought or for the time being lodged.
To allow the assumption of jurisdiction by another State in such
circumstances will only result in encouraging forum-shopping.
Ordinarily, jurisdiction must follow upon functional lines. That is to
say, for example, that in matters relating to matrimony and custody,
the law of that place must govern which has the closest concern
with the well-being of the spouses and the welfare of the offsprings
of marriage. The spouses in this case had made England their
home where this boy was born to them. The father cannot deprive
the English Court of its jurisdiction to decide upon his custody by
removing him to India, not in the normal movement of the
matrimonial home but, by an act which was gravely detrimental to
the peace of that home. The fact that the matrimonial home of the
spouses was in England, establishes sufficient contacts or ties with
that State in order to make it reasonable and just for the courts of
that State to assume jurisdiction to enforce obligations which were
21
incurred therein by the spouses. (See International Shoe Company
v. State of Washington which was not a matrimonial case but which
is regarded as the fountainhead of the subsequent developments of
jurisdictional issues like the one involved in the instant case.) It is
our duty and function to protect the wife against the burden of
litigating in an inconvenient forum which she and her husband had
left voluntarily in order to make their living in England, where they
gave birth to this unfortunate boy.”

17. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and

Another8, this Court held that it was the duty of courts in all countries

to see that a parent doing wrong by removing children out of the

country does not gain any advantage by his or her wrongdoing. In

para 9 of the report, this Court considered the decision of the Court of

Appeal in re H.5 and approved the same in the following words:

“9. In Re H. (infants) [(1966) 1 All ER 886] the Court of
Appeal in England had occasion to consider a somewhat similar
question. That case concerned the abduction to England of two
minor boys who were American citizens. The father was a natural-
born American citizen and the mother, though of Scottish origin,
had been resident for 20 years in the United States of America.
They were divorced in 1953 by a decree in Mexico, which
embodied provisions entrusting the custody of the two boys to the
mother with liberal access to the father. By an amendment made in
that order in December 1964, a provision was incorporated that the
boys should reside at all times in the State of New York and should
at all times be under the control and jurisdiction of the State of New
York. In March 1965, the mother removed the boys to England,
without having obtained the approval of the New York court, and
without having consulted the father; she purchased a house in
England with the intention of remaining there permanently and of
cutting off all contacts with the father. She ignored an order made in
June 1965, by the Supreme Court of New York State to return the
boys there. On a motion on notice given by the father in the
Chancery Division of the Court in England, the trial Judge Cross, J.
directed that since the children were American children and the
8
(1987) 1 SCC 42
22
American court was the proper court to decide the issue of custody,
and as it was the duty of courts in all countries to see that a parent
doing wrong by removing children out of their country did not gain
any advantage by his or her wrongdoing, the court without going
into the merits of the question as to where and with whom the
children should live, would order that the children should go back to
America. In the appeal filed against the said judgment in the Court
of Appeal, Willmer, L.J. while dismissing the appeal extracted with
approval the following passage from the judgment of Cross, J.
[(1965) 3 All ER at p. 912. (Ed. : Source of the second quoted para
could not be traced.)]:
“The sudden and unauthorised removal of children from one
country to another is far too frequent nowadays, and as it
seems to me, it is the duty of all courts in all countries to do
all they can to ensure that the wrongdoer does not gain an
advantage by his wrongdoing.
The courts in all countries ought, as I see it, to be careful not
to do anything to encourage this tendency. This substitution
of self-help for due process of law in this field can only harm
the interests of wards generally, and a Judge should, as I
see it, pay regard to the orders of the proper foreign court
unless he is satisfied beyond reasonable doubt that to do so
would inflict serious harm on the child.”
10. With respect we are in complete agreement with the aforesaid
enunciation of the principles of law to be applied by the courts in
situations such as this.”
18. In the case of Dhanwanti Joshi v. Madhav Unde9, this

