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WOMEN’S RIGHTS AND FAMILY

LAW

RECENT TRENDS
WOMEN’S RIGHTS AND FAMILY LAW

RECENT TRENDS

Index

Matrimonial Home and Women’s Rights


Concept of ‘Matrimonial Home’
Supreme Court on ‘Matrimonial Home’
High Courts on Matrimonial Home
Properties of Divorced Couple - Jurisdiction of Family Court
Domestic Violence Act and Civil Injunctions

Maintenance and Morality


Removal of Ceiling under S.125 Cr.PC
Chastity, Morality and Maintenance
Informal Marriages and Right to Maintenance

Muslim Women and Islamic Jurisprudence


An Overview of Muslim Personal Law
Divorced Muslim Women and Right to Maintenance
Validity of a Muslim Divorce

Good Mother, Bad Mother – Issues in Child


Custody
Women’s Right to Custody of Children
Muslim Mothers and Child Custody
Mother as Natural Guardian - Gita Hariharan

Legal Issues in Child Sexual Abuse


MATRIMONIAL HOME
AND WOMEN’S RIGHTS

Concept of ‘Matrimonial Home’

Upon divorce, most women lose the right of residence in their


matrimonial home. 'Matrimonial home' is defined as a residence
wherein a man and woman have resided as husband and wife. Why is
the right to reside in the ‘matrimonial home’ important to wives, both
economically and socially? Why is it important for the woman to have a
right to the matrimonial home specifically rather than any other
residence?

When faced with violence, most women do not opt for divorce for fear
of being rendered shelterless, as they may not be accepted in their
natal families. During the marriage, they have built support structures
around their matrimonial home, which are important to their survival
as single women. A single woman is vulnerable to harassment and it
would make the situation easier for the wife if she can continue to
reside in an area with which she is familiar and has a support structure.
If women have children, the displacement from their schools or home
environment may cause them further distress.

Further, the quality of the shelter is linked to questions of social


standing and economic security, for example, the size of the house and
the locality in which it is located. Given the drop in economic security
which women experience upon divorce or separation, it is important to
provide stability as far as possible by giving them rights to the house in
which they resided in the course of the marriage. Having to establish a
new home would be an additional burden.

But our matrimonial statutes do not recognize women’s right of


residence or women’s right to a share in the matrimonial home and
women are systematically deprived of this right. Once the wife has left
the home, courts are reluctant to restore her right to reside in the
matrimonial home, while if she is in the home, it may be relatively easy
to get an injunction (protective order) restraining her husband from
throwing her out.

The legal system makes provision for shelter for wives in two ways,
through provision of maintenance and of the dwelling house. The Hindu
Adoptions and Maintenance Act, 1956, defines “maintenance” as
including provision for residence, thus the right to shelter under the Act
also arises out of consortium. However ‘residence’ does not
specifically mean the matrimonial home. But because ‘residence’
comes under the provision for maintenance, the courts seem to think
that an increased provision for maintenance can be compensatory for
the home or the home is given at the cost of maintenance.

The courts presume that since the title is in the name of the husband
or his family members (father-in-law or mother-in-law), it is his sole
prerogative to decide who has the right to reside in his home. Despite
the gains made in other areas, here the notion that ‘man is the master
of his home’ still prevails. The fact that most women contribute to the
matrimonial home either through their own earnings or through their
labour, gets overlooked while ascertaining the right of residence and
right to property in respect of the matrimonial home.

For most middle class families, the dwelling home (or matrimonial
home) is their only or primary asset. In urban centres, with escalating
property prices, the right to the dwelling home becomes a crucial
economic issue in matrimonial litigation. Yet, there is hardly any legal
provision dealing with this issue. But since the right of residence and
the right to matrimonial property have emerged as highly contested
questions in matrimonial litigation, courts are constrained to address it.
Therefore women’s right to the matrimonial home has evolved through
judge made laws. Given below are some of the judgments of various
High Courts, which have recognized the woman’s right to residence in
the matrimonial home:

Supreme Court on Matrimonial Home

B. P. Achala Anand v S. Appi Reddy (2005) 3 SCC 313

On 11th February, 2005, a Bench comprising of Chief Justice R.C. Lahoti and Justices
G.P. Mathur and P.K. Balasubramanyan pronounced a landmark ruling in a case titled
B.P. Achala Anand vs. S. Appi Reddy breathing new life into the right of women to the
matrimonial home. It also incorporated into the Indian law, the age old dictum of the
English law, ‘deserted wife’s right in equity’.

Briefly stated, the facts of the case - due to domestic discord, the husband left the
matrimonial home, which was a tenanted premise. Since the husband faulted in the
payment of his rental dues, the landlord initiated a case for eviction. The wife would be
affected by any order of eviction and would be rendered shelterless. Hence she
approached the court to be impleaded as a party to the proceedings. The Karnataka High
Court granted her request and directed her to pay the dues. The cases proceeded further
and finally, the landlord could not evict the tenants from the part of the premises
occupied by the wife. Against this decision, the landlord filed an appeal in the High
Court. In these proceedings, the Karnataka High Court held that there is no relationship
of landlord and the tenant and between the landlord and the wife.

The appeal, which provided the Supreme Court an opportunity to expand the scope of
women’s rights to their matrimonial home was filed by the wife, Achala against the
ruling of the Karnataka High Court. In its opening comments, the ruling reiterates the
power of the judicial law making - Unusual situations posing issues for resolution is
an opportunity for innovation. Law, as administered by Courts, transforms into justice.
It quotes Justice Markandey Katju, while reaffirming, that ‘the law does not remain
static. It does not operate in a vacuum. As social norms and values changes, laws too
have to be re-interpreted, and recasted’, and, Lord Denning - "law does not standstill; it
moves continuously. Once this is recognized, then the task of a judge is put on a higher
plain. He must consciously seek to mould the law so as to serve the needs of the time."

Since the parties were Hindus, the court examined the right in the context of Hindu law
and held that the right to residence is a part and parcel of a wife's right to maintenance
and that the right has been statutorily recognized with the enactment of the Hindu
Adoption and Maintenance Act, 1956. ‘Maintenance’ under S.18 of the Act includes
residence and further, that for the purpose of maintenance, the term 'wife' includes a
divorced wife.

Since there were no Indian legal precedents which address the issue directly, the court
referred to the legal principles under English law and approvingly quoted Lord Denning:
"A wife is no longer her husband's chattel. She is beginning to be regarded by the laws as
a partner in all affairs which are their common concern. Thus the husband can no longer
turn her out of the matrimonial home. She has as much right as he to stay there even
though the house does stand in his name. ....... Moreover it has been held that the wife's
right is effective, not only as against her husband but also as against the landlord. Thus
where a husband who was statutory tenant of the matrimonial home, deserted his wife
and left the house, it was held that the landlord could not turn her out so long as she paid
the rent and performed the conditions of the tenancy."

The Court examined S.27 of the Hindu Marriage Act, which empowers a matrimonial
court to make relevant orders regarding the joint property of the parties. Expanding its
scope, the Court ruled that under this section, it is possible to make an order regarding
the separate property of the parties and this section could be invoked to make an order
regarding the tenanted premises.

