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Welfare and Proper Custody of Children is a Paramount Issue for Consideration

Posted on February 18, 2016 by admin in Child Custody

Court: CHHATTISGARH HIGH COURT

Bench: JUSTICE Chandra Bhushan Bajpai

SONI KASHYAP @ LALLI KASHYAP Vs. PAWAN KASHYAP @ SONI KRISHNA KUMAR KASHYAP & ORS. On 15 February 2016

Law Point:
Welfare and proper custody of children is a paramount issue for consideration — Mother having no source of income. Custody of children is given to Father.

JUDGEMENT

 

1. Heard on admission.

2. Facts in brief required for disposal of the instant criminal revision are that the present applicant is the wife of Respondent No. 1, Pawan Kashyap @ Soni. Out of their wedlock, a son namely Vashu Kashyap aged about 7 years and a girl child namely Ku. Shreyanshi Kashyap aged about 5 years were born. The Applicant had filed an application before the Judicial Magistrate, First Class, Bilaspur, Chhattisgarh under the provisions of Section 23 Sub-section (2) read with Section 21 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter called ‘the Act, 2005’) for custody of the children. The said JMFC, Bilaspur, in MJC No. 135 of 2015, after hearing both the parties vide order dated 12.8.2015 under the provisions of Section 23(2) of the Act, 2005 granted interim custody of the children till final disposal of the said MJC and ordered that Shreyanshi Kashyap and Vashu Kashyap be handed over in the temporary custody of the mother i.e. the Applicant. The said Court further ordered that Respondent No. 1, if he so wishes, may visit the children in the custody of the mother i.e. the Applicant. Being aggrieved by the said interim order, Respondent Nos. 1 to 3 had preferred Criminal Appeal No. 134 of 2015 before the First Additional Sessions Judge, Bilaspur, Chhattisgarh under the provisions of Section 29 of the Act, 2005 against the present Applicant and Respondents Nos. 4 and 5. After hearing both the parties, learned Appellate Court allowed the appeal and set aside the interim order passed by the JMFC dated 12.8.2015 and held that the present Applicant/Respondent No. 1 in the said criminal appeal, i.e. the mother may visit her children every day in the house of the present Respondent No. 1/Appellant in the said criminal appeal and further ordered that custody of the children be given to Respondent No. 1 herein till either of the parties may get an order under the provisions of the Guardians and Wards Act, 1890 (hereinafter called ‘the Act, 1890’).

3. Against the aforesaid order, the present Applicant preferred the instant criminal revision challenging the illegality and impropriety of the order passed by the Appellate Court on the ground that the same is illegal and contrary to the facts, as well as against the well settled principles of law. Further grounds taken in the revision petition are that Respondent No. 1 is behaving with the Applicant in a cruel manner as is evident from Annexure A/4; children being aged about 7 years and 5 years, respectively, it will be safe and proper that they be given in the custody of their mother; they will also get proper care and good atmosphere in the custody of the mother; Respondent No. 1 used to be in a drunken condition everyday and as such he is not taking proper care of the children. Respondent No. 1 used to go out for earning his livelihood and as such no other person responsible is left there to take care of the children. Further it is prayed that the Appellate Court has not considered the matter properly and without considering the welfare of the children passed the illegal order which is not at all sustainable and liable to be set aside. Hence, it is prayed that the order passed by the Appellate Court may be set aside and the order passed by the learned JMFC dated 12.8.2015 be restored in the interest of justice.

4. Despite service of notice and representation, no written response/objection has been filed in the matter.

5. Heard learned Counsel for the parties on admission.

6. Learned Counsel for the Applicant duly relied upon the grounds taken in the instant criminal revision and submitted that the JMFC, Bilaspur has passed the order in favour of the Applicant looking to the welfare and age of the children i.e. 7 years and 5 years respectively. In a Criminal Revision filed by Respondent No. 1 herein, the Court of First Additional Sessions Judge, Bilaspur by order dated 31.7.2015 ordered that the children be kept in the custody of Respondent No. 1 herein and the Applicant may meet her children every day evening for an hour and as the said order was binding upon both the parties, the Appellate Court was influenced by the said order while deciding the Criminal Appeal No. 134 of 2015. It is further submitted that no specific findings have been given in the judgment passed by the Appellate Court while setting aside the order of the JMFC. It is further submitted that the learned JMFC after hearing both the parties, after considering the age of the children and the fact that the father cannot take proper of the children, passed the interim order till the disposal of the application under Section 21 of the Act, 2005. Respondent No. 1 is cruel and there is also allegations regarding maar-peet against him. Hence, it is submitted that the instant revision may be allowed and the order passed by the Appellate Court may be set aside.

