Vinayak's Blurty

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Below are 20 journal entries, after skipping by the 20 most recent ones recorded in Vinayak's Blurty:

Sunday, May 13th, 2007

10:32 am

Ex-husband indulging in defamation: Jahnvi
More and more women are acting like Jhanvi Kapoor these days. They divorce their legally married husbands, take the kid away and wish to marry a superstar to make it big. Many frustrated ones file FALSE dowry cases and other defamatory cases. Many try to commit suicide just to attract attention. If these trial suicides go wrong, they die making the man legally liable to prosecution and suspicions. Now Jahnvi has another twist

Ex-husband indulging in defamation: Jahnvi

11 May, 2007 l 0340 hrs ISTlTIMES NEWS NETWORK

LUCKNOW:

After the sordid suicide drama on the night of Abhishek Bachchan’s marriage right in front of his Juhu bungalow, Jahnvi Kapoor nee Haya Rizvi finds herself in the thick of a courtroom battle for the custody of her ten years old son.

Soon after, Ali Hussain Naqvi, son of the noted Shia cleric Maulana Kalbe Sadiq and her former husband, moved a habeas corpus petition in Lucknow bench of Allahabad High Court, Jahnvi played a harried and helpless mother to the hilt when she called up The Times of India, Lucknow, office on Thursday.

Accusing Naqvi of conspiring to sabotage her Bollywood career, Jahnvi claimed that the petition was just another stunt to bring infamy to her. "The only reason why this person has filed the case is that he would like to see me cringe and I refuse to do so," she said.

For a change, the woman did not pretend that she had never known Naqvi as she had claimed before the national media earlier. Accusing him of worst possible crimes, the former wife claimed, "If Naqvi was not behind the bars, it was only due to the proximity of his family with the Samajwadi Party supremo."

"How come this gentleman transform into a caring father almost overnight?" she asked. "What happened during the intervening ten years when he didn’t not pay a single penny for the child’s maintenance," she added.

She said, "Naqvi wanted the child back because his second wife could not produce an heir to the family fortune. He has only three daughters," she said. Asked if she would be coming to Lucknow to appear in the court, Jahnvi said that she would be represented by her mother.

http://timesofindia.indiatimes.com/Cities/Lucknow/Ex-husband_indulging_in_defamation_Jahnvi/articleshow/2030437.cms

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10:32 am

Ex-husband indulging in defamation: Jahnvi
blogger's comments

More and more women are acting like Jhanvi Kapoor these days. They divorce their legally married husbands, take the kid away and wish to marry a superstar to make it big. Many frustrated ones file FALSE dowry cases and other defamatory cases. Many try to commit suicide just to attract attention. If these trial suicides go wrong, they die making the man legally liable to prosecution and suspicions. Now Jahnvi has another twist

Ex-husband indulging in defamation: Jahnvi

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10:25 am

'Is it right to parade accused before the public?' - HT Article and Some addl. comments
Notes by the Blogger :

Irate young wives are filing scores of false dowry cases. Search Google or Blogs for the worlds FALSE dowry and you will be surprised by the number of hits. 10s of 1000s of families are in turmoil. Ordinary matrimonial affairs are being criminalised. Elders are being arrested like common criminals. In this connection if it important to understand how corrupt our law enforcement is and how an arrest can affect the psyche and social standing of honest men and women.

'Is it right to parade accused before the public?'

HindustanTimes ePaper

A FEW days ago, Deepak Behl, accused of pushing his fiancee from the fifth floor of her house, was caught unawares when he was paraded in front of cameras in a police station in Karol Bagh. Even though the police had registered a case of murder, there were claims that his fianc6e had accidentally fallen after they had a fight. But his face was already on TV screens and in newspapers.

In the case of Nithari killings suspect Moninder Singh Pandher, things went a little out of control when he was attacked by the public on the premises of the Ghaziabad court. It was a rare incident and provided camerapersons an opportunity to 'click away'.

As people accused of rape, murder and dowry death increasingly find themselves facing the camera, the question arises: is it ethical to parade the accused in front of the public and the media without their faces covered?

Experts are of the view that it is not only against the principles of justice, but also hampers trial. Pandher's case demonstrates that it can also lead to law and order problems. Senior advocate K.T.S. Tulsi says, "It is stupidity on the part of the police to produce the accused with faces uncovered. In such situations, the identification of the accused by the victim becomes a futile exercise and it is against the principles of justice."

Former Commissioner of Delhi Police Ajai Raj Sharma agrees, "Once the accused are sent in judicial custody they have to be identified by the victim in the presence of a magistrate. But with pictures of the accused flashing all over, the identification process is meaningless."

Tulsi goes a step further and blames the media. He says the media should realise that by showing such pictures, they are demolishing the presumption of innocence granted to the accused in such cases until they are proved guilty

But others say that there is no provision that the face of the accused should be covered. "Only in situations where identity is doubtful are faces required to be covered. There should be no problem in displaying the faces of the accused as it could be a deterrent for others," says Ashok Arora, advocate and former secretary of the Supreme Court Bar Association.

Additional Commissioner of Police Deependra Pathak says that they follow the legal requirements. "Faces are covered in cases where identification is required. In other cases it is a personal choice of the accused. But the media should refrain from showing pictures of the accused," said Pathak.

And how does it affect the accused? Psychologists like Samir Parikh say that "branding of an individual a culprit", especially in cases when one is acquitted later, often has a long-lasting harmful effect on his or her personalities. "People can suffer from mental trauma and lose confidence. The families of the accused also suffer from mental trauma," says Parikh.

abhishek.bhalla@hindustantimes.com

http://epaper.hindustantimes.com/artMailDisp.aspx?article=12_05_2007_005_001&typ=1&pub=47

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10:00 am

Actor Prashanth hit by dowry case. Dad Thyagarajan, mother Shanthi on wife's attack list !!
Actor Prashanth hit by dowry case. Dad Thyagarajan, mother Shanthi on wife's attack list. Wife files case many months after leaving his house and when there is a civil case in progress !!

Prashants cup of woes increase

May 10, 2007, 11:29

Tamil actor Prashanth said that he has done no wrong and it was his wife Grahalakshmi who worsened the situation between them. He said, 'I would like to live with her even now but her parents wont allow her to live with my family.

I wouldn’t like to comment on this issue since the case is in court. It is not at all a problem for me to take care of matters in court', the actor said after he submitted his anticipatory bail petition in court.

For several months now, Prashanth and Grahalakshmi have been living separately. Her family has not allowed him to even see his child. Following this, Prashanth filed a petition in a family court to allow his wife to live with him and for him to get visitation rights of his child.

The judge arranged for Prashanth and his wife to solve the problem via an arbitratory plea but that didn’t yield a solution.

While this was going on, two days back his wife Grahalakshmi has filed a dowry harassment case against him before the City Commissioner of Police, Latika Saran. Following this complaint, there were 5 cases registered under different sections against Prashanth and his family members including his mother Shanthi, father Thiagarajan and sister Preethi. It is alleged that Prashanth's family members have disappeared suddenly from their residence soon after the police filed the cases formally.

To avoid the arrest in this case, Prashanth and his family moved an anticipatory Bail petition in the Court. In that petition, Prashanth mentioned, “Grahalakshmi did not suffer due my actions or the actions of my family members. In fact, my parents treated like their daughter. We never forced Grahalakshmi to go out of my house. She took her own decision and settled with her parents. It is me, who voluntarily requested the court to help us get our relationship back on track. No one in my family has tortured Grahalakshmi for dowry and the entire state has knows my status in the society. Please don't encourage the false allegations made by Grahalakshmi and grant us the bail against any police action.'

Court rejects Prashanth's petition for bail

The Madras High Court has rejected the petition of Prashanth, seeking anticipatory bail for him and his family in a case registered by the Chennai police on the basis of his wife's complaint. It further ordered Prashanth to stay in Chennai till the next hearing of the case.

After hearing the petition the High Court has ordered the actor, his family members and his wife Grahalakshmi along with child to appear in the Court on 30 th of this month. A fresh arbitration will be arranged for reuniting the family. If the discussions fails, the Court will decide their future.

http://www.tamilstar.com/news/publish/article_3216.shtml

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9:53 am

"Mere Paas Maa Hai" versus "Meri Maa Jail Mein Hai" - Mother's Day Special

"Mere Paas Maa Hai" versus "Meri Maa Jail Mein Hai" - Mother's Day Special

Mere paas bunglow hai, gaadi hai, tumhare paas kya hai? Maa? Huh, woh to Jail me hai....

Can you handle this sort of Mother's Day Surprise? Its me Sachit Dalal a delhite and an engineer by profession.

When I was less than six months old, my mom used to spend her nights to take care of my nappies and feeding. When I used to try to cry, she used to jump out of her chair. Even before I start feeling hungry she used to offer me feed. When I grew up a bit and started going to school, she used to serve my lunch at my school gate. When I When I was in college, My mother used to cry throughout the nights worrying about me. She has spent most of her nights without any sleep to bring me up.

After completing my degree, I started earning some money amount every month. Mom wanted me to get married and she started looking around for a suitable match for her son.

Eventually I got married

I forgot the meaning of "Mother's day" soon after I got married. Only thing I remember is "women's day" which I was forced to celebrate by paying the party expenses by my wife.

Today many mothers are in Jail due to false Dowry Demand Related Harrasment and Domestic Violence allegations.>

Any mother could be one of them, your mother could be one of them.

I dont know who will succeed (me or my wife), but i have been planning spare my mother from Jail so that i can take care of her to the hospital for her due medical treatments and my wife has been planning hard to get my mother into jail over false dowry harrasment allegations.

Sachit Dalal
My favourite website :
http://mynation.net
Read latest News at : http://mynation.wordpress.com/
Report Dowry Abuse here : http://mynation.net/demand
Report Dowry Law Misuse : http://mynation.net/db
Disclaimer : These are my personal views.Your views could be different.

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Thursday, May 10th, 2007

6:28 pm

Manchala Rushikesh v. Terala Pradeep Kumar and others [2001] INHCAP 80 (6 April 2001)
http://www.worldlii.org/in/cases/INHCAP/2001/80.html

Manchala Rushikesh v. Terala Pradeep Kumar and others [2001] INHCAP 80 (6 April 2001)

THE HON'BLE SRI JUSTICE B. SUBHASHAN REDDY THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CMA No. 1548 of 1998

06-04-2001

Manchala Rushikesh

Terala Pradeep Kumar and others

HELD:

From a perusal of Section 25 of the Act, it is clear that it is attracted only if a ward leaves or is removed from the custody of a guardian....The guardian contemplated by this section includes every kind of guardian known to law.... From the above, it is clear that the father is the guardian of the minor until he is found unfit to be the guardian of the minor. The welfare of the minor is paramount consideration while ordering their custody. In view of the section 25 of the Act, the onus is on the person who opposes the application by a guardian for the custody of a ward under this section to make out that the welfare of the wards be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is particularly heavy when the guardian is the father of the child. Likewise, under section 19 the burden of proof to deny the natural father the custody of his child would be very heavy to establish his unfitness and the court will require very strong reasons for interference with the father's right to custody.