The Court also empowered the wife to intervene in any proceedings filed by the landlord
against her husband and held: “In our opinion, a deserted wife who has been or is
entitled to be in occupation of the matrimonial home is entitled to contest the suit for
eviction filed against her husband in his capacity as tenant if the husband is not interested
in contesting the suit and such giving up by the tenant-husband shall prejudice the
deserted wife who is residing in the premises.”
The court further held: “We are also of the opinion that a deserted wife in occupation of
the tenanted premises cannot be placed in a position worse than that of a sub-tenant
contesting a claim for eviction on the ground of subletting. Having been deserted by the
tenant-husband, she cannot be deprived of the roof over her head where the tenant has
conveniently left her to face the peril of eviction attributable to default or neglect of
himself. We are inclined to hold - and we do so - that a deserted wife continuing in
occupation of the premises obtained on lease by her husband, and which was their
matrimonial home, occupies a position akin to that of an heir of the tenant-husband. The
tenant having lost interest in protecting his tenancy rights as available to him under the
law, the same right would devolve upon the wife so long as she continues in occupation
of the premises. A suitable amendment in the legislation is called for to that effect. And,
so long as that is not done, we, responding to the demands of social and gender justice,
need to mould the relief and do complete justice by exercising our jurisdiction under
Article 142 of the Constitution.” The scope of this judgment is even wider than the
scope provided for in the proposed domestic violence bill.
High Courts on Matrimonial Home

1. Abdul Rahim v Padma [AIR 1982 Bom.341] Bombay

Abdul Rahim and Padma were Indian citizens living in the U.K. In 1966,
they married each other under the provisions of the British Marriage
Act of 1949. They had two daughters and a son while in the U.K. and in
1969 they returned to India. According to the husband after returning
to India the wife, who was a Hindu, converted to Islam and they
performed a Nikah. In 1973, they had one more child, a son.

Thereafter the relations between the couple became strained, and the
husband gave talaq to the wife. The four children were in his custody.
He then told the wife not to enter the residential premises. But the wife
came and broke the lock and took away several articles including
jewellery. The husband filed a police complaint against the wife.

As the husband was apprehensive that the wife may enter the home
with the help if hirelings and may also go to the extent of removing the
children from his custody, he filed a suit for injunction in the City Civil
Court, restraining the entry of the wife into the matrimonial home on
24th April, 1978 and obtained an ex-parte injunction against the wife on
the same day. The injunction was confirmed on 22nd June 1978. In an
appeal filed by the wife against this order in the High Court, the court
confirmed the trial court order. Thereafter the husband amended his
suit and asked for a declaration that Padma was no longer his wife as
he has given her unilateral talaq as per the provisions of Muslim law.
He contended that even if Padma is a Hindu, the relationship was
governed by the Muslim law, and hence the talaq given by him was
valid.
The wife in her reply denied the allegations and filed a counter claim
contending that her marriage was a civil marriage and that the
matrimonial flat was purchased from their joint contribution and
therefore she is the joint owner of the premises. She further stated
that this is also her matrimonial home. The trial court judge came to
the conclusion that the marriage between the parties is a civil marriage
governed by the Special Marriage Act and the Foreign Marriages Act of
1969 and the same was still subsisting. The court also held that the
husband had failed to prove that the wife had converted to Islam in
1969 and was a Muslim thereafter. He also concluded that the husband
had failed to prove the divorce and hence the flat is her matrimonial
home and she is entitled to the use of the same.

In appeal, the High Court held that since efforts of reconciliation have
failed, it is clear that relations between the parties are strained beyond
reconciliation and the marriage has broken down beyond repair. In
these circumstances, it will not be in the interest of either party to
force them to continue with their marriage.

Regarding the right to reside in the matrimonial home the court ruled
as follows: The wife has a right to stay in the home since the husband
had not provided her any alternate accommodation. It is just and fair
that the flat be partitioned and the wife allocated a specific portion
thereof, for her residence. The flat is large enough to allow the parties
to live separately, by effecting suitable partition. This will also be in the
interest of children who are away for education but come home during
vacations. Since both mother and father have love and affection for the
children, if the parties are allowed to live though separately, in the
same house, the children will be in a position to enjoy the company of
their parents when they come home.

2. V. Mala Viswanathan v P. B. Viswanathan [II (2003) DMC 809


(DB)] Calcutta

The wife filed an appeal against the order of the ADJ Alipore,
restraining her entry into the matrimonial home. The Calcutta High
Court upheld the right of the wife to reside in the matrimonial home in
the following words:

“When a question relating to grant of injunction restraining one of the


spouses from entering into the matrimonial house comes before the
Court, the Court has to deal with the same with utmost care and
caution. Once a person becomes part of the house by reason of
marriage, her right to reside in matrimonial house cannot be denied.
Marriage confers a right to reside in the matrimonial home on both
parties to the marriage as well as their offspring. Such right is a joint
and indivisible common right. Such right cannot be taken away from
one by the other. The marriage carries a liability and right to
maintenance of one or the other. One half of one cannot deny the
other half’s right in the matrimonial home. Maintenance includes
residence. Court has to be very careful in denying such right by
granting injunction restraining the wife from entering into matrimonial
house of which she is a part. Injunction can be granted only when an
exceptional case is made out. It can be granted sparingly in a case
where clear case for it is made out and such a grant will not result in
helping one to oust the other from the matrimonial home. In granting
injunction the Court has to consider the interest of the bride.”

3. Ajit Bhagwandas Udehsi v Kumud Ajit Udeshi [I (2003) DMC


602 (DB)] Bombay

The parties were married for 20 years and had three children. Due to
matrimonial dispute, the husband filed a petition for divorce, which
was decided after a long drawn litigation in favour of husband on the
ground of desertion by the wife. The court awarded Rs.1000/- as
maintenance to the wife. She was also permitted to continue to reside
in the flat, which the husband was occupying at the time of initiating
the litigation. The wife was to give a declaration that she would be
residing on the ground floor of the said premises.

The wife did not challenge the divorce. The husband filed an appeal
against the grant of the right of residence to the wife. The Bombay
High Court held that the Family Court was justified in granting shelter
to the wife besides permanent alimony. Though both the parties had
contributed while acquiring the property in question, substantial
amount of `pagdi’ was paid by the wife out of the amount received by
her from the landlord of the earlier premises that the couple was
occupying. The tenancy of the earlier premises was in the name of the
wife’s grandmother. The husband also took away her gold ornaments
but he did not immediately purchase any premises. The husband is not
occupying the accommodation though he has maintained his
possession over the mezzanine floor of the premises. He is not in need
of said accommodation. The wife has no alternate accommodation.
Hence the shelter awarded to the wife by the Family Court cannot be
held to be perverse or unjustified. The Appeal is dismissed.

4. In the matter of M/s. Bharat Heavy Plates and Vessels Ltd.,


Vishakapatnamair
[AIR 1985 AP 207] Andhra Pradesh

An employee of a government owned and controlled company and his


wife were living together in the company quarters by the apparent
consent of the company and which was their matrimonial home. Soon
differences cropped up between them leading to their estrangement
and finally the wife going to the Court charging her husband with
criminal neglect to maintain her and three minor children. Maintenance
was granted to the wife. Thereupon the husband left the company
quarters and it was now occupied now only by the wife and minor
children. As a retaliatory action, the husband terminated the lease of
the quarter exposing the wife and the minor children to eviction, which
led the wife to approach the Court for protection. Accordingly, an order
of injunction restraining the company from evicting the wife and the
minor children pending disposal of the suit came to be passed. The
rent was directed to be paid by the husband which was to be adjusted
against the maintenance payable. The company then filed a revision
petition against this injunction order. However, it was held not
maintainable as it neither caused irreparable injury to the company nor
occasioned failure of justice, since the injunction order provided for
deducting the amount of rent from the salary of the husband and from
the amount of maintenance, which he was to pay to the wife. Due to
this the Court held that neither the company nor the husband suffered
irreparable injury in maintaining continued possession of the company
quarter by the wife.

