Jasmeet Kaur Vs. State (NCT of Delhi) & Anr-12/12/ 2019

SUPREME COURT OF INDIA JUDGMENTS

It was evident from the conduct of the parties that they had abandoned their domicile of origin i.e. India, had set up their matrimonial home in the U.S. and raised their daughter in that environment. When the Petitioner – wife decided not to return to the U.S. in January, 2016 she acted in her self-interest, and not in the best interest of her children. The High Court held that the children have the right to be brought up by both parents as a family in the U.S. It is in the best interest of the children that the Petitioner – wife returns to the U.S. The High Court issued directions to the Respondent – husband to ensure that once the Petitioner – wife returns to the U.S., she is not faced with any adversity or hostility by the Respondent – husband, or the American legal system.

SUPREME COURT OF INDIA

Jasmeet Kaur Vs. State (NCT of Delhi) & Anr.

Special Leave Petition (Crl.) No. 4858-4859/ 2018

Jasmeet Kaur Vs. Navtej Singh

Special Leave Petition (Civil) No. 20022/ 2019

ACTS: U/S. 9 and 7,9, 11, 25 of the Guardians and Wards Act, 1890 & S. 6 (a) of the Hindu Minority and Guardianship Act, 1956

Indu Malhotra, J.

1. The present Special Leave Petitions arise out of matrimonial disputes between the parties. SLP (Crl.) No. 4858-4859/ 2018 has been filed by the Petitioner – wife to challenge the Orders dated 06.03.2018 and 21.05.2018 passed by the High Court in a Habeas Corpus Petition (Crl) No. 725 of 2017 filed by the Respondent – husband, seeking issuance of a writ of habeas corpus for production of the children, who have been illegally abducted by the Petitioner – wife from his custody in the USA. SLP (C.) No. 20022/2019 arises out of a Guardianship Petition filed U/S. 9 of the Guardians and Wards Act, 1890 (“GWA”) by the Petitioner – wife praying for permanent and sole custody of the minor daughter – Ishnoor now aged about 7 years, and minor son – Paramvir aged about 2 years. Since both SLPs arise out of common facts, they are being disposed of by this common judgment.

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Difference between Child and Minor

 In The Child Marriage Restraint Act, 1929

“Child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

“Minor” means a person of either sex who is under eighteen years of age.

 

The Hindu Minority and Guardianship Act, 1956

(a) minor means a person who has not completed the age of eighteen years;


 

The Indian Majority Act, 1875

Age of majority of persons domiciled in India. – Subject as aforesaid, [every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the [Code of Civil Procedure], has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age] shall, notwithstanding anything contained in the [Indian Succession Act or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before.
Subject as aforesaid, every other person domiciled in [India] shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.


Section 375 (sixthly) of the Indian Penal Code to buttress the submission that holding the forcible sexual intercourse amounts to rape, when the same is with or without the woman’s consent when she is under 16 years of age.


Section 13 of the Prohibition of Child Marriage  Act 2006, which empower the Courts to issue injunctions prohibiting the solemnization of marriages in contravention of the said Act. Section 13(1) reads as follows:

13. Power of court to issue injunction prohibiting child marriages.–(1) Notwithstanding anything to the contrary contained in this Act, if, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organization or an association of persons prohibiting such marriage.


The Question of Muslim Candidates

Paras 441, 442 and 443 of the Halsbury’s Laws of England, the contents of which are extracted hereinabove, it becomes clear that the custom stands abrogated or destroyed, if it is running contrary to the statutory provisions, unless the custom is saved or preserved by a statute. The previously existing rights do not re-emerge, as they are superseded by the statute.

As the codified law prevails over all other laws, be they are ecclesiastical, personal or customary, the rights which the Muslim girls had under Muslim Personal Law (Shariat) Application Act, 1937 do not remain alive on the commencement of the P.C.M. Act

A Mohammedan girl cannot be permitted to marry before she attained the age of 18 years. “A Mohammedan girl of 15 years, who has attained puberty, is competent to marry without the consent of her parents” is not valid law of the Land after enforcement of Prohibition of Child Marriage Act, 2006 .


The Prohibition Of Child Marriage Act, 2006

Child means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

Whether a suit is instituted by an adult or a minor they stand on the same footing

Supreme Court in Kakumanu Peda Subbayya and Another Vs. Kakumanu Akkamma and Another, . Repelling the argument that an adult can bring about a division in status as he will be in a position to express his opinion clearly and unambiguously but a minor cannot express the same, the Supreme Court held that a suit filed by a next friend on behalf of minor would bring about a severance as effectively as it is done by a suit instituted by an adult plaintiff. The Supreme Court held as follows:Continue Reading