'Costs' under S. 35 B of the Code of Civil Procedure : Consequences of Failure to Pay

 

'Costs' under S. 35 B of the Code of Civil Procedure : Consequences of Failure to Pay

The Supreme Court in Manohar Singh vs D.S. Sharma & Anr. has examined the scope and ambit of S. 35B of the Code of Civil Procedure, 1908. While examining the nature of the provision, the court has considered whether non-payment of costs by a defaulting party could lead to dismissal of a suit? While negativing the aforesaid question, the Supreme Court has held as under;

4. The appellants contended that having regard to the provisions of section 35B of CPC, if costs levied on plaintiff are not paid, the court can only stop further prosecution of the suit by the plaintiff. It is submitted that section 35B does not confer power to dismiss the suit for non- payment of costs. Learned counsel for the second respondent, on the other hand, supported the judgment of the trial court, as affirmed by the High Court.

5. Section 35B of CPC deals with costs for causing delay. Relevant portion of the said section extracted below :

"35B. Costs for causing delay. - (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-- 

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of-- 

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs,

(b) the defence by the defendant, where the defendant was ordered to pay such costs.

xxxxxxx xxxxxxx"

Section 35B provides that if costs are levied on the plaintiff for causing delay, payment of such costs on the next hearing date, shall be a condition precedent to the further prosecution of the suit by the plaintiff. Similarly, if costs are levied on the defendant for causing delay, payment of such costs on the next date of hearing, shall be a condition precedent to the further prosecution of the defence of the suit by the defendant. This takes us to the meaning of the words "further prosecution of the suit" and "further prosecution of the defence". If the Legislature intended that the suit should be dismissed in the event of non-payment of costs by plaintiff, or that the defence should be struck off and suit should be decreed in the event of non-payment of costs by the defendant, the Legislature would have said so. On the other hand, Legislature stated in the rule that payment of costs on the next date shall be a condition precedent to the further prosecution of the suit by plaintiff (where the plaintiff was ordered to pay such costs), and a condition precedent to the further prosecution of the defence by the defendant (where the defendant was ordered to pay such costs). This would mean that if the costs levied were not paid by the party on whom it is levied, such defaulting party is prohibited from any further participation in the suit. In other words, he ceases to have any further right to participate in the suit and he will not be permitted to let in any further evidence or address arguments. The other party will of course be permitted to place his evidence and address arguments, and the court will then decide the matter in accordance with law. We therefore reject the contention of the respondents that section 35B contemplates or requires dismissal of the suit as an automatic consequence of non-payment of costs by plaintiff.

6. We may also refer to an incidental issue. When section 35B states that payment of such costs on the date next following the date of the order shall be a condition precedent for further prosecution, it clearly indicates that when the costs are levied, it should be paid on the next date of hearing and if it is not paid, the consequences mentioned therein shall follow. But the said provision will not come in the way of the court, in its discretion extending the time for such payment, in exercise of its general power to extend time under section 148 of CPC. Having regard to the scheme and object of section 35B, it is needless to say that such extension can be only in exceptional circumstances and by subjecting the defaulting party to further terms. No party can routinely be given extension of time for payment of costs, having regard to the fact that such costs under section 35B were itself levied for causing delay.

7. We may also refer to the provisions of Rule 1 of Order XVII of CPC which deals with grant of time and adjournments. The said provision is extracted below :

"1. Court may grant time and adjourn hearing.--(1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the suits.

(2) Costs of adjournment.--In every such case the Court shall fix a day for the further hearing of the suit, and shall make such orders as to costs occasioned by the adjournment of such higher costs as the Corut deems fit:

Provided that, --

(a) when the hearing of the suit has commenced, it shall be continued from day to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary,

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party, 

(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment,

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for a adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time, (e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.

(emphasis supplied)

It is evident from Rule 1(2) proviso (e) of Order 17 that where a witness is present in court but the other side is not ready to cross-examine the witness, the court can dispense with his cross-examination. But where a genuine and bona fide request is made for adjourment, instead of resorting to forfeiture of the right to cross-examine, the court may grant time by levying costs.

8. A conspectus of the above provisions clearly demonstrates that under the scheme of CPC, a suit cannot be dismissed for non-payment of costs. Non-payment of costs results in forfeiture of the right to further prosecute the suit or defence as the case may be. Award of costs, is an alternative available to the court, instead of dispensing with the cross-examination and closing the evidence of the witness. If the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party.

9. In this case, the plaintiff has harassed the defendants and its witness by seeking repeated adjournments. In view of it, plaintiff's right to cross-examine DW2 stands forfeited. However, as costs were levied, but were not paid, the court should have closed the evidence of DW2, permitted the defendants to produce any further evidence (without any right to plaintiff to cross-examine such witnesses) and then ought to have proceeded to dispose of the suit on merits by considering the material available and hearing the arguments of defendant. The court could not have dismissed the suit.

'Costs' under S. 35 B of the Code of Civil Procedure : Consequences of Failure to Pay

Full text @ http://www.indiankanoon.org/doc/1745264/

Indian courts can decide NRI couples' matrimonial and guardianship rows: SC

Indian courts can decide NRI couples' matrimonial and guardianship rows: SC

 

Source - http://www.indiankanoon.org/doc/637664/

                                             REPORTABLE

                  IN THE SUPREME COURT OF INDIA

                   CIVIL APPELLATE JURISDICITION

                CIVIL APPEAL NO. 4435         OF 2011
               (Arising out of SLP (C) No.9220 of 2010)


Ruchi Majoo                                  ...Appellant

Versus

Sanjeev Majoo                                ...Respondents

                                 With

               CRIMINAL APPEAL NO.        1184 OF 2011
              (Arising out of SLP (Crl.) No.10362 of 2010)


                           JUDGMENT



T.S. THAKUR, J.



   Leave granted.

   Conflict of laws and jurisdictions in the realm of private

international law is a phenomenon that has assumed greater

dimensions with the spread of Indian diasporas across the globe. A

large number of our young and enterprising countrymen are today
looking for opportunities abroad. While intellectual content and

technical skills of these youngster find them lucrative jobs in

distant lands, complete assimilation with the culture, the ways of

life and the social values prevalent in such countries do not come

easy. The result is that in very many cases incompatibility of

temperament apart, diversity of backgrounds and inability to

accept the changed lifestyle often lead to matrimonial discord that

inevitably forces one or the other party to seek redress within the

legal system of the country which they have adopted in pursuit of

their dreams. Experience has also shown that in a large number of

cases one of the parties may return to the country of his or her

origin for family support, shelter and stability. Unresolved disputes

in such situations lead to legal proceedings in the country of origin

as well as in the adoptive country. Once that happens issues

touching the jurisdiction of the courts examining the same as also

comity of nations are thrown up for adjudication.



   The present happens to be one such case where legal

proceedings have engaged the parties in a bitter battle for the
custody of their only child Kush, aged about 11 years born in

America hence a citizen of that country by birth. These proceedings

included an action filed by the father-respondent in this appeal,

before the American Court seeking divorce from the respondent-

wife and also custody of master Kush. An order passed by the

Superior court of California, County of Ventura in America

eventually led to the issue of a red corner notice based on

allegations of child abduction levelled against the mother who like

the father of the minor child is a person of Indian origin currently

living with her parents in Delhi. The mother took refuge under an

order dated 4th April, 2009 passed by the Addl. District Court at

Delhi in a petition filed under Sections 7, 8, 10, 11 of the Guardians

and Wards Act granting interim custody of the minor to her.

Aggrieved by the said order the father of the minor filed a petition

under Article 227 of the Constitution of India before the High Court

of Delhi.   By the order impugned in this appeal the High Court

allowed that petition, set aside the order passed by the District

Court and dismissed the custody case filed by the mother primarily

on the ground that the Court at Delhi had no jurisdiction to
entertain the same as the minor was not ordinarily residing at Delhi

- a condition precedent for the Delhi Court to exercise jurisdiction.

The High Court further held that all issues relating to the custody of

child ought to be agitated and decided by the Court in America not

only because that Court had already passed an order to that effect

in favour of the father, but also because all the three parties

namely, the parents of the minor and the minor himself were

American citizens. The High Court buttressed its decision on the

principle of comity of courts and certain observations made by this

Court in some of the decided cases to which we shall presently

refer.



    Three questions fall for determination in the above backdrop.

These are (i) Whether the High Court was justified in dismissing the

petition for custody of the minor on the ground that the court at

Delhi had no jurisdiction to entertain the same, (ii) Whether the

High Court was right in declining exercise of jurisdiction on the

principle of comity of Courts and (iii) Whether the order granting

interim custody to the mother of the minor calls for any
modification in terms of grant of visitation rights to the father

pending disposal of the petition by the trial court. We shall deal

with the questions ad seriatim:



Re: Question No.1



   There is no gainsaying that any challenge to the jurisdiction of

the court will have to be seen in the context of the averments

made in the pleadings of the parties and the requirement of Section

9 of the Guardian and Wards Act, 1890. A closer look at the

pleadings of the parties is, therefore, necessary before we advert to

the legal requirement that must be satisfied for the Court to

exercise its powers under the Act mentioned above.