Moreover, the quarter was owned by a legal person and not by a


natural person and was meant to be used by the employees. The fact
that the company was a State instrumentality under an obligation to
act in accordance with Articles 14 and 21 is an additional reason for
holding that there was no failure of justice. The husband also had an
obligation to provide shelter to his wife and children. The husband and
the company acting in different ways have been recognizing all these
years the occupation of the quarter by the wife in her matrimonial
right. Neither the company nor the husband suffered any monetary
loss.

In these circumstances, the interlocutory order cannot be said to


occasion any failure of justice. By preventing the state instrumentality
from rendering the wife and the children homeless, the Court only
prevented failure of justice.

5. A. v B. [1977 Mh.L J 66] Bombay


The parties were married in 1954. It was a love marriage. Since the
husband was not doing well, to improve the economic status, the wife
joined college. Apart from her studies and household duties, she also
had to cope up with her husband's ‘sexual vagaries’. When she
became pregnant, due to physical strain and mental torture, she
suffered a miscarriage. The husband refused to provide medical
treatment. Soon thereafter, she conceived again. The husband started
harassing her in various ways. Her health began to fail. After two
months she was rushed to the hospital in a critical condition with the
help of neighbours. Soon after her return, her husband threw her out.
In December 1961, she rented a flat and started living independently.
Thereafter, the husband asked for reconciliation so she allowed him to
stay with her. But within a few months, the husband reverted to his old
ways.

In 1964, she joined the law college. The husband started making
allegations against her character and called her a prostitute and
threatened to stop her education. He did not pay her anything for
household expenses. In 1968, she completed her studies and started
her practice. The husband accused her of having affairs with her
colleagues in the legal profession. He became physically abusive. She
asked him to leave the house. He demanded Rs.15,000/- for leaving
the premises.

Finally she filed a petition for judicial separation and for an injunction
restraining the husband from entering the matrimonial home. The
husband resisted the petition. In his reply he alleged that she is of
loose moral character.

The trial judge disbelieved the allegations of cruelty and dismissed the
petition. In appeal the Bombay High Court held: “The concept of
mental cruelty has been completely changed in Britain now. Further,
we have to judge Indian women by referring to the Indian conditions
and standards and not by the standards of male British aristocracy of
the 19th Century. We cannot believe that the 20th Century Indian
woman will become indifferent to allegations against her character.
The mere fact that the husband had admitted these allegations is in
itself sufficient to prove cruelty… Any Hindu woman and particularly a
woman, who wants to be economically independent and is in the legal
profession, would be deeply hurt and can be reasonably expected to
have an apprehension that it would be dangerous to live with a
husband who taunts her for being independent and was accusing her
of having extra-marital relations with her colleagues. There cannot be a
worse insult and cruelty to an educated wife.”
The court concluded that the marriage was broken down irretrievably
and the only dispute was the matrimonial home, which was rented in
the wife's name. Regarding the injunction in respect of the matrimonial
home, the court ruled: “While passing a decree of judicial separation,
the Court has the power to grant an injunction restraining the husband
from entering the matrimonial home, even if it is not joint property,
within the meaning of S. 27 of HMA”

6. Sunita Shankar Salvi v Shankar Laxman Salvi [I (2003) DMC


700 (DB)] Bombay

The wife filed a petition for divorce in the Family Court at Mumbai. The
husband filed a cross petition for divorce. The parties settled the issue
of divorce and filed consent terms withdrawing allegations against
each other and a decree of divorce by mutual consent was passed in
their favour. But the dispute concerning the residential premises
continued.

The wife contended that the flat was jointly acquired and hence both
have an equal right, title and interest in the said flat. The wife relied
upon documents admitted by the husband in support of her
contention. After hearing the parties, the Family Court concluded that
the wife’s name was added at the request of the husband and as such
she had no right, title and interest in the said flat. The wife did not pay
any consideration or cost for acquisition of the said flat, as such she
did not acquire any right to the said flat. The right to acquire the flat
arose out of the tenancy rights, which the husband had surrendered in
favour of the builder, hence the wife was not entitled to claim any
ownership or for that purpose any right, title and interest in the said
flat. The Family court held that the wife’s petition claiming 50% of the
share in the flat was devoid of any substance.

Against this decree, the wife approached the Bombay High Court. The
High Court held that though there was no tenancy in the wife’s name in
respect of the premises vacated by the husband, the same was for the
benefit of the family. The wife was also occupying the premises along
with the husband as a member of the family. The husband has also
admitted that at his request, the wife’s name was added as co-owner.
The admission is unambiguous and unequivocal. He specifically admits
that the wife was to be treated as co-owner. The admission will operate
as an estoppel against him. He is precluded from contending contrary
to his admission, which is in the form of admitted documents of title.
The said flat is in joint names of both of them. From the very fact that
the name of the wife was joined as one of the owners in the title deed,
it will have to be presumed that the appellant is entitled to an equal
share in the said flat. The Family Court was not justified in refusing to
recognize the wife’s 50% share in the right, title and interest in the flat.
The impugned judgment is set aside and it is hereby declared that the
wife has 50% right, title and interest in the said flat along with the
husband.

The question is how the property should be divided and if the equitable
division is not possible then how should the property be disposed of.
The parties should be given the right to purchase 50% share of the
other party. If none of them is able to offer to purchase the share of the
other, then the flat can be put to sale. The Family Court is directed to
appoint Commissioner and the flat should be sold with intervention of
the Court and sale proceeds thereof be divided between the parties
equally.

Properties of divorced couple - Jurisdiction of Family Court

K. A. Abdul Jaleel v T.A. Shahida I (2003) DMC 765 (SC)

The issue before the court was whether the Family Court has
jurisdiction to adjudicate over property disputes between a divorced
couple.

In her suit filed before the Family Court, Ernakulam, the wife,
contended that at the time of marriage, a large amount in cash as also
gold ornaments were given. The husband sold the gold ornaments
and purchased properties using the sale proceeds as well as the cash.
An agreement was executed by the parties, wherein the husband
agreed to transfer these properties in the wife’s name. But when the
relationship between the parties became strained, the husband
pronounced Talaq and refused to transfer the properties to the wife’s
name. In his written statement, the husband alleged that the
agreement was signed by him under threat and coercion. The husband
also contended that as per S.7, the Family Court has jurisdiction to
settle property disputes between ‘the parties to a marriage’, which
would mean parties to a subsisting marriage. For the wife it was
argued that the matter is covered by an inter-parties judgment passed
by a Division Bench of the Kerala High Court. As the husband did not
question the correctness of the said judgment, he cannot be permitted
to turn around and now challenge the jurisdiction the Family Court.

The suit was decreed in the wife’s favour. The husband’s appeal filed in
the Kerala High Court against the decree in the Kerala High Court
which was dismissed. Against this he approached the Supreme Court.
Dismissing the appeal, the Supreme Court held that the Family Court
had the power to decide property matters of the spouse even in cases
when the marriage was not subsisting. The court ruled: “The Family
Court was set up for settlement of family disputes. The reason for
enactment of the said Act was to set up a court that would deal with
disputes concerning the family by adopting an approach radically
different from that adopted in ordinary civil proceedings. It is now a
well-settled principle of law that the jurisdiction of a court created
specially for resolution of disputes of certain kinds should be construed
liberally. The restricted meaning if ascribed to Explanation (c)
appended to Section 7 of the Act, in our opinion, would frustrate the
object wherefore the Family Courts were set up.”

Domestic Violence Act and Civil Injunctions

While there have been no statutory provisions within the Family Law, the recently
enacted Domestic Violence Act of 2005 provides for protective injunctions against
violence, dispossession from the matrimonial home and alternate residence. Now a
victim of domestic violence can seek protection under the provisions of this Act. The Act
also provides the scope for claiming economic protection, including maintenance. The
wide definition of domestic violence – physical, mental, economical and sexual -
brings under its purview the invisible violence suffered by a large section of women and
entitles them to claim protection from the courts.