7. For the purposes of the arguments advanced, the instant criminal revision and the documents annexed are perused.

8. For the purposes of the instant criminal revision, Sections 21 and 23 of the Act, 2005 is relevant and they are as under:

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

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

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

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

9. Section 7 of the Act, 1890 is also relevant in the instant case, which is as follows:

“7. Power of the Court to make order as to guardianship—(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made—

(a)

appointing a guardian of his person or property or both, or

(b)

declaring a person to be such a guardian the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this Section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.”

10. On a close scrutiny of the entire facts and other materials and also as per the settled principles of law, in this case the welfare and proper custody of the children is the paramount issue for consideration. Learned JMFC has passed the interim order for temporary custody of the children till the disposal of the application under Section 21 of the Act, 2005. As per the facts, before filing of the MJC No. 135 of 2015, the children were in the custody of Respondent No. 1 and on an application filed by the present Applicant, the concerned Magistrate passed the said order dated 12.8.2015. On the other hand, learned Appellate Court held that the Applicant has no source of income. On perusal of the appellate order, particularly paragraph 7, it reveals that documents have also been filed regarding admission of the children and the Applicant herself submitted that present Respondent No. 1 is earning Rs. 15,000 per month and also getting rent of Rs. 15,000 per month. It shows that there are sufficient funds available with Respondent No. 1 for maintenance and taking care of the children. As welfare of the children is the paramount issue, the Appellate Court held that looking to the entire facts, the order passed by the JMFC is not proper. The Appellate Court further held that custody of the children be given to Respondent No. 1 herein till either of the parties may get an order under the provisions of the Act, 1890 and also directed that the present Applicant may every day at any time can go and meet her children in the house of the Respondents. Nothing has been shown or demonstrated whether this opportunity is being utilized by the present Applicant or not. Nothing is also demonstrated that there is any breach of the order passed by the Appellate Court at paragraph 9 or whether the Applicant had preferred any proceedings under Section 31 of the Act, 2005.

11. On due consideration, looking to the entire facts and circumstances, this Court is of the view that the order passed by the Appellate Court is not illegal or improper. Needless to mention that the ultimate custody can be prayed under the Act, 1890 as appreciated and observed by the Appellate Court. With this, I do not see any reason to interfere with the order of the Appellate Court.

12. Consequently, the instant criminal revision is dismissed at the admission stage itself.

Revision dismissed.

