SC grants bail to an ailing accused, but his freedom remains elusive, because one Judge could not sign the orderBy:june 21, 2016In a bizarre case, the Supreme Court’s vacation bench comprising Justices Adarsh Kumar Goel and L Nageswara Rao, had on 17 June granted bail to an accused under custody in Jharkhand since 9 November last year, but could not ensure his freedom till the court’s reopening on 29 June. The accused, Pushpendra Kumar Sinha, is reportedly suffering from several ailments.The Court’s vacation bench comprising Justices Shiva Kirti Singh and AM Khanwilkar, today pleaded its helplessness to the counsel of the accused, Pranav Sachdeva, because one of the Judges on the bench which granted the bail, could not sign the order,before he left Delhi.Sources toldLiveLawthat while Justice Goel signed the order granting bail, Justice Rao could not, before he left Delhi.Today, as Sachdeva mentioned the matter before the Vacation bench, Justice Shiva Kirti Singh told the counsel:“We can’t help; we can’t sign. We are sorry. All our sympathies are with you. Unfortunately, you have to wait till the vacation is over.”When the bench asked what the Supreme Court rules say, it was told that both the Judges must sign.When the counsel asked whether he could mention it again tomorrow, the bench pleaded its helplessness in the matter.
Judgment of supreme court on child custody and guardianship
The brief facts of the case as laid down by Justice Sen and Justice C. Nagappan can be put in a nutshell as that custody of the child (below 5 years of age) was demanded both by the father and the mother. The lower court awarded interim custody to the mother with visitation rights to the father. On appeal, the Bombay High Court, Goa awarded the interim custody to the father. The father however shifted to Bombay without intimating to the mother who had to file a criminal writ petition in Bombay High Court which simply disposed it off awaiting the petition on Goa trial court. Subsequently, the SC was approached by the petitioner mother.
Summarily, the law laid down by the judgment restricting itself to interim custody can be put in bullets as –
Three separate definitions of ‘Guardianship’, ‘Custody’ and ‘Visitation’ have been examined in para 5 from Black’s Law Dictionary.
Visitation rights have been ascribed the meaning “In a dissolution or custody suit, permission granted to a parent to visit children. In domestic relations matters, the right of one parent to visit children of the marriage under order of the court.”.
In Para 9, though the mother is a Christian by religion, applicability of HMG Act has been relaxed contrary to the law mentioning that it was not disputed.
The custody of a minor shall ordinarily be with the mother. However the use of word ordinarily cannot be overstretched.
Para 10 – “We must immediately clarify that this Section (section 6) or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter’s crossing the age of five years.”
Para 13 – “….We must again clarify that the father’s suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mother’s unsuitability since Thalbir is below five years of age. In these considerations the father’s character and background will also become relevant but only once the Court strongly and firmly doubts the mother’s suitability; only then and even then would the comparative characteristic of the parents come into play…..”
Frequent visitation does not mean continuous visitation.
Whether having permanent residence in India or not is not so important a factor.
The focal point for consideration in such cases is welfare of the child.
Considering that global relocation is a well known legal concept now, the entitlement as to custody by the left behind spouse has to be jurally investigated.
Forum Shopping or Court Shopping by parties to litigation must be firmly dealt with.
Also, co-ordinate benches of High Courts must respect prior orders.
The parent who does not have interim custody should be allowed to visit the child without removing him/her from the custody of the other parent. Spending more time than is allowed amounts to temporary transfer of custody which is impermissible.
The High Court of Madras passed a landmark Judgment by Justice Karnan awarding rights to couples who may not legally married but have lived together in every other way as spouses while ruling on the issue of domestic partnership.