   The appellant-mother had in her petition filed under the

Guardian and Wards Act, 1890 invoked the jurisdiction of the Court

at Delhi, on the assertion that the minor was, on the date of the

presentation of the petition for custody ordinarily residing at 73

Anand   Lok,   August   Kranti    Marg,   New   Delhi.   The   petition
enumerated at length the alleged acts of mental and physical

cruelty of the respondent- husband towards the appellant, including

his alleged addiction to pornographic films, internet sex and

adulterous behavior during the couple's stay in America. It traced

the sequence of events that brought them to India for a vacation

and the alleged misdemeanor of the respondent that led to the

appellant taking a decision to past company and to stay back in

India instead of returning to United States as originally planned. In

para (xxxviii) of the petition, the appellant said :



          "That the petitioner in no certain terms told the respondent
      that considering his past conduct which was cruel, inhuman and
      insulting as well as humiliating, the petitioner has no plans to be
      with the respondent and wanted to stay away from him. The
      petitioner even proposed that since there was no (sic) possibility
      for them to stay together as husband and wife and as a result of
      which the petitioner has decided to settle in India for the time
      being, therefore some interim arrangement could be worked out.
      The arrangement which was proposed by the petitioner was that
      the petitioner will stay with her son for the time being in India and
      make best arrangements for his schooling. The petitioner had
      also conveyed to the respondent that since he wanted to have
      visitation rights, therefore, he must also contribute towards the
      upbringing of the child in India. It was further suggested that
      some cooling off period should be there so that the matrimonial
      disputes could be sorted out subsequently."
   The appellant further alleged that she had informed the

respondent about a petition under the Guardian and Wards Act

being ready for presentation before the Guardian Court at Delhi,

whereupon the respondent is alleged to have agreed to the

appellant staying back in Delhi to explore career options and to the

minor continuing to stay with her.        The respondent eventually

returned to America around 20th July, 2008, whereafter he is

alleged to have started threatening the appellant that unless the

later returned to America with the minor, he would have the child

removed and put in the custody of the respondent's parents at

Udaipur.     Apprehending that the respondent may involve the

appellant in some false litigation in America and asserting that she

was fit to be given the custody of the minor being his mother and

natural guardian, the appellant sought the intervention of this

Court and her appointment as sole guardian of the minor.



   Shortly   after   the   presentation   of   the   main   petition,   an

application under Section 12 of the Guardian and Wards Act read

with Section 151 of the Civil Procedure Code was filed by the
appellant praying for an ex-parte interim order restraining the

respondent and/or any one on his behalf from taking away and/or

physically removing the minor from her custody and for an order

granting interim custody of the minor to the appellant till further

orders. The application set out the circumstances in brief that

compelled the appellant to seek urgent interim directions from the

court and referred to an e-mail received from the father of the

minor by the Delhi Public School (International) at R.K. Puram,

where the minor is studying, accusing the mother of abducting the

minor child and asking the school authorities to refuse admission to

him. The application also referred to an e-mail which the Principal

of the school had in turn sent to the appellant and the order which

the US Court had passed granting custody of minor child to the

respondent. The appellant alleged that the US Court had no

jurisdiction in the matter and that the order passed by that Court

was liable to be ignored. On the presentation of the above

application the Guardian Court passed an ex-parte interim order on

16th September, 2008 directing that the respondent shall not
interfere with the appellant's custody of the minor child till the next

date of hearing.



   The respondent entered appearance in the above proceedings

and filed an application for dismissal of the petition on the ground

that the court at Delhi had no jurisdiction to entertain the same. In

the application the respondent denied all the allegations and

averments suggesting habitual internet sex, womanizing, dowry

demand and sexual or behavioural perversity alleged against him.

The respondent also alleged that the family had planned a

vacation-cum-family visit to India and booked return air tickets to

be in America on 20th July, 2008. The respondent's version was that

the appellant along with the respondent and their minor son, Kush

had stayed with the parents of the appellant at Delhi till 5th July,

2008.   Thereafter, they were supposed to visit Udaipur but since

the appellant insisted that she would stay at Delhi and assured to

send Kush after sometime to Udaipur, the respondent left for

Udaipur where he received a legal notice on behalf of the appellant

making false and imaginary allegations. On receipt of the notice the
respondent returned to Delhi to sort out the matter.     During the

mediation the respondent was allegedly subjected to enormous

cruelty, pressure and threat of proceedings under Section 498A IPC

so as to obstruct his departure scheduled on 20th July, 2008. The

respondent alleged that since any delay in his departure could cost

him a comfortable job in United States, he felt coerced to put in

writing a tentative arrangement on the ground of appellant trying

"career option of Dental medicine at Delhi" and master Kush being

allowed to study at Delhi for the year 2008. This letter was,

according to the respondent, written under deceit, pressure, threat

and coercion. At any rate the letter constituted his consent to an

arrangement, which according to him stood withdrawn because of

his subsequent conduct. It was alleged that neither the appellant

nor Kush could be ordinarily resident of Delhi so as to confer

jurisdiction upon the Delhi Court.   Several other allegations were

also made in the application including the assertion that the interim

order of custody and summons issued by the Superior Court of

California, County of Ventura were served by e-mail on the

appellant as also on Advocate, Mr. Purbali Bora despite which the
appellant avoided personal service of the summon on the false

pretext that she did not stay at 73 Anand Lok, New Delhi.



   It was, according to the respondent, curious that instead of

returning to USA to submit to the jurisdiction of competent court at

the place where both the petitioner and respondent have a house

to reside, jobs to work and social roots and where Kush also

normally resided, has friends and school, the appellant wife had

persisted to stay in India and approach and seek legal redress. It

was further stated that the proceedings initiated by the appellant

on or about 28th August, 2008, with allegations and averments that

were ex-facie false and exaggerated, were not maintainable in view

of the proceedings before the Court in America and the order

passed therein. It was also alleged that in terms of the protective

custody warrant order issued on 9th September, 2008, by the

Superior Court of California, County of Ventura, the appellant had

been directed to appear before the US Courts which the appellant

was evading to obey and that despite having information about the
proceedings in the US Court she had obtained an ex-parte order

without informing the respondent in advance.



   The respondent also enumerated the circumstances which

according to him demonstrated that he is more suitable to get the

custody of Master Kush in comparison to the appellant-mother of

the child.       The respondent husband accordingly prayed for

dismissal of the petition filed by the appellant-wife and vacation of

the ad-interim order dated 4th April, 2009 passed by the Guardian

Court at Delhi.



   The Guardian and Wards Court upon consideration of the

matter dismissed the application filed by the respondent holding

that     the   material   on   record   sufficiently   showed   that   the

respondent-husband had consented to the arrangement whereby

the appellant-wife was to continue living in Delhi in order to explore

career options in dental medicine and that the minor was to remain

in the custody of his mother and was to be admitted to a School in

Delhi.     The Court further held that since there were serious
allegations regarding the conduct of the respondent-husband and

his habits, the question whether the interest of minor would be

served better by his mother as a guardian had to be looked into. It

is in the light of the above averments that the question whether

the Courts at Delhi have the jurisdiction to entertain a petition for

custody of the minor shall have to be answered.



   Section 9 of the Guardian and Wards Act, 1890 makes a specific

provision as regards the jurisdiction of the Court to entertain a

claim for grant of custody of a minor.          While sub- Section (1) of

Section 9 identifies the court competent to pass an order for the

custody of the persons of the minor, sub-sections (2) & (3) thereof

deal with courts that can be approached for guardianship of the

property owned by the minor. Section 9(1) alone is, therefore,

relevant for our purpose. It says :



    "9. Court having jurisdiction to entertain application ­ (1)
    If the application is with respect to the guardianship of the
    person of the minor, it shall be made to the District Court having
    Jurisdiction in the place where the minor ordinarily resides."
    It is evident from a bare reading of the above that the solitary

test for determining the jurisdiction of the court under Section 9 of

the Act is the `ordinary residence' of the minor. The expression

used is "Where the minor ordinarily resides". Now whether the

minor is ordinarily residing at a given place is primarily a question

of intention which in turn is a question of fact. It may at best be a

mixed question of law and fact, but unless the jurisdictional facts

are admitted it can never be a pure question of law, capable of

being answered without an enquiry into the factual aspects of the

controversy.     The factual aspects relevant to the question of

jurisdiction are not admitted in the instant case. There are serious

disputes on those aspects to which we shall presently refer.           We

may before doing so examine the true purpose of the expression

`ordinarily   resident'   appearing   in   Section   9(1)   (supra).   This

expression has been used in different contexts and statutes and

has often come up for interpretation. Since liberal interpretation is

the first and the foremost rule of interpretation it would be useful

to understand the literal meaning of the two words that comprise
the expression. The word `ordinary' has been defined by the Black's

Law Dictionary as follows:



    "Ordinary (Adj.) :Regular; usual; normal; common; often
    recurring; according to established order; settled; customary;
    reasonable; not characterized by peculiar or unusual circumstances;
    belonging to, exercised by, or characteristic of, the normal or
    average individual."




    The word `reside' has been explained similarly as under:



    "Reside: live, dwell, abide, sojourn, stay, remain, lodge. (Western-
    Knapp Engineering Co. V. Gillbank, C.C.A. Cal., 129 F2d 135, 136.)
    To settle oneself or a thing in a place, to be stationed, to remain or
    stay, to dwell permanently or continuously, to have a settled abode
    for a time, to have one's residence or domicile; specifically, to be in
    residence, to have an abiding place, to be present as an element, to
    inhere as quality, to be vested as a right. (State ex rel. Bowden v.
    Jensen Mo., 359 S.W.2d 343, 349.)"
    In Websters dictionary also the word `reside' finds a similar

    meaning, which may be gainfully extracted:




    "1. To dwell for a considerable time; to make one's home; live. 2. To
    exist as an attribute or quality with in. 3. To be vested: with in"
   In Mrs. Annie Besant v. Narayaniah AIR 1914 PC 41 the

infants had been residing in the district of Chingleput in the Madras

Presidency. They were given in custody of Mrs. Annie Besant for

the purpose of education and were getting their education in

England at the University of Oxford. A case was, however, filed in

the district Court of Chingleput for the custody where according to

the plaintiff the minors had permanently resided. Repeating the

plea that the Chingleput Court was competent to entertain the

application their Lordships of the Privy Council observed:



    "The district court in which the suit was instituted had no jurisdiction
    over the infants except such jurisdiction as was conferred by the
    Guardians and Wards Act 1890. By the ninth Section of that Act the
    jurisdiction of the court is confined to infants ordinarily residing in the
    district.


    It is in their Lordship's opinion impossible to hold that the infants who
    had months previously left India with a view to being educated in
    England and going to University had acquired their ordinary residence
    in the district of Chingleput."




