Child Custody

Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.

The decree names the parent with whom the child will live, how visitation will be handled, and who will provide financial support.

The custodial parent  is the parent who is given physical and/or legal custody of a child by court order whereas the non-custodial parent who does not lose the rights over the child will have the right of access.

Over the years, there is a shift from custody and access being the 'right of a parent' to being the 'right of a child'. The non-negotiable principle on which custody is decided is the 'best interest and welfare of the child'. Who will best serve the child's emotional, educational, social and medical needs is the only criteria. 
 
The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. Mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access. 
 
This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child's living and educational costs be met? 

Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker. 
 
Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child's convenience, could include the non-custodial parent's right to school events, etc.

One ought to remember that as a parent every 'right' you exercise ought to also have a corresponding 'duty' towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child's educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living. 

Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in 

The court is the ultimate guardian of the child and her/his property and so minor's property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be 'the best interest of the child'.   

ANUPRIYA AGRAWAL
    Advocate, Family Law

What to do if wife is threatening with Dowry Law?

Don’t take rash decisions especially if you have kids. If you fear/know that a false 498a complaint is going to be put on you or if they threaten you in anyway it is better to be safe than sorry:-

1. Immediately file RCR, if your wife is separated from you (Restitution of Conjugal rights is like saying"I want my wife back(who deserted me), but with the following conditions"- but since the wife's intention itself is wrong, she won't be able to agree to those conditions(you can even make the conditions more difficult and impossible, to make sure that she will not come back).

2. File a police complaint mentioning Blackmail/extortion threat , threat for false dowry case , or any other thing you have the evidence for. Do not forget to mention that she had left the matrimonial home after taking all jewellery and cash in your absence, as the case may be.

3. Recording all the conversation if any(telephone recording devices, or miniature recording devices when in person discussions happen).

4. File a criminal case in court under 156(3)Cr.P.C  under read Section 200 Cr.P.C, with reference to police complaint .(these are sections in the Code of Criminal procedure(Cr.P.C in short), 1973, reproduced alongside:

Section156 Cr.P.C - Police officer's power to investigate cognizable case
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 Cr.P.C may order such an investigation as above-mentioned.

Section 200 Cr.P.C - Examination of complainant

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 Cr.P.C after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

5. Take the certified copy from court and keep it with you . Make a couple of copies. Send it to nearest police station. Nearest police station of your in-laws. File for Anticipatory bail in the High Court.

If the police insist you come to police station or come to your place for arrest after they have been bribed sufficiently by your wife or in-laws, just submit the court petition. They are the criminals , not you.

Supreme Court: Daughter-in-law should not be treated as domestic help

New Delhi: A daughter-in-law should be treated as a family member and not the domestic help, and she cannot be "thrown out of her matrimonial home at any time", the Supreme Court has said, while expressing concern over instances of brides being burnt and tortured in the country.
The top court said a bride must be respected in her matrimonial home as it "reflects the sensitivity of a civilised society."
"A daughter-in-law is to be treated as a member of the family with warmth and affection and not as a stranger with respectable and ignoble indifference. She should not be treated as a house maid. No impression should be given that she can be thrown out of her matrimonial home at any time," a bench of justices KS Radhakrishnan and Dipak Misra said.

The Supreme Court said a bride must be respected in her matrimonial home as it reflects the sensitivity of a civilised society.

 

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Right to Maintenance

Section 125 of the Code of Criminal Procedure reads as follows:

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained     majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

Who are entitled ?  

           
A person is bound to maintain his wife, children and aged parents, who are unable to maintain themselves. While ordering maintenance the Court has to consider the income and the status of the person who is liable to pay maintenance and also the income and status of the person claiming maintenance. Though a wife can file a suit for maintenance in Family Court, this Section is provided to get maintenance as early as possible. 

The wife can refuse to live with her husband if he lives with a mistress. No wife shall be entitled to receive maintenance from her husband under this Section if she is living in adultery, or husband and wife are living separately by mutual consent. The petitioner can file any number of petitions under Section 125 Cr.P.C for enhancement of maintenance when the circumstances change. The Court after considering the change of circumstances can enhance the maintenance accordingly. 

