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Review: Madras HC Rules That Merely Finding and Taking Custody of a Child Does Not Imply Legal Adoption

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In this edition of the court judgments review, we look at the SC’s judgment that solid evidence of harassment is necessary to presume abetment of suicide under 113A of the Evidence Act, that a permanent state employee on deputation in a central government department is not entitled to a pension under the Central Civil Services rules, Madras High Court’s order that merely finding and taking custody of a child does not imply legal adoption, among others.

SC: Solid evidence of harassment is necessary to presume abetment of suicide under 113A of Evidence Act

The case, Ram Pyarey vs. State of Uttar Pradesh, involves an appeal by the appellant, the brother-in-law of the deceased, challenging his conviction under Sections 306 (abetment of suicide) and 498A (cruelty by husband or relatives) of the Indian Penal Code (IPC), as well as Section 4 of the Dowry Prohibition Act. The appeal contests the judgments of the Allahabad High Court and the trial court.

The case arose after the deceased, Kusum Devi, died from burn injuries on 27 September 1990. The prosecution alleged she was harassed by her husband, in-laws, and the appellant over dowry demands, which led to her suicide. Kusum’s father lodged a complaint claiming she was set on fire by her husband and in-laws after repeated dowry harassment. Initially charged with dowry death under Section 304B IPC, the trial court acquitted the accused under this section but convicted them for abetment of suicide and cruelty. While the father-in-law and mother-in-law passed away during the High Court proceedings, the husband completed his sentence without appealing. Ram Pyarey, however, challenged his conviction in the Supreme Court.

The Supreme Court Bench of Justices J B Pardiwala and R Mahadevan emphasized the distinction between Sections 113A and 113B of the Evidence Act regarding presumptions. Under Section 113B, the court shall presume dowry death if evidence shows prior cruelty or harassment while under Section 113A the court may presume abetment of suicide only when there is clear evidence of cruelty or harassment. The Court emphasized that for Section 113A to apply, there must be solid proof of instigation or cruelty, which was absent in this case against the appellant.

Since no such evidence existed against the appellant, the Court found the lower court’s reliance on this presumption misplaced. The Court allowed the appeal, overturning the conviction of Ram Pyarey. His bail bonds were discharged, and all pending applications were disposed of.

SC: Permanent state employee on deputation in central government department is not entitled to pension under the Central Civil Services rules

Phani Bhusan Kundu, a permanent employee of the State of West Bengal, joined as the Animal Husbandry Commissioner under the Union Government on deputation in 1991. He retired from the State service in 1992. Due to an error, the Union Government did not repatriate him to the West Bengal Government, but Kundu continued receiving his pension from the State based on his substantive post. Kundu later approached the Central Administrative Tribunal (CAT) seeking his pension to be calculated under the Central Civil Services (Pension) Rules, which CAT allowed, a decision upheld by the Calcutta High Court. The Union of India appealed this decision in Union of India vs. Phani Bhusan Kundu & Others before the Supreme Court.

The Supreme Court Bench of Justices Sanjiv Khanna and Justice Sanjay Kumar observed that deputation is a temporary service outside the parent department and does not result in absorption into the borrowed department. It emphasized that Kundu’s lien remained with the West Bengal Government throughout his deputation. The Court noted that after deputation, employees typically revert to their parent department for the same position (unless they earn a promotion) and do not acquire permanent status in the borrowed department unless specific provisions allow it.

The Supreme Court set aside the High Court’s judgment and allowed the Union of India’s appeal. It ruled that Kundu was not entitled to a pension under the Central Government’s rules, as he had never been absorbed into the Union service. His pension will continue under the West Bengal Pension Rules, and the earlier order by CAT was dismissed.

SC: An agreement to sell property doesn’t transfer ownership

The dispute in the case, Indian Overseas Bank vs. M.A.S Subramanian & Others involves a disagreement over the ownership and binding nature of a sale deed regarding a piece of land originally owned by the late M.A. Shanmugam. The land was agreed to be sold to a company in exchange for shares, and the company had been in possession of the land through part-performance of the contract. However, the sale deed was not executed by the original owner, and the National Company Law Appellate Tribunal (NCLAT) had declared the sale deed executed in 2011 as non-binding on the company. The Indian Overseas Bank appealed this decision, questioning the NCLAT’s findings on the legal standing of the sale deed.