   In Mst. Jagir Kaur and Anr. v. Jaswant Singh AIR 1963 SC

1521, this Court was dealing with a case under Section 488 Cr.P.C.
and the question of jurisdiction of the Court to entertain a petition

for maintenance. The Court noticed a near unanimity of opinion as

to what is meant by the use of the word "resides" appearing in the

provision and held that "resides" implied something more than a

flying visit to, or casual stay at a particular place. The legal position

was summed up in the following words:



".......Having regard to the object sought to be achieved, the meaning implicit
in the words used, and the construction placed by decided cases there on, we
would define the word "resides" thus: a person resides in a place if he through
choice makes it his abode permanently or even temporarily; whether a person
has chosen to make a particular place his abode depends upon the facts of
each case....."




    In Kuldip Nayar & Ors. v. Union of India & Ors. 2006 (7)

SCC 1, the expression "ordinary residence" as used in the

Representation of People Act, 1950 fell for interpretation. This

Court observed:


"243. Lexicon refers to Cicutti v. Suffolk County Council (1980) 3 All ER 689
to denote that the word "ordinarily" is primarily directed not to duration but to
purpose. In this sense the question is not so much where the person is to be
found "ordinarily", in the sense of usually or habitually and with some degree
of continuity, but whether the quality of residence is "ordinary" and general,
rather than merely for some special or limited purpose.
244. The words "ordinarily" and "resident" have been used together in other
statutory provisions as well and as per Law Lexicon they have been construed
as not to require that the person should be one who is always resident or
carries on business in the particular place.
245. The expression coined by joining the two words has to be interpreted
with reference to the point of time requisite for the purposes of the provision,
in the case of Section 20 of the RP Act, 1950 it being the date on which a
person seeks to be registered as an elector in a particular constituency.
246. Thus, residence is a concept that may also be transitory. Even when
qualified by the word "ordinarily" the word "resident" would not result in a
construction having the effect of a requirement of the person using a particular
place for dwelling always or on permanent uninterrupted basis. Thus
understood, even the requirement of a person being "ordinarily resident" at a
particular place is incapable of ensuring nexus between him and the place in
question."



    Reference may be made to Bhagyalakshmi and Anr. v. K.N.

Narayana Rao AIR 1983 Mad 9, Aparna Banerjee v. Tapan

Banerjee AIR 1986 P&H 113, Ram Sarup v. Chimman Lal and

Ors. AIR 1952 All 79, Smt. Vimla Devi v. Smt. Maya Devi &

Ors. AIR 1981 Raj. 211, and in re: Dr. Giovanni Marco Muzzu

and etc. etc. AIR 1983 Bom. 242, in which the High Courts have

dealt with the meaning and purport of the expressions like

`ordinary resident' and `ordinarily resides' and taken the view that

the question whether one is ordinarily residing at a given place

depends so much on the intention to make that place ones ordinary

abode.
   Let us now in the light of the above, look at the rival versions of

the parties before us, to determine whether the Court at Delhi has

the jurisdiction to entertain the proceedings for custody of master

Kush.     As seen earlier, the case of the appellant mother is that

Kush is ordinarily residing with her in Delhi.        In support of that

assertion she has among other circumstances placed reliance upon

the letter which the respondent, father of the minor child wrote to

the appellant on 19th July, 2008. The letter is to the following

effect:



   "Ruchi,

   As you wish to stay in India with Kush and try career option of Dental
   medicine at Delhi, I give my whole-hearted support and request you to
   put Kush in an Indo-American school or equivalent at Delhi this year.

   Please let me know the expenses involved for education of Kush and I
   would like to bear completely.

   Sd/- Sanjeev
   July 19, 2008"

   The appellant's case is that although the couple and their son

had initially planned to return to U.S.A. that decision was taken

with the mutual consent of the parties changed to allow the

appellant to stay back in India and to explore career options here.
Master Kush was also according to that decision of his parents, to

stay back and be admitted to a school in Delhi. The decision on

both counts, was free from any duress whatsoever, and had the

effect of shifting the "ordinary residence" of the appellant and her

son Kush from the place they were living in America to Delhi. Not

only this the respondent father of the minor, had upon his return to

America sent E-mails, reiterating the decision and offering his full

support to the appellant. This is according to the appellant clear

from the text of the E-mails exchanged between the parties and

which are self-explanatory as to the context in which they are sent.

   The respondent's case on the contrary is that he was coerced to

put in writing a tentative arrangement on the ground of appellant

trying career options in dental medicine at Delhi and minor Kush

allowed to stay at Delhi for the year 2008. This letter was,

according to the respondent, obtained under deceit, pressure,

threat and coercion. In his application challenging the jurisdiction of

the Delhi Court the respondent further stated that even if it be

assumed that the appellant and Kush had stayed back in India with

the permission of the respondent, the same stood withdrawn. To
the same effect was the stand taken by the respondent in his

petition under Article 227 filed before this Court.



   It is evident from the statement and the pleadings of the

parties that the question whether the decision to allow the

appellant and Kush to stay back in Delhi instead of returning to

America was a voluntary decision as claimed by the appellant or a

decision taken by the respondent under duress as alleged by him

was a seriously disputed question of facts, a satisfactory answer to

which could be given either by the District Court where the custody

case was filed or by the High Court only after the parties had been

given opportunity to adduce evidence in support of their respective

versions.



   In the light of the above, we asked Mr. Pallav Shishodia,

learned senior counsel for the respondent whether the respondent

would adduce evidence to substantiate his charge of duress and

coercion as vitiating circumstances for the Court to exclude the

letter in question from consideration.      Mr. Shishodia argued on
instructions that the respondent had no intention of leading any

evidence in support of his case that the letter was obtained under

duress. In fairness to him we must mention that he beseeched us

to decide the question regarding jurisdiction of the Court on the

available material without remanding the matter to the Trial Court

for recording of evidence from either party. Mr. Shishodia also give

us an impression as though any remand on the question of duress

and coercion would be futile because the respondent father was not

willing to go beyond what he has already done in pursuit of his

claim to the custody of the minor. In that view of the matter,

therefore, we are not remanding the case for recording of evidence

as we were at one stage of hearing thought of doing.        We are

instead taking a final view on the question of jurisdiction of the

Delhi Court, to entertain the application on the basis of the

available material. This material comprises the letter dated 19th

July, 2008 written by the respondent and referred to by us earlier

and the e-mails exchanged between the parties. That the letter in

question was written by the respondent is not in dispute. What is

argued is that the letter was written under duress and coercion.
There is nothing before us to substantiate that allegation, and in

the face of Mr. Shishodia's categoric statement that the respondent

does not wish to adduce any evidence to prove his charge of

coercion and duress, we have no option except to hold that the said

charge remains unproved.



   More importantly the E-mails exchanged between the parties,

copies whereof have been placed on record, completely disprove

the respondent's case of any coercion or duress. The first of these

E-mails is dated the 17th July, 2008 sent by the respondent to his

friend in America, pointing out that the appellant was staying back

in India with the minor for the present. The text of the E-mail is as

under:



   "Hi Joanne,

   Hope all is well.

   I got your voicemail, actually we recently changed our service provider
   for home phone, please see below our updated contact information.

   Home-9187071716
   Sanjay mobile ­ 8054100872, this works in India
   Ruchi's mobile remains the same, however it will not work since we are
   currently in India. I will be back in LA on Jul 2-, however Ruchi wants to
   stay in Delhi alongwith Kush for now.
   Regards,
Sanjeev"




    On 21st July, 2008 i.e. a day after the respondent reached

America the appellant sent him an e-mail which clearly indicates

that the minor was being admitted to a school in Delhi and by

which the respondent was asked to send American School's record

for that purpose. The e-mail is to the following effect.



    "Sanjeev

    Also please call up Red Oak elementary and inform them that Kush will
    be starting American schooling in India for now and request personal
    recommendation from Mrs. Merfield and Mrs. Johnson, they know Kush
    v well..Also we need 2 yrs of official school records (one from sumac
    and other from red oak) Please send $$ asap. I will find if they have a
    direct deposit at school, to make it easy on u..thanks

Ruchi"




    In response to the above, the respondent sent an E-mail which

does not in the least, give an impression that the decision to allow

master Kush to stay back in Delhi and to get admitted to a School
here was taken under any kind of duress or coercion as is now

claimed. The E-mail is to the following effect:


    `Hi Ruchi,

    I checked out website for both American and British schools, the fees
    for these schools is extremely high between $ 20000 - $ 25000 per
    annum, this will deduct from Kush's college fund which I have worked
    hard to create. Also realize that if we take out $ 25,000 from his
    college fund now, we loose the effect of compounding when he needs
    $ for college 11 years from now. $ 25000 now will be worth $ 60000-
    70000 11 yrs from now. I really and honestly feel that we should not
    deplete Kush's college fund so much at grade 2m rather leave most of
    it for higher education. Also I see a benefit for him to get into a
    logical high equality English medium school, he can learn a bit of
    Hindi. I would be happy to talk to Kush and make sure he is
    comfortable. Let me know your thoughts."




   Equally important is another E-mail which the respondent sent

to the appellant regarding surrender of the appellant's car and

payment of the outstanding lease money, a circumstance that

shows that the parties were ad-idem on the question of the

appellant winding up her affairs in America.


        "Hi Ruchi,

        I checked with Acura regarding breaking your lease, they said that
        you can surrender the car to them for repossession and then they
        will try to sell it in private action. You will then need to pay the
        difference between money raised from private auction and pay off
        amount. Also this repossession will damage your credit history.
        Let me know your thoughts.
        Hope you are feeling better.

        Sanjeev"

   Two more E-mails one dated 24.7.2008 and the other dated

19.8.2008 exchanged between the parties on the above subject

also bear relevance to the issue at hand and may be extracted:


     "Hi Ruchi,

     I did more digging for you on this.
     See below information from a broker who may be able to help
     transfer the lease to another buyer in exchange for the fees
     mentioned. Let me know how you want to proceed.