Counsel for the Petitioners : M/s. C. Poornaiah & Co.

Counsel for respondents : Mr.Vijay Kumar Heroor.

:Order:

Judgment: (Per GHULAM MOHAMMED, J )

The unsuccessful petitioner-appellant preferred this appeal against the order dated 22.4.1998 in O.P.No.801 of 1994 on the file of the Principal District Judge, Ranga Reddy.

The above O.P.No.801 of 1994 was preferred by the appellant-natural father of the wards, under section 25 of the Guardian and Wards Act, ( for short "the Act" ), for custody of minor children by name Shravani and Shravanti. For the purpose of convenience, the parties are addressed as petitioner and respondents as per their array in O.P.No.801 of 1994.

The petitioner married the deceased on 12.9.1983 as per the Hindu rites and customs at Kanchibhavan, Ramkote, Hyderabad. Smt. Geetha joined the petitioner for marital life at petitioner's house. Smt. Geetha gave birth to twins namely Shravani and Shravanthi on 6.9.1986 at Swapna Nursing Home, Hyderabad. The cradle ceremony of the twins was performed at her mother's house and subsequently Smt. Geetha came to the petitioner's house.

It is stated that petitioner's family is a joint family headed by their father Manchala Shankaraiah who, however, died on 23.5.1991. Smt. Geetha lived with the petitioner happily till 23.7.1987. On 21.7.1987 Smt. Geetha and the petitioner visited the house of the respondents for attending annual ceremony of father of Smt. Geetha and they returned to Bhongir. It is further stated that on 23.7.1987 on the midnight Smt. Geetha committed suicide. It is stated that a partnership business in the name of Shi Radhakrishna Tiles factory consisting of the brother of the petitioner, her sister's husband, namely Uppalanchi Muralidhar Rao and V. Lingam ran into losses and came to be closed. Smt. Geetha demanded her sister's husband Muralidhar Rao and her sister to settle the affairs of the said factory for which they did not respond and her brothers and mother did not extent the support of her demand. Having disgusted with the attitude of the respondents she committed suicide.

It is further stated that the minor children were ten months old as on the date of the death of Smt. Geetha. On the morning of 24.7.1987 all the respondents came to Bhongir and without proper enquiries with the petitioner and other members of his family, the 1st respondent lodged a complaint in Bhongir Police Station. The Police registered a case against the petitioner and other members of his family under section 304-B IPC. After competition of the investigation the police filed a final report stating that it is a mistake of fact. The respondents have taken the children to their house at Hyderabad and brought them back to Bhongir on the next day and they requested the petitioner to show extra care on the children. The children were with them for six months and an amount of Rs.1,00,000/- each in the name of the children was deposited by the petitioner in UTI Children Growth Fund.

Having noticed this deposit, the respondents approached the petitioner and requested him to send the children to their house for some time on the ground that the petitioner did not recover from mental shock due to sudden demise of his wife. They promised the petitioner to send the children once or twice in a week to be with him for a day or two. The petitioner reluctantly conceded to the request of the respondents. The respondents have kept up their promise for one year and later changed their mind and did not permit the petitioner to visit their house to see the children. The petitioner demanded the respondents to send back his children. But the respondents postponed the matter on one pretext or the other and got them admitted in Princeton Public School, Hyderabad. The petitioner used to visit the school to see the children but the respondents did not even like his visits and informed the school authorities not to permit the petitioner to see the children. Thus, it is stated that the respondents have kept the children away from the petitioner in a planned manner.

It is further stated by the petitioner that during his visits to school he came to know that the respondents 1 and 3 admitted the children by changing their surnames and styling the children as their own daughters. When the petitioner tried to take copies of the school records such as admission register, the respondent filed a petition on 10.4.1993 with false allegations that the petitioner is trying to harass them and that he committed murder of their sister.

The petitioner got issued a legal notice on 17.6.1993 to the respondents directing them to send back the Wards to him, for which the respondent got issued a reply denying the right of the petitioner for custody of the children. Hence, the present O.P. was filed by the natural father of the Wards for return of the custody of the wards from the respondents.

The respondents filed a counter opposing the application of the petitioner. It is pertinent to note that the respondents have not disputed that the petitioner is natural father of the minor children. It is stated that the wards were resided at Bhongir with the petitioner till 24.7.1987 on which day their mother was killed by the petitioner and members of his family. The children were aged about 10 months as on the date of death of their mother and they never stayed at Bhongir after 24.7.1987. The contention of the petitioner that Smt. Geetha lived happily with the petitioner till the mid-night of 23.07.1987 is utterly false. The petitioner and the member of his family harassed Geetha for more dowry and subjected her to un-toleratable mental agony and cruelty. On 21-7-1987, when the deceased Geetha visited Saroornagar, Hyderabad for attending funeral ceremony of her father Ramnath Guptha, the deceased disclosed her mother about the cruel attitude and treatment of the petitioner and members of his family.

It is further stated that in order to escape from the clutches of law, the petitioner started pasteurizing the brutal murder of Geetha as suicide and that the respondent No.1 has filed a complaint with S.H.O. Bhongir Police Station who registered the case in Crime No.88 of 1987 under section 304B IPC against the petitioner and members of his family. It is the case of the respondents that the police did not conduct any further investigation and did not record statements of any witnesses, and since there was no progress in the case, the respondent no.1 filed a petition before the police Bhongir and also in the Court of Judicial First Class Magistrate, Bhongir for necessary action and that application was rejected. Since the date of death of Geetha the minor children have been staying under custody of respondent No.1 and they were neither sent by the respondents on any occasion nor taken to Bhongir by the petitioner. It is stated in the counter that the petitioner and his family members decided to get rid of burden of the children and them gave minor children to the respondent 1 and 3 in adoption for which the respondents have agreed by receiving the wards in the presence of well wishers and the petitioner also gave a written declaration Ex.B.1 dated 2.2.1988 ratifying the earlier adoption.

It is further stated that the respondents have sent elaborate reply to the petitioner's notice stating that the petitioner has no right to demand the custody of the children. The petitioner having not taken any steps at any point of time is claiming custody of the wards with a view to swallow the money invested in the welfare of the children and he has no locus standi to claim the same.

On the above pleadings, the parties have adduced the evidence. On behalf of the petitioner P.Ws.1 to 4 were examined and Exs.A.1 to A.40 were marked. P.W.1 is the petitioner-natural father of the wards, P.W.2 is the younger brother of P.W.1, P.W.3 is sister-in-law of P.W.1 and P.W.4 is friend of P.W.1 who deposed that no proposal for adoption of minor girls was discussed and dispute the last three sentences regarding adoption of minors in Ex.B.1. The respondents examined RWs.1 to 3 and marked Exs.B.1 to B.68. R.W.1 who is maternal uncle, R.W.2 friend of R.W.1 who is also attestor of Ex.B.1, and R.W.3 friend of R.W.1 and also attestor of Ex.B.1, and marked Exs.B.1 to B.68.

On the above pleadings, the trial Court framed an issue as under:

" The point for consideration is : Whether the petitioner is entitled to custody of minor children Shravani and Shravanthi ? "

The lower Court on consideration of the evidence, declined to grant custody of the wards to the petitioner. Hence, the present appeal by the petitioner.

Learned counsel for the appellant contended that the learned Judge has not considered the matter in proper perspective and without noticing the fact that the father being the natural and lawful guardian having a preferential right to the custody of the minor children, the lower Court has erred in observing that the petitioner has not taken any interest of the wards. It is further contended that the observation of the learned Judge that the petitioner has not evinced any interest is based on surmises and conjectures and in fact the evidence adduced by the petitioner Exs.A.1 to A.40 would show that he showed interest for the welfare of the children and he is not unfit to be the guardian of the children. It is further contended by the learned counsel for the petitioner that the lower court ought to have noticed that once it is not disputed that the father is not fit to be the natural guardian, it is presumed that the children's interest will be properly protected by the father and that the learned Judge by placing undue reliance on Ex.B.1, which is a declaration given by the petitioner, erroneously held that since the date of declaration the petitioner ceased to have any interest over the property of minor children. It is the case of the petitioner that the last three sentences in Ex.B.1 relating to adoption of minor girls were introduced subsequent to obtaining of his signature.

On the other hand, learned counsel for the respondents supported the order under appeal. The learned counsel for the respondents contended that the trial court having noticed about the care and custody and also welfare of the children who are staying with the maternal uncle since the death of their mother, has rightly dismissed the petition.

The legal controversy thus lies in a narrow compass namely whether the petitioner who is the natural father of the wards is entitled to the custody of the wards the provisions of the Act. To decide the same it is expedient to examine the relevant provisions of the Act.

The relevant provision is section 17 and 19 of the Act. Section 17 provides for matters to be considered by the Court in appointing guardian and while section 19 deals with guardians not to be appointed in certain cases.

" 17 (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this Section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, any existing or previous relations of the proposed guardian with the minor or his property.

(3) ...

Section 19 reads as follows :

" Nothing in this chapter shall authorize the court to appoint or to declare a guardian of the property of a minor whose property is under the superintendence of a court of Wards or to appoint and declare a guardian of the person.

(a) of a minor who is a married female and whose husband is not, in the opinion of the court, unfit to be guardian of her person, or

(b) of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, or

(c) .....

The issue relating to this aspect was considered by the Apex Court in ROSY JACOB v. JACOB A. CHAKRAMAKKAL ( (1) 1973 SCC 840 ). The Supreme Court in this case has held that from a perusal of Section 25 of the Act, it is clear that it is attracted only if a ward leaves or is removed from the custody of a guardian of his person and the court is empowered to make an order for the return of the ward to his guardian if it is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian. The Court is entrusted with a judicial discretion to order return of the ward to the custody of his guardian, if it forms an opinion that such return is for the ward's welfare. The use of the words " ward" and " guardian" leaves little doubt that it is the guardian who, having the care of the person of his ward, has been deprived of the same and is in the capacity of guardian entitled to the custody of such ward, that can seek the assistance of the Court for the return of his ward to his custody. The guardian contemplated by this section includes every kind of guardian known to law. The Supreme Court in that judgment has further held as under :

" Section 25 of the Guardians and Wards Act contemplates not only actually physical custody but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education, this section demands reasonably liberal interpretation so a to effectuate that object. Hyper-technicalities should not be allowed to deprive the guardian, the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter's welfare.......

The Court's power under section 25 of the Guardians and Wards Act is to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided o its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom- if ever identical.

...... In considering the question of the welfare of the minors due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. There is a presumption that a minor's parents would do their very best to promote the children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children...

Where there is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children - which every normal parent has."

From the above, it is clear that the father is the guardian of the minor until he is found unfit to be the guardian of the minor. The welfare of the minor is paramount consideration while ordering their custody. In view of the section 25 of the Act, the onus is on the person who opposes the application by a guardian for the custody of a ward under this section to make out that the welfare of the wards be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is particularly heavy when the guardian is the father of the child. Likewise, under section 19 the burden of proof to deny the natural father the custody of his child would be very heavy to establish his unfitness and the court will require very strong reasons for interference with the father's right to custody. In the facts and circumstances of the present case, it is in this background of the legal position we have to analyze the evidence adduced, both oral as well as documentary, to prove the unfitness or otherwise of the father and also see whether the welfare of the child would be better served in the hands of the father or the respondents.