The statute provides legal recognition to the problem faced by millions of women in our
country and will lead to a greater awareness of this issue among the judiciary. A judge
called upon to provide relief to a woman under the new Act is bound by not just the
provisions of the Act but the ideological framework which underscores the enactment.
Hopefully this will lend greater credence and acceptability to women’s testimonies in
court.

The Act widens the scope of protection against violence beyond the category of
‘wives’ and extending it not only to mothers, daughters and sisters but even to women in
informal relationships. Aged women, unmarried girls and widowed / divorced sisters can
now seek protection from their relatives under this Act.

While the primary jurisdiction of this Act is with the Magistrate’s Court, a Family Court
judge will also be able to provide reliefs under this Act. It provides for prompt reliefs
through the office of a ‘Protection Officer’.

An entire gamut of women, whose marriages are suspect due to some ‘legal defect’ on
the ground that essential ceremonies were not performed or that the man or the woman
has an earlier subsisting marriage will be able to seek relief under this Act. The
invalidity of a marriage can no longer be used as defense by the man to dispossess or
deny maintenance to this vulnerable section of women.
MAINTENANCE AND MORALITY

Removal of Ceiling under S.125 Cr.PC

The ceiling of Rs.500/- for maintenance under S.125 Cr.PC which was set in 1955 had
remained unchanged for nearly half a century. Most women from the social strata of
society used this section as the proceedings under this section are summary in nature and
the cases could be filed in the magistrate’s courts rather than the District courts. But
over time, due to inflation, the buying power of Rs.500/- had reduced considerably. Yet
no efforts were made to increase the amount of maintenance that could be claimed under
this section, despite several Law Commission recommendations to this effect. The only
two states which brought an amendment to this section were West Bengal and
Maharashtra, where the amount was enhanced from Rs.500 to Rs.1500. With the setting
up of Family Courts, the jurisdiction shifted from the Magistrate’s Courts to the Family
Courts, but the amounts awarded continued to be meagre.

Finally in 2002, through an amendment to S.125 Cr.PC the government removed the
ceiling altogether. Hence, there is no limit to the amount which can be claimed under
this section. The amount awarded would be commensurate with the income of the
husband, taking into consideration his other obligations. This amendment had far
reaching implications to the economic rights of women from the marginalized sections.
Most of the judges who were interviewed were aware of the changes to this section.
But their perceptions differed to a great deal. While some judges felt that it had improved
the situation of women, some judges who were presiding over family courts in famine
stricken areas felt that the amendment did not have any effect on the orders of
maintenance in their courts.

Chastity, Morality and Maintenance

Mahesh Chandra v Addl. Civil Judge I (2001) DMC 229 (All)

A woman who was hearing impaired was tortured by her husband and was driven out of
her home. When she filed for maintenance, in order to create evidence of immoral
character, the husband made his friends file false and frivolous cases for restitution of
conjugal right against the wife and later used these as proof of her immorality. Rejecting
these contentions the Family Court granted her Rs.500/- as maintenance. Against this
order the husband filed an appeal. The Allahabad High Court held that the husband
had caused incalculable harm to the wife by terming her as a woman of loose morals
and awarded Rs.20,000 as exemplary costs.

Mallika v P. Kulandai I (2001) DMC 354 (Mad)


The Applicant wife, Mallika, got married to a man who claimed to be a widower. There
was a daughter born out of this union. Subsequently, she left him on grounds of dowry
harassment and filed for maintenance. The husband challenged the validity of marriage
on the ground that he had an earlier marriage subsisting and that his first wife was insane.
The lower court denied her maintenance. In appeal, the Madras High Court ruled that
though the marriage could not be strictly proved, there is sufficient evidence to establish
that the parties lived together for a considerable period of time and continuously, long
enough for a child to be born. Since the husband had misrepresented that his first wife
was dead, the Court granted maintenance to second wife and her child born of that union.

Kamal Kishore v State of UP I (2001) DMC 313 (All)

Comments of Justice S.K. Agarwal, reprimanding a husband for making reckless


charges of immorality are noteworthy:

The husband has levelled charges of adultery against his wife without proving the same
in the court. Such habit is generally rampant. Reckless charges of corrupt life against
the wife are leveled without any hesitation by the husbands. Such a conduct on the part of
the husbands is incomprehensible and this practice is to be deprecated.

Informal Marriages and Right to Maintenance

On 13th December, 2004, in a historical judgment, the Supreme Court upheld the
maintenance rights of women in informal relationships or invalid marriages. After this
ruling, it will no longer be possible for a Hindu husband to escape from his liability of
maintaining his wife on the plea that the wife is not formally divorced from her previous
husband or on the plea that the woman is his concubine since his own previous
marriage is still subsisting. The ruling was delivered in an appeal against the judgement
of the Bombay High Court, by a division bench comprising of Justices D. M.
Dharmadhikari and H. K. Sema.

The judgment sets right the wrongs suffered by legions of Hindu women for half a
century. The Hindu Marriage Act of 1955 had rendered Hindu marriages monogamous.
But though deemed ‘monogamous’ in letter, Hindu marriages continued to be bigamous
in reality. The advantage of this mandate of ‘legal monogamy’ was to the husband, as he
could escape from the economic liability of maintaining his wife on the plea that the
marriage suffered from a legal defect or lacked legal sanctity. Several earlier judgments
had denied women in such relationships the right of maintenance by adopting a righteous
and moral stand. The present judgment needs to be hailed for its departure from this
moral high ground. The judgement which has far-reaching implications is summarized
below:
Rameshchandra Daga v Rameshwari Daga I (2005) DMC 1 SC

The husband, a widower, had married Rameshwari who had obtained a customary
divorce (chor chittee) through a divorce deed. The wife alleged that this document was
shown to the husband prior to the marriage and he had accepted the validity of same.
Later, when disputes arose and the wife was driven out of the matrimonial home, she
filed for judicial separation and claimed maintenance. During these proceedings, the
husband denied the marriage on the ground that the woman had not been formally
divorced. Rejecting the plea, both the Family Court at Mumbai as well as the High Court
had upheld the wife’s and her daughter’s right of maintenance. In the final verdict, the
Supreme Court accepted the woman’s plea that the husband, an advocate, was aware of
the customary divorce at the time of his marriage. Further the court chastised him for
denying the paternity of his daughter.
MUSLIM WOMEN AND ISLAMIC JURISPRUDENCE

An Overview of Muslim Personal Law

A Muslim marriage is a contract. Only under Muslim law conditions can be stipulated at
the time of marriage. This is a quaranic right bestowed upon women. No other law
recognizes such contractual obligations. Pre-nuptial agreements are invalid under the
Anglo-Saxon jurisprudence, upon which the Hindu, Christian and Parsee laws in India
are based.

But due to the specific characteristics of a Muslim marriage, the courts in India during the
British period upheld various conditions stipulated in the nikahnama. Some illustrations -
restraint on polygamy, right to matrimonial home / residence; right of prompt meher,
fixed quantum of maintenance; acceptance of children of wife’s former marriage, right to
visit parents, delegated right of divorce (tawfeez-e-talaq). Nikahnamas with stipulations
can be used at the time of marriage and the husband is bound by the conditions. Recently
the All Muslim Personal Law Board has drafted a model nikahnama which contains
certain mandatory stipulations to protect women’s rights.

The Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of
Rights on Divorce) Act, 1986 (MWA) are two major instances, where the Muslim
leadership approached the government for specific legislations. The Dissolution of
Muslim Marriages Act, 1939 was enacted to bestow upon Muslim women the right of
civil divorce, two decades before their Hindu counterparts were granted a similar right.
Two renowned Islamic jurists, Asif Ali Fyzee and Maulana Ashraf Ali Thanavi had
spearheaded this campaign to obtain for women governed by Hanafi law, the right
bestowed upon women governed by Maliki law, through a state enactment. The
enactment gave Muslim women the right to approach a civil court for divorce on the
ground of cruelty, desertion or polygamy.

