Top News Headlines 16th Apr 2022: Hindu Adoption And Maintenance Act

Hindu Adoption And Maintenance Act; Proviso To Section 6 Does Not Render Fathers’s Custody Of Child Below 5 Years Illegal: Patna HC

• The Hon’ble Patna HC, in GGSS Sitara vs The State of Bihar and ors. has held that the proviso to section 6 of the Hindu Adoption and Maintenance Act (HAMA), though carves out an exception but does not render the custody of the minor child aged below 5 years with his/her father illegal. 
• In the instant case, the petitioner and the respondent were married in accordance with the Hindu rites and ceremonies and they had a son and a daughter out of the wedlock. The daughter was in the custody of the father-respondent, while the son was in the custody of the mother-petitioner. 
• Due to the marital discord between the couple, a case had been registered for the offences under sections 298A, 279, 337 and 338 of the Indian Penal Code. It was the case of the petitioner that the respondent had no control over his rage and that he had brutally assaulted her on two separate occasions, following which she was compelled to shift to the government quarter in Muzaffarpur along with her two children. 
• It was further alleged that she had been meeting the expenses of her children with the help of her mother, and had thus filed a petition for maintenance for herself and her two children. The petitioner’s mother had also filed a domestic violence case against the respondent. 
• In the petition, it was also stated that the respondent visited the circuit house and took the girl child along with him with a promise to return her after a couple of days. However, he had not fulfilled his promise and did not return the child, who was just 29 months of age. The Petitioner submitted that the respondent did not have time for his family members due to his job as a DM, and also did not have time for babysitting, and lets the little girl roam around the bungalow like an orphan.  
• The petitioner also alleged that her daughter has been left with questionable male servants that has led her to feel insecure about the well being of her daughter. It has been claimed that the respondent has been continuing with the custody of the female child in violation of sections 7, 8 and 25 of the Guardians and Wards Act as well as section 6 of the Hindu Minority and Guardianship Act. 
• Answering a preliminary question, the HC referred to the decision of the Apex Court in the case of Veena Kapoor vs Varinder Kumar Kapoor (1981) SCC. In this case the petitioner-mother has filed a writ of habeas corpus on the ground that the respondent was in illegal custody of the child. The HC had dismissed the writ petition on the ground that the custody of the child with the respondent cannot be termed as illegal. The Hon’ble Apex Court termed the dismissal of the writ of habeas corpus as ‘on the narrow ground’ and had directed the District Judge to make a report on the question as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the welfare of the minor child. 
• Thus, the Patna HC was of the opinion that the writ petition cannot be held to be non-maintainable. 
• Coming to the question as to whether the custody of the child below 5 years of age with the father could be termed as illegal, the HC referred to the decision of the Apex Court in Geeta Hariharan vs RBI (1999) SCC where the Court took the view that the word ‘after’ used in section 6 of HAMA does not mean after the lifetime of the father, but includes a condition, inter alia, where the father is deemed absent by virtue of a mutual understanding between the father and the mother. 
• The HC further observed that the proviso to section 6a of HAMA carves out an exception to the general rule of custody, but does not render the custody of the child with his/her father as illegal. Section 13 would be a guiding principle in such a situation. It is the welfare of the child which is of paramount consideration and the Courts would be required to apply the legal test, that is, best interest of the child test’. 
• The Court also referred to the case of Mousmi Moitra Ganguli vs Jayant Ganguli (2008) SCC wherein it was held that it was the welfare and the interest of the child and not the parents, which would be a guiding factor for deciding the question of custody. 
• In light of the facts and circumstances of the case, the petitioner was granted visitation rights to her daughter and the respondent was directed to pay a monthly allowance of Rs.20,000 to the petitioner so that she would be able to visit her daughter. 