Court was again concerned with the matter relating to removal of a

child from one country to another contrary to custody order of the

court from where the child was removed. This court considered

English decisions, inter alia, McKee v. McKee2 and H. (infants), re.5

and also noticed the decision of this Court in Mrs. Elizabeth Dinshaw8

and observed as follows :
9
(1998) 1 SCC 112
23
“28. The leading case in this behalf is the one rendered by
the Privy Council in 1951, in McKee v. McKee [(1951) AC 352]. In
that case, the parties, who were American citizens, were married in
USA in 1933 and lived there till December 1946. But they had
separated in December 1940. On 17-12-1941, a decree of divorce
was passed in USA and custody of the child was given to the father
and later varied in favour of the mother. At that stage, the father
took away the child to Canada. In habeas corpus proceedings by
the mother, though initially the decisions of lower courts went
against her, the Supreme Court of Canada gave her custody but
the said Court held that the father could not have the question of
custody retried in Canada once the question was adjudicated in
favour of the mother in the USA earlier. On appeal to the Privy
Council, Lord Simonds held that in proceedings relating to custody
before the Canadian Court, the welfare and happiness of the infant
was of paramount consideration and the order of a foreign court in
USA as to his custody can be given due weight in the
circumstances of the case, but such an order of a foreign court was
only one of the facts which must be taken into consideration. It was
further held that it was the duty of the Canadian Court to form an
independent judgment on the merits of the matter in regard to the
welfare of the child. The order of the foreign court in US would yield
to the welfare of the child. “Comity of courts demanded not its
enforcement, but its grave consideration”. This case arising from
Canada which lays down the law for Canada and U.K. has been
consistently followed in latter cases. This view was reiterated by the
House of Lords in J v. C (1970 AC 668). This is the law also in USA
(see 24 American Jurisprudence, para 1001) and Australia. (See
Khamis v. Khamis [(1978) 4 Fam LR 410 (Full Court) (Aus)].

29. However, there is an apparent contradiction between the above
view and the one expressed in H. (infants), Re[(1966) 1 All ER 886]
and in E. (an infant), Re [(1967) 1 All ER 881] to the effect that the
court in the country to which the child is removed will send back the
child to the country from which the child has been removed. This
apparent conflict was explained and resolved by the Court of
Appeal in 1974 in L. (minors) (wardship : jurisdiction), Re [(1974) 1
All ER 913, CA] and in R. (minors) (wardship : jurisdiction), Re
[(1981) 2 FLR 416 (CA)]. It was held by the Court of Appeal in L.,
Re [(1974) 1 All ER 913, CA] that the view in McKee v. McKee
[1951 A.C. 352 : (1951) All ER 942] is still the correct view and that
the limited question which arose in the latter decisions was whether
the court in the country to which the child was removed could
conduct (a) a summary inquiry or (b) an elaborate inquiry on the
question of custody. In the case of (a) a summary inquiry, the court
would return custody to the country from which the child was
24
removed unless such return could be shown to be harmful to the
child. In the case of (b) an elaborate inquiry, the court could go into
the merits as to where the permanent welfare lay and ignore the
order of the foreign court or treat the fact of removal of the child
from another country as only one of the circumstances. The crucial
question as to whether the Court (in the country to which the child
is removed) would exercise the summary or elaborate procedure is
to be determined according to the child’s welfare. The summary
jurisdiction to return the child is invoked, for example, if the child
had been removed from its native land and removed to another
country where, maybe, his native language is not spoken, or the
child gets divorced from the social customs and contacts to which
he has been accustomed, or if its education in his native land is
interrupted and the child is being subjected to a foreign system of
education, — for these are all acts which could psychologically
disturb the child. Again the summary jurisdiction is exercised only if
the court to which the child has been removed is moved promptly
and quickly, for in that event, the Judge may well be persuaded that
it would be better for the child that those merits should be
investigated in a court in his native country on the expectation that
an early decision in the native country could be in the interests of
the child before the child could develop roots in the country to
which he had been removed. Alternatively, the said court might
think of conducting an elaborate inquiry on merits and have regard
to the other facts of the case and the time that has lapsed after the
removal of the child and consider if it would be in the interests of
the child not to have it returned to the country from which it had
been removed. In that event, the unauthorised removal of the child
from the native country would not come in the way of the court in
the country to which the child has been removed, to ignore the
removal and independently consider whether the sending back of
the child to its native country would be in the paramount interests of
the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79;
Bromley, Family law, 7th Edn., 1987.) In R. (minors) (wardship :
jurisdiction), Re [(1981) 2 FLR 416 (CA)] it has been firmly held
that the concept of forum conveniens has no place in wardship
jurisdiction.