Court:DELHI HIGH COURT Bench: JUSTICE S.P. Garg Ajay Kumar Sonar Vs. State On 02 February 2016 Law Point: The prosecutrix was a consenting party and she and her mother opted to exonerate him in their cross-examination, the Sentence Order is modified . JUDGEMENT 1. Challenge in this appeal is to a judgment dated 19.04.2014 of learned Additional Sessions Judge in Session Case No. 73/13 arising out of FIR No. 156/12 registered at Police Station Sector – 23, Dwarka by which the appellant Ajay Kumar Sonar @ Ajay was held guilty for committing offences under Sections 323/328/376/506 IPC. By an order dated 24.04.2014, he was awarded various prison terms with fine. Briefly stated, the prosecution case as projected in the charge-sheet was that on 25.08.2012 at about 2.00 p.m. at House No. 107, Servant Quarter Salaria Enclave, Sector-21, Dwarka, the appellant committed rape upon the prosecutrix ‘X'(assumed name), aged around 15 years, after administering stupefying substance mixed in medicine. ‘X’ was slapped and criminally intimidated. The incident was reported to the police on 01.10.2012. The Investigating Officer after recording victim’s statement (Ex. PW. 2/A) lodged First Information Report. ‘X’ was medically examined; she recorded her 164 Cr.P.C. statement. The accused was arrested and taken for medical examination. Exhibits collected during investigation were sent for examination to Forensic Science Laboratory. Statements of witnesses conversant with the facts were recorded. Upon completion of investigation, a charge-sheet was filed against the appellant in the court. In order to establish its case, the prosecution examined fourteen witnesses. In 313 statement, the appellant pleaded false implication and denied his involvement in the crime. The trial resulted in his conviction as mentioned previously. Being aggrieved and dissatisfied, the instant appeal has been filed. 2. I have heard the learned counsel for the parties and have examined the record. Appellant’s counsel urged that the Trial Court did not appreciate the evidence in its true and proper perspective and committed grave error to base conviction on the uncorroborated testimonies of the prosecutrix and her sister. The prosecution was unable to explain the inordinate delay in lodging the FIR. No external injuries were found on the body of the prosecutrix during her medical examination. The prosecutrix, her mother and sister did not support the prosecution in entirety. Learned Additional Public Prosecutor urged that there are no sound reasons to disbelieve the prosecutrix who had no extraneous consideration to falsely implicate the appellant. 3. Admitted position is that the appellant was acquainted with the prosecutrix and her family members before the incident. In 313 statement, the appellant admitted that ‘X’s mother and brother used to visit his place of residence to meet his employer Wing Commander Hiremat. He further admitted that ‘X’ was suffering from eczema and was unable to walk properly. 4. From the very inception, it was the prosecution’s case that the victim was aged around 15 years on the day of occurrence. In her complaint (Ex. PW-2/A), ‘X’ disclosed her age as 15 years. Similar is the age disclosed by her in 164 Cr.P.C. statement (Ex. PW-2/B) and MLC (Ex. PW-6/A). PW-1 (Smt. Kalawati), Principal, MCD Primary School, Sector-8, Dwarka, New Delhi, proved record (Ex. PW-1/A to Ex. PW – 1/E) to show that ‘X’ was admitted in her school in class 1st (Primary) on 05.07.2006 vide admission No. 2231. Parents had disclosed her date of birth as 30.01.2001 which was entered in the record. ‘X’ studied in the school till 26.03.2011 and School Leaving Certificate (Ex. PW-1/D) was given to her. She admitted that the date of birth declared by ‘X’s parents was not verified and it was not based on any birth certificate. In her deposition as PW-2, ‘X’ claimed herself to be 15 years old, a student of class 6th. Nothing was suggested to her that she was above 16 years of age on the day of occurrence. PW-3 (Meenakshi), ‘X’s sister, was also not questioned as to what was the age of prosecutrix on the day of incident. PW-5 (Guddi Devi), X’s mother, in the cross-examination revealed that ‘X’ was around 12/13. From all this, its stands established that ‘X’ was below 16 years of age on the date of incident and her consent (if any) to have physical relations with the appellant was of no consequence. The date of birth (30.01.2001) came to be recorded way back in 2001. Parents of the victim had not anticipated any such incident to occur later on to manipulate her date of birth in the school record. The appellant himself did not produce any document to show that ‘X’ was above 16 years of age on the day of incident. He did not ask for ossification test during trial. 5. In her complaint (Ex. PW-2/A), the prosecutrix gave detailed account as to how and under what circumstances physical relations were established by the appellant against her wishes after administering stupefying substance in tea at his residence. The appellant was named in the FIR and specific role was assigned to him. In 164 Cr.P.C. statement (Ex. PW-2/B), the prosecutrix reiterated her version and implicated the appellant for having physical relations with her. In her examination-in-chief recorded on 04.04.2013, she proved the version given to the police/court in entirety and specifically deposed that on 25.08.2012 at about 2/3 p.m., the appellant had taken her from her house on the pretext to examine her by a doctor. He took her to the same hospital where she was examined earlier. Thereafter, the appellant took her to his room No. 107, Servant Quarters, Salaria Enclave, Dwarka, New Delhi and asked her to have a cup of tea. After consuming tea, she became unconscious. The appellant established physical relations with her. When she enquired from the accused as to what he had done after regaining consciousness, he slapped her twice or thrice and threatened to kill if she disclosed the incident to anyone. She became terrified; put ‘on’ clothes and the accused brought her to her house. Due to fear, she did not inform her mother and brothers about the incident. On 29.09.2012, when she had a conversation with her elder sister Meenakshi on phone, she asked her to reach Delhi immediately. On her arrival to Delhi, she apprised her about the incident. 