Author: TYC

Vinay Pathak And His Wife v. Unknown, Bombay High Court, September 2009

Post author By TYC
Post date July 13, 2022

ISSUE:

Whether a Hindu couple, governed by the Hindu Adoption and Maintenance Act, 1956 can adopt a child when the already have child of their own, of the same gender, under the provisions of the Juvenile Justice Act of 2000?

RULE:

When the child to be adopted is orphaned, abandoned or surrendered child or a child in need of care and protection as defined in Juvenile Justice Act, the bar imposed by Section 11 (i) and (ii) of Hindu Adoption and Maintenance Act does not bar the Hindu having biological child from adopting the child of same gender.

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Adoption and Surrogacy

Shabnam Hashmi v. Union of India (Supreme Court of India, February 2014)

Post author By TYC
Post date July 13, 2022

ISSUE:

Since there were no civil laws for the non-Hindu adoption, in case of adoption, will the specific Muslim personal law be applied or the common umbrella act of Juvenile Justice Act 2000?

Whether the right to adoption irrespective of caste, creed religion be considered a fundamental right applicable to the society homogeneously?

RULE:

Article 44 of Indian Constitution

Article 41 of Juvenile Justice Act 2000-

Family and Personal Laws- Muslim Shariat Law for Adoption

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Custody and Guardianship

Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228

Post author By TYC
Post date July 13, 2022

ISSUE:

Whether the mother can act as a natural guardian in case of incapacity of the father with regard to Section 6 of the Act and whether it is violative of Articles 14 and 15 of the Constitution?

RULE:

Section 6(a), Hindu Minority and Guardianship Act, 1956

Section 4(b), Hindu Minority and Guardianship Act, 1956

Section 19, Guardian and Wards Act, 1980

Articles 14, 15 of the Indian Constitution

CEDAW and Beijing Declaration’s measures to prevent discrimination.

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Custody and Guardianship

ABC v. State, 2015 SCC OnLine SC 609

Post author By TYC
Post date July 13, 2022

ISSUE:

Whether it is imperative for an unwed mother to specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child?

RULE:

S.7, S.11 and S.19(b) Guardians and Wards Act, 1890[GWA]. S.8 Succession Act 1925 [SA]. S.6(b) Hindu Minority and Guardianship Act, 1956

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Custody and Guardianship

Aakansha Roy Rasmussen v. Adwait Anil Dixit, 2015 SCC OnLine Bom 558

Post author By TYC
Post date July 13, 2022

ISSUE:

Whether a shift in the custody of a child is in the interest of the child?

RULE:

Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

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Custody and Guardianship

Vivek Singh v Romani Singh, CA No. 3962 of 2016, SC. 13 February, 2017

Post author By TYC
Post date July 13, 2022

ISSUE:

Whether the father or the mother was entitled the guardianship of the child?

RULE:

Section 13 of the Hindu Minority and Guardianship Act, 1956:
Welfare of minor to be paramount consideration. -
(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

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Customary Divorce

Jasbir Singh v. Inderjit Kaur, AI 2003 PH 317

Post author By TYC
Post date July 12, 2022

ISSUE:

Whether Kaur’s customary divorce was legally valid?

RULE:

The court relied on Section 29(2) of the Hindu Marriage Act and recognised that an existing custom must be protected.

Per the witnesses and evidence placed before the court, a customary form of divorce for Jat Sikhs was established.

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Citizenship

Assam Public Works V. Union Of India, Writ Petition (Civ.Il) No.274 Of 2009

Post author By TYC
Post date July 12, 2022

ISSUE:

Whether the Citizenship Act is being complied with in implementing the NRC?

RULE:

The court referred to Rule 4A of the Citizenship (Registration of Citizens and Issue of National Identity Card) Rules 2003 which carves out special provisions in the matter of preparation of the National Register of Indian Citizens in the State of Assam.

All persons of Indian origin who had come to Assam before the 1st of January 1966 from specified territories before the commencement of the Citizenship (Amendment) Act of 1985 are deemed to be citizens of India.

All persons who entered Assam between the 1st of January 1966 and 25th of March 1971 and who have been ordinarily resident in Assam, upon being detected as a foreigner and registering themselves in accordance with the Rules made by the Central Government have the same rights and obligations as a citizen of India except the right to be included on electoral rolls for a period of 10 years.

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