30. We may here state that this Court in Elizabeth Dinshaw v.
Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl.) 13] while
dealing with a child removed by the father from USA contrary to the
custody orders of the US Court directed that the child be sent back
to USA to the mother not only because of the principle of comity but
also because, on facts, — which were independently considered —
it was in the interests of the child to be sent back to the native
State. There the removal of the child by the father and the mother’s
25
application in India were within six months. In that context, this
Court referred to H. (infants), Re which case, as pointed out by us
above has been explained in L. Re as a case where the Court
thought it fit to exercise its summary jurisdiction in the interests of
the child. Be that as it may, the general principles laid down in
McKee v. McKee and J v. C and the distinction between summary
and elaborate inquiries as stated in L. (infants), Re are today well
settled in UK, Canada, Australia and the USA. The same principles
apply in our country. Therefore nothing precludes the Indian courts
from considering the question on merits, having regard to the delay
from 1984 — even assuming that the earlier orders passed in India
do not operate as constructive res judicata.”

However, in view of the fact that the child had lived with his

mother in India for nearly twelve years, this Court held that it would

not exercise a summary jurisdiction to return the child to United

States of America on the ground that its removal from USA in 1984

was contrary to orders of U.S. Courts. It was also held that whenever

a question arises before a court pertaining to the custody of a minor

child, matter is to be decided not on considerations of the legal rights

of the parties but on the sole and predominant criterion of what would

best serve the interest of the minor.
19. In the case of Sarita Sharma v. Sushil Sharma10, this

Court was seized with a matter where the mother had removed the

children from U.S.A. despite the order of the American Court. It was

held :
10
(2000) 3 SCC 14
26
“6. Therefore, it will not be proper to be guided entirely by
the fact that the appellant Sarita had removed the children from
U.S.A. despite the order of the Court of that country. So also, in
view of the facts and circumstances of the case, the decree passed
by the American Court though a relevant factor, cannot override the
consideration of welfare of the minor children. We have already
stated earlier that in U.S.A. respondent Sushil is staying along with
his mother aged about 80 years. There is no one else in the family.
The respondent appears to be in the habit of taking excessive
alcohol. Though it is true that both the children have American
citizenship and there is a possibility that in U.S.A they may be able
to get better education, it is doubtful if the respondent will be in a
position to take proper care of the children when they are so young.
Out of them, one is a female child. She is aged about 5 years.
Ordinarily, a female child should be allowed to remain with the
mother so that she can be properly looked after. It is also not
desirable that two children are separated from each other. If a
female child has to stay with the mother, it will be in the interest of
both the children that they both stay with the mother. Here in India
also proper care of the children is taken and they are at present
studying in good schools. We have not found the appellant wanting
in taking proper care of the children. Both the children have a
desire to stay with the mother. At the same time it must be said that
the son, who is elder then the daughter, has good feelings for his
father also. Considering all the aspects relating to the welfare of the
children, we are of the opinion that in spite of the order passed by
the Court in U.S.A. it was not proper for the High Court to have
allowed the habeas corpus writ petition and directed the appellant
to hand over custody of the children to the respondent and permit
him to take them away to U.S.A. What would be in the interest of
the children requires a full and thorough inquiry and, therefore, the
High Court should have directed the respondent to initiate
appropriate proceedings in which such an inquiry can be held. Still
there is some possibility of the mother returning to U.S.A. in the
interest of the children. Therefore, we do not desire to say anything
more regarding entitlement of the custody of the children. The
chances of the appellant returning to U.S.A. with the children would
depend upon the joint efforts of the appellant and the respondent to
get the arrest warrant cancelled by explaining to the Court in U.S.A.
the circumstances under which she had left U.S.A. with the children
without taking permission of the Court. There is a possibility that
both of them may thereafter be able to approach the Court which
passed the decree to suitably modify the order with respect to the
custody of the children and visitation rights.”
27
20. While dealing with a case of custody of a child removed