     Sanjeev"


     "Hi Sanjeev

     Please proceed with the plan, sell my acura with least damages...this
     seems like a better option.
     Thanks,

     Ruchi"




   It is difficult to appreciate how the respondent could in the light

of the above communications still argue that the decision to allow

the appellant and master Kush to stay back in India was taken

under any coercion or duress. It is also difficult to appreciate how
the respondent could change his mind so soon after the above E-

mails and rush to a Court in U.S. for custody of the minor accusing

the appellant of illegal abduction, a charge which is belied by his

letter dated 19th July, 2008 and the E-mails extracted above. The

fact remains that Kush was ordinarily residing with the appellant

his mother and has been admitted to a school, where he has been

studying for the past nearly three years. The unilateral reversal of

a decision by one of the two parents could not change the fact

situation as to the minor being an ordinary resident of Delhi, when

the decision was taken jointly by both the parents.



   In the light of what we have stated above, the High Court was

not, in our opinion, right in holding that the respondent's version

regarding the letter in question having been obtained under threat

and coercion was acceptable. The High Court appeared to be of the

view that if the letter had not been written under duress and

coercion there was no reason for the respondent to move a

guardianship petition before U.S. Court.   That reasoning has not

appealed to us. The question whether or not the letter was
obtained under duress and coercion could not be decided only on

the basis of the institution of proceedings by the respondent in the

U.S. Court. If the letter was under duress and coercion, there was

no reason why the respondent should not have repudiated the

same no sooner he landed in America and the alleged duress and

coercion had ceased. Far from doing so the respondent continued

to support that decision even when he was far away from any

duress and coercion alleged by him till the time he suddenly

changed his mind and started accusing the appellant of abduction.

The High Court failed to notice these aspects and fell in error in

accepting the version of the respondent and dismissing the

application filed by the appellant. In the circumstances we answer

question no.1 in the negative.



Re: Question No.2



Recognition of decrees and orders passed by foreign courts remains

an eternal dilemma in as much as whenever called upon to do so,

Courts in this country are bound to determine the validity of such
decrees and orders keeping in view the provisions of Section 13 of

the Code of Criminal Procedure 1908 as amended by the

Amendment Act of 1999 and 2002. The duty of a Court exercising

its Parens Patraie jurisdiction as in cases involving custody of minor

children is all the more onerous. Welfare of the minor in such cases

being the paramount consideration; the court has to approach the

issue regarding the validity and enforcement of a foreign decree or

order carefully. Simply because a foreign court has taken a

particular view on any aspect concerning the welfare of the minor is

not enough for the courts in this country to shut out an

independent consideration of the matter. Objectivity and not abject

surrender is the mantra in such cases. That does not, however,

mean that the order passed by a foreign court is not even a factor

to be kept in view.    But it is one thing to consider the foreign

judgment to be conclusive and another to treat it as a factor or

consideration that would go into the making of a final decision.

Judicial pronouncements on the subject are not on virgin ground. A

long line of decisions of the court has settled the approach to be

adopted in such matters. The plentitude of pronouncements also
leaves cleavage in the opinions on certain aspects that need to be

settled authoritatively in an appropriate case.



   A survey of law on the subject would, in that view, be

necessary and can start with a reference to the decision of this

Court in Smt. Satya V. Shri Teja Singh, (1975) 1 SCC 120. That

was a case in which the validity of a decree for divorce obtained by

the husband from a Court in the State of Naveda (USA) fell for

examination. This Court held that the answer to the question

depended upon the Rules of private International Law. Since no

system of Private International Law existed that could claim

universal recognition, the Indian Courts had to decide the issue

regarding the validity of the decree in accordance with the Indian

law. Rules of Private International Law followed by other countries

could not be adopted mechanically, especially when principles

underlying such rules varied greatly and were moulded by the

distinctive social, political and economic conditions obtaining in

different countries. This Court also traced the development of law

in America and England and concluded that while British Parliament
had found a solution to the vexed questions of recognition of

decrees granted by foreign courts by enacting "The recognition of

Divorces and Legal Separations Act, 1971" our Parliament had yet

to do so.   In the facts and circumstances of that case the Court

held that the husband was not domiciled in Naveda and that his

brief stay in that State did not confer any jurisdiction upon the

Naveda Court to grant a decree dissolving the marriage, he being

no more than a bird of passage who had resorted to the

proceedings there solely to find jurisdiction and obtain a decree for

divorce by misrepresenting the facts as regards his domicile in that

State. This Court while refusing to recognize the decree observed:



      "True that the concept of domicile is not uniform throughout the
    world and just as long residence does not by itself establish domicile,
    a brief residence may not negative it. But residence for a particular
    purpose falls to answer the qualitative test for, the purpose being
    accomplished the residence would cease. The residence must answer
    "a qualitative as well as a quantitative test", that is, the two elements
    of factum et animus must concur. The respondent went to Naveda
    forum-hunting, found a convenient jurisdiction which would easily
    purvey a divorce to him and left it even before the ink on his
    domiciliary assertion was dry. Thus the decree of the Naveda Court
    lacks jurisdiction. It can receive no recognition in our courts."


                                    (emphasis ours)
   In Dhanwanti Joshi v. Madhav Unde 1998(1) SCC 112, one

of the questions that fell for consideration was whether the bringing

away of a child to India by his mother contrary to an order of US

Court would have any bearing on the decision of the Courts in India

while deciding about the custody and the welfare of the child.

Relying upon McKee v. KcKee, 1951 AC 352: 1951(1) All ER 942

and J v. C 1970 AC 668:1969(1) All ER 788, this Court held that it

was the duty of the Courts in the country to which a child is

removed to consider the question of custody, having regard to the

welfare of the child. In doing so, the order passed by the foreign

court would yield to the welfare of the child and that Comity of

Courts simply demanded consideration of any such order issued by

foreign courts and not necessarily their enforcement. This court

further held that the conduct of a summary or elaborate inquiry on

the question of custody by the Court in the country to which the

child   has   been   removed   will   depend   upon   the   facts   and

circumstance of each case.     For instance summary jurisdiction is

exercised only if the court to which the child had been removed is
moved promptly and quickly, for in that event, the Judge may well

be persuaded to hold that it would be better for the child that the

merits of the case are investigated in a court in his native country,

on the expectation that an early decision in the native country

would be in the interests of the child before the child could develop

roots in the country to which he had been removed. So also the

conduct of an elaborate inquiry may depend upon the time that had

elapsed between the removal of the child and the institution of the

proceedings for custody.     This would mean that longer the time

gap, the lesser the inclination of the Court to go for a summary

inquiry. The court rejected the prayer for returning the child to the

country from where he had been removed and observed:




     "31. The facts of the case are that when the respondent moved the
     courts in India and in the proceedings of 1986 for habeas corpus and
     under Guardians and Wards Act, the courts in India thought it best in
     the interests of the child to allow it to continue with the mother in
     India, and those orders have also become final. The Indian courts in
     1993 or 1997, when the child had lived with his mother for nearly 12
     years, or more, would not exercise a summary jurisdiction to return
     the child to USA on the ground that its removal from USA in 1984 was
     contrary to orders of US courts."
   We must at this stage refer to two other decisions of this Court,

reliance upon which was placed by the learned counsel for the

parties. In Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14 this

Court was dealing with an appeal arising out of a habeas corpus

petition filed before the High Court of Delhi in respect of two minor

children aged 3 years and 7 years respectively. It was alleged that

the children were in illegal custody of Sarita Sharma their mother.

The High Court had allowed the petition and directed the mother to

restore the custody of the children to Sushil Sharma who was in

turn permitted to take the children to U.S.A. without any

hindrance. One of the contentions that was urged before this Court

was that the removal of children from U.S.A. to India was against

the orders passed by the American Court, which orders had

granted to the father the custody of the minor children. Allowing

the appeal and setting aside the judgment of the High Court, this

Court held that the order passed by the U.S. courts constituted but

one of the factors which could not override the consideration of

welfare of the minor children. Considering the fact that the

husband was staying with his mother aged about 80 years and that
there was no one else in the family to lookafter the children, this

Court held that it was not in the interest of the children to be put in

the custody of the father who was addicted to excessive alcohol.

Even this case arose out of a writ petition and not a petition under

the Guardians and Wards Act.



   In V. Ravi Chandran (Dr.) (2) v. Union of India and Ors.

(2010) 1 SCC 174 also this Court was dealing with a habeas corpus

petition filed directly before it under Article 32 of the Constitution.

This Court held that while dealing with a case of custody of children

removed by a parent from one country to another in contravention

of the orders of the court where the parties had set up their

matrimonial home, the court in the country to which the child has

been removed must first consider whether the court could conduct

an elaborate enquiry on the question of custody or deal with the

matter summarily and order the parent to return the custody of the

child to the country from which he/she was removed, leaving all

aspects relating to child's welfare to be investigated by Court in his

own country. This Court held that in case an elaborate enquiry was
considered appropriate, the order passed by a foreign court may be

given due weight depending upon the circumstances of each case

in which such an order had been passed. Having said so, this Court

directed the child to be sent back to U.S. and issued incidental

directions in that regard.



   In Shilpa Aggarwal (Ms.) v. Aviral Mittal & Anr. (2010) 1

SCC 591 this Court followed the same line of reasoning. That was

also a case arising out of a habeas corpus petition before the High

Court of Delhi filed by the father of the child. The High Court had

directed the return of the child to England to join the proceedings

before the courts of England and Wales failing which the child had

to be handed over to the petitioner-father to be taken to England

as a measure of interim custody leaving it for the court in that

country to determine which parent would be best suited to have

the custody of the child. That direction was upheld by this Court

with the observation that since the question as to what is in the

interest of the minor had to be considered by the court in U.K. in

terms of the order passed by the High Court directing return of the
child to the jurisdiction of the said court did not call for any

interference.



   We do not propose to burden this judgment by referring to a

long line of other decisions which have been delivered on the

subject, for they do not in our opinion state the law differently from

what has been stated in the decisions already referred to by us.