Quantum of Maintenance

Right of Maintenance under Hindu Law is a substantive right and a continuing right and it is variable from time to time. The Family Court or the District Court may in satisfaction of change of circumstances modify, recind or enhance the maintenance allowance. On proof of change and circumstance, the family Court has jurisdiction under Section 127 Cr.P.C. to revise the earlier order passed under Section 125 of the Code. Uma Vs. Lalit Kumar Sharma (1999 (1) DMC 83). In Ekradeshwari Vs. Homeswar (AIR 1929 PC 128), the privy council held, that fixation of maintenance depends upon a number of factors and the same must be determined on the facts of a particular case. The said ruling was rendered prior to the enactment of Hindu Adoption and Maintenance Act 1956.

The Apex Court in Kulbhusan Vs. Rajkumari (AIR 1971 SC 234) approved the said observation by the Privy Council under Section 23(2) of the said Act. See also K.Sivakumar Vs. K.Sambasiva Rao (2001 (1) DMC 75) and G.C.Gosh Vs.Sushmita Gosh (2001 (1) DMC 469). The wife is entitled to have the same status as her husband. She must have the necessary medical facility, food, clothing etc.. While fixing the amount of maintenance, the Court should also take into account considering the inflation and cost of living and his obligation to support the minor child and his parents. S.Jayanthi Vs.S.Jayaraman (1998(1) DMC 699).

There is no fixed Rule, while arriving at the Quantum, in respect of permanent Alimony. It is only the independent income of the payee which is to be considered. While granting relief of permanent alimony, the court has to keep in view the following considerations:

i) Husband's own income.
ii) Income of the Husband from other property;
iii) Income of the Applicant.
iv) Conduct of parties.

Ramlal Vs. Surender Kaur (1995 (1) (iv) L.J 204 (Punjab)

In Vanaja Vs. Gopa (1992 (1) DMC 347) the High Court Madras has held that the fact that the wife has already got maintenance under Section 125 Cr.P.C. is no bar to her getting alimony pendante lite under Section 24 of the Hindu Marriage Act.

Enforcement

After ordering maintenance if the respondent husband fails or refuses to pay the maintenance without sufficient cause the magistrate can issue warrant for levying the amount due in the manner provided for levying fines and may also sentence such person for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

SC: Recall of Order even if signed by Judge

Supreme Court has ruled that Judge can recall the Order and change his mind even if the draft copy is signed and dictated in the open Court.

In Kushalbhai Ratanbhai Rohit & Ors v. The State of Gujarat (SLP (Crl.) No.453 of 2014) the Bench comprising of Justices B.S. Chauhan, J. Chelameswar and M.Y. Eqbal took a view that in certain circumstances the Order can be recalled and altered even if it was dictated in the open Court.

The petition was filed against the interim Order dated 27.12.2013 passed by the High Court of Gujarat at Ahmedabad. Petitioners were Police Constables who were in charge of escorting an accused in Narcotics Case. Accused absconded from the custody. The petitioners were charged and found guilty for the offence punishable under Section 222 Indian Penal Code.

Petitioners preferred an appeal before the High Court and at the first instance the appeal was allowed on the ground that sanction of the State Government under Section 197 of the Code of Criminal Procedure, 1973 was necessarily required for the conviction.

The Order was recalled on the ground that the Court wanted to examine the issue further as to whether in the facts and circumstances of the case where the accused had been police constables; the offence could not be attributed to have been committed under the discharge of their duty where sanction under Section 197 Cr.P.C. would be attracted.

Petitioners contented that Section 362 Cr.P.C. puts an embargo to call, recall or review any judgment or Order passed in criminal case once it has been pronounced and signed.

Court relied upon its own decision in Sangam Lal v. Rent Control and Eviction Officer, Allahabad & Ors which the Court came to the conclusion that until a judgment is signed and sealed after delivering in Court, it is not a judgment and it can be changed or altered at any time before it is signed and sealed.

Court heavily relied upon its Judgment in Surendra Singh & Ors. v. State of U.P which observed as follows;

               “Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of ‘locus paenitentiae’ and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into a full-fledged judgment and become operative. It follows that the Judge who “delivers” the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind”.

Court found no merits in the appeal and dismissed holding that no exception can be taken to the procedure adopted by the High Court

Court has made a remark as follows;

               “A Judge’s responsibility is very heavy, particularly, in a case where a man’s life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture. Therefore, one cannot assume that the Judge would not have changed his mind before the judgment become final”.