The petitioner was examined as P.W.1. He deposed that the minor children were with him till March 1988 and thereafter his brothers-in-law and mother-in-law took the children to their house and he used to visit the house of his brother-in-law to see the children and later they prevented him. It is stated that in the month of February or March 1988 his brothers-in-law and mother-in-law came to Bhongir to negotiate regarding custody of minor children. It is further deposed that they ( respondents ) requested them to send both the minors for some period to their house, and at that time the petitioner was under shock due to the death of his wife. On their request and after consulting elders they sent the minor girls to respondents for some period. Once in a week either petitioner or his brother used to go to the house of the respondents and bring the children. It is further deposed that subsequently, their outlook changed and started avoiding to show the girls to the petitioner.

It is further stated that without consulting the petitioner the respondents admitted both the minors in Princeton Public School, Hyderabad by changing the name of the father of the minor girls. It is further deposed that on many occasions the petitioner send the elderly persons for the custody of children and that they did not care with their advise. It is further deposed by the petitioner in his examination in chief that he did not marry keeping in view the welfare of the his minor daughters and that all his family members are ready and willing to look after the welfare of his daughters. The witness deposed that last three lines in page No.2 of Ex.B.1 and three signatures appearing on Page No.1 were not present when he signed on the document. In the cross examination nothing was elicited to disprove the statements of petitioner.

P.W.2 who is the younger brother of P.W.1 deposed in the same lines as that of P.W.1. P.W.3 sister-in-law of the petitioner. She deposed that theirs' is a joint family and her children and children of brothers of her husband are living together for the purpose of education at Hyderabad. P.Ws.2 and 3 have consistently denied about the adoption of the children by the maternal uncles. P.W.4, who was present in the auditor's office at the time of P.W.1 giving declaration - Ex.B.1, on perusal of the document Ex.B.1, deposed that the last three lines regarding adoption of minor were not typed in Ex.B.1 and that no such proposal for adoption of the minor girls was discussed. He deposed that in his presence R.W.1, P.W.1 signed over the document and at that time except P.W.1 no one signed as 2nd declarant. He further deposed that on that day Vidya Bhushan did not come to Auditor's office. The document was got written on the advise of Auditor keeping in view of tax problem. He also deposed about the deposit of investment of Rs.1,00,000/- in UTI in favour of each minor girl.

R.W. 1- who is the maternal uncle deposed that the minor wards were brought from the house of the petitioner on 25.7.1987 and they are residing with him till now. He deposed that the minor children were admitted in the school and when they are exhibiting talent in the fields of singing and dancing the petitioner wanted custody of the wards. It is further stated that the minor children are in the custody of the maternal uncle since the death of her mother and they became closely affectionate and associate with the members of his family and for the last 11 years they are under the care and custody of the maternal uncle who took possible care to bring them up in the education. R.Ws.2 and 3 are claimed to be attestors of Ex.B.1.

The learned Judge discarded the story put forth by the petitioner in view of Ex.A.24 which is an application submitted by the petitioner to Principal, Princeton Public School, L.B. Nagar, where two minor children were studying. " M. Shravani and M.Shravanthi are the twins born to me through my wife Manchala Geetha on 6.9.1986. Due to some circumstances best known to my deceased wife she committed suicide on 23.7.1987. Thereafter, as per the understanding between me and the brothers of my deceased wife my both the above said children who were minors aged about 10 months at the time of death of my wife, my brothers-in-law Terala Pradeep Kumar, Terala Vidhya Bhushan and Terala Virupaksha have requested me to take care of the said children for some time in their house. As I was also under mental distress and agony due to sudden death of my wife, I agreed for that proposal. Subsequently, I came to know that my above stated brothers-in-law joined the said two girls in your institution by changing the parents names and also surnames."

The learned Judge further observing that as the presence of R.Ws.2 and 3 was not denied by the petitioner in his cross examination, there are no reasons to disbelieve the evidence of R.Ws.2 and 3, and held that Ex.B.1 declaration was signed by P.W.1 on 7.2.1988 and that contents of Ex.B.1 declaration show that P.W.1 seized to be the guardian for the property of minor children since that date. The learned Judge also observed that the children were staying with their maternal uncle since the date of death of deceased and that the evidence on record did not show that the petitioner has taken any care in bringing them up or he is in visiting terms with the respondents after the death of their mother. The Court observed that for the last 11 years the wards are under the care and custody of their maternal uncle who have taken care to bring them up in education and in extra curricular activities.

It is not in dispute that Ex.B.1 is the declaration given by the petitioner. It also speaks about the investment in UTI for a sum of Rs.1,00,000/- each in favour of two minor girls. It further states that the petitioner has no claim or interest in the above said investment/money at any time, nor any of his successors in interest/legal heirs. It further states that Father, mother, brother, sister-in-law of the petitioner have gifted Rs.10,000/- each to raise the fund for investing Rs.1,00,000/- in the name of one child. Petitioner contributed Rs.1,00,000/- by selling gold, silver and other valuable articles and also her personal savings. The version of the petitioner is that last three lines, under Ex.B.1 regarding adoption of his daughters were added subsequent to signing of the document by the petitioner on Ex.B.1. The Court below observed that the question whether R.1 and R.3 adopted minor children Shravanti and Shravani is not the scope of enquiry in O.P., and the evidence adduced on either side on this respect needs no consideration for adjudication on the point involved in the petition. On perusal of the contents of Ex.B.1 the trial court held that Ex.B.1 was signed by P.W.1 on 7.2.1988 and that the contents of Ex.B.1 showed that the petitioner seized to be the guardian of the property of the minor children from that date. Curiously, R.W.1 in his examination in chief has deposed as follows:

" Ex.B.1 is the document myself and my Advocate perused the document and we pointed out that aspect of giving girls in adoption was not mentioned in it as agreed by them. The petitioner took the document and written by incorporating the last 3 sentences of Ex.B.1 regarding the giving girls in adoption to us. When petitioner, myself, Ramesh ( PW 2 ), Eswar signed over Ex.B.1, R-3 also sign upon Ex.B.1. It is not correct to suggest that last 3 sentences of Ex.B.1 regarding the aspect of adoption of minors and also the word consented by is incorporated by us subsequently.

The learned Judge observed that the petition is filed by the petitioner for custody of minor children and his claim is that he is the natural father of minor children and so he is entitled to their custody until he is proved to be unfit to be their guardian. However, the learned Judge without giving any finding on the aspect of whether the father is unfit to be the guardian of the minor children or not has dismissed the petition. The fact that the petitioner is natural father of the children is not disputed by the respondents at all. On a perusal of the entire material on record, there is no averment regarding unfitness of the father to be guardian and no instances are indicated by the respondents. It is only stated that since from the date of death of Geetha, the wards are staying with maternal uncle and as per Ex.B.1, the petitioner ceases to have any interest in the property of the wards in view of the adoption. The trial court disbelieved the evidence mainly relying upon Ex.B1, which itself creates a doubt in view of the insertion of the last three lines subsequently. In fact, as stated above, it was deposed by the R.W.1 in his examination in chief that subsequently the last three lines were inserted. In the earlier portion of the declaration, nowhere it is mentioned about the adoption. The petitioner consistently denied regarding the adoption.In this regard, learned counsel for the petitioner rightly contended that no endorsement was made by the petitioner on the alleged last three lines regarding adoption of the children and thus the findings of the lower Court on this aspect ex-facie suffer from perversity. In our view the findings of the court below in that regard are not correct.

The another reason given by the trial court is that the evidence brought on record clearly shows that the appellant did not evince any interest in the minor children and it is only when the minor wards are showing proficiency in the dancing and singing, the petitioner came up with this application belatedly. The trial court has not recorded any specific finding about the unfitness of the natural father as required under section 19 of the Act, and in the absence of any evidence regarding the unfitness of the father, the trial court was not justified in denying the custody to the petitioner. The petitioner-natural father has invested a sum of Rs.1,00,000/- each in favour of the wards, claiming no right or interest in the said money. Added to that, there appears to be no evidence on record that the petitioner remarried again. A careful perusal of the evidence on record also does not give an impression that the interests of the minors would not be served if they are given custody to the petitioner. In the circumstances stated above, in our view, the court below erred in rejecting the petition filed by the natural father claiming custody of the children from the maternal uncle of the wards. Considering the totality of the circumstances, we hold that the petitioner is entitled to seek the custody of the minor children.

For the foregoing reasons, we do not agree with the reasoning adopted by the lower Court. The impugned order is therefore set aside and the appeal is allowed. Consequently O.P. 801 of 1994 preferred by the father of the wards is allowed giving custody of the minors to the father. However, in the facts and circumstances of the case, without costs.

?1.1973 SCC 840.

(6 Comments |Comment on this)

6:22 pm

Manchala Rushikesh v. Terala Pradeep Kumar and others [2001] INHCAP 80 (6 April 2001)
THE HON'BLE SRI JUSTICE B. SUBHASHAN REDDY THE HON'BLE SRI JUSTICE GHULAM MOHAMMED
CMA No. 1548 of 1998

06-04-2001

Manchala Rushikesh

Terala Pradeep Kumar and others

HELD:

From a perusal of Section 25 of the Act, it is clear that it is attracted
only if a ward leaves or is removed from the

custody

of a guardian....The
guardian contemplated by this section includes every kind of guardian known to
law.... From the above, it is clear that the father is the guardian of the

minor

until he is found unfit to be the guardian of the

minor

. The welfare of the

minor is paramount consideration while ordering their custody

. In view of the
section 25 of the Act, the onus is on the person who opposes
the application by a guardian for the

custody

of a ward under this section to
make out that the welfare of the wards be better served by its being kept out
of the

custody of its guardian and retained in the custody

of the person against
whom the application is made. This onus is particularly heavy when the guardian
is the father of the

child

. Likewise, under section 19 the burden of proof to
deny the natural father the

custody of his child

would be very heavy to
establish his unfitness and the court will require very strong reasons for
interference with the father's right to

custody

.

Counsel for the Petitioners : M/s. C. Poornaiah & Co.

Counsel for respondents : Mr.Vijay Kumar Heroor.