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

of the court where the parties had set up their matrimonial home, the

court in the country to which child has been removed must first

consider the question whether the court could conduct an elaborate

enquiry on the question of custody or by dealing with the matter

summarily order a parent to return custody of the child to the country

from which the child was removed and all aspects relating to child’s

welfare be investigated in a court in his own country. Should the court

take a view that an elaborate enquiry is necessary, obviously the

court is bound to consider the welfare and happiness of the child as

the paramount consideration and go into all relevant aspects of

welfare of child including stability and security, loving and

understanding care and guidance and full development of the child’s

character, personality and talents. While doing so, the order of a

foreign court as to his custody may be given due weight; the weight

and persuasive effect of a foreign judgment must depend on the

circumstances of each case. However, in a case where the court

decides to exercise its jurisdiction summarily to return the child to his

own country, keeping in view the jurisdiction of the Court in the native
28
country which has the closest concern and the most intimate contact

with the issues arising in the case, the court may leave the aspects

relating to the welfare of the child to be investigated by the court in

his own native country as that could be in the best interest of the

child. The indication given in McKee v. McKee2 that there may be

cases in which it is proper for a court in one jurisdiction to make an

order directing that a child be returned to a foreign jurisdiction without

investigating the merits of the dispute relating to the care of the child

on the ground that such an order is in the best interest of the child

has been explained in re. L (minors)6 and the said view has been

approved by this Court in Dhanwanti Joshi9. Similar view taken by the

Court of Appeal in re. H5 has been approved by this Court in

Elizabeth Dinshaw8.
21. Do the facts and circumstances of the present case

warrant an elaborate enquiry into the question of custody of minor

Adithya and should the parties be relegated to the said procedure

before appropriate forum in this country in this regard? In our

judgment, this is not required. Admittedly, Adithya is an American

citizen, born and brought up in United States of America. He has

spent his initial years there. The natural habitat of Adithya is in United

29
States of America. As a matter of fact, keeping in view the welfare

and happiness of the child and in his best interest, the parties have

obtained series of consent orders concerning his custody/parenting

rights, maintenance etc. from the competent courts of jurisdiction in

America. Initially, on April 18, 2005, a consent order governing the

issues of custody and guardianship of minor Adithya was passed by

the New York State Supreme Court whereunder the court granted

joint custody of the child to the petitioner and respondent no. 6 and it

was stipulated in the order to keep the other party informed about the

whereabouts of the child. In a separation agreement entered into

between the parties on July 28, 2005, the consent order dated April

18, 2005 regarding custody of minor son Adithya continued. In

September 8, 2005 order whereby the marriage between the

petitioner and respondent no. 6 was dissolved by the New York State

Supreme Court, again the child custody order dated April 18, 2005

was incorporated. Then the petitioner and respondent no. 6 agreed

for modification of the custody order and, accordingly, the Family

Court of the State of New York on June 18, 2007 ordered that the

parties shall share joint legal and physical custody of the minor

Adithya and, in this regard, a comprehensive arrangement in respect
30
of the custody of the child has been made. The fact that all orders

concerning the custody of the minor child Adithya have been passed

by American courts by consent of the parties shows that the

objections raised by respondent no. 6 in counter affidavit about

deprivation of basic rights of the child by the petitioner in the past;

failure of petitioner to give medication to the child; denial of education

to the minor child; deprivation of stable environment to the minor

child; and child abuse are hollow and without any substance. The

objection raised by the respondent no. 6 in the counter affidavit that

the American courts which passed the order/decree had no

jurisdiction and being inconsistent to Indian laws cannot be executed

in India also prima facie does not seem to have any merit since

despite the fact that the respondent no. 6 has been staying in India

for more than two years, she has not pursued any legal proceeding

for the sole custody of the minor Adithya or for declaration that the

orders passed by the American courts concerning the custody of

minor child Adithya are null and void and without jurisdiction. Rather

it transpires from the counter affidavit that initially respondent no. 6

initiated the proceedings under Guardianship and Wards Act but later

on withdrew the same. The facts and circumstances noticed above
31
leave no manner of doubt that merely because the child has been

brought to India by respondent no. 6, the custody issue concerning

minor child Adithya does not deserve to be gone into by the courts in

India and it would be in accord with principles of comity as well as on

facts to return the child back to the United States of America from

where he has been removed and enable the parties to establish the

case before the courts in the native State of the child, i.e. United

States of America for modification of the existing custody orders.