What, however, needs to be stated for the sake of a clear

understanding of the legal position is that the cases to which we

have drawn attention, as indeed any other case raising the

question of jurisdiction of the court to determine mutual rights and

obligation of the parties, including the question whether a court

otherwise competent to entertain the proceedings concerning the

custody of the minor, ought to hold a summary or a detailed

enquiry into the matter and whether it ought to decline jurisdiction

on the principle of comity of nations or the test of the closest

contact evolved by this Court in Smt. Surinder Kaur Sandhu v.

Harbax Singh Sandhu and Anr. (1984) 3 SCC 698 have arisen

either out of writ proceedings filed by the aggrieved party in the
High Court or this Court or out of proceedings under the Guardian

& Wards Act. Decisions rendered by this Court in Mrs. Elizabeth

Dinshaw v. Arvand M. Dinshaw and Anr. (1987) 1 SCC 42,

Sarita Sharma's case (supra), V. Ravi Chandran's case (supra),

Shilpa Aggarwal's case (supra) arose out of proceedings in the

nature of habeas corpus.          The rest had their origin in custody

proceedings    launched     under       the   Guardian    &   Wards       Act.

Proceedings in the nature of Habeas Corpus are summary in

nature, where the legality of the detention of the alleged detenue is

examined on the basis of affidavits placed by the parties. Even so,

nothing prevents the High Court from embarking upon a detailed

enquiry in cases where the welfare of a minor is in question, which

is the paramount consideration for the Court while exercising its

parens patriae jurisdiction. A High Court may, therefore, invoke its

extra   ordinary   jurisdiction    to   determine   the   validity   of   the

detention, in cases that fall within its jurisdiction and may also

issue orders as to custody of the minor depending upon how the

court views the rival claims, if any, to such custody. The Court may

also direct repatriation of the minor child for the country from
where he/she may have been removed by a parent or other

person; as was directed by this Court in Ravi Chandran's &

Shilpa Agarwal's cases (supra) or refuse to do so as was the

position in Sarita Sharma's case (supra). What is important is

that so long as the alleged detenue is within the jurisdiction of the

High Court no question of its competence to pass appropriate

orders arises. The writ court's jurisdiction to make appropriate

orders regarding custody arises no sooner it is found that the

alleged detenue is within its territorial jurisdiction.



   In cases arising out of proceedings under the Guardian & Wards

Act, the jurisdiction of the Court is determined by whether the

minor ordinarily resides within the area on which the Court

exercises such jurisdiction.    There is thus a significant difference

between the jurisdictional facts relevant to the exercise of powers

by a writ court on the one hand and a court under the Guardian &

Wards Act on the other. Having said that we must make it clear

that no matter a Court is exercising powers under the Guardian &

Wards Act it can choose to hold a summary enquiry into the matter
and pass appropriate orders provided it is otherwise competent to

entertain a petition for custody of the minor under Section 9(1) of

the Act. This is clear from the decision of this Court in Dhanwanti

Joshi v. Madhav Unde (1998) 1 SCC 112, which arose out of

proceedings under the Guardian & Wards Act.                     The following

passage is in this regard apposite:




  "We may here state that this Court in Elizabeth Dinshaw v. Arvand M.
  Dinshaw (1987) 1 SCC 42 while dealing with a child removed by the
  father from USA contrary to the custody orders of the US Court directed
  that the child be sent back to USA to the mother not only because of
  the principle of comity but also because, on facts, -- which were
  independently considered -- it was in the interests of the child to be
  sent back to the native State. There the removal of the child by the
  father and the mother's application in India were within six months. In
  that context, this Court referred to H. (infants), Re (1966) 1 ALL ER
  886 which case, as pointed out by us above has been explained in L. Re
  (1974) 1 All ER 913, CA as a case where the Court thought it fit to
  exercise its summary jurisdiction in the interests of the child. Be that as
  it may, the general principles laid down in McKee v. McKee (1951) 1 All
  ER 942 and J v. C (1969) 1 All ER 788 and the distinction between
  summary and elaborate inquiries as stated in L. (infants), Re (1974) 1
  All ER 913, CA are today well settled in UK, Canada, Australia and the
  USA. The same principles apply in our country. Therefore nothing
  precludes the Indian courts from considering the question on merits,
  having regard to the delay from 1984 -- even assuming that the earlier
  orders passed in India do not operate as constructive res judicata."



   It does not require much persuasion for us to hold that the

issue whether the Court should hold a summary or a detailed
enquiry would arise only if the Court finds that it has the

jurisdiction to entertain the matter. If the answer to the question

touching jurisdiction is in the negative the logical result has to be

an order of dismissal of the proceedings or return of the application

for presentation before the Court competent to entertain the same.

A Court that has no jurisdiction to entertain a petition for custody

cannot pass any order or issue any direction for the return of the

child to the country from where he has been removed, no matter

such removal is found to be in violation of an order issued by a

Court in that country. The party aggrieved of such removal, may

seek any other remedy legally open to it. But no redress to such a

party will be permissible before the Court who finds that it has no

jurisdiction to entertain the proceedings.



   We have while dealing with question No.1 above held that the

Court at Delhi was in the facts and circumstances of the case

competent to entertain the application filed by the appellant. What

needs to be examined is whether the High Court was right in

relying upon the principle of comity of courts and dismissing the
application. Our answer is in the negative. The reasons are not far

to seek. The first and foremost of them being that `comity of

courts' principle ensures that foreign judgments and orders are

unconditionally conclusive of the matter in controversy. This is all

the more so where the courts in this country deal with matters

concerning the interest and welfare of minors including their

custody. Interest and welfare of the minor being paramount, a

competent court in this country is entitled and indeed duty bound

to examine the matter independently, taking the foreign judgment,

if any, only as an input for its final adjudication. Decisions of this

Court in Dhanwanti Joshi, and Sarita Sharma's cases, (supra)

clearly support that proposition.



   Secondly, the respondent's case that the minor was removed

from the jurisdiction of the American Courts in contravention of the

orders passed by them, is not factually correct.      Unlike V. Ravi

Chandran's case (supra), where the minor was removed in

violation of an order passed by the American Court there were no

proceedings between the parties in any Court in America before
they came to India with the minor. Such proceedings were

instituted by the respondent only after he had agreed to leave the

appellant and the minor behind in India, for the former to explore

career options and the latter to get admitted to a school.      The

charge of abduction contrary to a valid order granting custody is,

therefore, untenable.



   Thirdly, because the minor has been living in India and

pursuing his studies in a reputed school in Delhi for nearly three

years now. In the course of the hearing of the case, we had an

occasion to interact with the minor in our chambers. He appears to

be happy with his studies and school and does not evince any

interest in returning to his school in America. His concern was more

related to the abduction charge and consequent harassment being

faced by his mother and maternal grandparents. We shall advert

to this aspect a little later, but for the present we only need to

mention that the minor appears to be settled in his environment

including his school studies and friends. He also holds the

respondent responsible for the troubles which his mother is
undergoing and is quite critical about the respondent getting

married to another woman.



   Fourthly, because even the respondent does not grudge the

appellant getting custody of the minor, provided she returns to

America with the minor. Mr. Shishodia was asking to make a

solemn statement that the respondent would not, oppose the

appellant's prayer for the custody of the minor, before the

American Court. All that the respondent wants is that the minor is

brought up and educated in America, instead of India, as the minor

would benefit from the same.



   The appellant was not willing to accept that proposal, for

according to her she has no intentions of returning to that country

in the foreseeable future especially after she has had a very

traumatic period on account of matrimonial discord with the

respondent. Besides, the offer was according to the appellant, only

meant to score a point more than giving any real benefit to the

minor.
   In the light of all these circumstances, repatriation of the minor

to the United States, on the principle of `comity of courts' does not

appear to us to be an acceptable option worthy of being exercised

at this stage. Dismissal of the application for custody in disregard

of the attendant circumstances referred to above was not in our

view a proper exercise of discretion by the High Court. Interest of

the minor shall be better served if he continued in the custody of

his mother the appellant in this appeal, especially when the

respondent has contracted a second marriage and did not appear

to be keen for having actual custody of the minor. Question No.2 is

also for the above reasons answered in the negative.



Re. Question No.3



The order of the Delhi Court granting interim custody of the minor

to the appellant did not make any provision for visitation rights of

the respondent father of the child. In the ordinary course the court

ought to have done so not only because even an interim order of
custody in favour of the parent should not insulate the minor from

the parental touch and influence of the other parent which is so

very important for the healthy growth of the minor and the

development of his personality.    It is noteworthy that even the

respondent did not claim such rights in his application or in the

proceedings before the High Court. Indeed Mr. Shishodia expressed

serious apprehensions about the safety of his client, if he were to

visit India in order to meet the child and associate with him. Some

of these apprehensions may not be entirely out of place but that

does not mean that the courts below could not grant redress

against the same.      One of these apprehensions is that the

respondent may be involved in a false case under Section 498A &

406 of the IPC or provisions like the Prohibition of Dowry Act 1961.

A case FIR No.97 dated 7.7.2009 has, in fact, been registered

against the respondent, which has been quashed by the High Court

by its order dated 22nd September, 2010 passed in Crl. M.C.

No.3329 of 2009. We have by our order of even date dismissed an

appeal against the said order, which must effectively give a quietus

to that controversy, and allay the apprehension of the respondent.
Not only that we are inclined to issue further directions to ensure

that the respondent does not have any legal or other impediment

in exercising his visitation rights.

The question then is what should the visitation rights be and how

should the same be exercised. But before we examine that aspect,

we may advert to the need for the visitation rights of the father to

be recognised in the peculiar circumstances of this case.              From

what we gathered in the course of an interactive session with the

minor,   we   concluded     that   the    minor   has   been   thoroughly

antagonized against the respondent father. He held him responsible

for his inability to travel to Malaysia, with his grandparents because

if he does so, both the mother and her parents will be arrested on

the charge of abduction of the minor. He also held the respondent

responsible for his grandparent's skin problems and other worries.