In 1986, after the controversial Shahbano judgement, the community leaders approached
the government and pleaded for a legislation to undo the ‘harm’ caused by the Shahbano
judgment. Through the enactment of MWA, the divorced Muslim woman was taken out
of the purview of the general law of maintenance under S.125 Cr.PC and placed under the
special legislation. Special legislations for women of a specific community are nothing
new in India as Hindus are governed by ‘Hindu law’ and Christians are governed by
‘Christian law’.

Since 1988, various High Courts have held that a divorced Muslim woman has a right of
‘fair and reasonable settlement’ in addition to maintenance for three months. Fair and
reasonable provision for future (mataaoon bil ma’aroofe) is a quaranic injunction. In
2001, in the landmark judgement Daniel Latifi vs Union of India, a full bench of five
judges of the Supreme Court confirmed that the MWA has substituted the earlier right of
recurrent maintenance under S.125 Cr.PC with a new right of a lump sum provision to be
made and paid to the woman soon after her divorce. This right is far superior to the Hindu
woman’s right of recurring maintenance every month which is subject to the rider of
sexual purity. If the husband fails to make such settlement, a divorced Muslim woman
has the right to approach the magistrate’s court for enforcement of the right under S.3 of
the MWA. But since the media has not highlighted these positive milestones, the
perception that a Muslim husband has no economic obligation towards his divorced wife
beyond three months after divorce still persists.

When a Muslim woman files an application for maintenance, the usual ploy adopted by
the husbands is to plead that he has divorced the wife. A series of judgements have held
that mere declaration during court proceedings is not sufficient to prove divorce and that
the husband has to prove that there has been arbitration prior to the pronouncement of
divorce:

Saleem Basha vs Mumtaz Begum - Among Muslims, divorce must be preceded by


attempts of reconciliation between husband and wife in the presence of two mediators,
one chosen by the wife and the other chosen by the husband. A Mohammedan husband
cannot divorce his wife at his whims and caprice. Divorce must be for a reasonable cause,
preceded by a pre-divorce conference to arrive at a settlement.

Dagdu Pathan vs Rahimbi - All the stages of conveying the reasons for divorce -
appointment of arbitrators, conciliation proceedings by arbitrators and failure of such
proceedings are required to be proved when the wife disputes the factum of talaq. Mere
statements made in writing or oral disposition before the court regarding talaq is not
sufficient.

The Supreme Court in 2002 in Shamim Ara vs State of U.P. has confirmed this position.

Divorced Muslim Women and Right to Maintenance

Danial Latifi v Union of India 2001 (7) SCC 740: 2001 Cri.LJ 4660 Supreme Court

In interpreting the provisions where matrimonial relationships are involved, we have to


consider the social conditions prevalent in our society. Whether they belong to the
majority or the minority group, what is apparent is that there exists a great disparity in the
matter of economic resourcefulness between a man and a woman. Our society is male
dominated, both economically and socially, and women are assigned, invariably, a
dependent role, irrespective of the class of society to which she belongs. Very often, a
woman, in her marriage, though highly educated, gives up her all other avocations and
entirely devotes herself to the welfare of the family. In particular, she shares with her
husband, her emotions, sentiments, mind and body, and her investment in the marriage is
her entire life - a sacramental sacrifice of her individual self and is far too enormous to be
measured in terms of money. When a relationship of this nature breaks up, in what
manner we could compensate her so far as emotional fracture or loss of investment is
concerned, there can be no answer. It is a small solace to say that such a woman should
be compensated in terms of money towards her livelihood and such a relief which
partakes basic human rights to secure gender and social justice is universally recognized
by persons belonging to all religions and it is difficult to perceive that Muslim Law
intends to provide a different kind of responsibility by passing on the same to those
unconnected with the matrimonial life. Such an approach appears to us to be a kind of
distortion of the social facts. Solutions to such societal problems of universal magnitude
pertaining to horizons of basic human rights, culture, dignity, and decency of life and
dictates of necessity in the pursuit of social justice should be invariably left to be decided
on considerations other than religion or religious faith or beliefs or nationals, sectarian,
racial or communal constraints.

Though the purpose of the Act seems to allow the Muslim husband to retain his freedom
of avoiding payment of maintenance, a careful reading of the Act indicates that a
divorced woman is entitled to a reasonable and fair provision for maintenance. It seems
that the Parliament intended that the divorced woman get sufficient means of livelihood
after the divorce and accordingly inserted the word ‘provision’, which indicates
something provided in advance for meeting some needs. In this light, the Court held that
at the time of the divorce, the Muslim husband is required to contemplate the future needs
of the wife and make preparatory arrangements in advance to meeting those needs.
Reasonable and fair provision would include provision for her residence, food, clothes,
and other articles. The Act would mean that even though the husband was bound to pay
maintenance on or before the expiration of the Iddat period, but nowhere has Parliament
provided that reasonable and fair provision and maintenance is limited only to the iddat
period and not beyond it. This could therefore extend to the whole life of the divorced
wife unless she remarries.

The wordings of section 3 of the said enactment seem to indicate that the husband has
two separate and distinct obligations - (1) to make reasonable and fair provisions for his
wife and (2) to provide ‘maintenance’ for her. Both must be fulfilled within the Iddat
period. In light of this interpretation, it would appear that the Act excludes the man from
liability for post-iddat period maintenance if he has already discharged his obligations of
both ‘reasonable and fair provision’ and ‘maintenance’ by paying these amounts in a
lump sum to his wife, in addition to having paid the wife’s mehr and dowry.

Such an approach was substantiated by the fact that S.3 (1)(a) provides for ‘a reasonable
and fair provision and maintenance to be made and paid’. By employing two different
verbs, the expression covers two different things, namely, a fair and reasonable provision
to be made while maintenance is to be paid. Further, S.4 interestingly contains no
reference to ‘provision’ and accordingly, the right to have ‘a fair and reasonable
provision’ is a right enforceable only against the former husband, which is in addition to
what he is obliged to pay as ‘maintenance’. This stance is fortified by the Holy Quran,
which uses the word ‘mata’ which has been translated to mean ‘provision’. Such a
construction supports the view that the word ‘provision’ in S. 3(1)(a) incorporates ‘mata’
which is a right of the divorced Muslim woman distinct from and in addition to mehr and
maintenance for the iddat period. The term ‘a reasonable and fair provision’ should be
understood with reference to the needs of the divorced woman, the means of the husband,
and the standard of living the woman enjoyed during the marriage. The Court further
opined that such a provision could even take the form of a regular payment of alimony to
the divorced wife.

In drawing out such an interpretation, the Court admitted that it may look ironical that the
enactment intended to reverse the decision in Shah Bano, in actuality codifies the
rationale contained therein. The Act thus satisfies the object of S.125 Cr.PC i.e., to
prevent vagrancy by compelling those who can do so to support those who are unable to
support themselves. Moreover, under the settled rule of construction, if on a given
interpretation a statute will become unconstitutional and whereas on another construction
it remains effective, the Court would prefer the latter on the ground that the legislature
did not intend to enact unconstitutional laws.

The position is summed up as:

1) A Muslim husband is liable to make reasonable and fair provision for the future of
the divorced wife, which obviously includes maintenance. Such a reasonable and
fair provision extending beyond the iddat period must be made by the husband
within the Iddat period.
2) Liability of the Muslim husband to the divorced wife to pay maintenance under
the Act is not confined to the iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain
herself after the iddat period can proceed as provided under S.4 of the Act against
her relatives. If any of the relatives are unable to pay maintenance, the State Wakf
Board could be called upon to pay the same.