There is nothing on record which may even remotely suggest that it

would be harmful for the child to be returned to his native country.
22. It is true that child Adithya has been in India for almost

two years since he was removed by the mother–respondent no. 6

–contrary to the custody orders of the U.S. court passed by consent

of the parties. It is also true that one of the factors to be kept in mind

in exercise of summary jurisdiction in the interest of child is that

application for custody/return of the child is made promptly and

quickly after the child has been removed. This is so because any

delay may result in child developing roots in the country to which he

has been removed. From the counter affidavit that has been filed by

respondent no. 6, it is apparent that in last two years child Adithya did

32
not have education at one place. He has moved from one school to

another. He was admitted in school at Dehradun by respondent no. 6

but then removed within few months. In the month of June, 2009, the

child has been admitted in some school at Chennai. As a matter of

fact, the minor child Adithya and respondent no. 6 could not be traced

and their whereabouts could not be found for more than two years

since the notice was issued by this Court. The respondent no. 6 and

the child has been moving from one State to another. The parents of

respondent no. 6 have filed an affidavit before this Court denying any

knowledge or awareness of the whereabouts of respondent no. 6 and

minor child Adithya ever since they left in September, 2007. In these

circumstances, there has been no occasion for the child developing

roots in this country. Moreover, the present habeas corpus petition

has been filed by the petitioner promptly and without any delay, but

since the respondent no. 6 has been moving from one State to

another and her whereabouts were not known, the notice could not

be served and child could not be produced for more than two years.
23. In a case such as the present one, we are satisfied that

return of minor Adithya to United States of America, for the time

being, from where he has been removed and brought here would be

33
in the best interest of the child and also such order is justified in view

of the assurances given by the petitioner that he would bear all the

traveling expenses and make living arrangements for respondent no.

6 in the United Sates of America till the necessary orders are passed

by the competent court; that the petitioner would comply with the

custody/parenting rights as per consent order dated June 18, 2007 till

such time as the competent court in United States of America takes a

further decision; that the petitioner will request that the warrants

against respondent no. 6 be dropped; that the petitioner will not file or

pursue any criminal charges for violation by respondent no. 6 of the

consent order in the United States of America and that if any

application is filed by respondent no. 6 in the competent court in

United States of America, the petitioner shall cooperate in expeditious

hearing of such application. The petitioner has also stated that he has

obtained confirmation from Martha Hunt Elementary School, Murphy,

Texas, 75094, that minor son Adithya will be admitted to school

forthwith.
24. The learned Senior Counsel for respondent no. 6 sought

to raise an objection regarding the maintainability of habeas corpus

petition under Article 32 of the Constitution before this Court but we

34
are not persuaded to accept the same. Suffice it to say that in the

peculiar facts and circumstances of the case which have already

been noticed above and the order that we intend to pass, invocation

of jurisdiction of this Court under Article 32 cannot be said to be

inappropriate.
25. We record our appreciation for the work done by the

concerned officers/officials of CBI in tracing the minor child Adithya

and producing him in less than two months of the order passed by

this Court, although, the Police Officers and Officials of different

States failed in tracing the child Adithya and respondent no. 6 for

more than two years. But for the earnest efforts on the part of the CBI

authorities, it would not have been possible for this Court to hear and

decide this habeas corpus petition involving the sensitive issue

concerning a child of seven years who is a foreign national.
26. In the result and for the reasons stated, we pass the

following order :

(i) The respondent no. 6 shall act as per the consent

order dated June 18, 2007 passed by the Family Court of the

State of New York till such time any further order is passed on
35
the petition that may be moved by the parties henceforth and,

accordingly, she will take the child Adithya of her own to the

United States of America within fifteen days from today and

report to that court.

(ii) The petitioner shall bear all the traveling expenses

of the respondent no. 6 and minor child Adithya and make

arrangements for the residence of respondent no. 6 in the

United States of America till further orders are passed by the

competent court.

(iii) The petitioner shall request the authorities that the

warrants against respondent no. 6 be dropped. He shall not file

or pursue any criminal charges for violation by respondent no. 6

of the consent order in the United States of America.

(iv) The respondent no. 6 shall furnish her address and

contact number in India to the CBI authorities and also inform

them in advance the date and flight details of her departure

along with child Adithya for United States of America.

(v) In the event of respondent no. 6 not taking the child

Adithya of her own to United States of America within fifteen

days from today, child Adithya with his passport shall be
36
restored to the custody of the petitioner to be taken to United

States of America. The child will be a ward of the concerned

court that passed the consent order dated June 18, 2007. It will

be open to respondent no. 6 to move that court for a review of

the custody of the child, if so advised.

(vi) The parties shall bear their own costs.

………………
……J (Tarun Chatterjee)

……………….
…..J
(R. M. Lodha)
……………………J
(Dr. B.S. Chauhan)
New Delhi
November 17, 2009.
37