Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Parent’s Income And Better Education Not The Sole Criteria For Deciding Custody: Chhattisgarh HC

  • In Nimish s. Aggarwal vs Smt. Ruhi Aggarwal the Hon’ble Chhattisgarh HC has held that cases of children’s custody cannot solely be decided by interpreting legal provisions, but have to be solved with a human touch. The Court thus, granted the custody of the child to her mother. 
  • The instant appeal was filed by the father/husband against the order of the Family Court where the father was only granted visitation rights, and the custody was denied.
  • The parties got married in 2007, and a girl child was born out of wedlock. Subsequently the relations between the two parties went sour, a series of allegations and FIRs were lodged. Since the child was in the custody of the mother, an application under section 25 of the Guardians and Wards Act, 1890 was filed. 
  • Aggrieved by the order of the Family Court, the instant appeal was filed by the father. 
  • The Counsels for the appellants argued that the welfare of the minor is of paramount consideration in such cases, and the financial status of the father, which has been proved by evidence, would show that the child would be educated in the best School of India, and best education can be given to her. They further submitted that the school that the child was being educated in was not recognised, and was being run by the mother. These factors were ignored by the Family Court.
  • The Counsels also referred to section 6 of the Hindu Minority and Guardianship Act and argued that the custody of the child above 5 years of age should ordinarily be with the father, and the lower Court had failed to appreciate the same.
  • The Court referred to the decision of the Apex Court in Nil Ratan Kundu and anr vs Abhijeet Kundu (2008)SCC wherein it was held that in cases of child custody, the welfare of the child should be of paramount consideration, and the same should be decided on the basis of relevant statutes. But, the same cannot solely be decided on the basis of legal provisions, it is a human problem and should be solved with a human touch. 
  • Reference was also made to the decision of the Apex Court in Githa Hariharan vs Reserve Bank of India and anr. (1999) wherein it was held that the the words ‘after him, the mother’ used in section 6 of the Hindu Minority and Guardianship Act need not necessarily mean, after the lifetime of the father. The welfare of the minor would be of paramount consideration. 
  • The Court also observed that the placement of the child in the best boarding school cannot be a benchmark for the happiness of the child. The Court thus, disagreed with the proposition that a child would get better development if she is placed in the best boarding school in India. It was observed that education and upbringing are two different things and cannot be equated with literacy. 
  • Thus, the Court granted the custody of the child to the mother but the father was granted visitation rights. 

Natural vs Interested Witness; A Close Relative Who Is A Natural Witness Cannot Be Recorded As An Interested Witness: All HC

  • In Chunna vs State of UP, while upholding the life sentence awarded to a murder convict, the Hon’ble Allahabad HC has observed that a close relative who is a natural witness cannot be recorded as an interested witness. 
  • The Court also observed that an interested witness is one who has some direct interest in seeing that the accused person is somehow or the other convicted of the said offence, due to some animus with the accused or for some other reason. 
  • In the instant case, the complainant Subhash Mishra lodged an FIR alleging that his father Sunder Lal (deceased) was killed by the accused Chunna on March 22, 1995. He stated in his complaint that the deceased had a flour mill, where at about 8 pm, he and his sons and Rakesh (eye witness) were busy grinding flour. 
  • A fight broke out between the complainant and his brother Rakesh and Chunna and Dinesh, who wanted to get their wheat grounded first. On that very night, the deceased, who was sleeping near the bed of the complainant, cried out in pain. Hearing the same, Rakesh and one Suresh Kumar woke up and observed that Chunna was attacking the deceased with a knife, as a result of which he passed away eventually. 
  • The District Court, Kanpur convicted the accused under section 302 IPC and sent him to life in prison. Aggrieved by the said order, the accused preferred an appeal before the HC. 
  • The Hon’ble HC observed that Rakesh was the only witness who stated the manner of occurence and the involvement of the accused. 
  • The Court observed that no direct enmity, ill will or grudge of the witness Rakesh with the accused had been suggested or proved. Thus the alleged enmity suggested by the accused bore no weight. It was also observed that the evidence of Rakesh was corroborated by the recovery of a blood stained knife on the pointing out of the accused, and the same was found on the blood stained clothes and earth surrounding the deceased.
  • On the contention that the witness was a near relative of the deceased, the Court observed that the term interested postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other convicted, either due to some animus or for some other reason. Nothing in the cross-examination would suggest the same. In fact, Rakesh was a sterling, solitary eye-witness whose testimony did not need any corroboration. 
  • Reliance was placed on the decision of the Apex Court in Kailash vs State of Uttar Pradesh (1998) wherein it was held that the absence of any material on record to show that the prosecution witness has any enmity with the accused, his evidence cannot be brushed aside merely on the ground of relationship.
  • Thus, observing that the prosecution had been able to prove the guilt of the accused, the Court upheld the conviction and the appeal was dismissed. 
     
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