:Order:

Judgment: (Per GHULAM MOHAMMED, J )
The unsuccessful petitioner-appellant preferred this appeal against the
order dated 22.4.1998 in O.P.No.801 of 1994 on the file of the Principal
District Judge, Ranga Reddy.
The above O.P.No.801 of 1994 was preferred by the appellant-natural father
of the wards, under section 25 of the Guardian and Wards Act, ( for short "the
Act" ), for

custody of minor

children by name Shravani and Shravanti.
For the purpose of convenience, the parties are addressed as petitioner
and respondents as per their array in O.P.No.801 of 1994.
The petitioner married the deceased on 12.9.1983 as per the Hindu rites
and customs at Kanchibhavan, Ramkote, Hyderabad. Smt. Geetha joined the
petitioner for marital life at petitioner's house. Smt. Geetha gave birth to
twins namely Shravani and Shravanthi on 6.9.1986 at Swapna Nursing Home,
Hyderabad. The cradle ceremony of the twins was performed at her mother's house
and subsequently Smt. Geetha came to the petitioner's house.
It is stated that petitioner's family is a joint family headed by their father
Manchala Shankaraiah who, however, died on 23.5.1991. Smt. Geetha lived with
the petitioner happily till 23.7.1987. On 21.7.1987 Smt. Geetha and the
petitioner visited the house of the respondents for attending annual ceremony of
father of Smt. Geetha and they returned to Bhongir. It is further stated that
on 23.7.1987 on the midnight Smt. Geetha committed suicide. It is stated that a
partnership business in the name of Shi
Radhakrishna Tiles factory consisting of the brother of the petitioner, her
sister's husband, namely Uppalanchi Muralidhar Rao and V. Lingam ran into losses
and came to be closed. Smt. Geetha demanded her sister's husband Muralidhar
Rao and her sister to settle the affairs of the said factory for which they did
not respond and her brothers and mother did not extent the support of her
demand. Having disgusted with the attitude of the respondents she committed
suicide.
It is further stated that the

minor

children were ten months old as on the
date of the death of Smt. Geetha. On the morning of 24.7.1987 all the
respondents came to Bhongir and without proper enquiries with the petitioner and
other members of his family, the 1st respondent lodged a complaint in Bhongir
Police Station. The Police registered a case against the petitioner and other
members of his family under section 304-B IPC. After competition of the
investigation the police filed a final report stating that it is a mistake of
fact. The respondents have taken the children to their house at Hyderabad and
brought them back to Bhongir on the next day and they requested the petitioner
to show extra care on the children. The children were with them for six months
and an amount of Rs.1,00,000/- each in the name of the children was deposited by
the petitioner in UTI Children Growth Fund.
Having noticed this deposit, the respondents approached the petitioner and
requested him to send the children to their house for some time on the ground
that the petitioner did not recover from mental shock due to sudden demise of
his wife. They promised the petitioner to send the children once or twice in
a week to be with him for a day or two. The petitioner reluctantly conceded to
the request of the respondents. The respondents have kept up their promise for
one year and later changed their mind and did not permit the petitioner to visit
their house to see the children. The petitioner demanded the respondents to
send back his children. But the respondents postponed the matter on one pretext
or the other and got them admitted in Princeton Public School, Hyderabad. The
petitioner used to visit the school to see the children but the respondents did
not even like his visits and informed the school authorities not to permit the
petitioner to see the children. Thus, it is stated that the respondents have
kept the children away from the petitioner in a planned manner.
It is further stated by the petitioner that during his visits to school he came
to know that the respondents 1 and 3 admitted the children by changing their
surnames and styling the children as their own daughters. When the petitioner
tried to take copies of the school records such as admission register, the
respondent filed a petition on 10.4.1993 with false allegations that the
petitioner is trying to harass them and that he committed murder of their
sister.
The petitioner got issued a legal notice on 17.6.1993 to the respondents
directing them to send back the Wards to him, for which the respondent got
issued a reply denying the right of the petitioner for

custody

of the children.
Hence, the present O.P. was filed by the natural father of the Wards for return
of the

custody

of the wards from the respondents.
The respondents filed a counter opposing the application of the
petitioner. It is pertinent to note that the respondents have not disputed
that the petitioner is natural father of the

minor

children. It is stated that
the wards were resided at Bhongir with the petitioner till 24.7.1987 on which
day their mother was killed by the petitioner and members of his family. The
children were aged about 10 months as on the date of death of their mother and
they never stayed at Bhongir after 24.7.1987. The contention of the petitioner
that Smt. Geetha lived happily with the petitioner till the mid-night of
23.07.1987 is utterly false. The petitioner and the member of his family
harassed Geetha for more dowry and subjected her to un-toleratable mental agony
and cruelty. On 21-7-1987, when the deceased Geetha visited Saroornagar,
Hyderabad for attending funeral ceremony of her father Ramnath Guptha, the
deceased disclosed her mother about the cruel attitude and treatment of the
petitioner and members of his family.
It is further stated that in order to escape from the clutches of law, the
petitioner started pasteurizing the brutal murder of Geetha as suicide and that
the respondent No.1 has filed a complaint with S.H.O. Bhongir Police Station who
registered the case in Crime No.88 of 1987 under section 304B IPC against the
petitioner and members of his family. It is the case of the respondents that the
police did not conduct any further investigation and did not record statements
of any witnesses, and since there was no progress in the case, the respondent
no.1 filed a petition before the police Bhongir and also in the Court of
Judicial First Class Magistrate, Bhongir for necessary action and that
application was rejected. Since the date of death of Geetha the

minor

children
have been staying under

custody

of respondent No.1 and they were neither sent by
the respondents on any occasion nor taken to Bhongir by the petitioner. It is
stated in the counter that the petitioner and his family members decided to get
rid of burden of the children and them gave

minor

children to the respondent 1
and 3 in adoption for which the respondents have agreed by receiving the wards
in the presence of well wishers and the petitioner also gave a written
declaration Ex.B.1 dated 2.2.1988 ratifying the earlier adoption.
It is further stated that the respondents have sent elaborate reply to the
petitioner's notice stating that the petitioner has no right to demand the

custody

of the children. The petitioner having not taken any steps at any point
of time is claiming

custody

of the wards with a view to swallow the money
invested in the welfare of the children and he has no locus standi to claim the
same.
On the above pleadings, the parties have adduced the evidence. On behalf
of the petitioner P.Ws.1 to 4 were examined and Exs.A.1 to A.40 were marked.
P.W.1 is the petitioner-natural father of the wards, P.W.2 is the younger
brother of P.W.1, P.W.3 is sister-in-law of P.W.1 and P.W.4 is friend of P.W.1
who deposed that no proposal for adoption of

minor

girls was discussed and
dispute the last three sentences regarding adoption of minors in Ex.B.1.
The respondents examined RWs.1 to 3 and marked Exs.B.1 to B.68. R.W.1 who
is maternal uncle, R.W.2 friend of R.W.1 who is also attestor of Ex.B.1, and
R.W.3 friend of R.W.1 and also attestor of Ex.B.1, and marked Exs.B.1 to B.68.
On the above pleadings, the trial Court framed an issue as

under:

" The point for consideration is : Whether the petitioner is entitled to

custody of minor

children Shravani and Shravanthi ? "

The lower Court on consideration of the evidence, declined to grant

custody

of the wards to the petitioner. Hence, the present appeal by the
petitioner.
Learned counsel for the appellant contended that the learned Judge has
not considered the matter in proper perspective and without noticing the fact
that the father being the natural and lawful guardian having a preferential
right to the

custody of the minor

children, the lower Court has erred in
observing that the petitioner has not taken any interest of the wards. It is
further contended that the observation of the learned Judge that the petitioner
has not evinced any interest is based on surmises and conjectures and in fact
the evidence adduced by the petitioner Exs.A.1 to A.40 would show that he showed
interest for the welfare of the children and he is not unfit to be the guardian
of the children. It is further contended by the learned counsel for the
petitioner that the lower court ought to have noticed that once it is not
disputed that the father is not fit to be the natural guardian, it is presumed
that the children's interest will be properly protected by the father and that
the learned Judge by placing undue reliance on Ex.B.1, which is a declaration
given by the petitioner, erroneously held that since the date of declaration the
petitioner ceased to have any interest over the property of

minor

children. It
is the case of the petitioner that the last three sentences in Ex.B.1 relating
to adoption of

minor

girls were introduced subsequent to obtaining of his
signature.
On the other hand, learned counsel for the respondents supported the order
under appeal. The learned counsel for the respondents contended that the trial
court having noticed about the care and

custody

and also welfare of the children
who are staying with the maternal uncle since the death of their mother, has
rightly dismissed the petition.
The legal controversy thus lies in a narrow compass namely whether the
petitioner who is the natural father of the wards is entitled to the

custody

of
the wards the provisions of the Act. To decide the same it is expedient to
examine the relevant provisions of the Act.
The relevant provision is section 17 and 19 of the Act. Section 17 provides for
matters to be considered by the Court in appointing guardian and while section
19 deals with guardians not to be appointed in certain cases.
" 17 (1) In appointing or declaring the guardian of a

minor

, the Court shall,
subject to the provisions of this Section, be guided by what, consistently with
the law to which the

minor

is subject, appears in the circumstances to be for
the welfare of the

minor

.
(2) In considering what will be for the welfare of the

minor

, the Court shall
have regard to the age, sex and religion of the

minor

, the character and
capacity of the proposed guardian and his nearness of kin to the

minor

, the
wishes, if any, of a deceased parent, any existing or previous relations of the
proposed guardian with the

minor

or his property.
(3) ...
Section 19 reads as follows :
" Nothing in this chapter shall authorize the court to appoint or to declare a
guardian of the property of a

minor

whose property is under the superintendence
of a court of Wards or to appoint and declare a guardian of the person.
(a) of a

minor

who is a married female and whose husband is not, in the opinion
of the court, unfit to be guardian of her person, or
(b) of a

minor

whose father is living and is not, in the opinion of the court,
unfit to be guardian of the person of the

minor

, or
(c) .....

The issue relating to this aspect was considered by the Apex Court in ROSY
JACOB v. JACOB A. CHAKRAMAKKAL ( (1) 1973 SCC 840 ). The Supreme Court in this
case has held that from a perusal of Section 25 of the Act, it is clear that
it is attracted only if a ward leaves or is removed from the

custody

of a
guardian of his person and the court is empowered to make an order for the
return of the ward to his guardian if it is of the opinion that it will be for
the welfare of the ward to return to the

custody

of his guardian. The Court is
entrusted with a judicial discretion to order return of the ward to the

custody

of his guardian, if it forms an opinion that such return is for the ward's
welfare. The use of the words " ward" and " guardian" leaves little doubt that
it is the guardian who, having the care of the person of his ward, has been
deprived of the same and is in the capacity of guardian entitled to the

custody

of such ward, that can seek the assistance of the Court for the return of his
ward to his

custody

. The guardian contemplated by this section includes every
kind of guardian known to law. The Supreme Court in that judgment has further
held as under :
" Section 25 of the Guardians and Wards Act contemplates not only actually
physical

custody but also constructive custody

of the guardian which term
includes all categories of guardians. The object and purpose of this provision
being ex facie to ensure the welfare of the

minor

ward, which necessarily
involves due protection of the right of his guardian to properly look after the
ward's health, maintenance and education, this section demands reasonably
liberal interpretation so a to effectuate that object. Hyper-technicalities
should not be allowed to deprive the guardian, the necessary assistance from the
Court in effectively discharging his duties and obligations towards his ward so
as to promote the latter's welfare.
......
The Court's power under section 25 of the Guardians and Wards Act is to be
governed primarily by the consideration of the welfare of the minors concerned.
The discretion vested in the Court is, as is the case with all judicial
discretions to be exercised judiciously in the background of all the relevant
facts and circumstances. Each case has to be decided o its own facts and other
cases can hardly serve as binding precedents, the facts of two cases in this
respect being seldom- if ever identical.