6. PW-3 (Meenakshi), ‘X’s elder sister, corroborated her version. In her examination-in-chief recorded on 04.04.2013 she deposed that on ‘X’s request to come immediately to Delhi, she arrived there on 29.09.2012. ‘X’ apprised her about the incident and implicated the accused who lived in the neighbourhood to have committed rape upon her. 7. It is pertinent to note that the victim and her sister recorded their examination-in-chief on 04.04.2013. However, their cross-examination was deferred at the request of learned proxy counsel who informed that the main counsel was not available. These two witnesses could be cross-examined thereafter only on 25.10.2013 and 29.11.2013 respectively. It appears that during this period, both these witnesses were won over and for that reasons they took somersault in the cross-examination and declined if any such incident of rape had taken place. They were re-examined by the learned APP and were confronted with their earlier statements given before the police/Court. 8. The Trial Court rightly relied upon the law laid down in Khujji alias Surendra Tiwari v. State of Madhya Pradesh MANU/SC/0418/1991 : AIR 1991 SC 1853 to discard the version given by PWs-2 and 3 in their cross-examination. The defence had deliberately sought adjournments on various dates to gain time to win over the prosecutrix and her sister and for that purpose, they had no cross-examined them. The result was obvious and in their cross-examination they gave a completely different version. Nothing is on record to show that the victim or her mother/sister had any motive or previous animosity with the appellant to involve him in such a heinous case at the first instant. 9. It appears that the prosecutrix in her exaggerated version has implicated the accused for establishing physical relations against her wishes. Circumstances emerge on record demonstrate that the prosecutrix seemingly was a consenting party. She had gone to the appellant’s residence without any demur and had stayed there for considerable period. Physical relations took place between the two there and at no stage ‘X’ raised hue and cry. After the rape incident, she did not protest and without raising any alarm, returned to her house. She did not narrate the incident to her family members. No visible injuries were noticed on her body. She maintained silence for about two months and at no stage complained about appellant’s conduct and behaviour. In her 164 Cr.P.C. statement (Ex. PW-2/B) the prosecutrix disclosed that she was ready and willing to marry the appellant on attaining age of majority. She further disclosed that after the physical relations, when she had enquired from the appellant as to why he had done so, he disclosed that he loved her and wanted to marry. It appears that both the prosecutrix and the appellant had intimate relationship but because victim’s mother objection to it, it could not go further. Photocopies of certain documents have been placed on record whereby love letters were exchanged. However, these could not be proved on record. The prosecutrix was not medically examined soon after the incident. Her medical examination after about two months vide MLC (Ex. PW-6/A) was of no relevance to ascertain if she suffered any injuries on her body including private parts at the time of commission of the crime. The fact that the prosecutrix and her close family members opted to exonerate the appellant in their cross-examination recorded after a gap of certain months lends credence to the fact that they did not want stern action against the appellant. As discussed above, physical relations (if any) between the two even with consent have no relevance as the prosecutrix was below 16 years of age. Conviction of the appellant on that score under Section 376 IPC cannot be faulted and it is affirmed. 10. Regarding sentence, the appellant was awarded Rigorous Imprisonment, for seven years with fine Rs. 10,000/- under Section 376 IPC. Nominal roll dated 08.01.2015 reveals that he has already undergone two years, four months and fifteen days incarceration besides remission for three months and eighteen days as on 07.07.2015. He is not a previous convict and is not involved in any other criminal activity. His overall conduct in jail is satisfactory. Sentence order further records that the appellant has a widowed mother and two unmarried brothers to take care of them at Jharkhand as they are financially dependent upon him. Appellant’s mother is suffering from cataract and was unable to undergo surgery. 11. Considering these mitigating circumstances and the fact that the prosecutrix was a consenting party and she and her mother opted to exonerate him in their cross-examination, the Sentence Order is modified to the extent that the substantive sentence of the appellant shall be Rigorous Imprisonment for five years instead of seven years under Section 376 IPC. Other terms and conditions of the Sentence Order are left undisturbed. The appeal stands disposed of in the above terms. Trial Court record along with the copy of the order be sent back forthwith. Intimation be also sent to Superintendent Jail. Annulment of Marriage on the Grounds of Impotency of Wife and Fraud