- child custody matters _ habeas corpus

Constitution of India - Writ of Habeas Corpus in Cases of Child's Custody - in a petition seeking a writ of Habeas Corpus in a matter relating to a claim for custody of a child, the principal issue which should be taken into consideration is as to whether from the facts of the case, it can be stated that the custody of the child is illegal - whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person - whenever a question arises before a court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child - welfare is an all-encompassing word - It includes material welfare - while material considerations have their place they are secondary matters - more important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents - the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute - the jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity - The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. [Para 75, 80, 81, 86, 88, 89] Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu, 2022 LiveLaw (SC) 605

Independent assessment of evidence: commission report not binding

Commission of Inquiry Act, 1952 - In respect of criminal charges, an accused can be tried by a Court of law and not merely on the basis of the report of the Commissioner under the Inquiry Act. Such a report is not conclusive and an independent action has to be taken by the State or by the victims against the Organizers before the competent court of law to prove the criminal offences said to be committed by certain accused. (Para 49) Sanjay Gupta v. State of Uttar Pradesh, 2022 LiveLaw (SC) 368 : (2022) 7 SCC 203

Commission of Inquiry Act, 1952 - The Commission under the Act shall be appointed either by the Executive or by the Legislature but not by the Judiciary in terms of the provisions of Inquiry Act. (Para 46, 50) Sanjay Gupta v. State of Uttar Pradesh, 2022 LiveLaw (SC) 368 : (2022) 7 SCC 203

436-A release

Kamal Vs. State of Haryana, 2004 (13) SCC 526 (for 7 yrs.)

 "2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

Final order must consider previous and interim orders passed in the same case

2012 2 SCC 294  C Shankuntala

2012 5 SCC 552 Om Prakash Asati

Dismiss in default without going into merit is not res judicata

Collector v. Ajit Jogi, (2011) 10 SCC 357

Transfer Cases

In Pooja Rathod v. Tarun Rathod, (2022) 4 SCC 514, the Hon'ble Supreme Court transferred a case filed by husband (at Chennai) against the wife 600 kms away from where the wife resides (at Hyderabad)

In Anju v. Pramod Kumar, (2005) 11 SCC 186, the Supreme Court transferred the case to a neutral place as both husband and wife expressed apprehension in travelling to each other's native places.

In Deepa Mohan Naik v. Chandra Bhusan Pal, (2022) 2 SCC 54, Supreme Court allowed transfer in favour of the wife and also directed for attempts at mediation to resolve the dispute.

In Eluri Raji Reddy v. State of Delhi, (2004) 4 SCC 479, the Supreme Court allowed transfer in favour of the husband as the husband sought transfer to Andhra Pradesh and the wife had a place of residence in Andhra Pradesh.

In Lalita v. Kulwinder Kumar, (2007) 15 SCC 667, the Supreme Court allowed transfer in favour of the wife and held that the convenience of the wife is to be looked into.

Details needed for job advertisement by Government

The Supreme Court in Renu v. District & Sessions Judge, Tis Hazari, (2014) 14 SCC 50, emphasized the need to specify in the advertisement, number of posts, qualifications and eligibility criteria, schedule of recruitment process, Rules under which selection is to be made or the procedure in the absence of Rules, in the interest of transparency and to avoid arbitrariness and change of criteria of selection. Thus, the appointment letter in so far as it is contrary to or at variance with advertisement will have to give way to the stipulations in the advertisement and the latter part of Clause 2(a) in the appointment letter to the extent it provides for extension of probation period and the requirement of confirmation in writing, shall not bind the Petitioner