VISITATION RIGHTS TO FATHER IMPORTANT FOR THE CHILD’S HEALTHY GROWTH – SAYS INDIAN SUPREME COURT

“50. For a boy so young in years, these and other expressions suggesting a deep rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant of her parents can hardly be appreciated. What the appellant ought to appreciate is that feeding the minor with such dislike and despire for his father does not serve his interest of his growth as a normal child. It is important that the minor has his father’s care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the child’s healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Since the respondent is living in another continent such contact cannot be for obvious reasons as frequent as it may have been if they were in the same city. But the forbidding distance that separates the two would get reduced thanks to the modern technology in telecommunications. The appellant has been according to the respondent persistently preventing even telephonic contact between the father and the son. May be the son has been so poisoned against him that he does not evince any interest in the father. Be that as it may, telephonic contact shall not be prevented by the appellant for any reason whatsoever and shall be encouraged at all reasonable time. Video conferencing may also be possible between the two which too shall not only be permitted but encouraged by the appellant.

51. Besides, the father shall be free to visit the minor in India at any time of the year and meet him for two hours on a daily basis, unhindered by any impediment from the mother or her parents or anyone else for that matter. The place where the meeting can take place shall be indicated by the trial Court after verifying the convenience of both the parities in this regard. The trial Court shall pass necessary orders in this regard without delay and without permitting any dilatory tactics in the matter.”
2011 AIR CC 2025 RUCHI MAJOO V. SANJEEV MAJOO

SUPREME COURT ON CUSTODY OF MINOR

The question then is what should the Visitation rights be and how should the same be exercised. But before we examine that aspect, we may advert to the need for the Visitation rights or the father to be recognized in the peculiar circumstances of this case. Form what we gathered in the course of an interactive session with the minor, we concluded that the minor has been thoroughly antagonized against the respondent-father. He held him responsible for his inability to travel to Malaysia, with his grandparents because if he does so, both the mother and her parents will be arrested on the charge of abduction of the minor. He also held the respondent responsible for his grandparent’s skin problems and other worries. He wanted to stay only in India and wanted to be left alone by the respondent. He was reluctantly agreeable to meeting and associating with respondent provided the respondent has the red corner notice withdrawn so that he and his grandparents can travel abroad.

For a boy so young in years, these and other expressions suggesting a deep rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant of her parents can hardly be appreciated. What the appellant ought to appreciate is that feeding the minor with such dislike and despire for his father does not serve his interest or his is growth as a normal child. It is important that the minor has his father’s care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view impartment for the child’s healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Since the respondent is living in another continent such contact cannot be for obvious reasons as frequent as it may have been if they were in the same city. But the forbidding distance that separates the two would get reduced thanks to the modern technology in telecommunications. The appellant has been according to the respondent persistently preventing even telephonic contact between the father and the son. May be the son has been so poisoned against him that the he does not evince any interest in the father. Be that as it may, telephonic contact shall not be prevented by the appellant for any reason whatsoever and shall be encouraged at all reasonable time. Video conferencing may also be possible between the two which too shall not only be permitted but encourages by the appellant.

Besides, the father shall be free to visit the minor in India at any time of the year and meet him for two hours on a daily basis, unhindered by any impediment form the mother of her parents or anyone else for that matter. The place where the meeting can take place shall be indicated by the trial Court after verifying the convenience of both the parties in this regard. The trial Court shall pass necessary orders in this regard without delay and without permitting any dilatory tactics in the matter.
2011 AIR CC 2025 RUCHI MAJOO V SANJEEV MAJOO

IS CHILD RIGHTS COMMISSION A TOOTHLESS TIGER

THE HIGH COURT OF MADRAS in W.P. No. 2116 of 2011 and M.P.No. 1 of 2011 Decided on 07.04.2011 in Srinivas Rajan Vs. Respondent: The Director of Matriculation Schools and Ors.

Is Child Rights Commission a toothless Tiger?

29. Mr. M. Venkatachalapathy, learned Senior Counsel appearing for fifth Respondent submitted that the complaint made by the Petitioner will not come within the province of the Commission for Protection of Child Rights Act, 2005. Therefore, there was no necessity to issue a direction to the Commission to make an enquiry on the same. But this contention of the learned Senior Counsel was erroneous since the term "child rights" is defined on broad terms under Section 2(b) of the Act which reads as follows:

(b)"child rights" includes the children's rights adopted in the United Nations convention on the Rights of the Child on 20th November, 1989 and ratified by the Government of India on the 11th December, 1992;

30. As can be seen from the said definition, the Convention of Rights of the Child, dated 20.11.1989 is valid and the Commission has power to enquire into such a complaint and even can take a suo motu notice on the matter relating to deprivation and violation of child rights, non implementation of law providing for protection and development of children, non compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children or take up the issues arising out of such matters with appropriate authorities. For deciding these matters, the Commission has been empowered with the power of a Civil Court under Section 14.

