Custody of Child - Supreme Court

Supreme Court has directed a mother to return to Singapore with her autistic child and subject herself to jurisdiction of the foreign court in  a recent case where NRIs involved in legal custody battle for children,

A bench of Justices Dipak Misra and V Gopala Gowda, however, directed the husband, who has initiated proceedings against the wife in Singapore, to fund her and the child's air ticket and also withdraw any contempt filed against her in the Singapore court.

The apex court's direction came after a petition filed by the father accusing his estranged wife of illegally spiriting away their child to India despite an order of the Singapore high court, directing she return with the child.

It was informed to the bench that the father of the child is a citizen of Singapore and settled there since 1978. After marriage, the wife also became a permanent resident of Singapore. The couple was blessed with a boy who was autistic by birth and also acquired citizenship of Singapore.

Due to marital discord, the mother took the child to India on the pretext of holidays. She promised she will return and had booked her return ticket as well but never came back.

The father then filed a petition before the Singapore high court which directed the return of the child to the jurisdiction of Singapore. Since the mother failed to comply with the high court's order, the father had to move the court in India.

SC directed the father to arrange a separate house for the mother and the child, and also deposit a sum of Rs 2 lakh for their expenses. SC also directed that all proceedings initiated by the wife in India will be put on hold till the decision by the High Court of Singapore comes while the father was restrained by SC from initiating any proceedings of contempt in Singapore.

http://timesofindia.indiatimes.com/city/delhi/Supreme-Court-tells-NRI-mom-to-go-back-to-Singapore-with-kid/articleshow/35271698.cms?intenttarget=no

Dowry Death and Indian Families

In today’s Indian society dowry is like a norm, we see that people spend lavishly on marriages. The root cause of the problem starts from here, The parents of the bride fulfill all the wishes of groom’s family like spending lavishly on wedding, gifting cars etc. when the bride reaches her matrimonial home, The selfishness of groom’s family grows .Now they demand more things like household items, property etc. Not in the condition to fulfill the infinite demands of groom family, The Groom family starts to harass the newly wedded wife so much and so grave that she thinks it’s better to end the life than to live it. In the end the lavishly solemnized wedding ends into tragic death of the bride. The cause of death is not natural that is for sure, it may be due to poison, suicide, even hanging on the ceiling, burns.

 

This the most common story of all the dowry related deaths .For this common story there must be a common Law on different footing as that of murder and culpable homicide as the cases of murder and culpable homicide demands much greater evidence and are much complicated. The dowry death is covered in sec 304 B IPC which is:

 

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called" dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub- section," dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

 

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

 

Basic Ingredients:

 

1. There must be a death of the woman.

2. The death of the woman must be in un natural circumstances.

3. And there must be evidence that she was subjected to cruelty due to demand of dowry.

 

So there is a stark difference between section 299/300 and 304B as 299/300 has much wider scope and covers many motives, But sec 304B the main motive is Dowry due to which cruelty and harassment is performed on the bride and due to which she died.

 

Evidence in 304 B-

 

For the protection of harassed party the evidence act comes to rescue for a crime to come under the 4 corners of evidence act, The material evidence is cruelty and harassment on the bride.

 

113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

 

Now due to this section the burden of proof shifts to defendants, now they have to show that they have not done cruelty and harassment in order to evade this section.

 

Unlike in murder cases there is always presumption of innocence, The section of murder has to pass through quite stringent tests than that of dowry death. In dowry related death those people who are involved in cruelty (relatives) are held to be liable for the dowry death.

Source: Nitish Banka

Hindu Daughter's equal rights in ancestral - coparcenory property

Since this is an area of profound concern these days, and I’ve been facing endless queries on this, here is a basic & overly simplistic layman’s view on the law as it was before 2005 and after it vis-a-vis daughter’s right in joint family/coparcenary/ancestral properties among Hindus in India.  

 

Concept of Joint Family in a nutshell

 

We all are aware of the concept of a Joint Family – wherein people related by blood/marriage descending from a common ancestor form a unit, live, work, worship together. This includes all sorts of people, sons/daughters (married, widowed or otherwise), mother, widows of sons etc. All these people have right to maintenance out of joint family properties and assets. 

 

The Coparcenary

 

Within this group there is a narrower group called the coparcenaory, with it’s constituents being referred to as the coparcenars have birth rights (ownership) in the joint family/ancestral properties, which they can get culled out anytime by a partition, they have the right to sell/gift/will away their share of the property, they also have the power to assail any wrongful transfer of property made by Karta (Karta, for those who arrived late is the eldest lineal member of the family, entrusted with task of managing the property, Karta has the power to even alienate the whole of property in certain circumstantial compulsions). 

 

BEFORE 2005

 

Now before 2005 only son, son’s son, son’s son’s son were coparcenars, with the daughters only having a right to reside in the property and get their marriage expenses defrayed out of the same. A son would acquire proportionate ownership in the property moment of it’s conception, but not the girls.

 

POST 2005

 

Post 2005 – now a daughter also would acquire ownership rights on the property from the time of her conception (provided of course she is born alive). She has the same rights of partition and power to deal with the property as she pleases, this right extends to seeking a partition and sale of the family home as well. Hence there is a complete parity in terms of rights.  However it would be profitable to remind ourselves that these rights extend to only ancestral properties (or joint family properties – are properties which people inherit from their paternal ancestors/property through into common hotch potch/property acquired by joint family efforts/accretions etc) and not separate properties (which include property earned by gift/will/acquired through purchase from own funds/acquisitions from own skill etc.) 

 

But there is a rider - The right to get your equivalent share of the property can be exercised only in cases where there has been no formal partition (partition either through court final decree or through a registered partition deed) before 20.12.2004. In case a partition has already been finalized before the said date, the right collapses. 

 

HOW TO ASSERT YOUR RIGHT ? FILING A SUIT FOR PARTITION  

 

The Daughters (married, widowed or unmarried) now can approach the civil court for seeking a partition from their brothers/family/father etc. Their right is equal. Once acquired a lady is free to deal with the property the way she likes and it becomes her absolute property and her children have no right during her lifetime. 

 

A Daughter can file a suit for partition, on which certain court fees is payable. This court fee depends on the value of her share in the property and has to be calculated as per court fee chart. 

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