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Wednesday, March 31, 2010

2009(1) LAW HERALD (P&H) 81
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Ranjit Singh
Criminal Revision No.1693 of 2007
Rajesh Kumar
v.
Sahil Sawhney
{Decided on 20/11/2008}
For the Petitioner: Mr. Raman Mahajan, Advocate.
For the Respondent: Mr. Y.P. Singla, Advocate.
IMPORTANT POINT
Maintenance--Mother has no right to relinquish the right of maintenance on behalf of her child, by accepting permanent alimony, who was at that time was so young and incapable for taking any decision for himself.
Criminal Law--Maintenance--Young minor child seeking maintenance form his father--Mother accepted Rs.60,000/- as permanent alimony for setting all claims of maintenance in future for herself and her child who was 4 years and 4 month old--Question arises if arrived compromise elected between parents of child would be sufficient to statutory right of maintenance under Section 125 Cr.P.C. to the child ? NO--Stand of father that he is under no obligation to pay maintenance to child as a full and final payment towards maintenance including that of child is made to his ex-wife--Learned Additional Sessions Judges observed that mother has no right to religious relinquish the right of maintenance on behalf of her child who was at that time so young and incapable for taking any decision for himself--Matter remanded to learned Magistrate to decide whether Rs.60,000/- paid as maintenance in year 1997 was illusory or not--High Court while exercising revisional jurisdiction would have suo-moto power to do substantial justice between parties--Child need not to establish his right any further before Magistrate--Petitioner father directed to pay a sum of Rs.2500/- per month as maintenance from date of application filed by child--|Criminal Procedure Code, 1973, Section 125 and 127. (Paras 6, 7 & 9)

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Punita Chaudhary v. State of Haryana
2009(1) LAW HERALD (P&H) (DB) 84
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice M.M. Kumar
The Hon’ble Mr. Justice Jora Singh
C.W.P. No. 3129 of 2008
Punita Chaudhary
v.
State of Haryana
{Decided on 08/12/2008}
For the Petitioners: Mr. Arun Jain, Senior Advocate, with Mr. Vishal Goyal, Advocate.
For the Respondent Nos. 1 and 2: Mr. Ashish Kapoor, Addl. AG, Haryana.
For the Respondent Nos. 3 and 5: Mr. Narender Hooda, Advocate.
For the Respondent No. 4: Dr. Anmol Rattan Sidhu, Sr. Advocate, with Mr. Ajay Kaushik, Advocate.
IMPORTANT POINT
Acquisition of Land--Mere issuance of a notification under Section 17(1) and 17(2) would not be suffice for dispensing with the filing of objections unless a notification under Section 17(4) showing application of mind by the Government is issued.
Acquisition of Land--No justification for acquire land of petitioners when Government land is available--Impugned notification quashed.
(A) Land and Property Law--Acquisition of land--Release of Land--Public purpose--Invocation of urgency clause--Acquisition of land for construction of approach road from national highway to Thermal Power Plant--Three months time taken for issuance of notification--Proposed acquisition if permitted would divide college building and factory--No decision of State Government for dispensing with provisions of Section 5-A--Mere issuance of a notification under Section 17(1) and 17(2) would not be suffice for dispensing with the filing of objections unless a notification under Section 17(4) showing application of mind by the Government is issued--Moreover, approach road could be constructed through abandoned water channel which has initially approved--Curves on road could not be avoided whether approach road is constructed on land or on land of abandoned water channel--No justification for acquire land of petitioners when Government land is available--Impugned notification quashed--|Land Acquisition Act, 1894, Section 4, 6, 5A and 17. (Paras 16, 18 & 19)
(B) Land and Property Law--Acquisition of land--Public purpose--Invocation of urgency clause--Notification under Section 6 read with Section 17 issued after date of publication of notification under Section 4 and 6 read with Section 17 issued on same date--Not proper--|Land Acquisition Act, 1894, Section 4, 6, 5A and 17. (Para 14)

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Gaurav Nagpal v. Sumedha Nagpal
2009(1) LAW HERALD (P&H) 91 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Dr. Arijit Pasayat
The Hon’ble Mr. Justice G.S. Singhvi
Civil Appeal No. 5099 of 2007 with Crl.A. No. 491 of 2006
Gaurav Nagpal
v.
Sumedha Nagpal
{Decided on 19/11/2008}
For the Appellant : Mr. Shanti Bhushan, Sr. Advocate, Mrs. Nandini Gore, Mr. Debmalya Benerjee, Ms. Prachi Goel and Mrs. Manik Karanjawala, Advocates.
For the Respondent-in-Person : Mr. Sumedha Nagpal.
IMPORTANT POINT
Custody of Child--Paramount consideration is welfare of child and not rights of parents under a statute.
Custody of Child--Father was affluent and could spend good amount for education of child--However, he flouted various orders of Court leading to even contempt proceedings and managed to keep custody of the child--He cannot be beneficiary of his own wrong--Custody of child given to mother.
(A) Matrimonial Law--Custody of Child--Minor child aged 11 years--Custody given to mother--Father having a spacious house and could spend good amount for child's education--Mother having income of Rs. 40,000/- p.m. and living in two rooms flat--However, father by flouting various orders leading even to initiation of contempt proceedings, managed to keep custody of the child--He cannot be a beneficiary of his own wrong--Custody rightly given to mother--Visiting right given to father--|Hindu Minority and Guardianship Act, 1956, Sections 6 and 13. (Para 44-46)
(B) Matrimonial Law--Custody of child--Paramount consideration is 'welfare of child' and not rights of parents under a statute for the time being in force--|Hindu Minority and Guardianship Act, 1956, Section 6 and 13--Guardians and Wards Act, 1890, Section 25. (Para 35)
(C) Matrimonial Law--Custody of child--Law summed up-
i. In determining the question as to who should be given custody of a minor child, the paramount consideration is the 'welfare of the child' and not rights of the parents under a statute for the time being in force.
ii. The power and duty of the Court under the Act is the welfare of minor--In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.
iii. Merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody--Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him--Children are not mere chattels nor are they toys for their parents.
iv. Section 6 of the Act constitutes father as a natural guardian of a minor son--But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor.
v. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands--The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues--The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor.
vi. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being--Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases--|Hindu Minority and Guardianship Act, 1956, Sections 6 and 13--Guardians and Wards Act, 1890, Section 25. (Para 35, 38-43)
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