Tag: #child

-Report by Sejal Jethva

In this case, the custody of two children—who should live with their mother or father—is being settled between SALIM YOUSUF JAMADAR VS RESHMA SALIM JAMADAR

FACTS:

On May 19, 2010, the appellant and respondent were married in Pune in line with the customs and principles of Mohammedanism. The respondent-wife gave birth to a girl called Akira on May 16, 2014, and a son named Arsalan on September 21, 2011, both outside of marriage. Arsalan is currently about 11 years old, while Akira is about 8 years old. The respondent and her children were then violently forced out of her marital home on August 28, 2019, due to a marital quarrel. It is claimed that the children were kidnapped from the respondent’s wife’s custody at her parent’s house in Aloor by the appellant’s relatives under the guise of feeding them chocolates.

On October 11, 2021, the respondent-wife filed a case in the Omerga Court of Judicial Magistrate (First Class) under the provisions of the Protection of Women from Domestic Violence Act. The court only granted the respondent-wife visitation rights, allowing her to see her children once a month in Pune at the office of the protection officer, without interfering with the minor children’s custody arrangements with their father. The respondent-wife does not contest the court’s decision to deny custody and solely grant visitation rights in the aforementioned judgment. The wife ultimately filed a procedure under Section 8 of the Guardians and Wards Act in the trial Court over the custody of minor children as a result of the marital strife between the parties.

APPELLANT’S CONTENTION:

The attorney for the applicant has submitted a written statement outlining the events leading up to the Respondent’s (wife) filing of this application under Section 8 of the Guardians and Guardians Act. He also brought up the issue of jurisdiction, claiming that an educated trial judge had incorrectly ruled that the children had a habitual abode in Alloa based solely on inference. Welfare and child protection Concerning the query, he said that the Scientific Court had neglected to consider a few clauses in Articles 17 and 25 of the Guardians and Guardians Act.

RESPONDENT’S CONTENTION:

The respondent-wife vehemently disagreed with the arguments put out by the knowledgeable Attorney representing the appellant’s spouse. He defended the contested order and argued that the learned trial court correctly dismissed the husband’s complaint about jurisdiction. He emphasised that although the children were enrolled in an English-medium school in Aloor, the appellant-husband requested that they attend an Urdu-medium school instead, which is unquestionably dangerous for the development of young children.

He did reasonably acknowledge, however, that up until this point, the respondent-wife had not requested maintenance from her husband. He contends that the respondent, who does not leave the house for employment, is better able to provide for the children’s needs because the appellant is unable to do so because of his continued absence from the home for work. He called for the appeal to be dismissed as a result.

JUDGEMENT:

1. Upon reading the contested decision, it is clear that this aspect of the highest consideration was not discussed in detail by the competent court, given the applicant’s capacity. It can be seen that the entire judgment discusses the jurisdictional aspect and the Labor Court only made a puzzling statement on this aspect of the child’s well-being in the last paragraph. , does not argue whether it is fit to act in the best interest of children by providing them with a good future education and the facilities they need. Under guardianship laws, custody of minors remains with the mother until the age of five. However, in this case, both minor children are over 5 years of her age. Their son Arsalan is 11 years old and their daughter Akira is 8 years old. Therefore, with their best interests in mind, they must be provided with a good education, safety, and other conveniences. On the other hand, the applicant’s husband discovered that he was not at home due to his work and his wife. Therefore, she is promoted to a higher level, giving her time to grow and care for her children. However, feeding a minor child is not only about giving the child time to grow, but other aspects such as financial support, a good atmosphere, and safety are also important. 

2. As a result, the appeal is upheld, and the contested order from the learned District Judge-1, Omerga, District Osmanabad in Civil Miscellaneous Application No. 45/2020 is revoked and reversed. There is no expense order.

READ FULL JUDGEMENT: https://bit.ly/42ye1cA

-Report by Umang Kanwat

Family law conceptions still depend on parental control and the idea of “the family” as a unit, while privacy theories are mostly adult-centered and cannot be meaningfully applied to minors. In the recent case of Aparna Ajinkya Firodia Versus Ajinkya Arun Firodia, the Supreme Court determined that it could not forgo the rights and best interests of a third party, namely the child, in order to grant one of the parties to the marriage the benefit of a fair trial.

FACTS:

In the current case of Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia involving a married couple was going through divorce proceedings suspecting that the appellant-wife was in an adulterous relationship. The husband requested the court to order a DNA test on their second child to determine if he was the biological father. The court granted the request, and this decision was upheld by the Bombay High Court.

APPELLANT’S CONTENTIONS:

The appellant declines to submit the kid to a DNA test in her capacity as the child’s mother and natural guardian in order to safeguard the child’s interests and welfare. She is actually acting in the child’s best interests by refusing to submit the child to a DNA test.

RESPONDENT’S CONTENTIONS:

The respondent is not contesting the child’s legitimacy, but rather accusing the appellant-wife of adultery, and since she refused to submit the child to a DNA test, a presumption under Section 114(h) of the Evidence Actmight be made against her. In other words, he argues that Section 114(h) rather than Section 112 applies in this particular case and that the court is not required to expose the kid to a DNA test if the appellant is unwilling.

JUDGEMENT:

The Apex Court by concluding that the High Court and Family Court erred by granting the respondent’s request to subject the child to a DNA test, stated that in every instance when a parent declines to have their child undergo a DNA test, it is not prudent to infer the worst under Section 114 of the Evidence Act.

The court also emphasised that children have the right to protection from having their legal status inadvertently called into question in court. A child’s understanding of privacy could differ from an adult’s. However, merely because they are young, children should not be denied this right to shape and comprehend their sense of self. Furthermore, children have a specific right to maintain their identity under Article 8 of the Convention. Parental information is a characteristic of a child’s identity. As a result, it is forbidden to arbitrarily contest a child’s parentage in front of a court of law.

As a result, the appeal was granted. The court did add that this would not prevent the respondent-husband from presenting more evidence to support the claims he made against the appellant in the divorce petition.

READ FULL JUDGEMENT: https://bit.ly/3SnATqL