Work flow - Judgments to analyze

Gitbook allows 5 collaborators for free, maybe we can add more later by removing existing ones

Here is list of judgments to analyze under various topics.

Suggested workflow is like this:

Find a judgment related to child custody, visitation, interim custody etc on http://indiankanoon.org or http://bharatlaw.in
Get link of judgment you are reading/working on and put it under your name below: choose only one category: (i) To analyze, (ii) analyzed and summarized in book, (iii) analyzed not useful for book.
If you find a judgment which you believe is useful but not reading it yourselves, then put it under Judgments to analyze. Someone else can put it into their list.
Each author to check that if someone else is already working on a judgment, then don't take it up. Just do a search/find on this page to confirm the link you want to read is not already there in someone's list.

Judgments to analyze

Here we give a webpage link of all judgments related to book's topic. Whether they are found useful or not is to be done by each author. Take a link from here and put it into To analyze under your name.

https://indiankanoon.org/doc/1020239/

(Umesh: Please go through the judgement. Its pretty long and need your expertize to summarize. Tx)

Vivek

(i) To analyze

Constitutional etc

U.N’s CRC (Conventions on the rights of child) Article 9 states:

“States Parties shall ensure that a child shall not be separated from his or her parents against their will.”
“States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis”
AND Article 51©: foster respect for international law and treaty obligations in the dealings of organized peoples with one another

Argument: India has ratified and accepted UN CRC in 1992, and all member states are bound to honour international treaties and conventions, and it is also in agreement with Article 51©.

Indian Constitution Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law.

Argument: Life and liberty of the child is affected when she doesn’t have access to, presence, love, and affection of father.

Indian Constitution Directive Principle: 39(f): [(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.]

Argument: For a child having father and still not allowed to grow with father’s care and upbringing is akin to forced moral abandonment of the child from one parent’s care.

Judgment Citations

Francis Coralie Mullin vs The Administrator, Union … on 13 January, 1981 Equivalent citations: 1981 AIR 746, 1981 SCR (2) 516

Judgment summary: Even detenu has a right to see his family.

Maneka Gandhi vs Union of India 1978 AIR 597, 1978 SCR (2) 621

Judgment summary: “Article 21 should be interpreted with the widest amplitude”

In Kumar V. Jahagirdar v/s Chethana Ramatheertha, (2004) 2 SCC 688, while dealing with the issue of child custody, the Supreme Court observed that mother cannot always claim superior custody rights.
In R.V. Srinath Prasad v. Nandamuri Jayakrishna, (2001) 4 SCC 71 , it was observed “that custody of minor children is a sensitive issue. It is also a matter involving attachment. Such a matter is to be approached and tackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance.”
In Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745, the Supreme Court while deciding the question of custody observed that what we have to bear in mind the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law… During infancy and impressionable age, the care and warmth of both the parents are required for the welfare of the child.
In Nil Ratan Kundu v/s Abhijit Kundu, (Civil Appeal No.4960 of 2008, decided on 8th August 2008), Supreme Court, in paragraph 56 thereof held thus: … But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations.”
Mohan Kumar Rayana vs. Komal Mohan Rayana IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FAMILY COURT APPEAL NO.29 OF 2007
para 47…If the order of access does not work in future the custody will have to be handed over to the father on being satisfied that the respondent-mother is responsible for poisoning the mind of Anisha against the appellant father.
para 48. We are aware that initially the access period may temporarily cause flutter and Anisha may not be able to immediately adjust herself at the home of the appellant-father, but it does not mean that mere willingness of Anisha would be decisive factor. Looking to her age and hostile attitude towards the appellant, her wish, insofar as access/visitation right is concerned, need not be given importance or any weightage. The Court is not supposed to act as executor of the wish expressed by the minor.
[2010(1) Femi-Juris C.C. 169 (Raj)] Mangal Das Vaishnava and another (Appelants) Versus Jitendra Kumar Vaishnava and another (Respondent)

Trial court directed appellants—maternal grand-father and grand-mother to handover custody of child to respondent father. Appeal against order by maternal grand-parents. Father charged with offence under Sections IPC 498a and 304 of IPC. Child expressed wish his willingness to live with his maternal grand-father and grand-mother. Held that no evidence that welfare of child is in any way in peril in the hands of father. Appeal dismissed.

Argument: IPC 498a case against father no bar for shared custody of child with father.