Judgment analysis : K G vs State Of Delhi & Anr. [Delhi HC]

 A woman gets married to USA green card holder, gets culture shock, wants to return back to India and destroying the life of a hard working man in process along with US citizen daughter. The two were school friends. Later on, she alleges how she was "coerced" to apply for green card (Pt 35). ooooooo, Yeah, this happens only in court cases in India by prominent feminist advocates. Somewhere, mockery of religion is also made. I hope such advs be born brain dead in their next 100 lives for misusing the faculties of God. The US man should have never married a girl from India. In fact, he should have never married. 

Court made some "nice statements" in the child custody case. Heavyweights Prabhjit Jauhar and Malavika Rajkotia were involved indicating both parents flushed lot of money into the house of devil which could have been better spent on old, homeless people.

The court asked the women to return in US although lot of money and peace of man gets burnt with only the lawyers making blood money. Man is asked to provide separate car and house for 6 months to wife or until she gets the job and later on, let US courts decide. Child expenses to be paid by the man.

The court also refers to several judgments and summarizes each judgment rather laboriously. It starts from Pt 48 and continues till Pt 101. Ms. feminist keeps interrupting and biasing the judge consistently but the judge seems to have stood the ground against a strong opponent.

Summary of JJ Act, UNCRC is reproduced verbatim below:

"

119. The expression "best interest of child", as used by the Supreme Court in the above referred decisions, is wide in its connotation. It cannot be read as being only the love and care of the primary care giver, i.e. the mother in the case of an infant, or a child who is only a few years old.

120. At this stage, we may look at some of the provisions of the Juvenile Justice (Care & Protection) Act, 2015 (JJ Act), which throw some light on the issue as to what is the content of "best interest of the child". We are conscious of the fact that the provisions of the JJ Act may not strictly apply to the present fact situation. However, the said provisions certainly would throw light on the concept of "best interest of the child", as understood by the Parliament in India.

121. Firstly, the preamble to the JJ Act takes note of the fact that "the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the child;". Thus, it would be seen that the JJ Act has been enacted by the Parliament to implement its obligations under the Convention on the Rights of the Child, which has been acceded to by India. Consequently, it is the bounden obligation of all State actors - which would include the Courts in India, to implement in letter & spirit the said Convention on the Rights of the Child.

122. Section 2(9) of the JJ Act explains the meaning of "best interest of child" to mean "the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development;". Thus, to determine the best interest of the child, his/ her basic rights and needs, identity, social well-being and physical, emotional and intellectual development have to be addressed.

123. Section 3 of the JJ Act lays down the fundamental principles which the Central Government, the State Government, the Board created under the said Act, and other agencies should be guided by while implementing the provisions of the said Act. Clauses (iv), (v) & (xiii) of Section 3 are relevant and they read as follows:

"3. x x x x x x x x x

(iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.

(v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.

x x x x x x x x x x

(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest."

124. Thus, all decisions regarding the child should be based on primary consideration that they are in the best interest of the child and to help the child to develop to full potential. When involvement of one of the parents is not shown to be detrimental to the interest of the child, it goes without saying that to develop full potential of the child, it is essential that the child should receive the love, care and attention of both his/ her parents, and not just one of them, who may have decided on the basis of his/ her differences with the other parent, to re-locate in a different country. Development of full potential of the child requires participation of both the parents. The child, who does not receive the love, care and attention of both the parents, is bound to suffer from psychological and emotional trauma, particularly if the child is small and of tender age. The law also recognizes the fact that the primary responsibility of care, nutrition and protection of the child falls primarily on the biological family. The "biological family" certainly cannot mean only one of the two parents, even if that parent happens to be the primary care giver.

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127. We may also take note of some of the provisions of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20.11.1989, which was ratified by the Government of India on 11.12.1992. The Preamble to the said Convention sets out the basis on which the same has been framed. The relevant paragraphs from the said Preamble, which are relevant, read as follows:

"Convinced that the family, as the fundamental group of society and the natural environment for the growth and well- being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, x x x x x x x x x x Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth", x x x x x x x x x x Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, Recognizing the importance of international co-operation for improving the living conditions of children in every country, in particular in the developing countries," (emphasis supplied)

128. Article 3 (1) & (2) of this Convention read as follows:

"Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures."

129. Article 5 of this Convention reads as follows:

"Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention." (emphasis supplied)

130. Article 6 (1) of this Convention reads:

"Article 6

1. States Parties recognize that every child has the inherent right to life."

131. The inherent right to life, in our view, is wide enough to be understood as the right to a family life, i.e. with the parents and immediate family of the child.

132. Articles 7 & 8 of the Convention reads as follows:

"Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. (emphasis supplied) Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re- establishing speedily his or her identity." (emphasis supplied)

133. Article 9 (1) & (3) of the Convention read as follows:

"Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

x x x x x x x x x x

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests." (emphasis supplied)

134. Article 10 of the Convention reads as follows:

"Article 10

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention." (emphasis supplied)

135. Article 18 of the Convention reads as follows:

"Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible." (emphasis supplied)

136. Article 20 of the Convention reads as follows:

"Article 20

1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background." (emphasis supplied)

137. We may also refer to a Resolution passed by the Government of India and issued by the Ministry of Human Resource Development vide Resolution No.6-15/98-C.W., dated 09.02.2004 framing the "National Charter for Children, 2003". The said Charter has been framed by the Government of India "to reiterate its commitment to the cause of the children in order to see that no child remains hungry, illiterate or sick". The Preamble to the said Charter, inter alia, reads:

"Whereas we affirm that the best interest of children must be protected through combined action of the State, civil society, communities and families in their obligations in fulfilling children's basic needs.

Whereas we also affirm that while State, Society, Community and Family have obligations towards children, these must be viewed in the context of intrinsic and attendant duties of children, and inculcating in children a sound sense of values directed towards preserving and strengthening the Family, Society and the Nation.

x x x x x x x x x x Underlying this Charter is our intent to secure for every child its inherent right to be a child and enjoy a healthy and happy childhood, to address the root causes that negate the healthy growth and development of children, and to awaken the conscience of the community in the wider societal context to protect children from all forms of abuse, while strengthening the family, society and the Nation." (emphasis supplied)

138. Thus, best welfare of the child, normally, would lie in living with both his/ her parents in a happy, loving and caring environment, where the parents contribute to the upbringing of the child in all spheres of life, and the child receives emotional, social, physical and material support - to name a few. In a vitiated marriage, unfortunately, there is bound to be impairment of some of the inputs which are, ideally, essential for the best interest of the child. Then the challenge posed before the Court would be to determine and arrive at an arrangement, which offers the best possible solution in the facts and circumstances of a given case, to achieve the best interest of the child.

"

Judgment Link: https://indiankanoon.org/doc/49497612/