MEENAKSHI KHANDELWAL v. SHAILESH KHANDELWAL (2012) 11 SCC 798

RELEVANT FACTS

Marriage between Meenakshi Khandelwal (Petitioner/wife of the Respondent) and Shailesh Khandelwal (Respondent) was dissolved by the Family Court by section 13b of the Hindu Marriage Act, 1955 under divorce by mutual consent. There is a daughter Shrestha. She is nine years old and the family court gave custody of the child to her mother. After that respondent filed an appeal before the High Court to challenge the order of the Family Court. High Court allowed and permitted him to retain the custody of the child and allowed visitation rights to the mother. Now, the petitioner challenges the order of the High Court in the Hon’ble Supreme Court under Special Leave Petition (SLP).

ISSUES

Whether the petitioner can get custody of her child? 

LAW POINTS/ RULE OF LAW

• Section 13b and 26 of Hindu Marriage Act, 1955.
• Section 7 and 17 of Guardians and Wards Act, 1890.

JUDGEMENT WITH REASONING

First of all, in the welfare and interest of the child, Hon’ble Supreme Court directed both the parties to appear before the court with their daughter.

The daughter expressed his views that she is comfortable staying with her father and wanted to continue her education under her father’s guidance. And she also said that she had a grievance against her mother.

After that court stated that it is right to the entitlement of the child to the mother for the welfare of a child and according to the Special Leave Petition. But according to the statement of the child, she wanted to live with her father.

So, the finally Hon’ble Supreme Court concluded and directed the respondent to take his daughter to the Nagpur Bench Meditation Centre on a particular date which was decided by the court and the respondent should hand over his daughter to the petitioner at 10 a.m. in the presence of mediators. And there is also given direction to the mother of the child to return the child to the respondent at 6 p.m.

The court directed the mediators to observe the behavior and relationship of the child to her mother and father and subsequently submit a report to this court. So that on the behalf of the report the court can easily take the next step regarding the custody of the child and appoint a guardian. Because the court has the power to appoint a guardian for the child under section 7 and 17 of the Guardians and Wards Act, 1890.

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Swapna Rani Sahoo vs Niranjan Sahoo

Facts:

A matrimonial dispute was raised before a family court when the respondent that is the husband filed an appeal in the court against her wife, who was said to have misbehaved with the in-laws by making use of foul language and other misappropriate conduct was reported. The appellant went to her parental house along with her child and did not inform about her whereabouts to the respondent. It was appealed to dissolve the marriage on the ground of cruelty. However, in reply, the appellant denied all such allegations and submitted that the respondent in order to fulfill his personal motive filed an appeal of divorce knowing that the respondent had an extramarital affair with one of his staff members. The learned judge, the family court allowed the prayer for divorce by discarding all the allegations made by the appellant and decided that the wife is not subjected to any permanent alimony. Aggrieved by the decision, the appellant moved to High Court.

Issues:

Whether the appellant is entitled to permanent alimony?

Legal Provisions:

• Section 13, Hindu Marriage Act, 1955 – Divorce
• Section 25, Hindu Marriage Act, 1955 – Permanent alimony and maintenance

Appellant’s Contention:

It was submitted by the appellant that the judgment was illegal and the learned judge had erred in the finding if there was any cruelty against the husband by the wife. The wife claimed that the respondent had performed second marriage before the appeal period and laid evidence that proved that the second marriage took place much before the appeal period. The appellant further submitted that she had been suffering from breast cancer despite this she had been staying with her in-laws, whereas the respondent was cohabiting in a separate house with a newly wedded wife.
Therefore, it is prayed to set aside the judgment of the learned judge, Family court.

Respondent’s Contention:

The respondent laid evidence to prove that he had performed second marriage after the decree of the divorce of the first marriage and presented a birth certificate of the female child, born out of the second wedlock along with a marriage photograph.

Observation of the court:

The court was of the opinion that the learned judge, Family court had erred in not granting permanent alimony to the appellant, but the court did not feel inclined to set aside the decree of divorce just because the respondent was remarried. The court determined the quantum of alimony be granted to the appellant as per the Hindu Marriage Act, 1955 after considering the income and age of the husband, it was felt appropriate to fix permanent alimony and provide for expenses relating to the child born out of wedlock from the first marriage.

Judgment:

The court ordered the respondent to pay a sum of Rs. 7,00,000/- as permanent alimony and to secure the appellant with residential accommodation.

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RAMKANYA BAI vs. BHARAT RAM

FACTS OF THE CASE:

The present appeal/SLP was preferred by the wife/appellant against the impugned Judgment and order of Madhya Pradesh High Court, Indore bench passed on 26th June 2008. Appellant and respondent were getting married in April 1999. The wife, after some time, was harassed by the husband/respondent and turned out of her matrimonial house. In 2004, the husband filed an application under Section 13 of the Hindu Marriage Act in the Court of Additional District and Session Judge, District Mandsor, Madhya Pradesh. The district court dismissed the application of the husband/respondent. A child was born to wife in November 2004 and the husband filed an appeal under section 28 of Hindu Marriage Act in Madhya Pradesh High Court, Indore Bench and asked for an order for performing a DNA test for the paternity of child on the ground that such child could not be born out of the wedlock between appellant and respondent. The Madhya Pradesh High Court, Indore Bench passed an order on 26th June 2008 in favor of the husband and directed to perform DNA test for paternity of the child and made the following observation that is reunited.”

ISSUE:

Whether the order to perform a DNA test is legally valid or not on the sole presumption of re-union of parties?

RULE OF LAW:

Section 13 of the Hindu Marriage Act, 1955
Section 28 of the Hindu Marriage Act, 1955

JUDGEMENT:

The learned bench of Hon’ble Supreme Court observed that there is no justification for allowing to perform the DNA test of a child only on the ground that there is a possibility of re-union of parties if the legality of the child to be proved and if it is proved that the child was an outcome of the wedlock between the parties. Also, the court observed that there is no allegation of illicit relationship with the third person by husband/respondent on wife/appellant, by which a DNA test can be performed for the paternity of a child. The Court mentioned that “It is well settled that the presumption of legitimacy is a presumption of law”. So, if a child is born out of wedlock there is a presumption of his/her legitimacy unless and until there is any allegation over the wife to have been in an illicit relationship with a third person.
Therefore, The Hon’ble Supreme Court set aside the impugned order of the Madhya Pradesh High Court dated 26th June 2008, and the application to performing the DNA test on the child of wife/appellant is hereby rejected.

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