Law Querier
28 May 2012 at 10:23
Husband and wife were living in rural area. Husband and Wife married and registered their marriage. After some years, they mutually agreed for divorce. Advocates in rural area made an affidavit on Rs.500 stamp paper about agreement of both to separate mutually each other. They had not appeared for MCD and not having a decree of divorce from court.
My question is, 1) is this type of agreement is applicable in law? Is it legal or illegal? 2) Can Husband/Wife marry again on this agreement? If they marry then he/she can put in trouble? Is it legal or illegal?
osho amar prem
28 May 2012 at 00:09
sirji .
sir i already won custody from karnataka, and the execution was
transfered to punjab.. executeion was dissmiss in default once but
now i again to took up. Her petition to setaside my order is also
dismissed, Her transfer application is also dismissed from karnatka
to Punjab by supreme court.
and she got married as per her brother( mentioned on summons sent to
her ) and i am unable to trace her address.. and the child are with
her parents and she stay with her husband parents they too are untraceable.
And during my conselling she was given Rs. 1000 to bring child ( all written in consellor order ) to
conselling but she did not return to conselling since then she got
married and untraceable
kindly help..
thanx and regards
amar pune
which option
1. get paper publication by execution court and get executed
2. file habeas corpus and get executed boz trial and transfer of trial is already dismissed since one year back...
3. basic case at karnataka trial over only execution at punjab.
This order of habeas and corpus accepted and granted custody.. is
Allahabad High Court
Master Manveer Khera vs Manjeet Singh Khera Alias Makhan ... on 9 January, 1997
Equivalent citations: AIR 1997 All 217
Bench: G Tripathi
ORDER
1. Smt. Gurpriya Khera, the mother of the minor child Master Manveer
Khera has filed this petition praying for a writ in the nature of
Habeas Corpus directing respondents No. 1 to 3 to produce the
petitioner before the Court and hand over the custody of the child to
the mother, Smt. Gurpriya Khera.
2. Admittedly, Smt. Gurpriya Khera was married to late Lt. Mandeep
Singh Khera (Indian Navy) on 6-10-90. The child Master Manveer Khera
was born out of this union on 17-11-91. On 3-2-96, in a car accident,
the husband of Smt. Gurpriya died and she also received injuries. The
child Master Manveer Khera was taken up by respondents No. 1 to 3, who
are the in-laws of Smt. Gurpriya Khera. It is said that Smt. Gurpriya
Khera also received multiple fractures in that car accident and she
fell unconscious. She was initially admitted to a Hospital at Rajali.
From there, she was shifted to the Military Hospital, Madras and from
there, she was discharged on 15-3-96 and brought to Chandigarh by her
father and eversince she has been residing there. Without caring for
the injured Smt. Gurpriya, the respondents took away the child Master
Manveer Khera on 7-2-19% from the hospital and brought him to
Shahjahanpur (U.P.) and eversince the child is residing with
respondents 1 to 3. Smt. Gurpriya made repeated efforts to have the
custody of the child. But she has failed.
3. She is about 26 years' old and educated upto B.A. She belongs to a
good family of status. Her father is a retired Army Officer and her
mother is a Co-ordinator in Guru Nanak Public School, Chandigarh. Smt.
Gurpriya Khera is in a very sound financial position and can took
after the betterment of the child and can bring conducive atmosphere,
which may be helpful in the future development of his. personality.
She is a legal guardian also, whereas, respondents 1 to 3 are not,
during herlife time. In the meantime, it is said that the respondents
are prosecuting a divorce petition, allegedly filed by the husband of
Smt. Gurpriya in the Court of Shahjahanpur even afler his death. This
is wrong. Her husband never filed a divorce petition against her. They
have been leading peaceful and conducively happy married life.
4. She has heard that respondents No. 1 to 3 are likely to escape to
Canada, where the brother of respondent No. 1 resides. The petitioner
has sent a written request on 5-6-96 to the Canadian High Commission
and the American Embassy so that they may not be allowed to take away
her child. Under these circumstances, she has alleged that she can
watch the interest of the minor in a better manner.
5. In the counter affidavit, the respondent No. 1 has alleged that
even during the life time of late Lt. Mandeep Singh Khera, the husband
of Smt. Gurpriya, there was serious differences between the husband
and wife and the respondents were looking after the child. The husband
was compelled to file a divorce suit in the Court at Shahjahanpur
against Smt. Gurpriya Khera. Allegedly she admitted the claim (which
has been denied by her). It has been alleged that the grandfather of
the child is a retired officer. He was pos ted asaSenior Manager, BHEL
and got a large package of retirement benefits. He has agricultural
land in Punjab as well as Shahjahanpur. He has a shop at Poona. Smt.