Child Marriage: Bombay HC Refuses To Grant Anticipatory Bail To A Man Accused Of Raping His Minor Wife

• In the case of Trimbak Arun Barude vs State of Maharashtra the Hon’ble Bombay HC has refused to grant anticipatory bail to a man charged for the offence of raping his minor wife under section 376 of IPC.
• The Court was of the opinion that the accused could not take up the defence of being married to the victim and that she had not resisted the act of sexual intercouse between them and the same was with consent. 
• The instant case was filed after the minor girl gave birth to a baby boy and the hospital administration came to know that she was 17 years old. It was also stated that though the mother, father and the paternal uncle of the wife had knowledge that she was a minor, the marriage was performed with the applicant/husband. The case was lodged under sections 376 IPC read with sections 9, 10 and 11 of Prohibition of Child Marriage Act and sections 3 and 4 of POCSO Act.
• It was submitted by the applicant that the minor girl, along with her relatives had given the impression that she was, in fact, a major. He had also submitted that the minor had never shown any resistance during the solemnization of the marriage. She was well taken care of by the family of the applicant and that she had not complained about the conduct of the accused in the FIR. She also did not have any objection as to the grant of anticipatory bail to the applicant. 
• The Court referred to the decision of the Apex Court in the case of Independent Thought vs Union of India AIR 2018 SC wherein the major inconsistency between the POCSO Act and the IPC was considered and the exception to section 375 IPC was modified and the age of 15 was replaced with the age of 18 years. The Court also observed that since the law was laid down by the Apex Court under Article 32 of the Constitution, it has to be interpreted in the same way in which it has been laid down in the Independent Thought Case. 
• The Court, thus, observed that the applicant cannot take up such a defence that since he was married to the applicant/wife and she had not resisted whatever sexual intercouse had taken place between them. Child marriages are a hazard to the social fabric of the country, they have to be stopped and no one should be able to take advantage of any such situation. 
• The Court also observed that a bona fide inquiry should be taken up at the time of marriage, not just of the behaviour of the girl or her parent’s financial condition, but also of the girl’s age. When the offence alleged against the applicant also involved such a complex social problem, the Court stated that it was not inclined to use the extraordinary relief provided under section 438 of CrPC. 
• Hence, the application was dismissed. 

U/S 12A Of Income Tax Act Corpus Donations Which Aren't Registered, Aren't Taxable: ITAT Mumbai

• In Versova Kokni Sunni Jamat Trust versus Centralised Processing Centre Bangalore (2022), a bench of the Mumbai Income Tax Appellate Tribunal observed that even if a Trust is not registered under Section 12 A of the Income Tax Act, the corpus donations received by the Trust for a specific purpose will not be taxable as they are like a capital receipt.
• In this instance, Assessee Versova Kokni Sunni Jamat Trust filed an income tax return for the relevant assessment year. The Assessing Officer refused the exemption for voluntary contributions, including the corpus donation received by them for purchasing an immovable property (AO). As a result, a case was filed with the Commissioner of Income Tax (CIT). The Trust maintained that the corpus donation received by it was in the form of a capital receipt and hence not taxable in the hands of the Assessee Trust, notwithstanding the fact that it had not been registered under Section 12A of the Income Tax Act. 
• Furthermore, while rejecting the Trust's contentions, the CIT found that the Trust could not benefit from Section 11 of the Income Tax Act's exemption because it was not registered under Section 12 A. As a result, an appeal was filed with the ITAT against the CIT's order. Following that, The Trust raised the aforementioned arguments before the ITAT.
• Section 11 of the Act exempts income from property held under a trust for charitable or religious purposes in India to the extent that the income is used for those purposes in India.
• Section 12 A of the Act states that the benefit of the exemption under Section 11 is not applicable with respect to the income of any trust or institution unless the person receiving the income has applied for registration of the Trust or institution in accordance with the rules thereof.
• In a relevant case, ITO versus Serum Institute of India Research Foundation (2018), it was observed that corpus donations received for a specific reason by a Trust that is not established under Section 12A/12AA of the Income Tax Act are not taxable since they are treated as a capital receipt.
• As a result, the ITAT observed, citing the aforementioned case and statutes, that various documents supporting the Trust's submission of the corpus donations received for the specific purpose of purchasing an immovable property had been filed, indicating that the transaction was in the nature of a capital receipt.
• Furthermore, the Trust had provided the contributors' information, including their PAN cards and proof of purchase of the designated property in the previous fiscal year. However, the AO could not verify the documents supplied by the Trust as the revenue agency did not undertake any scrutiny proceedings.
• Therefore, the appeal filed by the Trust was allowed by the ITAT.