Gems from justice Karnan’s order:
“…if any couple choose to consummate their sexual cravings, then that act becomes a total commitment with adherence to all consequences that may follow, except on certain exceptional considerations… Legal rights applicable to normal wedded couples will also be applicable to couples who have had sexual relationships which are established…”
“…It is not disputed that the petitioner has been a spinster before she gave birth and that the respondent was a bachelor before developing sexual relationship with the petitioner. Both of them led their marital life under the same shelter and begot two children. Therefore, the petitioner’s rank has been elevated as the `wife’ of the respondent and likewise, the respondent’s rank has been elevated as the `husband’ of the petitioner. Therefore, the children born to them are legitimate children and the petitioner is the legitimate wife of the respondent…”
He said that either party to a relationship could approach a family court for a declaration of marital status by supplying documentary proof for a sexual relationship. In this case, the man had officially admitted that the woman was his wife, by signing the ‘live birth report’ of his second child and giving his consent for a Caesarean section for the birth, according to the court. Furthermore, he ordered the ‘husband’ to pay monthly maintenance of Rs 500 to his ‘wife’
But the said judgment not at all ruling that all pre-marital sex by an unmarried couple of legally marriageable age is considered married, and the ‘husband’ in such marriage cannot marry someone else without getting a court decree of divorce from the ‘wife’ as reported in THE HINDU. However the above Judgment elevates the status of the couples as Husband and wife had continuous sexual relationships and lives together as spouses as live in relationship even though they are not legally wedded.
It is a landmark and progressive judgment benefits and protects women who are always victims of pre marital or non marital sex.
It seemed like a usual nursing home with usual patients. However, in that dull space somewhere there was a man who was beautifully scripting about his life during his last days in a form of heart-touching poem. Mak Filiser, 86, died in the geriatric ward of a nursing home and since he had no visitors, the nurses believed that he left nothing behind of any real value.
But the day a nurse came to clean out Mak’s room after he passed on, everything changed. One of the nurses noticed something. It was a poem that Mak had written.
She proceeded to read it and was so floored by his words that she ended up making copies of it and sharing with every employee at the nursing home.
In today’s world when children are leaving their parents at old age homes, this should be an eye opener. Our parents and grandparents raise us, care for us, and love us and then one day we forget all about them. The poem is entitled; “Cranky Old Man” and it no doubt give us some very valuable lessons. Take a look…
Cranky Old Man by Mak Filiser
What do you see nurses? What do you see?
What are you thinking…when you’re looking at me?
A cranky old man…not very wise,
Uncertain of habit…with faraway eyes?
Who dribbles his food…and makes no reply.
When you say in a loud voice…I do wish you’d try!’
Who seems not to notice…the things that you do.
And forever is losing…A sock or shoe?
Who, resisting or not…lets you do as you will,
With bathing and feeding…The long day to fill?
Is that what you’re thinking? Is that what you see?
Then open your eyes, nurse…you’re not looking at me.
I’ll tell you who I am . . . . .. As I sit here so still,
As I do at your bidding…as I eat at your will.
I’m a small child of Ten…with a father and mother,
Brothers and sisters…who love one another
A young boy of Sixteen…with wings on his feet
Dreaming that soon now…a lover he’ll meet.
A groom soon at Twenty…my heart gives a leap.
Remembering, the vows…that I promised to keep
At Twenty-Five, now…I have young of my own.
Who need me to guide…And a secure happy home.
A man of Thirty…My young now grown fast,
Bound to each other…With ties that should last.
At Forty, my young sons…have grown and are gone,
But my woman is beside me…to see I don’t mourn.
At Fifty, once more…Babies play ’round my knee,
Again, we know children…My loved one and me.
Dark days are upon me…My wife is now dead.
I look at the future…I shudder with dread.
For my young are all rearing…young of their own.
And I think of the years…And the love that I’ve known.
I’m now an old man…and nature is cruel.
It’s jest to make old age…look like a fool.
The body, it crumbles…grace and vigor, depart.
There is now a stone…where I once had a heart.
But inside this old carcass a young man still dwells,
And now and again…my battered heart swells
I remember the joys…I remember the pain.
And I’m loving and living…life over again.
I think of the years, all too few…gone too fast.
And accept the stark fact…that nothing can last.
So open your eyes, people…open and see.
Not a cranky old man.