......
In considering the question of the welfare of the minors due regard has of
course to be paid to the right of the father to be the guardian and also to all
other relevant factors having a bearing on the

minor

's welfare. There is a
presumption that a

minor

's parents would do their very best to promote the
children's welfare and, if necessary, would not grudge any sacrifice of their
own personal interest and pleasure. This presumption arises because of the
natural, selfless affection normally expected from the parents for their
children...
Where there is no dichotomy between the fitness of the father to be entrusted
with the

custody of his minor

children and considerations of their welfare, the
father's fitness has to be considered, determined and weighed predominantly in
terms of the welfare of his

minor

children in the context of all the relevant
circumstances. If the

custody

of the father cannot promote their welfare
equally or better than the

custody

of the mother, then, he cannot claim
indefeasible right to their

custody

under Section 25 merely because there is no
defect in his personal character and he has attachment for his children - which
every normal parent has."
From the above, it is clear that the father is the guardian of the

minor

until he is found unfit to be the guardian of the

minor

. The welfare of the

minor is paramount consideration while ordering their custody

. In view of the
section 25 of the Act, the onus is on the person who opposes the application by
a guardian for the

custody

of a ward under this section to make out that the
welfare of the wards be better served by its being kept out of the

custody

of
its guardian and retained in the

custody

of the person against whom the
application is made. This onus is particularly heavy when the guardian is the
father of the

child

. Likewise, under section 19 the burden of proof to deny
the natural father the

custody of his child

would be very heavy to establish his
unfitness and the court will require very strong reasons for interference with
the father's right to

custody

. In the facts and circumstances of the present
case, it is in this background of the legal position we have to analyze the
evidence adduced, both oral as well as documentary, to prove the unfitness or
otherwise of the father and also see whether the welfare of the

child

would be
better served in the hands of the father or the respondents.
The petitioner was examined as P.W.1. He deposed that the

minor

children were
with him till March 1988 and thereafter his brothers-in-law and mother-in-law
took the children to their house and he used to visit the house of his brother-
in-law to see the children and later they prevented him. It is stated that in
the month of February or March 1988 his brothers-in-law and mother-in-law came
to Bhongir to negotiate regarding

custody of minor

children. It is further
deposed that they ( respondents ) requested them to send both the minors for
some period to their house, and at that time the petitioner was under shock due
to the death of his wife. On their request and after consulting elders they
sent the

minor

girls to respondents for some period. Once in a week either
petitioner or his brother used to go to the house of the respondents and bring
the children. It is further deposed that subsequently, their outlook changed
and started avoiding to show the girls to the petitioner.
It is further stated that without consulting the petitioner the respondents
admitted both the minors in Princeton Public School, Hyderabad by changing the
name of the father of the

minor

girls. It is further deposed that on many
occasions the petitioner send the elderly persons for the

custody

of children
and that they did not care with their advise. It is further deposed by the
petitioner in his examination in chief that he did not marry keeping in view the
welfare of the his

minor

daughters and that all his family members are ready and
willing to look after the welfare of his daughters. The witness deposed that
last three lines in page No.2 of Ex.B.1 and three signatures appearing on Page
No.1 were not present when he signed on the document. In the cross examination
nothing was elicited to disprove the statements of petitioner.
P.W.2 who is the younger brother of P.W.1 deposed in the same lines as that of
P.W.1. P.W.3 sister-in-law of the petitioner. She deposed that theirs' is a
joint family and her children and children of brothers of her husband are living
together for the purpose of education at Hyderabad. P.Ws.2 and 3 have
consistently denied about the adoption of the children by the maternal uncles.
P.W.4, who was present in the auditor's office at the time of P.W.1 giving
declaration - Ex.B.1, on perusal of the document Ex.B.1, deposed that the last
three lines regarding adoption of

minor

were not typed in Ex.B.1 and that no
such proposal for adoption of the

minor

girls was discussed. He deposed that in
his presence R.W.1, P.W.1 signed over the document and at that time except P.W.1
no one signed as 2nd declarant. He further deposed that on that day Vidya
Bhushan did not come to Auditor's office. The document was got written on the
advise of Auditor keeping in view of tax problem. He also deposed about the
deposit of investment of Rs.1,00,000/- in UTI in favour of each

minor

girl.
R.W. 1- who is the maternal uncle deposed that the

minor

wards were
brought from the house of the petitioner on 25.7.1987 and they are residing with
him till now. He deposed that the

minor

children were admitted in the school and
when they are exhibiting talent in the fields of singing and dancing the
petitioner wanted

custody of the wards. It is further stated that the minor

children are in the

custody

of the maternal uncle since the death of her mother
and they became closely affectionate and associate with the members of his
family and for the last 11 years they are under the care and

custody

of the
maternal uncle who took possible care to bring them up in the education.
R.Ws.2 and 3 are claimed to be attestors of Ex.B.1.
The learned Judge discarded the story put forth by the petitioner in view of
Ex.A.24 which is an application submitted by the petitioner to Principal,
Princeton Public School, L.B. Nagar, where two

minor

children were studying.
" M. Shravani and M.Shravanthi are the twins born to me through my wife
Manchala Geetha on 6.9.1986. Due to some circumstances best known to my
deceased wife she committed suicide on 23.7.1987. Thereafter, as per the
understanding between me and the brothers of my deceased wife my both the above
said children who were minors aged about 10 months at the time of death of my
wife, my brothers-in-law Terala Pradeep Kumar, Terala Vidhya Bhushan and Terala
Virupaksha have requested me to take care of the said children for some time in
their house. As I was also under mental distress and agony due to sudden death
of my wife, I agreed for that proposal. Subsequently, I came to know that my
above stated brothers-in-law joined the said two girls in your institution by
changing the parents names and also surnames."
The learned Judge further observing that as the presence of R.Ws.2 and 3 was not
denied by the petitioner in his cross examination, there are no reasons to
disbelieve the evidence of R.Ws.2 and 3, and held that Ex.B.1 declaration was
signed by P.W.1 on 7.2.1988 and that contents of Ex.B.1 declaration show that
P.W.1 seized to be the guardian for the property of

minor

children since that
date. The learned Judge also observed that the children were staying with their
maternal uncle since the date of death of deceased and that the evidence on
record did not show that the petitioner has taken any care in bringing them up
or he is in visiting terms with the respondents after the death of their mother.
The Court observed that for the last 11 years the wards are under the care and

custody

of their maternal uncle who have taken care to bring them up in
education and in extra curricular activities.
It is not in dispute that Ex.B.1 is the declaration given by the petitioner. It
also speaks about the investment in UTI for a sum of Rs.1,00,000/- each in
favour of two

minor

girls. It further states that the petitioner has no claim or
interest in the above said investment/money at any time, nor any of his
successors in interest/legal heirs. It further states that Father, mother,
brother, sister-in-law of the petitioner have gifted Rs.10,000/- each to raise
the fund for investing Rs.1,00,000/- in the name of one

child

. Petitioner
contributed Rs.1,00,000/- by selling gold, silver and other valuable articles
and also her personal savings. The version of the petitioner is that last three
lines, under Ex.B.1 regarding adoption of his daughters were added subsequent
to signing of the document by the petitioner on Ex.B.1. The Court below observed
that the question whether R.1 and R.3 adopted

minor

children Shravanti and
Shravani is not the scope of enquiry in O.P., and the evidence adduced on
either side on this respect needs no consideration for adjudication on the point
involved in the petition. On perusal of the contents of Ex.B.1 the trial court
held that Ex.B.1 was signed by P.W.1 on 7.2.1988 and that the contents of
Ex.B.1 showed that the petitioner seized to be the guardian of the property of
the

minor

children from that date. Curiously, R.W.1 in his examination in chief
has deposed as follows:
" Ex.B.1 is the document myself and my Advocate perused the document and we
pointed out that aspect of giving girls in adoption was not mentioned in it as
agreed by them. The petitioner took the document and written by incorporating
the last 3 sentences of Ex.B.1 regarding the giving girls in adoption to us.
When petitioner, myself, Ramesh ( PW 2 ), Eswar signed over Ex.B.1, R-3 also
sign upon Ex.B.1. It is not correct to suggest that last 3 sentences of Ex.B.1
regarding the aspect of adoption of minors and also the word consented by is
incorporated by us subsequently.
The learned Judge observed that the petition is filed by the petitioner for

custody of minor

children and his claim is that he is the natural father of

minor children and so he is entitled to their custody

until he is proved to be
unfit to be their guardian. However, the learned Judge without giving any
finding on the aspect of whether the father is unfit to be the guardian of the

minor

children or not has dismissed the petition. The fact that the petitioner
is natural father of the children is not disputed by the respondents at all. On
a perusal of the entire material on record, there is no averment regarding
unfitness of the father to be guardian and no instances are indicated by the
respondents. It is only stated that since from the date of death of Geetha, the
wards are staying with maternal uncle and as per Ex.B.1, the petitioner ceases
to have any interest in the property of the wards in view of the adoption. The
trial court disbelieved the evidence mainly relying upon Ex.B1, which itself
creates a doubt in view of the insertion of the last three lines subsequently.
In fact, as stated above, it was deposed by the R.W.1 in his examination in
chief that subsequently the last three lines were inserted. In the earlier
portion of the declaration, nowhere it is mentioned about the adoption. The
petitioner consistently denied regarding the adoption.In this regard,
learned counsel for the petitioner rightly contended that no endorsement was
made by the petitioner on the alleged last three lines regarding adoption of the
children and thus the findings of the lower Court on this aspect ex-facie suffer
from perversity. In our view the findings of the court below in that regard
are not correct.
The another reason given by the trial court is that the evidence brought on
record clearly shows that the appellant did not evince any interest in the

minor

children and it is only when the

minor

wards are showing proficiency in the
dancing and singing, the petitioner came up with this application belatedly. The
trial court has not recorded any specific finding about the unfitness of the
natural father as required under section 19 of the Act, and in the absence of
any evidence regarding the unfitness of the father, the trial court was not
justified in denying the

custody

to the petitioner. The petitioner-natural
father has invested a sum of Rs.1,00,000/- each in favour of the wards,
claiming no right or interest in the said money. Added to that, there appears
to be no evidence on record that the petitioner remarried again. A careful
perusal of the evidence on record also does not give an impression that the
interests of the minors would not be served if they are given

custody

to the
petitioner. In the circumstances stated above, in our view, the court below
erred in rejecting the petition filed by the natural father claiming

custody

of
the children from the maternal uncle of the wards. Considering the totality of
the circumstances, we hold that the petitioner is entitled to seek the

(8 Comments |Comment on this)

6:22 pm

(Comment on this)

2:08 pm

TODAY'S EDITORIAL: Unholy Wedlock
http://timesofindia.indiatimes.com/Unholy_Wedlock/articleshow/2023988.cms

TODAY'S EDITORIAL: Unholy Wedlock

The Centre is considering amending the Dowry Prohibition Act so that the seven-year limit on registering cases under the Act no longer remains in force.