The Supreme Court Bench of Justice Abhay S Oka and Justice Ujjal Bhuyan noted that under Section 54 of the Transfer of Property Act, a mere agreement to sell does not transfer title to the purchaser. A sale deed, properly executed and registered, is required for the transfer of immovable property worth more than Rs. 100. The NCLAT had wrongly declared the 2011 sale deed as non-binding based on the company’s possession by part-performance of the contract. The Court emphasized that as the sale deed was not executed by the original owner, the company did not acquire any ownership.

The Supreme Court partly allowed the appeals, setting aside the declaration by NCLAT that the 2011 sale deed was non-binding on the company. The Court declared that the sale deed executed in 2011 was not binding on the respondent company but did not adjudicate the ownership rights of the various parties. The remedies for the parties to enforce their rights were kept open.

Madras HC: Merely finding and taking custody of a child does not imply legal adoption

The petitioner in X vs. the Chairperson and others, along with her husband, had been childless for 20 years and had applied for child adoption through the Central Adoption Resource Authority (CARA). In February 2023, they found a newborn female child abandoned in the toilet of a train. They decided to raise the child as their own, caring for her for 1.5 years. However, based on a report of child trafficking, the authorities initiated an inquiry, and the Child Welfare Committee (CWC) took custody of the child. The petitioner filed a Habeas Corpus Petition seeking to regain custody.

The court noted that the petitioner had not followed the legal procedures for adoption. Simply finding and unilaterally taking custody of the child does not confer legal rights to declare the child as adopted. Adoption must comply with the relevant laws, including the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Hindu Adoptions and Maintenance Act, 1956.

Regarding the maintainability of the Habeas Corpus Petition, the court held that the child was not under illegal detention, as she was lawfully under the State’s care. The court emphasized the importance of prioritizing the best interest of the child, including her future welfare, which required compliance with statutory procedures. The petitioner relied on a prior judgment where foster parents were recognized, but the court clarified that the earlier case was decided on unique facts and could not be used as a precedent.

The petition was dismissed. The court directed authorities to continue searching for the child’s biological parents and, if unsuccessful, to declare the child fit for adoption following statutory procedures.

Delhi HC: Relationship of parties living together through a relationship in the “nature of marriage” would also fall within the definition of domestic relationship

The case X vs. Y involves an appeal filed by a woman before the Delhi High Court. The petitioner had initially filed a case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act), alleging that she married the respondent on 22 April 2006 and lived with him for seven years, during which she faced cruelty related to dowry demands.

The respondent denied the marriage, claiming the petitioner was married to his brother before living with him. He relied on a “Friendship Agreement” dated 13 April 2006 and other documents to argue their relationship was neither a “domestic relationship” nor “akin to marriage” under the DV Act. Initially, the Metropolitan Magistrate dismissed the respondent’s objection, but the Additional Sessions Judge (ASJ) overturned this. The ASJ ruled that the petitioner did not qualify as an “aggrieved person” under the DV Act, as there was no valid marriage or domestic relationship between her and the respondent.

Justice Amit Mahajan of the Delhi High Court clarified that a “domestic relationship” under the DV Act extends to relationships “in the nature of marriage.” He emphasized that at the stage of determining maintainability, allegations should generally be accepted unless contradicted by clear evidence. The court also noted that the authenticity of the respondent’s documents, including the “Friendship Agreement,” required proper evaluation during the trial.

The High Court overturned the ASJ’s judgment, reinstating the petitioner’s complaint and directing the Family Court to proceed in accordance with the law while considering the court’s observations.

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About Author

A bachelor’s degree in mathematics and master’s in social science, she is driven by ardent desire to work with this unique combination to create her own path instead of following the herd. Having served a stint as the college union chairperson, she is a strategist who is also passionate about nature conservation, art and loves solving Sudoku.

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