Saturday, October 3, 2015

HC: rulings on custody of child and Onus to prove income in monthly maintenance

High Court asks adopted child to be handed over to biological mother

MADURAI, October 3, 2015

MOHAMED IMRANULLAH S.

The Bench says the case only reminded it of Israel's great king Solomon's quote

Faced with a tricky case of dispute between biological and adopted parents over the custody of a five-month-old baby girl born through a relationship, the Madras High Court Bench here on Thursday said the case only reminded it of Israel's great king Solomon's quote: "Divide the living child in two and give half to the one and half to the other."

A Division Bench of Justices S. Nagamuthu and V.S. Ravi made the observation while disposing of a habeas corpus petition filed by M. Solomon Thangaraj of Aavin Nagar here accusing a woman, whom he claimed to be his wife, of having sold the baby girl born to them to a Chennai-based issueless couple through a woman doctor based at Narayanapuram.

However, on enquiry, the judges came to know that the petitioner, a Christian by faith, had begotten the baby through the Hindu woman without legally marrying her under the Special Marriage Act, 1954.

They also found that he was already a married man who had two college-going children and was also facing a criminal case booked on the basis of a complaint lodged by the baby's mother.

The judges ascertained from the police that the biological mother had not sold the baby but actually given it to the issueless couple on her volition since she wanted to return to her parents and marry someone else according to their wish. Still, the petitioner insisted on taking custody of the child on the ground that he was her biological father.

On the other hand, the baby's mother objected to his claim and stated that the baby be given either to her or allowed to be with the adopted parents. However, pointing out that the baby had not been given in adoption in accordance with law, the judges directed the adopted parents to hand over the child to the biological mother until they could adopt it legally.

Directive to child welfare panel

They also directed the chairperson of the District Child Welfare Committee to visit the baby girl once a month and ensure that she was brought up well.

Further, the city police were directed to ensure that the petitioner did not end up harassing the baby's mother who was given liberty to approach the High Court Registry anytime to revive the hearing in the case.

Before parting with the case, The judges said that they had to separate the baby from the adopted parents with a heavy heart. They told the biological mother: "See, this is the result of living an immoral life. Mistakes committed by you get passed on from one generation to another. Now, the innocent baby is suffering because of your acts."


Also read the related stories

Onus on husband to prove income in monthly maintenance case: HC

MADURAI, October 3, 2015

SPECIAL CORRESPONDENT

Says that only husbands are liable to prove actual income in maintenance cases

In cases filed by women seeking maintenance amount from their husbands under Section 125 of the Code of Criminal Procedure, the onus of proving the actual income earned by the latter rests only with the husbands and not wives, the Madras High Court Bench here has said.

Justice S. Vimala made the observation while reversing an order passed by Tuticorin Principal District Judge on October 31, 2012. The district judge had reduced from Rs.3,000 to Rs.1,000 the monthly maintenance awarded by the Chief Judicial Magistrate to a woman and her eight-year-old son.

Stating that the woman and her child could not be expected to have a hand to mouth existence, the judge said that the principal district and sessions court ought not to have interfered even with the "minimum amount" of Rs.3,000 each awarded by the CJM though they had claimed for Rs.5,000 each.

Ms. Justice Vimala pointed out that the CJM had awarded the amount only after coming to a conclusion, through documentary evidence, that the woman's husband owned a medical shop though he contested the claim by stating he was only an employee and not the owner of the shop. However, "unfortunately" the district court had reduced the compensation amount on the ground that the husband's income had not been proved, the judge said and observed that "the duty to prove the income is only upon the husband as per Section 106 of Indian Evidence Act."

Holding that the petitioner's husband had failed to prove, with substantial materials, that he was not the owner of the medical shop, the judge said: "Therefore, it is clear that he had failed to prove his income only for the purpose of avoiding payment of maintenance."

She also referred to a judgment delivered by Calcutta High Court in a case in which a person owning a three-storey building and earning Rs.40,000 a month attempted to evade payment of maintenance to his wife by falsely claiming to be a pauper with no source of income.

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