He wanted to stay only in India and wanted to be left alone by the

respondent.      He   was   reluctantly   agreeable     to   meeting    and

associating with the respondent provided the respondent has the

red corner notice withdrawn so that he and his grandparents can

travel abroad.
For a boy so young in years, these and other expressions

suggesting a deep rooted dislike for the father could arise only

because of a constant hammering of negative feeling in him against

his father. This approach and attitude on the part of the appellant

or her parents can hardly be appreciated. What the appellant ought

to appreciate is that feeding the minor with such dislike and despire

for his father does not serve his interest or his growth as a normal

child. It is important that the minor has his father's care and

guidance, at this formative and impressionable stage of his life. Nor

can the role of the father in his upbringing and grooming to face

the realities of life be undermined. It is in that view important for

the child's healthy growth that we grant to the father visitation

rights; that will enable the two to stay in touch and share moments

of joy, learning and happiness with each other.           Since the

respondent is living in another continent such contact cannot be for

obvious reasons as frequent as it may have been if they were in

the same city. But the forbidding distance that separates the two

would   get   reduced   thanks   to   the   modern   technology    in
telecommunications. The appellant has been according to the

respondent    persistently    preventing    even   telephonic    contact

between the father and the son.         May be the son has been so

poisoned against him that he does not evince any interest in the

father. Be that as it may telephonic contact shall not be prevented

by   the   appellant   for   any   reason   whatsoever   and    shall   be

encouraged at all reasonable time. Video conferencing may also be

possible between the two which too shall not only be permitted but

encouraged by the appellant.



Besides, the father shall be free to visit the minor in India at any

time of the year and meet him for two hours on a daily basis,

unhindered by any impediment from the mother or her parents or

anyone else for that matter. The place where the meeting can take

place shall be indicated by the trial Court after verifying the

convenience of both the parties in this regard. The trial Court shall

pass necessary orders in this regard without delay and without

permitting any dilatory tactics in the matter.
For the vacations in summer, spring and winter the respondent

shall be allowed to take the minor with him for night stay for a

period of one week initially and for longer periods in later years,

subject to the respondent getting the itinerary in this regard

approved from the Guardian & Wards Court. The respondent shall

also be free to take the minor out of Delhi subject to the same

condition. The respondent shall for that purpose be given the

temporary custody of the minor in presence of the trial court, on

any working day on the application of the respondent. Return of

the minor to the appellant shall also be accordingly before the trial

court on a date to be fixed by the court for that purpose. The above

directions are subject to the condition that the respondent does not

remove the child from the jurisdiction of this Court pending final

disposal of the application for grant of custody by the Guardian and

Wards Court, Delhi.     We make it clear that within the broad

parameters of the directions regarding visitation rights of the

respondent, the parties shall be free to seek further directions from

the Court seized of the guardianship proceedings; to take care of
any difficulties that may arise in the actual implementation of this

order.



CRIMINAL APPEAL NO. 1184          OF 2011
(Arising out of SLP (Crl.) No.10362 of 2010)


In this appeal the appellant has challenged the correctness of an

order dated 22nd September, 2010 passed by the High Court of

Delhi, quashing FIR No.97 of 2009 registered against respondent-

husband and three others in Police Station, Crime against Women

Cell, Nanakpura, New Delhi, for offences punishable under Sections

498A, 406 read with Section 34 IPC. The High Court has

recapitulated the relevant facts and found that the appellant-

complainant is a citizen of USA and had all along lived in USA with

her son and husband, away from her in laws. The High Court has,

on the basis of the statement made by the appellant in California

Court, further found that the alleged scene of occurrence was in

USA and that her in-laws had no say in the matrimonial life of the

couple. The appellant had further stated that all her jewelry was

lying in the couple's house in USA and no part of it was with her in-
laws as was subsequently stated to be the position in the FIR

lodged by the appellant.     No locker number of the bank was

disclosed in the FIR nor any date of the opening of locker or the

jewelry items lying in it. The particulars of the bank in which the

alleged locker was taken by him were also not given in the FIR.

The High Court further held that the appellant had not lodged any

report although the appellant's parents in-laws were alleged to

have stated that the jewelry items were not commensurate with

the status of their family as early as in the year 1996. The High

Court in that view held that no offence under Section 498A and 406

IPC, was made out against her in-laws on the basis of the

allegations made by the appellant in the FIR.



Having heard learned counsel for the parties we are of the opinion

that in the light of the findings recorded by the High Court the

correctness whereof were not disputed before us, the High Court

was justified in quashing the FIR filed by the appellant. In fairness

to the learned counsel, we must mention that although a feeble

attempt was made during the course of hearing to assail the order
passed by the High Court, that pursuit was soon given up by him.

In that view of the matter we see no reason to interfere with the

orders passed by the High Court in Crl. M.C. No.3329 of 2009.



In the result



(i) Civil Appeal is allowed and order dated 8th March, 2010 passed

by the High Court hereby set aside. Consequently, proceedings in

G.P. No.361/2001 filed by the appellant shall go on and be

disposed of on the merits as expeditiously as possible.



(ii) Order granting interim custody of minor Kush with appellant is

resultantly affirmed subject to the grant of visitation right to the

father as indicated in body of the order.



(iii) The observations made in this order shall not prejudice the

cases of the parties before the trial Court and shall be understood

to have been made only for purposes of this appeal except in so far
as the question of jurisdiction of the trial Court is concerned which

aspect shall be taken to have been finally decided by this Court.



(iv)All authorities statutory or otherwise shall act in aid of the

directions given hereinabove.



(v) Criminal Appeal No. 1184 of 2011, (Arising out of SLP (Crl.)

No.10362 of 2010) is dismissed.



(vi)The parties are left to bear their own costs in this Court and the

Courts below.




                                        ...................................J.
                                   (V.S. SIRPURKAR)




                                   ...................................J.
                                   (T.S. THAKUR)
New Delhi
May 13, 2011 

http://www.indiankanoon.org/doc/637664/ 

 =========================================================================

ITEM No. 1A                       Court No. 8                SECTION XIV/II
(For Judgment) 

S U P R E M E         C O U R T   O F   I N D I A
                                RECORD OF PROCEEDINGS

 CIVIL APPEAL NO. 4435 OF 2011 @ SLP(C) No. 9220 of 2010



 RUCHI MAJOO                                      Appellant (s)

                                    VERSUS

 SANJEEV MAJOO                                    Respondent (s)

 with Crl. A. No. 1184/2011 @ SLP(Crl.) No. 10362 of 2010



Date :   13/05/2011       These    Petitions were called on for judgment
today.


  For Appellant (s) Ms. Anitha Shenoy, Adv.

  For Respondent(s)         Mr. Mukul Kumar, Adv.


          Hon'ble     Mr.    Justice   T.    S.   Thakur     pronounced      the
  Judgment     of   the   Bench   comprising      Hon'ble   Mr.    Justice   V.S.
  Sirpurkar and His Lordship



  Civil Appeal No. 4435 of 2011
  (arising out of SLP(C) No. 9220 of 2010:
     Leave granted.
     The appeal       is allowed in terms of signed judgment.
                       : 2 :

Criminal Appeal No. 1184 of 2011
(arising out of SLP (Crl.) No. 10362 of 2010)

      Leave granted.

      The     appeal   is   dismissed    in   terms   of    signed
  judgment.



      (Pardeep Kumar)               (Shashi Bala Vij)
       Court Master                 Assistant Registrar
        Signed Reportable judgment is placed on the file.

http://courtnic.nic.in/supremecourt/temp/dc%20922010p.txt

***************************************

Media report

16 may 2011

New Delhi Indian courts have jurisdiction to deal with custodial disputes of minor children even if a foreign court has passed an order in favour of either of the parents, the Supreme Court has ruled in a matrimonial dispute of an NRI family.

A bench of justices V S Sirpurkar and T S Thakur said in a judgement said that simply because a foreign court has passed an order, Indian courts cannot "abjectly surrender" to it and shirk its duty of deciding the dispute.

"Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity, and not abject surrender, is the mantra in such cases," Justice Thakur, writing the judgement, said.

The apex court passed the judgement while upholding an appeal filed by Ruchi Majoo challenging a Delhi High Court judgement that Indian courts have no jurisdiction under the doctrine of "comity of courts" to entertain any petition if a decree or order has already been passed by any foreign court.

A superior court in California had issued a red corner notice against Ruchi in a suit filed by her estranged US-based husband Sanjeev Majoo who had alleged his wife had fled with their minor son to India despite a decree by the US court granting him custody of the child.

The couple were living with the kid in the US before she returned to India in 2008. A Delhi court had on Ruchi's application granted her custody of the child under the Guardians and Wards Act.

The Delhi High Court had, however, struck down the trial court's order and asked the couple to submit themselves to the Californian court as all the three possessed US citizenship.

Aggrieved, the wife appealed through her counsel Ashish Bhan in the apex court where she accused her husband of being involved in pornography and adulterous relationship. The husband, while denying the allegations, maintained that Indian courts had no jurisdiction since a decree had already been passed by the Californian court.

Rejecting the husband's arguments, the apex court said "recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of Criminal Procedure 1908 as amended by the Amendment Act of 1999 and 2002.

"The duty of a court exercising its Parens Patraie (legal guardian) jurisdiction as in cases involving custody of minor children is all the more onerous. Welfare of the minor in such cases being the paramount consideration, the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully.

The bench hastened to add that it does not, however, mean that the order passed by a foreign court need not be considered by Indian courts.

"But it is one thing to consider the foreign judgement to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision.

"We must make it clear that no matter a court is exercising powers under the Guardian & Wards Act, it can choose to hold a summary inquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under Section 9(1) of the Act.

The apex court reiterated that in matters dealing with custodial rights, the interest of the minor should be paramount.

The bench said the interest of the minor shall be better served if he continued in the custody of his mother, especially when the father has contracted a second marriage and did not appear to be keen for having actual custody of the minor.

The apex court, however, minced no words in expressing displeasure at the conduct of the wife and her parents in poisoning the mind of the kid against their father.

"For a boy so young in years, these and other expressions suggesting a deep-rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant or her parents can hardly be appreciated.