Gurpriya's father is a retired territorial Army Officer. Her mother is
a school teacher. Smt. Gurpriya is not in a perfect mental state
having no love and affection for the child. This way the best interest
of the child can be served only while remaining with respondents.
6. It is not disputed that the child is residing with respondents.
After the death of her husband, Smt. Gurpriya has received a large
package of retirement benefits (death dues) and is in a sound
financial position. This does not mean that the respondents' financial
position is not sound.
7. Under these circumstances, the Court has to weigh the contention of
the parties in order to ensure the best possible care and welfare of
the child.
8. There is a well-known scriptural jewel (Hindi matter)
It means that bad sons are bom infrequently although, but bad mother
is yet to be born.
9. In this case, it is not disputed that Smt.--Gurpriya has no
adversarial interest with the child. It is also not disputed that she
is a graduate and young lady of 26 years and has not remarried. So
from all considerations, she is the best protector of the minors'
interest.
10. There is another jewel of invaluable nature. (Hindi matter)
The mother, father and friends are natural well-wishers of a person.
Others think of the welfare of the person only when they have some
ulterior benefits to gain. This way, mother being the natural guardian
of me child, has the best claimupon him. Even according to Hindu Law,
in the list of Guardians, the mother comes only after the father.
11. Myattention has been invited toaDivision Bench Ruling of this
Court in the case of Vinayak Goyal v. Prem Prakash, 1981 All LJ 752.
In para 11, it has been held as follows :--
"In the case of a minor, his detention would be treated as illegal and
unlawful if he is detained by any person against the wishes of the
guardian (in this case Gurpriya) who is entitled in law to have his
custody.....
In the instant case holding back of the child by his grandfather and
grandmother amounted to illegal and unlawful delention and as such,
the petitioner was entitled to a writ of mandamus"
12. In paragraph 14, it was also observed as follows :--
".....The law is well settled that the writ of habeas corpus would be
maintainable for the custody of a child despite the alternative remedy
of filing an application under the Guardians and Wards Act."
Therefore, the contention of Sri Asthana is not sound that since the
petitions under the Guardians and Wards as well as Hindu Marriage Act
(Divorce petition) are pending in the Shahjahanpur court, this Court
should permpt a decision on facts by those courts.
13. In para 18, it was observed as follows:--
".....In the instant case, there is nothing to doubt that well being,
education and happiness of the petitioner-minor lies in selecting his
mother over grandfather and grand-mother. The child is 8 years of age.
Mother's protection for such achild is indispensable. There cannot be
any other protection which will be equal in measure and substance to
that of the mother in such circumstances."
That was a case similar to one before me. As the learned counsel Sri
Asthana could not show me that the law has changed after this
judgment, either by this High Court or by the Hon'ble Supreme Court,
therefore, this has to be treated as a final position of law in the
present case.
14. The primary consideration, is, always, admittedly, in such cases,
to see as to whether best interest of the child can be protected, by
the petitioner or the respondents. The respondents are aged over 60
years and onward. They do not possess that much agility as Smt.
Gurpriya can She is a young lady. She can toil with the child for his
betterment. She can devote more time to the child. She can educate him
and also look after him in a better position, as she is, admittedly, a
very educated lady. Her mother is also a teacher whereas, the
respondents are old people. They cannot devote that much of time
towards the child. May, after few years they shall themselves need
protection and care from others.
15. It is not disputed that best possible educational facilities are
available in Chandigarh, whereas such facilities cannot be even dreamt
of at Shahjahanpur, either in the city or in the rural areas where the
respondents have farm and other properties. Hence from this point of
view, the study atmosphere of the child at Chandigarh will be more
conducive towards the betterment of the child than that of his
residence at Shahjahanpur under the care of the respondents. This does
not mean that I want to say that respondents have no love and
affection of the child. They have all the love and affection for him.
But in degree as well as in quatity, it cannot be equated with that of
Smt. Gurpriya. Therefore, from this norm also, Smt. Gurpriya stands in
a better position to have the custody of the child.
16. After receipt of the post-retirement/death package, Smt.
Gurpriya's financial position is very sound. Even her parents are in a
better position to help her as and when she needs their protection.
So, it cannot be said that on financial consideration, she stands in a
weaker position than that of the respondents. Rather, I find that Smt.
