Considering the plight of children who are
either orphan or disowned by their guardians due to some financial disability
or dissolution of marriage of their parents, the division bench of D.P. Singh
and A.K. Tripathi held that the Parliament or the State Legislature must
legislate law for family planning in proper and justifiable manner so that the
citizens and future generations may not suffer from any adverse consequences
without any fault on their part due to shortage of resources.
Case :- MISC. BENCH No. - 9162 of 2014
Petitioner :- Mohd. Faiz
Respondent :- State Of U.P. Thru. Distt. Magistrate Lucknow & 2 Ors.
Order Date :- 17.9.2014
Hon'ble Devi Prasad Singh,J.
Hon'ble Arvind Kumar Tripathi (II),J.
(1) Heard learned counsel for the petitioners as well as learned Standing Counsel and perused the records.
(2) In both these writ petition, common question with regard to social problems being faced by the citizens of this democratic country, is involved. Hence, with the consent of learned counsel for the parties, both these petitions are being heard and disposed of by this common judgment.
Writ Petition No.9162:
(3) By means of this writ petition petitioner, Mohd. Faiz, a minor aged about 18 years, has approached this Court under Article 226 of the Constitution, being aggrieved with the action of his parents in not providing required assistance by discharging their parental duties.
(4) According to learned counsel for the petitioner, father of the petitioner-respondent no.3, has married to another lady. Similarly, the petitioner's mother has also married another person leaving their children without any guardianship. Submission is that petitioner's father is disposing of the parental Bhumidhari property which the family had inherited from their ancestors leaving no land for the petitioner.
(5) So far as the right of the petitioner over ancestral Bhumidhari property is concerned, it is subject matter which may be looked into by the competent court having jurisdiction, in case some suit is filed. The competent Court has got ample power to grant temporary injunction if a prima facie case is made out and property is found to be ancestral and petitioner is entitled to a share by birth.
(6) So far as grant of maintenance is concerned, option is open to the petitioner to file appropriate petition before the Family Court for grant of maintenance from his father or mother, as the case may be.
(7) The fact remains that the plight of the petitioner and alike persons requires consideration by the Government or the Society at large. India cannot compare itself to western countries on account of huge population and limited resources. The financial capability of citizens of western countries seems to be too much as compared to India because of their lesser population and higher land area. But so far as this country is concerned, rapid growth in the population coupled with limited resources, it may not be possible for the Government to provide required assistance to each and every orphan, or citizen or children who have been left by their parents. On account of change of law and social scenario, such incidence are coming to the Courts frequently where children have been disowned by their own father and mother on account of their subsequent marriage with other persons or for some other reasons. It is a burning issue for the society, and sooner the better, the Government or the society takes preventive measures formulating some policy or scheme of safeguarding the children facing with such an awkwardly situation. It goes without saying that in such cases, children who have been disowned or left by their parents, are not at fault.
(8) The Judgment of the Apex Court in the case of Lata Singh vs. State of U.P. and others reported in (2006)5 SCC 475, in due course of time may create tricky situation in the society where children may be disowned by their own parents on account of dissolution of marriage due to their being infatuated by opposite gender. An ugly situation may crop up when because of such union of male and female may result in giving birth to child, and in case either of them does not have any property, then even the courts shall be handicapped to pass appropriate orders or direction for grant of maintenance in an unlikely event of desertion or dissolution of marriage. The complexity of the situation seems not to have been taken into account while propagating for 'living in' relationship or dissolution of marriage. The courts and law framers has not understood the complexity of situation while giving jolt to joint family system and old ancient civilization which even today is continuing in substantial part of this country across the board. Giving more weight to individual right against the culture, tradition and practice perpetuating 6000 years of our civilization may result with disastrous consequence in due course of time. These are certain issues which requires to be considered not only by the Government but also by the socially active persons.
(9) So far as petitioner is concerned, keeping in view the observations made hereinabove he has right to approach the competent court, or authority, as the case may be, for payment of compensation or seeking injunction over his ancestral property subject to fulfillment of requirement of law.
Writ Petition No.9164(M/B) of 2014:
(10) In this writ petition, grievance of petitioner Shahnaz Bano is against her own son Mohd. Mohsin-respondent no.4, who is persecuting his mother after death of his father Dr. Jalil Ahmad. The petitioner has got three sons and three daughters. Respondent no. 4 is the eldest one, who is dealing with his own mother in highhanded manner due to his being in company of anti social elements, and also his being in relation with a girl on whose instigation respondent no. 4 wants to grab petitioner's house. The petitioner has submitted representations to the District Magistrate, Pratapgarh and Superintendent of Police, Pratapgarh, copies of which have been annexed as Annexures 1 to the writ petition.