31. Under Section 15, the Commission can take up the following steps after completion of the enquiry. The first step is that on disclosing, the Commission of violation of child rights of a serious nature or contravention of provisions of any law for the time being in force, can recommend the concerned Government or the Authority to initiate proceedings for prosecution or such other action which the Commission may deem fit against concerned persons. The second step is to approach the Supreme Court or the High Court concerned for such direction, order or writ as the Court may deem it necessary. The third step is to recommend to the concerned Government or authority for grant of such interim relief to the victim or member of the family as the Commission may consider necessary.

32. Since the definition of child rights found in Section 2(b) referred to United Nations Convention, dated 20.11.1989, it is necessary to refer to relevant articles from that Convention. Article 16 of the Convention reads as follows:

Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.

Article 28(2) reads as follows:

2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.

33. Therefore, it cannot be said that the Commission has no right to enquire into the complaint sent by the Petitioner. But, at the same time, it has to be seen whether any immediate purpose will be served by making such direction. Though the Commission has power of the Civil Court for making an enquiry, but after any report made by the Commission, Section 15 sets out the steps the Commission can make to implement its report as noted already. The Commission by itself cannot direct its order to be obeyed by any authority and that either it requires further steps to be taken by the concerned Government or by the Court. In this context, it will be worthwhile to note an interpretation made by the Supreme Court regarding the powers of the National Commission for SC/ST constituted under Article 338 of the Constitution.

34. The question arose whether the Commission which has the power of a Civil Court can order stopping of the promotion process initiated by a Nationalised Bank on the ground that it did not satisfy the constitutional requirements. In that context, the Supreme Court vide its judgment in All India Indian Overseas Bank SC ad ST Employees' Welfare Association and Ors. v. Union of India and Ors. reported on MANU/SC/1288/1996 : (1996) 6 SCC 606 framed the following question as found in paragraph 3, which reads as follows:

3. The short question that arises for consideration in this matter is whether the Commission had the power to issue a direction in the nature of an interim injunction....

In paragraphs 10 and 11, the following answers were given by the Supreme Court, which reads as follows:

10. Interestingly, here, in Clause (8) of Article 338, the words used are the Commission shall .... have all the powers of the Civil Court trying a suit. But the words all the powers of a Civil Court have to be exercised while investigating any matter referred to in Sub-clause (a) or inquiring into any complaint referred to in Sub-clause (b) of Clause 5. All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of Clause (8) of Article 338 of the Constitution.

11. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated 4-3-1993. The order itself being bad for want of jurisdiction, all other questions and considerations raised in the appeal are redundant. The High Court was justified in taking the view it did. The appeal is dismissed. No costs.

35. Therefore, if it is seen in the context of the above judgment, if any direction was given as prayed for by the Petitioner, ultimately he may not get any relief except highlighting the grievances projected by him on behalf of his ward in a national forum.

RIGHT TO REVALUATION

In the absence of any provision under the statute or statutory rules/regulations, the Court should not generally direct revaluation of answer sheet. Himachal Pradesh Public Service Commission vs. Mukesh Thakur and another (2010) 6 SCC 759 (Supreme Court)

RIGHTS OF AN UNBORN CHILD

The rights of an unborn child are recognized in various different legal contexts; e.g. in criminal law causing death of foetus has been held to be an offence under Sections 312 to 316 of the Indian Penal Code, and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. An unborn child aged five months onwards in mother’s womb till its birth is treated as equal to a child in existence. The unborn child to whom the live birth never comes is held to be a ‘person’ who can be the subject of an action for damages for his death. The foetus is actually a loss of child in the offing. Prakash & others vs. Arun Kumar Saini & another 2010 (2) Law Reports on Crime 169 (Delhi HC)

GOVT SCHOOLS DENY ADMISSION TO 193 DISABLED STUDENTS

The Chairperson,
National Commission for Protection of Child Rights
5th Floor, Chanderlok Building
36, Janpath, New Delhi-110001

Sub:- Denial of admission by Government and MCD Schools to the children including children with disabilities

Dear Madam,

Today the Country is celebrating “International Disability Day”. There is a need to highlight the fact that there are more than 2 crore children with disabilities in the country and less than 1% of them are attending school. Those, who are attending schools are also facing problems like absence of special teachers, aids and appliances and study material. It is needless to say that more than 10 crore children including children with disabilities are out of school in violation of their right to education as guaranteed under the constitution of India read with the Provision of Right of Children to Free and Compulsory Education Act 2009.