Gurpriya is in a much better position than respondents to look after
the welfare of the child. The pendency of the proceedings in
Shahjahanpur Court, cannot mean that Smt. Gurpriya is in any way less
competent to look after the child's welfare.
17. Every person must have some solace in life. A young lady gets much
solace in the company of her husband and child similarly, the child
gets solace as well as protection and care under the custody of his
mother. By God's grace or otherwise, Smt. Gurpriya has turned into a
widow due to untimel death of her husband in an accident. So she has
no'solace or love from her husband now. Then the only solace available
to her is her child. If he too js taken away from her, she will be
compelled to live a life of desertion and life long agony and the
attainment of motherhood is the best contribution a lady makes towards
the society as well as the nation and in further educating him looking
afterhim and making him a better citizen, she plays a determined,
positive role. These are not disputed things. Therefore, even in the
interest of justice to the society as well as Smt. Gurpriya herself,
apart from the interest of the child, I find that there cannot be any
better heaven for the child on earth than the lap of his mother under
whose benigh guardianship, he will be able to become a better citizen
of the nation.
18. I do not find that there is anything on the record to prove that
Smt. Gurpriya is, in any way, disqualified or less qualified to look
after the child's welfare.
19. Taking all the facts into consideration, I find that Smt. Gurpriya
is entitled to the custody of the child.
20. Master Manveer Khera, the child, has been brought by the
respondents and is present in court. Although, the child does not want
to go with his mother as he has been living with the respondents only
for nearly a year. During this period, he has not been able to meet
his mother. He is a minor of about 5 years age. He has no knowledge
about his welfare himself. Simply because he does not want to go with
his mother Smt. Gurpriya Khera, the Court shall not deprive Smt.
Gurpriya Khera of her legal rights as well as pious duties towards her
child. Hence dis-inclination of the child himself to go with his
mother Smt. Gurpriya Khera, will not be a factor to be counted while
determining this petition.
21. Thus the petition is allowed with cosls. It is ordered that the
respondents shall hand over the child to Smt. Gurpriya, his mother,
immediately and she shall be entitled to, take away the child at her
residential place at Chandigarh. If need be, S.S.P. Allahabad is
directed to provide adequate protection to the mother Smt. Gurpriya
for carriage of the child by her upto Chandigarh.
22. Sri Ramendra Asthana, learned counsel prays for permission to fife
an appeal before the Hon'ble Supreme Court.
23. His oral prayer is allowed.
24. Petition allowed.
badmanaban
27 May 2012 at 22:43
my mother had othree son all are married.
elder son had no issue died leaing behind widow daughter in law.
my mother had three house/she excuted the settlement deed in faouar of her two son.
she didnotgive the properties to widow daughter in law (no son/daughter)
my lawers says the properties came from my mothers father and it become aboulte properties so widow daughter in can;t claim for maintancee from mother in law
shelly
27 May 2012 at 16:12
sir i want ur favour om my client shilpa....case is:-
ajay and shilpa got marriedin the year 2000.At the time of marriage ajay was working at kangra and getting rs 4500/month.Whereas shilpa was working with MNC and was earning rs 7000/month and other perks at the same place.subsequently ajay got a lucrative job in delhi with his sallery rs 10000.after joining new job he requested his wife to resign her job and move over to delhi but the request was refused by shilpa on one pretext or other.she thought it was necesseryfor her to continue the job as the income from the husbands sallery is not suffecient to maintain the family.further dispite marriage subsisting in the year 2000,the couple was not having a child.yhough shilga earliar at her insistance and iniatitave had got her pregnency terminated thrice while ajay was anxious for child.shilpa was of the openion that in the early year of her carrer and lookig to the nature of her job she may b not able to look after her child properly.....being upset with the tern of events in the martial life.ajay files a petitionu/s 9 of HMA and alternatevily praps for divorce on the ground of CRUELTY. Shilpa contends that she has the right of equality under art 14 of the constitution to continue her job. Further to have a child at the instance of her husband will be voilative of acr 21 of the constitution,right to personal liberty.
osho amar prem
27 May 2012 at 15:37
sir, i won child custody ( BOYS 12 AND 9MYEARS ) in 2009 exparta, and filed for execution, but the court denied boz she challanged, but her appeal was at last dismissed, and my application was dissmissed in default boz my lawyer did not attened the court, but the order or hearing sheet did not mentioned that she challanged ( it was judge trick to delay my execution verbaly boz no record was there to say she challanged ) But now i again reopened the case, but when summons was send to her residence, Her brother said " she do not stay at this residence and she gone to her in-laws home ( i am already divorceed 2008 ) she and her parents also took my sons I do not know there were ABOUT. CAN I FILE HABEAS CORPUS.. ON HER AND HER PARENTS.. AND ALSO THAT HER NEW HUSBAND CAN HARM MY SONS.. OR REALY ON EXECUTION COURT. WILL THE HIGH COURT HANDOVER MY SONS TO ME OR I HAVE TO GO FOR PAPAER PUBLICATION AND GET EXECUTED.. WHAT WILL BE BEST... KINLY HELP..