"What the appellant ought to appreciate is that feeding the minor with such dislike and despise for his father does not serve his interest or his growth as a normal child. It is important that the minor has his father¿s care and guidance, at this formative and impressionable stage of his life," the bench said.

The apex court said the father should be allowed to talk through telephone or video conference, "which too shall not only be permitted but encouraged by the appellant," Justice Thakur added.

http://www.expressindia.com/latest-news/Indian-courts-can-decide-NRI-couples%5C-matrimonial-rows-SC/791624/

SC convicts woman, paramour for killing husband

SC convicts woman, paramour for killing husband

NEW DELHI: Relying on the testimony of a child witness, the Supreme Court has re-imposed life imprisonment on a woman and her paramour for murdering her husband in Madhya Pradesh's Guna district.

A bench of justices P Sathasivam and BS Chauhan reversed the acquittal order of Madhya Pradesh High Court and restored the life imprisonment on the wife Bhaggo Bai and her paramour Ramesh for strangulating to death the husband Chatra on January 31, 1995.

The apex court, citing a number of its earlier rulings, said the testimony of 8-year-old Rannu Bai, the couple's daughter, can be relied upon on sufficient corroboration as children normally do not have any malice towards others, though courts should be cautious enough to ensure that they were not tutored.

http://timesofindia.indiatimes.com/india/SC-convicts-woman-paramour-for-killing-husband/articleshow/7737715.cms

FULL TEXT @

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1289 of 2005

State of M.P. ...Appellant Versus

Ramesh & Anr. ...Respondents J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred by the State of Madhya Pradesh against the judgment and order dated 31.3.2004 passed by the High Court of Madhya Pradesh at Jabalpur (Gwalior Bench) in Criminal Appeal No. 262 of 1997, reversing the judgment and order dated 16.8.1996 passed by the Sessions Court, Guna in Sessions Trial No. 155/1995, convicting the respondent No.1 under Section 302 of Indian Penal Code, 1860 (hereinafter called as `IPC') and respondent No.2 under Section 302 read with Section 120-B IPC, and sentencing them to life imprisonment.

2. FACTUAL MATRIX:

(A) Respondent No.2 Bhaggo Bai filed an FIR dated 31.1.1995 in Police Station, Ashok Nagar, mentioning her name as Madhav Bai stating that her husband Chatra died after falling during a spell of giddiness at about 11.00 p.m. In respect of the same incident, another complaint was lodged by Munna Lal (PW.2) along with Rannu Bai (PW.1), daughter of deceased Chatra and Bhaggo Bai, aged about 8 years stating that both the respondents-accused had murdered Chatra. After having a preliminary investigation, the Investigating Officer arrested respondent No.2 Bhaggo Bai and lodged the FIR formally on 4.2.1995.

(B) After completing the investigation, a charge-sheet was filed against both the accused for committing the murder of Chatra. A large number of witnesses were examined by the prosecution. Both the respondents-accused examined themselves as defence witnesses alongwith some other witnesses. After concluding the trial, both the respondents-accused were convicted and sentenced, as mentioned 2

hereinabove, by the Sessions Judge vide judgment and order dated 16.8.1996.

(C) Being aggrieved, both the respondents -accused filed Criminal Appeal No.262/1997 which has been allowed by the impugned judgment and order and both of them stood acquitted. Hence, this appeal.

3. Ms. Vibha Datta Makhija, learned counsel appearing for the appellant-State, has submitted that the judgment and order of the High Court is not sustainable in the eyes of law. The High Court has gravely erred in showing unwarranted sympathy towards the accused and dis-believed the prosecution case brushing aside the statement of Rannu Bai (PW.1), merely being a child witness and pointing out that there was contradiction in the medical and ocular evidence regarding the injuries found on the person of Chatra, deceased. The High Court further erred in holding that there was enmity between the accused Bhaggo Bai and Ramesh. At the time of death of Chatra, Ramesh accused was facing trial for committing rape on Bhagoo Bai; thus, question of conspiracy between the said two accused could not arise; several cases were also pending in different courts between Munna Lal (PW.2) and his wife Kusum Bai on one hand, and Chatra and 3

Bhaggo Bai on the other hand. Thus, there was a possibility of false implication of Ramesh accused. Chatra died because of a fall when he went to urinate, as he was suffering from giddiness all the time because he used to take `dhatura' and had become a Lunatic. Chatra used to eat soil etc. Rannu Bai (PW.1) though a child, was able to understand the questions put to her and her duty to speak the truth. She could not have any enmity with either of the accused. The rape case filed by deceased Chatra and Bhaggo Bai against accused Ramesh remained pending for a long time and Ramesh got acquitted after the death of Chatra, deceased. The Trial Court after appreciating the documentary evidence on record came to the conclusion that accused Ramesh committed rape upon Bhaggo Bai during the period between 24.6.1991 to 17.9.1994. In fact, they were having illicit relationship for a period of more than 3 years. The High Court brushed aside the said finding without giving any cogent reason. The allegation that Rannu Bai (PW.1) had been tutored by Munna Lal (PW.2) could not be spelled out from her statement. The neighbours had come at the place of occurrence after being called by Rannu Bai (PW.1) and Munna Lal (PW.2). In spite of the fact that some of them had declared hostile, part of their evidence still could be relied upon in 4

support of the prosecution case. Therefore, the judgment and order of the High Court, impugned is liable to be set aside, and appeal deserves to be allowed.

4. On the contrary, Ms. K. Sarada Devi, learned counsel appearing for the respondents, has submitted that the facts and circumstances of the case do not warrant interference by this Court against the judgment and order of acquittal by the High Court. The High Court being the first appellate court and the final court of facts had appreciated the entire evidence on record and came to the conclusion that it was not possible that Bhaggo Bai could have hatched a conspiracy with Ramesh accused for committing the murder of her husband Chatra during the pendency of the case filed by her against Ramesh under Section 376 IPC. Munna Lal (PW.2), his wife and son had also assaulted the deceased Chatra and Bhaggo Bai, accused and wanted to grab their property and so many civil and criminal cases were pending between them, his evidence cannot be relied upon. As per the medical evidence, it was possible that the injuries suffered by Chatra could have been received by fall caused by giddiness. More so, Chatra had become a lunatic and could not understand right or wrong. The testimony of Rannu Bai (PW.1), has been rightly dis- 5

believed by the High Court as she had been tutored by Munna Lal (PW.2). Admittedly, she had been living with him since the death of her father Chatra. The High Court has rightly believed the defence version and appreciated the depositions of defence witnesses, including Radha Bai (D.W.1), elder daughter of Bhaggo Bai accused, in the correct perspective. The appeal lacks merit and is liable to be dismissed.

5. We have considered the rival submissions made by learned counsel for the parties and perused the record.

CHILD WITNESS :

6. In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise.

6

The Court further held as under:

".....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate...."

7. In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

8. In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the 7

evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."

9. In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460, this Court dealing with the child witness has observed as under:

"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no 8

obstacle in the way of accepting the evidence of a child witness."

10. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292).

11. In State of U.P. v. Krishna Master & Ors., AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget 9

those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

12. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516).

10

13. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition. APPEAL AGAINST ACQUITTAL:

14. We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides 11

for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.

INJURIES:

15. Dr. D.K. Jain (P.W.8) has performed Post Mortem of Chatra, deceased. He found following injuries on his person vide Post Mortem Report Ex.P-8:

(i) A contusion of size 1 cm x 1 cm on the L of mandible on right side with an abrasion on upper part of contusion 1 cm x 0.3 cm obliquely. Sub-cutaneous haemorrhage present.

(ii) An abrasion of size 0.5 cm x 0.2 cm 1-1/2" below the above contusion over neck. Sub-cutaneous haemorrhage present. (iii) An abrasion of size 0.5 cm x 0.2 cm 1.5 cm below and lateral to L of mandible right on neck.

12

(iv) An abrasion of size 3.5 cm x 0.5 cm over left side of neck posterior laterally on upper part, transversely oblique going upwards. Sub-cutaneous haemorrhage present.

(v) A contusion over lower lip right side near to L of mouth of size 0.5 cm x 0.5 cm sub-cutaneous haemorrhage present. (vi) An abrasion over right shoulder posterior laterally of size 4 cm x 1.5 cm post mortem in nature.

Dr. D.K. Jain (P.W.8) opined that injury No.(vi) was after the death. On internal examination, he found the right pleura adherent to lung parietes. Both the lungs were enlarged. On further dissection, he found a sub-cutaneous haemorrhage present in supra sternal notch area. Blood mixed fluid with froth stood discharged through mouth and noise. According to the doctor, cause of death was on account of `asphyxia' as a result of throttling. No piece of cloth or thread was found inside the mouth of the deceased. The deceased had an ailment of the lungs.

16. The Trial Court after considering the entire evidence on record came to the conclusion that the injuries found on the person of the deceased could not have been received from a fall on the ground. The 13

injuries found on his body are in consonance with the deposition of Rannu Bai (P.W.1), who has stated that after hearing the noise, she woke up and saw that accused Ramesh was beating her father with "Gumma" (a hard object made of cloth), and her mother had caught hold of the deceased by his legs. The doctor had found that blood had oozed from his mouth and such injury could be possible as per the case of the prosecution. Undoubtedly, Munna Lal (PW.2) has deposed that Ramesh had caused injuries with the knife. The High Court has given undue weightage to his statement. In fact, as per the prosecution case, Munna Lal (PW.2) was not an eye witness. He was called by Rannu Bai (PW.1) and reached the place of occurrence along with some other persons.

17. In Sukhar v. State of U.P., (1999) 9 SCC 507, this Court has explained the provisions of Section 6 of the Evidence Act, 1872 observing that it is an exception to the general rule whereunder the hearsay evidence becomes admissible. However, such evidence must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The 14

essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" that it becomes relevant by itself.

18. Applying the ratio of the said judgment to the evidence of Munna Lal (PW.2), we reach the conclusion that his statement indicating that Rannu Bai (PW.1) had come to him and told that her father was beaten by Ramesh with the help of her mother, is admissible under Section 6 of the Evidence Act.