It is brought to your notice that Right to Education Task Force Volunteers have recently registered the names of as many as 533 children including 193 children with disabilities who has been denied admission by Government and MCD schools in Delhi. A list of the said children is enclosed hereto for your ready reference.


It is, therefore, requested that necessary action may be taken in this matter to ensure that Government and MCD schools immediately grant admission to all these and other children seeking admission in the schools.


With regards,


Ashok Agarwal,
Advisor Social Jurist

CONTEMPT NOTICE TO MCD COMMISSIONER-ILLEGAL OCCUPATION OF SCHOOL PREMISES

To

The CommissionerMunicipal Corporation of Delhi
Town Hall, Chandni ChowkDelhi-110006

Sub: Contempt Notice - School premises illegally occupied by municipal dispensary in violation of Delhi High Court directives.

Dear Sir,

It is brought to your notice that the premises of the MCD Primary School, Block 16,Trilokpuri, Delhi has been partly occupied by the Health Department for the last several years causing inconvenience to the tender age students studying in that school. Due to this illegal and unauthorised occupation, students of the school have been deprived of educational facilities conducive to their quality education. Moreover, the incident of 23.10.2009, in which a 53 years old primary teacher, Bhitty Bhan, was stabbed in classroom by a person visiting the dispensary in the school premises. This has been widely reported in the newspapers on 24.10.2009. I have been told that despite protests by the parents, you have taken no action to remove the dispensary from the school premises and to handover the premises to the Principal of the school for utilising the same as classrooms for the students. Had you taken action to remove the dispensary from the school premises, the said incident could have been avoided.


In July 2002, Social Jurist filed a PIL (Civil Writ No. 4032/2002) in Delhi High Court highlighting that the municipal dispensary was being run in the premises of the MCD Boys School, Bowana by occupying two classrooms, one multi purpose room and a toilet block thereby depriving more than 750 school children of class 1 to 5 (both boys and girls) not only of the benefit of classrooms, multi-purpose room and toilet block but also of the playground. It was also highlighted that the municipal dispensary was run during the school hours resulting in entry of large number of patients, their relatives etc. in the school premises which roam in and around the playground and classrooms of the children causing disturbance to the studies of the children. It was submitted that dispensary employees throw open the medical waste including used syringes in the playground and the same were picked up by the school children endangering their lives. It was submitted that the said action on the part of the MCD was not only in violation of the rights of the children as guaranteed to them under Articles 21 and 45 of the Constitution of India read with Delhi School Education Act, 1973, Delhi Primary Education Act, 1960 and UN Convention on the Rights of the Child but also in violation of the Orders dated 16.02.2001 of a Division Bench of Delhi High Court passed in PIL (CW. 5329 of 1997) wherein the Hon'ble Judges observed "We can not permit the MCD to open its offices in schools and deprive the children of their classrooms."


When the above said PIL (CW No. 4032/2002) came up for hearing before the High Court on 02.08.2002, the High Court directed you to remove the dispensary from the school premises on or before 31st January 2003 and hand over the possession of the class rooms etc. to the school after the same were vacated by MCD. Pursuant to the said Orders, the MCD removed the dispensary and handed over the classroom etc. to the school.


It is shocking that despite Hon’ble Delhi High Court’s clear directives to the MCD to not to open its offices in schools’ premises and to deprive the students of their classrooms, MCD has allowed its dispensary to continue in the premises of the MCD Primary School, Block 16, Trilokpuri, Delhi. The said action on your part goes contrary to the spirit of the orders of the Hon'ble High Court and tantamount to contempt of the High Court which attracts penal action against you.
It is, therefore, demanded that the municipal dispensary should be removed immediately from the premises of the MCD Primary School, Sector 16, Trilokpuri, Delhi the same be handed over to the Principal of the school for the purpose of the school and nothing else. If it is not done, we will approach the High Court with contempt petition against you. Please note.

Thanking you.
Yours Sincerely,
Ashok Agarwal, Advocate
Advisor, Social Jurist
M-09811101923
25.10.2009