Validity of a Muslim Divorce

Shamim Ara v State of U.P. 2002 (7) SCC 518 (Supreme Court)

In 1979, Shamim Ara filed an application under S.125 Cr. PC against her husband Abrar
Ahmed for maintenance. After the institution of Family Courts in the State, her case was
transferred to the Family Court.

In his written statement filed in 1990, her husband claimed that he had divorced Shamim
in 1987. However, no particulars of divorce were stated. Strangely, the Family Court
relied on some affidavit filed by her husband in some civil suit to which the appellant was
not a party, wherein it was stated by him that he had divorced his wife, held that the
husband’s plea in the written statement that he had divorced his wife found corroboration.
Accordingly, the Court concluded that in view of her being divorced, she was not entitled
to any maintenance. Curiously the details of this affidavit were not available from the
records.
In an appeal filed by the wife, the Allahabad High Court ruled that the divorce was not
given in the presence of the wife and that it was not communicated to her. But since
through his written statement, he had communicated to the wife the fact of divorce, the
Court held that the communication the divorce had stood completed and hence she was
not entitled to maintenance thereafter.

The issue before the Supreme Court was whether the statement contained in a written
statement regarding divorce can be construed as a valid communication of the divorce.
Chiding the subordinate courts for the gross error committed, the Court commented:
“None of the ancient holy books or scriptures of Muslims mentions such form of divorce
as being accepted by the High Court and the Family Court. No such text has been
brought to our notice which provides that a recital in any document, whether a pleading
or an affidavit, incorporating a statement by the husband that he has already divorced his
wife on a specified or unspecified date, even if not communicated to the wife, could
become an effective divorce on the date on which the wife happens to learn of such
statement contained in the copy of the affidavit or pleading served on her.”

The Court was of the firm opinion that if talaq was to be effective it had to be
pronounced. The term ‘pronounce’ was explained as - to proclaim, to utter formally, to
declare, to articulate. The Court referred to various High Court decisions to highlight an
interpretation of talaq in conformity with Quranic injunctions and held that a mere plea of
previous divorce in the written statement cannot be treated as pronouncement of talaq by
the husband on the wife.

Accordingly, it was held that neither the marriage between the parties stood dissolved nor
does the liability of husband to pay maintenance come to an end. The husband was to
continue to remain liable for maintenance till the obligation came to an end in accordance
with law.

Dagdu Pathan v Rahimbi II (2002) DMC 315

The issue before the Bombay High Court was that if a Muslim husband pleads in his
written statement that his marriage had been dissolved by talaq at an earlier date, whether
the filing of the written statement containing the plea of divorce amounts to dissolution of
marriage, from the date on which such a statement was made. The court relied upon the
following words of the Holy Quran, “To divorce the wife without reason, only to harm
her or revengeful due to the husband’s unlawful demands and to divorce her in violation
of the procedure prescribed by the Shariat is Haram.”

The court ruled that all the stages of conveying the reasons for divorce, appointment of
arbitrators, conciliation proceedings for reconciliation between the parties by the
arbitrators and failure of such proceedings are required to be proved when the wife
disputes the factum of talaq before a court of law. Mere statement made in writing or oral
disposition before the court regarding talaq in the past is not sufficient to prove the fact of
divorce.
GOOD MOTHER, BAD MOTHER –
ISSUES IN CHILD CUSTODY

Changing Notions of Child Custody

Several misconceptions govern issues of custody and guardianship in


matrimonial disputes. Guardianship implies the proprietal rights over
the child’s person and property and custody implies the responsibility
of raising a child. While the father was favioured in issues of proprietal
rights, the mother's role as caretaker of her children had been granted
due recognition for well over a century.

The Guardians & Wards Act, 1890, is one of the first Indian statutes to
address this issue. While S.19 stipulated that father is the natural
guardian of the minor, S.17 prescribed that the welfare of the child is
paramount. Despite wide variations regarding parental right of custody
in the diverse personal laws, courts in India have taken recourse to the
principle, `best interest of the minor' to award custody to the
mother. The best interest maxim overrides the stipulations in different
personal laws and is applied universally in all custody litigations.

In this context the principle `best interest of the child’ is paramount


and is one of the primary pillars on which the issue of custody is
decided. Even a wife who has committed a matrimonial `fault' could be
awarded custody of the child. The courts have held that the aim of the
litigation is not to punish the `guilty’ but only to ensure the welfare of
the child. Counsellors must ensure that the child is always the centre of
all negotiations and that this principle is never undermined.

`To deprive a child of tender age of its mother's love and care would
not be in the best interest of the child’ has been the well-established
legal doctrine. This concept was awarded statutory recognition under
S.6 (a) of the Hindu Guardianship and Minority Act, which prescribed
that the custody of a child below five years should ordinarily be with
the mother. But this doctrine cannot be extended to imply that once
the child is older, the custody will automatically revert to the father,
without ascertaining the wishes of the child. Courts do not view the
child as an object to be tossed around between the warring parents.
Since the child remains unrepresented in matrimonial disputes, it is the
duty of the counsellor to ensure that the child's interests are not
harmed or negated. Hence mother's anxiety that once the son enters
his teens or the daughter reaches puberty s/he will be snatched away
and placed in the father's care, against the child's wishes, are
generally baseless.

But the doctrine `best interest of the child' is more complex than it
appears on the surface. When the father is wealthy and the mother has
no independent source of income, where would the `best interest of
the child’ lie? The courts have ruled in several cases that just because
a mother does not have the financial resources, it does not mean that
she should be denied custody of the minor children.

While non-working mothers are haunted by the fear of lack of


resources, working mothers are faced with another set of tensions.
Would a woman who is employed and spends most of her waking hours
outside of the home be in a better position to look after the child?
Recent cases have resolved this issue and it has been held that a
mother cannot be denied custody merely because she is gainfully
employed and has now become an established principle.

In modern day custody battles neither the father, as the traditional


`natural guardian' nor the mother as the `biologically equipped parent'
are automatically awarded custody. The principle of `best interest of
the child’ takes into consideration the existing living arrangements and
routine of the child and courts are normally hesitant to remove the
child from a familiar environment and hand her/him over to the non-
custodial parents. Each case will be decided on its own merit taking
into account the overall social, educational and emotional needs of the
child.

The simple principle followed by the courts once a legal battle


commences is usually to award interim custody to the parent who
already has the physical custody of the child and award visitation
rights to the other parent. This is usually over weekends and school
vacations so that the studies are not disrupted. It is important to
remember that visitation is the right of the child to see the
parent and not that of the parent to impose on the child.

The routine manner in which access is granted to fathers becomes a


cause of panic to most women. While they struggle to make ends meet
and are raising their children against great odds, the fathers can easily
win them over by showering them with gifts. While the mothers have
the responsibility, the fathers are left with the pleasant task of
recreation with the child. Hence, counselors should ensure that
the father’s economic responsibility towards maintenance of
children forms a part of the terms of custody and access.

The principle of `best interest of the child’ gets further complicated in


cases of domestic violence where the children have either witnessed
incidents of violence against their mother or have themselves been
victims of violence. Children remember and relive these moments of
abuse and the litigation process contributes to keeping the memory of
violence alive. Greater sensitivity in settling issues of access in these
situations should be exercised, so that the child is not further
traumatized. The courts instead of allowing routine access to the father
make an attempt to rebuild the child’s relationship with the father
through short supervised access hours. The child’s willingness is
ascertained and access hours are gradually increased subject to the
child’s comfort level.