This would effectively mean lifelong extension of the anti-dowry Act. There can be no doubt that the practice of dowry and occurrence of dowry deaths is the most heinous blot on Indian society.

Having said that one needs to ask: Is an amendment to the dowry legislation necessary? Let us first look at the existing anti-dowry provisions.

At present, the Dowry Prohibition Act is applicable if a married woman dies under mysterious circumstances. Under the Act, the accused ? usually the husband and sometimes in-laws ? is presumed guilty unless he can prove his innocence.

The Act is, however, applicable for the first seven years of a couple's married life. If a married woman dies or is harmed under suspicious circumstances after seven years of marriage, Section 498A of the Indian Penal Code kicks in.

Under this section, offenders are liable for imprisonment as well as a fine for an offence deemed to be matrimonial cruelty.

The offence is non-bailable, non-compoundable and cognisable on a complaint made to the police by the victim or her relatives.

These are fairly harsh measures by any standard. Going beyond the present anti-dowry provisions would be draconian, and would undermine the cardinal principle of law: a person is presumed innocent unless proven guilty.

Since it came into force, there have been complaints about the misuse of Section 498A. The Malimath committee, set up to reform the criminal justice system, had found fault with Section 498A and recommended making the offence bailable.

However, those in favour of these harsh measures, particularly women's organisations, have argued that there are few cases registered under the anti-dowry provisions and that it is taken recourse to only in extreme circumstances.

If this is true, there is really no need to further tighten the law on dowry. The present proposal to extend anti-dowry provisions for a lifetime also risks making marriage an overtly legalistic affair.

Marriage as an institution is a bedrock of society, and state intrusion into the privacy of couples is unwelcome. There is no doubt that the state must step in if there is a dowry death or harassment.

However, adequate legal provisions for that already exist. These need to be enforced to the best abilities of the police and courts. Further measures will only undermine the law and risk its misuse.

(Comment on this)

Tuesday, May 8th, 2007

12:20 pm

Pakistani Women Against Jailing Husbands (By Aamir Latif)
http://www.turkishweekly.net/news.php?id=44859

Pakistani Women Against Jailing Husbands (By Aamir Latif)

Monday , 07 May 2007

ISLAMABAD — Pakistani women activists and MPs believe a new bill stipulating jail terms for husbands over verbally, psychologically or sexually abuses of wives would have a devastating impact on the family institution and would send divorce rates sky-high.

"This is a crude bill. I totally object that," Ismat Mehdi, a senior lawyer, told IslamOnline.net.

"This is aimed at ruining the domestic lives of our women."

The Ministry of Law is putting the final touches to a draft legislation called Protection Against Domestic Violence of Women & Children (PADVWC).

The proposed law will allow a woman sexually harassed or otherwise wronged by her husband to approach a protection committee and then the court of law.

The expression "domestic violence", the document says, includes "any willful conduct which: (a) (i) is of such a nature as is likely to drive the woman out of the house or to commit suicide or to injure herself; (ii) causes injury or danger to the life, limb or health (whether mental or physical) of the woman; (b) involves: (i) harassment which causes distress to a woman and includes, (ii) any act which compels the woman to have sexual intercourse against her will either with the husband or any of his relatives or with any other person; (iii) any act which is unbecoming of the dignity of the women; or (iv) any other act of omission of commission which is likely to cause mental torture or mental agony to the woman."

The violator husband would get up to three years of jail.

However, the draft does not provide any relief for husbands being harassed or otherwise wronged by their wives.

PADVWC is seen as the furtherance of the already enacted Women Protection Act (WPA), an amendment of the 1979 Hudood Ordinance on rape and adultery.

It slashed the adultery punishment to imprisonment of up to five years against only male perpetrator.
Under the Hudood code, a man and woman found guilty of having sex outside of marriage could be sentenced to death by stoning or 100 lashes, although that has never been enforced and those convicted of the crime get jail or a fine instead.

Opponents insist that the text does out define sexual harassment.

"My first question to those who have recommended this bill is how would they define the sexual harassment when a husband and a wife are concerned," asked lawyer Mehdi.

Barrister Wajiha, who practices law in UK, says physical abuse and sexual harassment are two different issues.

"There should be and in fact there are laws against physical abuse or torture, but sexual harassment is very difficult to explain," she told IOL.

"It is better to resolve such issues within the family."

Fareeda Ahmed Siddiqui, an MP of the six-party religious alliance, the Muttehida Majlis-e-Amal, sees the bill as being in clear contravention of Shari`ah.

"Husbands and wives are bound to fulfill the sexual desire of each other. What is the question of sexual harassment," she told IOL.

The lawmaker blasted the vague language of the proposed bill.

"One of the clauses of this bill says that a husband could be sent to jail if he verbally, psychologically or sexually abuses her wife. That means, if he even talks to his wife in a loud tone, he could be sent to the jail because the wife can complain that she has been psychologically hurt due to the loud tone," she said.

Siddiqui says that instead of encouraging couples to sort out their problems the proposed legislation encourages outing domestic problems.

"In the Islamic system, differences between husband and wife, no matter how serious they are, are encouraged to be resolved through the intervention of close relatives of the two sides."
She accused foreign-funded NGOs of pressing for the enactment of such alien laws.

Lawyer Mehdi agreed that the Pakistani society is totally different from Western societies and such bills cannot be implemented here.

"No matter in which society you live laws are like clothes to make you fit. If laws are not fit for your society, they create a mess," she warned.

Nasima Sultana, a senior educationist, believes problems should be resolved inside the house.

"Can this law prevent a man from divorcing his wife if she sends him behind the bars? Of course no therefore it is much better to settle down such issues within the family ranks," she told IOL.

"I always advise my girl students not to be impressed by the western type of family system, which is being introduced in our society through different means. That (west) is another world. Our world is totally different. Therefore, we must lice in accordance with our culture and traditions," Sultana maintained.

"We must rather tell the West that we are different from them and are proud of our religious and social values."

Breaking Families

Critics warn that the controversial bill would wreck havoc on the family institution in Pakistan.
"If a wife goes to police or the court against her husband, and he is punished, can you imagine what would be its effect on their married life? asked lawyer Mehdi.

"It will almost be impossible for them to live together if a husband is sent behind the bars.

"Even if a couple is not divorced, they cannot spit out the grudge against each other for the rest of their lives."

Wajiha, the law practitioner, agrees.

"It is not just that a woman goes to the court and the police to lodge a complaint against her husband, and he will be sent to jail immediately.

"She will have to provide proof for sexual harassment before the court. She will have to stand in front of her husband in the court," she said.

"One does not have to be a genius to understand the fate of that couple."

Ms Siddiqui, one of the most senior woman parliamentarians, shares the same concern.

"One cannot imagine how badly this bill will affect our family system. This will shatter the entire family system," she told IOL.

She believes the implementation of the proposed bill would jack up divorce rates in the Asian Muslim country.

"It will increase the divorce ration to a dreadful extent as it will not merely affect the husband-wife life, but its psychological effects will badly affect their children's lives."

Lawyer Mehdi also recognizes that children will bear the brunt in such cases.

"Children will be the worst affected in case of a divorce in the wake of this bill."

Needed

Fauzia Wahab, who sits on an eight-member National Assembly committee on the bill, supports the legislation.

"This is true that it will harm our family system and values, but the family system should not be protected at the cost of women," she told IOL.

"There is a dire need to seek aid of legislation to keep the family united honorably and with dignity and to protect women's interests," she insisted.

Wahab said the new legislation will cover all kind of harassment which causes distress to a woman.
"Legislation may help out eradication of these offences if there is strict enforcement and implementation of laws, but this object can only be achieved if there is awareness among the masses of their rights and obligations."

The committee, which comprises three members from former premier Benazir Bhutto's Pakistan peoples Party (PPP) and five from the ruling Pakistan Muslim League (Q), had sent its recommendations to the Law Ministry for further course of action.

The committee comprises three members from former premier Benazir Bhutto's Pakistan peoples Party (PPP) and five from the ruling Pakistan Muslim League (Q).

Well-placed official sources told IOL that the government had chosen this point of time for this legislation to divert attention from the simmering judicial crisis.

President Prevez Musharraf suspension of the country's top judge, Iftikhar Chaudry, has plunged the south Asian country into a judicial and constitutional crisis and several judges have since resigned their posts in protest.

Many believe Chaudry is being punished for refusing to toe the official line on several issues, including the controversial file of missing Pakistanis, as well as his opposition to the planned re-election of Musharraf later this year.

May 7, 2007

Islam Online

(Comment on this)

Monday, May 7th, 2007

3:58 pm

Virginity regained in Mumbai

Women have found surgical methods to dupe men looking for chastity. Chastity is NO longer guaranteed !!

While the physical scars of pre marital sex may be "operated upon", what about the mental bonding with the ex boyfriend and resultant conflict with the legally married husband ?

Are we paving way for more divorces and marital discord, along with false Domestic Violence (DV ) cases ?? !!

Mera Bharath Mahaan

Virginity regained in Mumbai

Sunday, May 06, 2007 11:10 IST

Women in Mumbai are reconstructing their hymens in the hope it will help reconstruct their lives after pre-marital sex. Geetanjali Jhala reports.

Not long ago 25-year-old Ritu Patel felt depressed. She had returned from London after breaking up with her boyfriend Zeeshan Khan who had decided to go along with his parents’ wish to marry within his community.

She and Zeeshan had had sex during the three years they had been together. How would her prospective husband now react when he discovered she wasn't a virgin? And yet today she looks forward to marriage. Her confidence arose from a visit to a plastic surgeon who reconstructed her hymen.

It’s a 30-minute surgical procedure called hymenoplasty costing Rs 15,000 to 25,000 which has found many takers in Mumbai. A membrane is created about an inch into the vagina, using the flap of the vaginal lining. It heals fast, although patients are advised to refrain from activities like cycling for a few weeks. It leaves no scars. "Even so, I advise women not to go in for unnecessary surgery. After counselling, some of them change their minds," says gynaecologist Indira Hinduja.

But for many others, the social pressure to be a virgin bride is overwhelming, and the easy restoration of virginity irresistible.

"Hymenoplasty has been refined in the last few years. As awareness spreads, more women are coming forward to ask for the procedure," said Milind Wagh, plastic surgeon at Hiranandani Hospital, who does two hymenoplasties a month. He says women going for arranged marriages are sometimes accompanied by their mothers or aunts.

Sex before marriage is becoming commonplace in the city with more women getting financially independent and easier mingling of the sexes at work, gyms and parties. And yet the social expectation to be a virgin at the time of marriage remains undiminished, which fuels the trend for hymenoplasty. Even older women are going for it. "Women in their 30s have come to me for ‘revirgination’," said Mohan Thomas, a cosmetic surgeon.

