Wednesday, November 12, 2008

Recent Supreme Court Judgments of Public Importance

Section 24 CPC:
On 11th April, 2008, a two Judge Bench in Jitendra Singh vs Bhanu Kumari & Ors [C.A. No. 2786 of 2008] held that "the purpose of Section 24 CPC is merely to confer on the Court a discretionary power. A Court acting under Section 24 CPC may or may not in its judicial discretion transfer a particular case. Section 24 does not prescribe any ground for ordering the transfer of a case. In certain cases it may be ordered suo motu and it may be done for administrative reasons. But when an application for transfer is made by a party, the court is required to issue notice to the other side and hear the party before directing transfer. To put it differently, the Court must act judicially in ordering a transfer on the application of a party."

Hindu Minority and Guardianship Act, 1956 (Section 13) &
Guardians and Wards Act, 1890 (Section 17)
On 12th May, 2008, a two Judge Bench in Mausami Moitra Ganguli vs Jayant Ganguli [C.A.No.3500 of 2008] held that "while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. “Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child",
the Bench said.
The Bench emphasized that "a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration."

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