In cases where due to domestic violence the mother is either forced to


leave the matrimonial home or is thrown out of the matrimonial home
children and the mother are more vulnerable due to the sudden
separation. If the woman is unable to get physical custody of the
children either through the intervention of the police or social work
organizations she is compelled to approach the courts. In these
situations it is important to ask that the children be immediately
produced in court and to interview them in a non-threatening and non-
intimidating environment in order to ascertain their genuine wishes.
When the children are called to court and asked to decide as to which
parent they would want to reside with the children are not in a position
to speak against the father whom they are often terrified of. In these
circumstances the court and the counsellors must play a proactive role
to ensure that the children feels secure and are not threatened by
either violence against themselves or their mother.

The custody battle takes a harsher toll on women due to their


emotional vulnerability and financial dependence. At times when the
economic burden and prolonged litigation become unbearable, women
succumb and give up custody rather than face the daily emotional
turmoil for themselves and their children. But those who are involved
in counselling need to re-examine our own traditional notions of
parenting. In most cases, fathers are left free of all responsibilities
while mothers unilaterally bear the emotional, social and financial
obligations of the children.

Judicial Decisions on Child Custody

Chethana Ramatheertha v Kumar V. Jahgirdar [2003 (2) HLR] Karnataka

The wife filed an appeal against the order of the Family Court,
Bangalore, directing her to hand over the custody of her minor
daughter to her husband on the ground that she had remarried. The
Karnataka High Court reversed the order of the Family Court and
allowed the custody of the daughter to be retained with the mother.

The Court held: Guardianship of a parent is normally not disturbed.


Only if the court finds that it is not in the welfare or in the interest of
the child to continue in the guardianship of the parent, the court will
disturb the guardianship. In the case of custody it is different. It is
quite possible that while one parent can continue to be the natural
guardian, it may be in the interest and welfare of the child to leave the
custody of the child with the other parent. Disqualification of a parent
is not very essential element to shift custody from one parent to the
other. Even while the parent had not disqualified himself or herself
from being the natural guardian of a minor child, it may still be found
that the minor’s interest is better served if the custody of the child is
with the other parent.

The remarriage of the mother after divorce does not suffer from any
disqualification or drawback. The mother is well educated and can
support the child financially. The paramount consideration in
appointing any person as guardian of a Hindu minor is the welfare of
the minor.

Shakuntala Sonawane v Narendra Khaire [2003 (2) HLR] Bombay

There was marital conflict between the parents of the minor child and
the wife had returned to her parents’ house when she was pregnant.
On the very day of the birth of the child, the husband had filed a
divorce petition in the Family Court at Bandra, Mumbai on the ground
of cruelty and desertion. During the pendency of the proceedings, the
custody of the minor child remained with the wife who was staying
with her parents. In February 2000, the wife died under tragic
circumstances.

The mother, Shakuntala Sonawane, (the maternal grandmother of the


minor child and the Petitoner in this Petition) alleged that the daughter
had been set on fire by the husband, the Respondent in this Petition.
The contention of the Respondent was that she had committed
suicide. The minor grand daughter had been looked after since her
birth by the Petitioner.

While awarding custody of the child to the maternal grandmother the


Bombay High Court held: Even if a natural guardian is alive and stakes
his / her claim, the court can still proceed to appoint some other fit
person as the guardian under the provisions of the Act. That needs to
be done having regard to the welfare of the minor.

Mumtaz Begum v Mubarak Hussain [MANU/MP/0052/1986] Madhya Pradesh

The wife pleaded that she was maltreated and thrown out of her
matrimonial home. The husband had retained her son, who was only a
few months old. The court proceedings dragged on for four years.
Custody was denied to her in the lower court on a technical ground
that she had not filed the petition under the Guardians and Wards Act.

But in appeal, while awarding the custody to the mother, the High
Court relied upon the ‘Declaration of the Rights of the Child, 1959,
adopted unanimously by the United Nations General Assembly. The
court also relied upon a judgment by Justice Rizvi of the Lahore High
Court in Bavi v Shah Nawaz Khan [PLD (WP) Lahore 509] where the
stipulation of hizanat was explained as follows: "The principle of
Muhammadan Law as regards hizanat is fundamentally based on the
principle that it is for the welfare of the minors.” The court ruled: “The
child needs motherly love and affection, more than anything else. The
environment in which he is being now brought up is unsuited to his
mental growth and development. The father hardly finds time even to
talk to him, leaving the house in the morning and returning quite late
in the evening when the child would be in bed. His stepmother, who
has a sucking baby of her own, would also, definitely, have little time
for him. The child's grandparents, admittedly, being physically
handicapped, also cannot do anything for him.

The Court explained that in Principle 2 of the Declaration, there is a


mandate for enactment of laws for "special protection" of the child to
enable him to "develop physically, mentally, morally, spiritually and
socially in a healthy and normal manner" and stipulated that "the best
interests of the child shall be the paramount consideration". The Court
further commented: “When personal laws are divinely sanctioned, a
presumption will naturally arise that such laws have a humanistic
content because when great seers, saints and prophets found any
faith, they act as benefactors of the mankind as a whole. No personal
law claiming divine sanction can afford to deny paramount
consideration to the welfare of the child. It is not difficult, therefore, to
see why the Declaration was unanimously adopted by the United
Nations General Assembly in 1959.”

Muslim Mothers and Child Custody

The general perception is that as per the principles of Islamic law, a mother is not entitled
to the custody of her son beyond the age of seven years. The perceptions are so widely
prevalent, that social activists, lawyers and at times, even judges endorse these views.
Deserted and divorced Muslim women, who have raised their children single handedly,
live under constant fear that the husband may snatch their children or get an order from
the court denying them the custody of their children. Very few people are aware that the
principle that ‘best interest of the child is paramount’ would prevail even while deciding
the issue of custody of the Muslim mother. It is in this context, some judgements which
have upheld this view are stated below.
Mohd. Ayub Khan v Saira Begum [I (2002 DMC 234] Chhatisgarh

Justice R. S. Garg: Non-compliance of maintenance awards can be


construed as meaning that the husband does not have the best
interest of the child at heart, while deciding the issue of child custody.

The husband opposed the application for interim maintenance, even to


minor children, tooth and nail. Hence the application for interim
maintenance was rejected by the trial court. The wife approached the
Sessions Court against this order and the court set aside the trial court
order and remitted the matter back to the trial court to decide the
issue of interim maintenance. Finally the trial court awarded Rs.300/-
for each of the minor children as maintenance. The husband pleaded
that he has divorced his wife and hence she was not awarded any
maintenance. The husband did not comply with the order of
maintenance and did not pay any money to the wife either at the dime
of divorce or at any other time, even towards the maintenance of the
three children.

Meanwhile, while these proceedings were pending, when the husband


realized that the eldest son had turned 7, taking shelter under the
Shariat Law, filed an application under S.9, read with S.25 of the
Guardians and Wards Act for custody of the eldest son. The husband
pleaded that the wife was not looking after the child well and upkeep,
maintenance and education of the child was not possible at the
maternal grandfather’s place. After interviewing the child, the trial
court has remarked that the child was being well brought up by the
mother and the grandfather and he is living happily with his two
brothers and is attending school regularly. Against the trial court order
of rejecting his petition for custody, the husband approached the High
Court.