Conflicting emotions follow the operation. Ritu Patel feels relieved that hymenoplasty has covered up her sexually active past. But she has pangs of guilt too. "I feel I'll be hoodwinking the man I marry," she said.

(Names of patients have been changed on request.)

Original Article at :
http://www.dnaindia.com/report.asp?NewsID=1095026

(Comment on this)

3:39 pm

Blurred line between 'gift' & dowry

Blurred line between 'gift' & dowry
[7 May, 2007 l 0105 hrs IST

lTIMES NEWS NETWORK

]

NEW DELHI: Cases of girls getting space in boardrooms are not rare anymore. In fact, they have outsmarted boys in areas once thought to be men's stronghold. One would easily imagine then that girls are no longer a parent's burden when it comes to their marriage.

Comment : Yes women have earned authority ... but are they ready for equal responsibility ??

But, perhaps surprisingly, getting a daughter married is still a nightmare for many parents in India. Whatever the financial condition of the family, everyone wishes to accomplish their dream of marrying off their daughter in style.

Comment : Surprise surprise.... this very intelligent article some how forgets men's plight and focuses ONLY on the young girls !!

The customary gifts exchanged — or rather given by the girl's family —ensures that most girls when they leave home for their husband's house are accompanied by suitcases overflowing with clothes, jewellery and, depending on the status of the girl's father, a vehicle.

Comment : Most girls.... suitcases overflowing ... oopss..

Comment : Girls wish to marry upward. So they look for the prize catch. i.e. the best earning man. There are 100s and 1000s of poor men who find no bride. But the rich women wish to get richer and so they barter a few closes for A FEW CRORES the rich groom would have... why else would these women pay ??

In fact, few parents complain about the "giving" per se even though giving dowry is also an offence. And trouble arises when demands go beyond what they one can afford.

Comment : What about the trouble of false 498A cases ?

Nobody is quite sure how the dowry system started, but most agree that it was formulated to protect the girl financially in a society where the boy stood to inherit all property as a provision of stridhan. Another theory that floats is that the father, to take equal responsibility of the girl, would share a girl's expenses with her husband. The practice has obviously undergone numerous changes over the years.

Comment : Including the false 498A littered around. Just search on google using "false 498A" as the search string. You would be amazed at the number of false 498A or false dowry cases that abound

The irony of the legal provision that states both giving and taking dowry are equally serious offences is that the only people who can complain about giving dowry are the very people who demand it. Said advocate Mukta Gupta: "It's a catch-22 situation for us. Giving dowry is an offence under the Dowry Prohibition Act but who is to come forward with the complaint?"

Comment : Though the law says that both giving and taking dowry are offense LET THIS AUTHOR SHOW ME ONE, JUST ONE case where the giver has been punished. I'll show 100s if NOT 1000s of cases where the husbands who are alleged to have taken dowry are made to bear the cross

Nisha Sharma, who shot to fame in 2003 after she refused to marry Munish Dalal on the day of their marriage due to dowry harassment, said it is important to be clear on such issues rather than suffering later. "It was not an easy decision for me but if I had married him that day, my life could have been hell," she said.

"My daughter was waiting to enter the pandal when her in-laws asked for a car and Rs 12.5 lakh. This was sheer blackmailing. My daughter took a stand then, but most parents would have bowed down to the pressure," said D D Sharma, Nisha's father.

And there lies the catch. In several cases, parents are only too happy to comply with demands till they overshoot the amount originally decided. In the case of Mukta Chandolia, who was pushed down from the fifth floor off her house by her fiance, the fight started when her family was asked to give Rs 5 lakh more, besides the sum already agreed upon. "Dowry is an integral part of our system. I personally bought furniture for Deepak, Mukta's fiance, but the trouble started when he got too greedy," said Mukta's brother Manish. Obviously, there is something intrinsically wrong with our idea of marriage. Parents who praise their samdhis for not asking for dowry, — almost as if it is a favour being done — would on the other hand lavish them with clothes, gold, furniture, holiday packages and the works.

Comment : What about the 1000s of cases just in this one yahoo group where elderly parents and innocents have been wrongly charged. What about the 100s of cases in this ONE single blog.

What about sad tales in other blogs all over the net like these
http://divorceindia.blogspot.com/
http://whileonthisissue.blogspot.com/
http://bareact.blogspot.com/
http://merabarath.blogspot.com/
http://my2cw.blogspot.com/
http://batteredmale.blogspot.com/
http://www.blurty.com/users/vinayak
http://o3.indiatimes.com/mEra

"This is not dowry. When my daughter gets married, I would like to give her gifts. This is the dream of each parent.

And when I give gifts to my daughter, how can I not give something to her husband who is now like my son? This is the done thing in society and we have to live by its laws," says Vibha Arya (name changed).

"There is nothing wrong with giving gifts to young people who are setting up homes," says author Urvashi Butalia. "The problem is with the way the woman becomes the vehicle for the boy's family to acquire material goods and money," she adds.

Comment :
- What about young women making men their vehicle to riches ?
- What about women regularly seeking better earning, wealthier men ??
- Why does this society easily accept a woman pestering the man for jewels, a house in her name, pestering him for costly sarees, and what not ?
- From gold to diamonds, to silk sarees, to cosmetics, the costliest are made for women
- How does that fit in to the moral high ground of this writer and others on this issue ?

Parents are also caught off guard when demands come in at the last minute. Some parents are asked to cough up impossible amounts before the wedding ceremony can commence. "The education system seems to be a complete failure in this regard. How much you get in the wedding and how much you give is taken as an indication of your social status," says counsellor Sabhyata Arora.

Comment :
- What about the boy's parents who are caught off guard ?
- what about the 1000s of senior citizen who are lingering on old age homes ?
- they are there MAINLY because the daughter in law threw them out ...ain't it ??? why is there no cry about the aged Indian who sacrificed everything for his son, now in penury, living all by him / herself brought out by essays like this ?

Dear....oh dear....oh dear..... when will this misandry stop ??

Original article at
http://timesofindia.indiatimes.com/Cities/Delhi/Blurred_line_between_gift__dowry/articleshow/2009266.cms

(Comment on this)

Sunday, May 6th, 2007

10:58 am

Its official. Women indulge in domestic violence !!
Excerpts from : Marc E. Angelucci's Letter:
Domestic violence article ignored male victims

Published on Friday, May 4, 2007

[...........]

A recent 32-nation study by the University of New Hampshire found women initiate partner violence as often as men and that controlling behavior is found equally in the perpetrators of both sexes. http://pubpages.unh.edu/~mas2/ID41E2.pdf

In fact, virtually all sociological research shows women initiate domestic violence as often as men, that women use weapons more than men, and that 38% of injured victims are men, as this California State University bibliography shows. Many male victims are disabled or elderly. May refuse to hit back or are afraid of arrest or losing child custody if they do. Many just "take it" while their children continue to be damaged by the exposure to the violence.

We cannot break this intergenerational cycle by ignoring half of it. That is why a global coalition of peer-reviewed domestic violence experts recently formed to support a research-based, inclusive approach to domestic violence and their website has solid data showing women initiate the violence as often as men.

Marc E. Angelucci
President
Los Angeles chapter
National Coalition of Free Men

Marc E. Angelucci's letter can be found at http://www.caribbeannetnews.com/news-1308--7-7--.html

(Comment on this)

10:16 am

Men are being treated as animals, rapists and cheats.

Men are being treated as animals, rapists and cheats.

They have to prove themselves to be innocent

There are 1000s of women cheaten men on false promises of sex, there are women cheating men after a sex etc etc... these women do NOT get punished ..

However should a man cheat on his lover he is hauled up for rape and that too at the apex court in India

How sad ??

News Item ; SC expanded definition but created scope for abuse

TOI- Kolkotta Page 10

SC expanded definition but created scope for abuse

Manoj Mitta | TNN

New Delhi: The dramatic arrest of a bride-groom in Delhi this week on a rape charge made by his previous lover highlights a legal gray area that has emerged in the last four years, thanks to a string of controversial judgments delivered by the Supreme Court.

The law itself ? that is, Section 375 IPC, defining rape ? does not deal with consent for sex obtained on a "false promise" or consent given "under misconception of fact". But there have been at least three SC verdicts holding that if a woman has sex with a man on the basis of his false promise to marry, he is liable to be convicted for rape.

The first time SC widened the definition of rape was in 2003 in Uday vs State of Karnataka, where it expanded the definition to include a situation in which the woman consents to having sex under a misconception of fact that the man intends to marry her at some stage. This opened up the possibility for the police to register a rape case under Section 376 IPC even when the woman admits to engaging in consensual sex.

The apex court reiterated this approach in another rape case in 2004, Dileep Singh vs State of Bihar, where it examined evidence in detail to ascertain whether the accused had ``with the fraudulent intention of inducing the woman to sexual intercourse, made a false promise to marry". The SC again acquitted the accused as it found that the evidence did not warrant "an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception...''

The principles enunciated by these two verdicts paved the way last year for the first ever rape conviction by SC on the ground of false promise to marry. In Yedla Srinivasa Rao vs State of Andhra Pradesh, a bench comprising Justices A K Mathur and Altamas Kabir convicted the accused for rape on the basis of evidence showing that he persuaded the woman to have sexual intercourse with the promise to marry and when she become pregnant, he fled the village.

URL
http://timesofindia.indiatimes.com/Cities/Delhi/SC_expanded_definition_but_created_scope_for_abuse/articleshow/1994469.cms

(Comment on this)

Saturday, May 5th, 2007

3:52 pm

PMO official accused of domestic violence by wife

PMO official accused of domestic violence by wife

PTI

Saturday, May 05, 2007 16:00 IST

NEW DELHI: Nearly 13 years after tying the nuptial knot, the wife of an IAS officer has filed a criminal complaint in a court here alleging she has been thrown out of their house as her parents were unable to meet her in-laws' recurrent dowry demands.

The complaint of one Shivani Kabra, filed under the Protection of Women from Domestic Violence Act 2005, alleged that her husband Shaleen Kabra, a Jammu and Kashmir cadre IAS officer at present posted as director in the Prime Minister's Office (PMO), refused her the entry into their house on the evening of April 10.

Through a complaint filed before Metropolitan Magistrate Sanjay Bansal, she also sought the custody of their two children alleging that she was not being allowed to visit them.

Granting the temporary custody of two minor sons to her, the court listed the matter for July 2 and asked the IAS officer and his parents to file their reply.

She has also named her father-in-law Ram Parsan, mother-in-law Leelawati and sister-in-law Lata Soni as accused in the case.

Within a month after their marriage in February 1994, her in-laws started torturing her to bring more dowry although they had incurred expenses of Rs40 lakh, most of which was in the form of cash and jewellery given to her in-laws, she alleged.

In 2002, Shaleen was transferred to the PMO and shifted to Delhi. That's when they allegedly started demanding a car.

Shivani opposed this demand saying that cash for the same already been given to them at the time of marriage, the complaint alleged.

Later, they also started forcing her to ask her parents to purchase a house in Delhi in Shaleen's name.