Survivor
27 May 2012 at 14:56
Hi All,
This is very crucial time for me and my family. Before asking you my real query just want to give some overview of my marriage.
My marriage which was actually an arranged one took place in June 2008 and happily we started a new journey on our life. As usual post marriage we went for our honeymoon and came back to my home town and after 1 month I carried her to my working place where we purchased our house hold goods (I paid for that). But after some time I observed that she was only interested in me and did not caring to my Family. I was shocked and decided to discuss with her and she told me I and my (her) family only want that we stay out of your family and no interference she will accept if my family comes to my working place or she also does not want to go to my home town. This was very shocking to me, after some time I observed that she was in guidance of my mother in law and was destroying life of ours.
When I asked them clearly that I am only son of my parents and cannot leave them like that so they said if you don’t do this we will go for false litigation lie 498A or DV. I was in shock and was not able to think of for any next step then later on I decided to discuss the same with my Family and got very good support from them.
Once she tried for suicide just to show me that if you don’t be with me than be ready for worst time. From that time we are staying separately and after some time they put up a false DV case against me and my Family. Now, I am not sure how should I proceed for that because we both are from different states and we don’t know anyone from that city so becoming very crucial for me.
Please guide me, I don’t want to leave my Parents like that.
Rahul Sharma
27 May 2012 at 12:16
Dear All,
Please help, I got a written reply from respondent on my RCR petition, stating that she don't want to come back because of humiliation at matrimonial home, she has put lot of wrong and baseless allegation on me that I in the sense of alcohol have extorted money from her and her father of a sum of rs 10,000 in the pretext to allow her to enter matrimonial house..Also I use my pet dog to make her scare if she will not bring money for me from her parents ....bla bla..And lots of many other baseless allegations to dismiss my sec9 petition on the ground that I extort money from her. It was somewhat clear from her that she is trying to show the amt they have spent in marriage and money which I have extorted as per them. The court has ordered for amicable settlement and next date is in August.
My entire question is:-
Does that mean my sec9 petition is dismissed or it’s still running?
What does amicable settlement means and how does this works
What could be the probable next step from her side and what should be our -Any precaution or tips to take this case more strongly.
zorrosmask
27 May 2012 at 10:17
my uncle(mothers elder brother) has made a bank FD with him as primary holder and me (his nephew as joint holder1) and my father (as joint holder2) and my mother (his younger sister) as a nominee.He had not made any will during his lifetime.He also has a younger brother who has now requested the bank to withhold the fixed deposits and not give any monies to any of the joint holder or nominee.they say that the money should be equally distributed among the legal heirs (rather than among the joint holders and nominee). What i want to know from respected seniors is that who will ultimately get to enjoy the money?? the legal heirs or the joint holders??
rani mehta
26 May 2012 at 21:00
Hi all,
I want your advice in one of the case pertaining to my friend.
My friend got married to a guy 5 years back.It was a love cum arranged marriage.Both of them met through a social networking site.Their families met and they agreed for marriage. The guy was in a really hurry from the beginning.
After marriage the girl went to the guys town.And then my friend's husband used to ask her not to talk to my friends family member.
He left her in one of her relatives house saying that he is going out of station for some official trip the next day of marriage.he didnt came for around 40days.Then my friend decided to come back to her village as there was no one for her in that town and also she was treated as a servant in her husbands realtives house.
Post 2 months of coming to her own house my friend got to know that the guy was already married and the marriage to my friend was for the 3rd time.The first marriage was divorced, with mutual consent from both and second was a marriage and 3rd time he got married to my friend without her knowledge for all this.
After 5 months of this, the second girl came to know about the guys 3rd marriage i.e to my friend, she was seeking divorce and the guy came in frustration and killed the girl.He was in jail for 4 years.
My friends parents are financially weak so they are not in a position to ask for divorce and my friend is still not married till date.its been 5 years for now.
Needs your advice to understand, in this case,As there is not marital relation between my friend and the guy, is divorcee required?
If yes how to go about it?Please advice.
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