The Court commented: The father failed to prove his entitlement to


custody of child. On one side he was contesting the litigation under
S.125 Cr.PC and on the other was projecting himself to be a caring
father, who was interested in the future well-being of his son. A person
refusing to pay maintenance to his own child cannot claim he is
interested in betterment of very same child interest of child is of
paramount consideration. While claiming that he is interested in the
well being of his children, he has claimed custody of only one child. If
the father was really interested in the betterment of his children, he
would have conceded to share his income with his children. But
instead, he dragged the wife from court to court while opposing her
application for maintenance. After filing this petition, he agreed to
deposit some money for the maintenance of the elder son, but not for
the other two children. Finally he deposited Rs.6000/- in court. But this
cannot be projected as a ground for awarding custody to the father.
The principle of best interest of the child must prevail.”
While deciding the issue of custody, the governing principle is ‘the
best interest of the child is paramount’. Increasingly, child custody is
viewed not as a ‘parental right’ over the child but as a ‘parental
responsibility’ towards the welfare of the child. The custody claims of a
Muslim mother will be decided as per these principles. Hence,
principles of the Guardians and Wards Act, 1890, which governed the
custody issue of Muslim couples or even the principles of Muslim
personal law, have to be read within this modern formulation while
deciding issues between contesting Muslim couples.

Mother as Natural Guardian - Gita Hariharan v Reserve Bank of


India I (1999) DMC 337 SC FB

In a recent case the Supreme Court was called upon to decide the Constitutional validity
of the provision of father was the natural guardian of a minor.

The issue before the Supreme Court was whether the mother could be the ‘natural
guardian’ of her minor child. As per Chief Justice Anand and Justice M.Srinivasan, “the
definition of ‘guardian’ and ‘natural guardian’ do not make any discrimination against the
mother and she being one of the guardians mentioned in Section 6 would undoubtedly be
a natural guardian as defined in Section 4(c).” The Supreme Court held that the words
“after him” in Section 6, meant that if the father was absent for any reason whatsoever,
such as desertion, the mother would be the natural guardian and that it did not mean after
the lifetime of the father.

Justice Banerjee held that “Be it noted that gender equality is one of the basic principles
of our Constitution and in the event the word ‘after him’ is to be read to mean a
disqualification of a mother to act as a natural guardian during the lifetime of the father,
the same would definitely run counter to the basic requirement of the Constitution since
the Constitution and the Statute would have to be in accordance therewith and not de
hors the same.”
LEGAL ISSUES IN CHILD SEXUAL ABUSE
Child sexual abuse can categorized in three broad segments. While the first category –
rape by strangers is known and has certain degree of acceptance and legitimacy, the other
two have been obliterated from public view. Of these, paedophilia (tourism related child
sexual abuse and child trafficking) is gradually gaining recognition due to its global
implications. But one category that is still closeted is incest which takes place behind
closed doors, between family members. While this is the most gruesome, it is also the
least reported and much less accepted. We still take cover under a false sense of well
being that ‘it does happen in India’.

There are too many stakes and no one wants to rock the apple cart. So we prefer to enjoy
the mental comfort that it does not happen rather than go through the agony of accepting
it and taking steps to prevent it. And it is quite easy to ignore the symptoms, because they
do not fit our concept of ‘sexual assault’. There are no criminals lurking in dark corners.
There may not even be force and hence no marks of injury. A young child may not even
be afraid of her violator, as the abuse may occur under the guise of affection. We know
that it happens only when adults recount gory stories of their child. At times the scars are
too deep and may distort the personality.

Usually, only the most gruesome violations, from the lower social strata, reach the courts.
Here are two such examples - Pooran Ram (2001 Cri.LJ 91) and Mangoo Khan (2001
Cri.LJ 3001). The facts and circumstances under which the fathers raped their own
daughters is indeed tragic and makes difficult reading. But these stories need to be told.

In the first case, when the father looked at the teenager daughter lustfully, the mother
commented and the father became revengeful. A few days later, at night, he gagged her
with her dupatta and raped her. The next day the daughter informed the mother and when
the mother confronted the father, he beat her ruthlessly. Later a complaint was filed. In
his defense the father pleaded that there was a matrimonial dispute between him and his
wife and due to this she has filed a false complaint against him. The trial court
disbelieved his contentions and convicted the accused for seven years. In appeal the
conviction was upheld and the sentence of seven years was to be adequate. The court
commented: “The accused is a psychologically sadistic person and needs psychological
treatment.”

The facts of the second case are equally tragic. Due to domestic dispute, the mother had
left the father and the victim girl, along with her other siblings, was living with the father.
When the girl resisted the advances of the father, he beat her and raped her. Then he
threatened her that if she mentions the incident to anyone he would kill her. After four
days her and the other siblings to a durgah where they spent the night. The next day
again he made sexual advances and the girl resisted. So he thrashed her in the durgah.
The members of the durgah committee came to know about it and filed a complaint. The
accused was convicted and was awarded life imprisonment. Later, in appeal, the
sentence was reduced to 10 years.

In 1992, the Bombay High Court reduced the sentence in a similar manner from lilfe
imprisonment to 10 years, in a case of rape on a seven year old child by her father. The
mother had left the father due to domestic dispute. The girls was found bleeding by a
neighbour and was in acute pain. The High Court while reducing the sentence
commented sympathetically: “The appellant is a hutment dweller and his poverty has
placed him in the difficult position of having to sleep huddled up in a tiny area. .. Even
though his wife had left him, he used to work the whole day and send the children to
school, arrange for their meals from the hotel, provide them with toys and pocket money
and cook the night meal for them. The rape was a momentary lapse, due to the pathetic
situation...”

This note of sympathy and concern gets even louder when the parties belong to more
affluent strata of society. Two important cases are Satish Mehra and Sudhesh Jhaku
which were reported in 1996. In the first case, the court disbelieved the wife’s allegation
of molestation and held that the mother who was vengeful could have herself abused the
child. In the second case, a high-ranking government official was charged with indulging
in oral sex and finger penetration with his six-year-old daughter. The police refused to
charge the father with the offence of rape and instead registered the complaint under
S.377 – unnatural offence. The wife filed a writ petition in the Delhi High court to bring
the offence under the scope of S.376-rape. The court rejected this argument and held that
insertion of objects etc. amounts only to ‘violation of modesty’.

The last is an unreported judgment of the Bombay High Court in a child custody case.
The parties belonged to the affluent section. The case concerned molestation of a three
year old by the grand father. The wife opposed the husband’s petition for custody. The
interim custody was awarded to the mother but access was granted to the father at his
residence every week for four hours. The comments by the concerned judge are an eye
opener regarding judicial understanding of child sexual abuse:

“Prima facie, I am of the view that the allegations which the Respondent (wife) has made
against the father of the Petitioner do not appear to be true. I just could not imagine that
the grand father, whose must be of around 60 years of age, would indulge in such a
heinous and pervert act to the children of such tender age. A doubt has lurked in my
mind. The Respondent had at the first instance alleged that her minor daughter was
molested but later she again added that her both the children were molested. The children
could not speak even a word with me when I affectionately patted them and asked them
their names. Both of them did not even utter a word. I was of course asking them in
Hindi thinking that their mother tongue was Hindi. However, both the parents told me to
talk with them in English. It was indeed a great surprise that children of three and four
years age were speaking in English. Thereafter I spoke to them in English, just putting a
question to them asking their names. It is not as though they were looking scared or
afraid or anything as even their parents were present. It is therefore extremely doubtful to
imagine that both of them, the girl of three and the boy of four, would have told their
mother about the so called and alleged molestation on them by their grand father. I
wonder what language they would have used to describe a situation of the
molestation…..”

This quote is a pointer to the fact that we still have a long way to go. It is relevant to
note is that the incest occurred in a situation of marital discord or the abuse resulted in a
matrimonial dispute. It is here, while awarding custody that our courts have to be
extremely alert. Custody issues can no longer be viewed as ‘parental rights’. The
determining principle is ‘welfare of the child is paramount’. The courts have to exercise
their power with great prudence and caution, so that it does not result in violation of basic
human rights – the right to live with dignity!

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