She has sought relief of restraint on her in-laws from inflicting violence on her, letting her live in the shared house and restraint on them from entering her portion of the shared house or secure an alternate accomodation for her and pay rent for the same.

Shivani has also sought a total of Rs50 lakh as return of her dowry, compensation for loss of earning, mental and physical torture.

http://www.dnaindia.com/report.asp?NewsID=1094926

(Comment on this)

Thursday, May 3rd, 2007

5:49 pm

Husbands not expected to compensate ex-wives for future earnings
British Law is often used as precedent In Indian Law. So... is this Judgement of any use in India, while deciding alimony cases ?

Husbands not expected to compensate ex-wives for future earnings

LONDON, April 14 A British judge has ruled ex-husbands can not be expected to compensate their ex-wives for future earnings.

The judge ruled in England, which is known for favoring women in divorce proceedings, that a baker identified as Mr. H does not have to give Mrs. H a share of his future earnings after their divorce, The Times of London reported Saturday.

Mrs. H, who was awarded nearly $26 million in cash and assets in the divorce, argued she should also be entitled to a share of her ex-husband's future profits after their marriage fell apart due to his infidelity. She gave up her career as a teacher after their marriage to raise the couple's children.

"This is not a case in which the wife gave up a career that was likely to provide substantial income or monetary reward," the judge said. "She was a teacher." The judge said Mrs. H's contribution to her husband's status as a high earner was small.

"His high level of income is primarily based on his talents, hard work and good fortune in pursuing his career," he said.

Copyright 2007 by UPI

http://www.market-day.net/article_66991/20070414/British-judge-strikes-blow-to-alimony.php

http://news.monstersandcritics.com/business/news/article_1291367.php/

http://www.earthtimes.org/articles/show/51842.html

(Comment on this)

4:59 pm

why are men bothered about alimony ?
Notes : If this feminist is to be believed women do NOT get alimony easily. So why are men bothered about alimony ? is it the case of men being TOO honest ??

http://www.telegraphindia.com/1070416/asp/jamshedpur/story_7652921.asp

Law leaves women in ‘lurch’

OUR CORRESPONDENT

Ranchi, April 15: When Malancha Ghosh of Mahila Utpidan Virodhi Evam Vikas Samiti, was invited to speak at the workshop held under the aegis of Jharkhand Judicial Academy, little did the organisers imagine that she would stir up a hornet’s nest.

In fact, Ghosh’s speech became so “unpleasant” for the members of the judiciary and police force, who were present at the workshop, that she was asked to cut her piece short and step down.

The workshop was a daylong affair that dealt with issues such as bigamy, divorce, alimony and custody battles and other women and family-related issues. And Ghosh spared none — not the judiciary nor the law enforcers — as she pointed out loopholes and fallacies in various cases, which never really gave the promised “justice” to the women. Also, she accused the courts and police as insensitive to women’s issues.

To make her point Ghosh narrated several incidents. She spoke of a certain case where her husband threw out a mother along with her two children. Later, when her son turned 10, the husband claimed and won the custody of the son. Afterwards, when she sought the help of the high court and Supreme Court, she was finally granted an alimony of Rs 18,000 plus Rs 3 lakh as compensation. Three years have passed since then and the woman, Ghosh pointed out, is yet to receive a penny from that amount.

Ghosh also referred to the Paharia rape case, which has been awaiting justice in the Patna High Court for the past 18 years. “A futile wait,” she added.

Malancha Ghosh also spoke of several instances where police stations have been used to solemnise and legalise second marriages, instance when a court granted a woman a meagre alimony when she sought the right to remain with her husband. And when a court sought a TI parade when medical tests prove d a case of rape. “Why was there a need for a TI parade?” wondered Ghosh, “When medical reports had confirmed rape and police did admit to raiding the village?” she asked while talking about the gang rape cases at Paharia.

Ghosh has been upsetting status quo for long at Ranchi. And she succeeded in rattling the normally unflappable judges present at the workshop. But, she had made her point. Women in this country are being denied the basic right to life, let alone life with dignity. Case in point, the paradox of an increasing population and a declining sex ratio.

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4:26 pm

Tax avoidance makes it tough to compute alimony: HC
COURT REMARK COMES AS BUSINESSMAN BHARAT HEGDE CHALLENGES ALIMONY ORDER SAYING HE HAS ‘NO SOURCE OF INCOME’

Tax avoidance makes it tough to compute alimony: HC

Krishnadas Rajagopal

New Delhi, May 1:

A DELHI High Court Bench has found it difficult to compute the alimony to be paid by Bharat Hegde, son of the late politician Ramakrishna Hegde, to his estranged wife Saroj because Hegde, like many other self-employed people, has not fully disclosed his income.

The court said he did not disclose the full income for fear of having to pay income tax.

Hegde is believed to have interests in property and businesses worth Rs 28.5 crore.

“Unfortunately, in India, parties do not truthfully reveal their income. For self-employed persons or persons employed in the unorganised sector, truthful income never surfaces and tax avoidance is the norm,” Justice Pradeep Nandrajog, who was hearing the case, observed.

The Bench was hearing a two-year-old petition filed by Bharat challenging a court order passed on May 13, 2004 directing him to pay Rs 25,000 per month as interim maintenance to his unemployed wife, who had sought divorce on grounds of desertion and cruelty.

The family court passed the order for extending financial support to Saroj after she said “her husband was the son of Shri Ramakrishna Hegde, ex-Chief Minister of Karnataka and an industrialist operating a unit at Peeneya Industrial Estate, Stage-II, Bangalore from where he was earning at least Rs 10 lakh per month”.

Hegde contested the order in the High Court saying he was “unemployed with no source of income and totally dependent on his parents” even as his wife listed more than a dozen prime assets that he owned, mostly in Delhi, Bangalore and Mumbai.

Terming the present case as an instance of how “self-employed persons seldom disclose their true income”, the court observed that in such instances judges are forced to bank on their “prudence and wisdom” to work out the likely income of the spouse from the primary data that is made available.

Upholding the May 2004 order for payment of Rs 25,000 as monthly interim maintenance to Saroj until the final conclusion of the divorce proceedings, the Bench considered it “irrelevant” that she had sought to opt out of the marriage owing to her husband’s alleged cruelty and desertion.

“While judging the issue of interim maintenance, conduct or misconduct of either spouse is irrelevant for the reason in every proceedings of divorce, dissolution or judicial separation there is bound to be some allegations or other pertaining to matrimonial misconduct,” the court said.

It further held that the focus of inquiry should solely pertain to the financial means of either spouse. The court took “means” to include status of parties, reasonable wants of the spouse claiming financial support and the income and property of the other party and family members.

“If conduct or misconduct were to be alone considered, no spouse would get interim maintenance,” Justice Nandrajog added.

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2:26 pm

Females Will Never Lie about being Raped Down Under Either?

Via: The Honor Network

Females Will Never Lie about being Raped Down Under Either?

Priority News Exchange Program News Item (PNEP)

Same story from another part of the world:

A 17-year-old former Perth Catholic schoolboy is free after nearly a year in prison awaiting trial on rape charges of which he was acquitted after it emerged that his accuser had lied about her sex life.

Perth Now reports that Patrick Waring, then a 15-year-old Catholic college student, was dragged out of bed by police a year ago and refused bail on the say-so of his 17-year-old accuser.

However, just before the trial started, the girl admitted lying about her sex life the whole time, Perth Now says.

She had insisted she was a virgin.

DNA tests excluded Waring from her claims of rape.

Waring's accuser finally admitted she had had sex with a man at the back of a cinema the same afternoon, two hours before claiming Waring raped her at Joondalup's Central Park after following her from the railway station on 30 March last year.

She also admitted to having been in a sexual relationship with her boyfriend at the time.

The girl's new story included being raped by two different men in two hours.

She said the cinema sex with a 20-year-old, who she had met on the internet, was rape, but she didn't want him charged because it might affect her compensation claim.

The girl had previously lied to interviewing officers, the Sexual Assault Resource Centre doctor who examined her and to prosecutor Amanda Forrester.

Waring was originally denied bail when a police officer told the Children's Court that Waring had phoned the girl and threatened her - a fact the police later admitted was wrong.

Patrick's father, Terry Waring, said his family had been torn apart for a year. His and his wife's belief in the justice system had been shattered."Shoddy work, cruelty and seeming vindictiveness cost us our house, financial security and a lifetime of savings for a three-week trial," he said.

"The emotional cost to the family has been incalculable. Personally, I have not cried as much since my brother was killed in Vietnam.""It's the finish of school for Patrick," Mr Waring said.

"He's lost virtually all of Year 11 and the start of Year 12 and he's had to grow up very fast. He lost his youth in there."We didn't tell anyone at school what had happened to him. He just disappeared. And now we couldn't send him back there to face the ramifications of this."

Patrick's 24-year-old brother, Michael, also lost a year of study for his degree in computer science and information systems because of the ordeal.

http://clericalwhispers.blogspot.com/2007/04/wrongly-accused-boy-released-australia.htm

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Wednesday, May 2nd, 2007

11:20 am

'Let there be rhyme & reason in dowry arrests’

'Let there be rhyme & reason in dowry arrests’

http://www.dnaindia.com/report.asp?NewsID=1094148

`Let there be rhyme & reason in dowry arrests'
Anshika Mishra
Wednesday, May 02, 2007 11:26 IST

A 52-year-old man, accused of allegedly harassing his daughter-in-law for dowry, has moved Bombay High Court, asking it to lay down guidelines for arresting an accused in cases pertaining to family disputes.

Baban Dhus, a municipal school teacher, was arrested by the police, along with his wife, son Nivrutti and two others, in December 2006 following a complaint lodged by daughter-in-law Vaishali, alleging harassment over a demand for Rs 10 lakh.

Denying the charge, Dhus and family members alleged that Vasihali's father, a police constable, misused his powers and got them arrested even before a preliminary inquiry was conducted.

The petition stated that the urgency with which five members of the Dhus family were arrested as soon as the complaint was filed, belied the conventional procedure to first counsel the family members. The arrest and the subsequent humiliation faced by Dhus and his wife, when they were allegedly handcuffed and made to walk through their chawl in Sewree to recover the `streedhan', have shattered all hopes of reconciliation between the young couple.

Vaishali and Nivrutti were married in May 2006. While Vaishali stated in her complaint that she was mentally and physically harassed for dowry, the Dhus family accused her of quarrelling often about setting up a separate home with her husband.

When the two families met on December 3 to try and settle the dispute, Vaishali's father, Sawkar Padwal, was accompanied by four other constables in plainclothes. Her uncle, a police inspector at Kalachowkie police station, too was present. When the talks yielded no results, Dhus and his family were taken to Kalachowkie police station, and were arrested after a complaint was registered at 6 pm. They were released on bail on December 5.

Following the arrest, Nivrutti lost his job as a medical representative. Alleging that Vaishaili's father was using his power to put pressure on the BMC to terminate his services, Baban Dhus sought protection from the HC.

"While the police must investigate every complaint of dowry harassment, some protection must be granted to families in cases of false complaints," Dhus's lawyer Shrikant Bhatt said when the case was heard on Monday.

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