19. Mrs. K. Sarada Devi, learned counsel appearing for the respondents has drawn our attention to certain minor contradictions in the statement of Rannu Bai (PW.1) and Munna Lal (PW.2). She has placed a very heavy reliance on the statement of Rannu Bai (PW.1) that first she had gone to the house of her grandfather Lala and the trial Court committed an error reading it as Munna Lal (PW.2). In view of the fact that Bhaggo Bai, respondent/accused herself stated in her cross-examination while being examined under Section 315 Cr.P.C. that she had sent Rannu Bai (PW.1) to call Munna Lal (PW.2), such argument looses the significance. Even otherwise, the omissions/contradictions pointed out by Mrs. K. Sarada Devi are of 15

trivial nature and are certainly not of such a magnitude that may materially affect the core of the prosecution case.

20. The witness examined by the prosecution supported its case to the extent that the door of the room wherein the offence had been committed was bolted from inside. It was only when Ram Bharose, village Watchman (P.W.5) threatened Bhaggo Bai, accused saying he would call the police, the door was opened and, by that time, accused Ramesh had left the place of occurrence and Chatra had died. Thus, there is no conflict between the medical and ocular evidence. The prosecution case is fully supported by Ram Bharose (PW.5) and partly supported by Hannu (PW.7) and Anand Lal (PW.3). Even the part of the depositions of hostile witnesses, particularly Basori Lal, Sarpanch (PW.4) can be relied upon to the extent that on being called, he reached the place of occurrence and found that the room had been bolted from inside. It is also evident from the evidence on record that Rannu Bai (PW.1) and Munna Lal (PW.2) had called the persons from their houses and after their arrival, they found that the room had been bolted from inside. So to that extent, the version of these witnesses including of the hostile witnesses, can be believed and relied upon. The post mortem report clearly explained that Chatra died of 16

`Asphyxia' and this version has been fully supported by Dr D.K. Jain (PW.8).

21. Bhaggo Bai, accused/respondent has admitted in her statement under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.') that Rannu Bai (PW.1) was present inside the room/place of occurrence and she further admitted that Rannu Bai, (PW.1) had gone to call Munna Lal (PW.2) at the relevant time. Thus, it is evident from the aforesaid admission of the said accused itself that both the persons were present inside the room and are well aware of the incident.

22. Undoubtedly, there had been some minor contradictions in the statements of witnesses in regard to the fact as to who had reached the place of occurrence first. All the witnesses have affirmed in one voice that Munna Lal (P.W.2) had entered the room and after coming out, he disclosed that Chatra has died. In fact, this fact had been affirmed by all the witnesses. In view of the contradictions in the statements of witnesses as to whether torch was used to create artificial light in the room or not to find out the scene therein, becomes immaterial. It is evident from the material available on record that there was only one 17

room house where the incident took place and no other space was available. Thus, in case the other witnesses had not deposed that Radha Bai (D.W.1) was also present in the house along with accused Bhaggo Bai, remains immaterial for the reason that her presence is natural.

23. The Trial Court after taking note of rulings of various judgments of this Court as what are the essential requirements to accept the testimony of a child witness held as under: "In the present case, statement of child witness gets affirmed by the circumstances of the incident, facts and from the activities of the other witnesses carried out by them on reaching at the place of occurrence. Thus, on the basis of above-said law precedents, statement of witness Rannu Bai not being unreliable in my opinion are absolutely true and correct......Statement of child witness Rannu Bai gets affirmed by the statements of Munna and witness Hannu and from the medical evidence. Therefore, facts of the above-stated law precedents are not applicable to the present case." In view of the above, it is evident that the statement of Rannu Bai (P.W.1) is affirmed by the statements of other witnesses, proved circumstances and medical evidence. Her deposition being precise, concise, specific and vivid without any improvement or embroidery is worth acceptance in toto.

18

24. A very heavy reliance has been placed by defence counsel Ms. K. Sarada Devi on the statements of defence witnesses, particularly, Radha Bai (D.W.1). However, it may be relevant to point out the initial part of her statement made in examination-in-chief: "In view of the witness's age before she was sworn she was asked as under:

Q. Are you literate? Have you gone to school for reading?

A. No.

Q. Do you understand right or wrong?

A. I do not understand.

Q. Do you understand Saugandh or Sau (Oath or hundred)

A. I do not know.

Considering the said answers of the witness it appears that the witness does not understand right, wrong or oath, therefore the witness was not sworn." (Emphasis added)

In view of the above, we are of the view that it cannot be safe to rely upon her evidence at all.

25. So far as the deposition of Budha (DW.2), father of Bhaggo Bai, accused, is concerned, he was 80 years of age at the time of examination and not the resident of the same village. He has deposed only on the basis of the information he had received from his daughter 19

Bhaggo Bai, accused. Thus, he is not of any help to the defence as we see no reason to believe the theory put forward by the defence.

26. Complaint was lodged promptly at 6.00 a.m. on 1.2.1995 in the Police Station, Ashok Nagar at a distance of 8.00 K.Ms. It may also be relevant to mention herein that formal FIR was lodged on 4.2.1995 after having preliminary investigation and arresting Bhaggo Bai accused. Bhaggo Bai herself has reached the Police Station and lodged the complaint that her husband Chatra died because of falling from giddiness when he went to ease himself outside the house. This version has been dis-believed by the I.O. as well as by the Trial Court. In our considered opinion, Bhagoo Bai would not have moved in the night for 8 K.Ms. to lodge the FIR, if she was not at fault or having a guilty mind. Secondly, she lodged the complaint in the name of Madhav Bai and not in her own name Bhaggo Bai.

27. The cumulative effect of reading the provisions of Article 20(3) of the Constitution with Sections 161(2); 313(3); and proviso (b) to Section 315 Cr.P.C. remains that in India, law provides for the rule against adverse inference from silence of the accused. 20

Statement of the accused made under Section 313 Cr.P.C. can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross- examined, his statement so recorded under Section 313 Cr.P.C. can not be treated to be evidence within the meaning of Section 3 of the Evidence Act, 1872.

Section 315 Cr.P.C. enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required. (Vide: Tukaram G. Gaokar v. R.N. Shukla & Ors., AIR 1968 SC 1050; and Dehal Singh v. State of Himachal Pradesh, (2010) 9 SCC 85). In such a fact-situation, the accused being a competent witness, can depose in his defence and his evidence can be considered and relied upon while deciding the case.

28. Bhaggo Bai, accused examined herself as a defence witness (DW.3) and entered into the witness box. She has also been cross- 21

examined on behalf of the prosecution as well as on behalf of co- accused Ramesh. Bhaggo Bai/accused (DW.3) deposed that accused Ramesh had committed rape upon her 6 years ago and in that case, criminal prosecution was launched against him. She has further deposed that after her husband Chatra fell from giddiness, she had brought him inside the room with the help of her elder daughter Radha Bai (DW.1) and put him on the bed. She herself sent her younger daughter Rannu Bai (PW.1) to call Munna. Munna came and saw Chatra. The relevant part of her deposition reads as under: "...Then he (Munna) bolted the door from outside. He called the watchman. The watchman and Munna seeing me in the room went to the police station.....It is right that for the last 8-10 years, I, Chatra and Munna had no contact with Ramesh.....I got my name to be written as Bhaggo Bai at the time of report Ext.D-7. My name is not Madhav Bai. The Policemen recorded the report in the name of Madhav Bai. I sent Rannu Bai to call Munna because Munna was my husband's elder brother.

.................

Q.17 Had you illicit and immoral relations with the accused Ramesh when Chatra was alive?

A. What can I say?

..............

Q. We are saying that you had given twisting statement in a rape case on which the accused Ramesh was acquitted?

A. I gave statement."

22

Her aforesaid statement is not worth acceptance for the reason that all the witnesses including those who turned hostile had admitted that the room was bolted from inside and her statement that Munna had bolted the room from outside has not been corroborated by any person. In case she and her husband Chatra were not having any relation with Munna (PW.2) for the last 8-10 years, it would be un- natural that she would send her daughter Rannu Bai (PW.1) to call Munna because he was her husband's elder brother. While lodging report Ext. D-7 she told her name as Madhav Bai. However, in cross- examination she has stated that police men recorded her name as Madhav Bai though her name is Bhaggo Bai. More so, she has not specifically denied having illicit relationship with Ramesh accused, nor she has denied that she made a twisting statement to help the accused Ramesh to get acquitted in the rape case.

29. The Trial Court after examining the entire material on record, particularly the documentary evidence came to the conclusion as under:

"43....It appears on viewing all the above documents Exh. D-8 to D-42 that all these documents are related to incident of rape of Bhaggo Bai committed by accused Ramesh for the period 24.6.1991 to 17.9.1994..." 23

The High Court did not deal with this aspect at all.

30. All the witnesses examined by the prosecution including those who have turned hostile are admittedly the neighbours of Chatra deceased and Munna Lal. Thus, they are the most natural witnesses and the Trial Court has rightly placed reliance on their testimonies.

31. After appreciating the entire evidence on record, we came to the inescapable conclusion that the High Court has completely ignored the most material incriminating circumstances which appeared against the respondents/accused. The findings so recorded by the High Court are contrary to the evidence on record and thus, are held to be perverse.

32. In view of the above, the appeal deserves to be allowed and it is hereby allowed. The judgment and order of the High Court dated 31.3.2004 in Criminal Appeal No.262 of 1997 is hereby set aside and the judgment and order of the trial Court dated 16.8.1996 convicting the respondents/accused under Section 302 IPC in Sessions Trial No.155/1995 is hereby restored. A copy of the judgment be sent to the Chief Judicial Magistrate, Guna, M.P. to take the said respondents 24

into custody and to send them to jail to serve the remaining part of the sentence.

....................................J.

(P. SATHASIVAM)

....................................J.

(Dr. B.S. CHAUHAN)

New Delhi,

March 18, 2011

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http://www.indiankanoon.org/doc/1088258/