(11) This is another instance where own son is alleged to threatening the mother and treating her shabbily. Being mother of six children, after death of her children, the petitioner is facing adverse consequences. Prima facie it appears that one of the reasons may be financial crisis to maintain the family because of being mother of six children. Ordinarily, we have noticed that when the number of the children is more in the family, the family suffers from financial crunch and is not able to maintain and taking care of the children resulting in complex socio-economic problems amongst the members of the family. The mother, about 48 years of age, is facing problems prima facie because of financial crunch and the eldest son seems to wants to get lion share in the family property. All this happening is because of failure on the part of the Government and the society. At this stage, we feel it apposite to mention that petitioner Shahnaz Bano has disowned her own son in compelling circumstances and a notice has been published in the newspapers (Annexure-2 to the writ petition)
(12) It is high time when the Parliament or the State Legislature must come forward to have and legislate law for family planning in proper and justifiable manner so that the citizens and future generations may not suffer from any adverse consequences without any fault on their part due to shortening of resources.
(13) So far as petitioner Shahnaz Bano is concerned she has already submitted representation to the District Magistrate and Superintendent of Police, Pratapgarh. They are directed to look into her plight and ensure that no untoward incident happens to her.
(14) Since we have not entered into the merits of the case, issuance of notice to the private respondents is dispensed with.
(15) In case petitioner approaches appropriate forum then such court or authority shall consider their case/petition independent of factual observation made in the body of the present judgment.
Subject to the above observations and liberty, both these writ petitions are disposed of.
[Justice Arvind Kumar Tripathi-II] [ Justice Devi Prasad Singh]
Order Date :- 17.9.2014
In the instant case where
petitioner is represented by R.S. Dubey, the Court clubbed the two writ
petitions of like natures which deal with abandoning or disowning of
guardianship of children by their parents on account of financial disability.
The Court discussed the complex issues such as effect of change in law and
society on families and held State and society responsible for being unable to
provide assistance to each orphan and children who are disowned by their parents
The Court also referred the
decision of Supreme Court in Lata Singh
v.State of U.P. (2006) 5 SCC 475 where it was held that, while propagating
for dissolution of marriage and “living in” relationship, the courts and law
framers has given a jolt to joint family system which even today is continuing
in substantial part
of this country. The Court further observed that Government or society must
take preventive measures formulating some policy or scheme of safeguarding the
children facing with such situationCase :- MISC. BENCH No. - 9162 of 2014
Petitioner :- Mohd. Faiz
Respondent :- State Of U.P. Thru. Distt. Magistrate Lucknow & 2 Ors.
Order Date :- 17.9.2014
Hon'ble Devi Prasad Singh,J.
Hon'ble Arvind Kumar Tripathi (II),J.
(1) Heard learned counsel for the petitioners as well as learned Standing Counsel and perused the records.
(2) In both these writ petition, common question with regard to social problems being faced by the citizens of this democratic country, is involved. Hence, with the consent of learned counsel for the parties, both these petitions are being heard and disposed of by this common judgment.
Writ Petition No.9162:
(3) By means of this writ petition petitioner, Mohd. Faiz, a minor aged about 18 years, has approached this Court under Article 226 of the Constitution, being aggrieved with the action of his parents in not providing required assistance by discharging their parental duties.
(4) According to learned counsel for the petitioner, father of the petitioner-respondent no.3, has married to another lady. Similarly, the petitioner's mother has also married another person leaving their children without any guardianship. Submission is that petitioner's father is disposing of the parental Bhumidhari property which the family had inherited from their ancestors leaving no land for the petitioner.
(5) So far as the right of the petitioner over ancestral Bhumidhari property is concerned, it is subject matter which may be looked into by the competent court having jurisdiction, in case some suit is filed. The competent Court has got ample power to grant temporary injunction if a prima facie case is made out and property is found to be ancestral and petitioner is entitled to a share by birth.
(6) So far as grant of maintenance is concerned, option is open to the petitioner to file appropriate petition before the Family Court for grant of maintenance from his father or mother, as the case may be.
(7) The fact remains that the plight of the petitioner and alike persons requires consideration by the Government or the Society at large. India cannot compare itself to western countries on account of huge population and limited resources. The financial capability of citizens of western countries seems to be too much as compared to India because of their lesser population and higher land area. But so far as this country is concerned, rapid growth in the population coupled with limited resources, it may not be possible for the Government to provide required assistance to each and every orphan, or citizen or children who have been left by their parents. On account of change of law and social scenario, such incidence are coming to the Courts frequently where children have been disowned by their own father and mother on account of their subsequent marriage with other persons or for some other reasons. It is a burning issue for the society, and sooner the better, the Government or the society takes preventive measures formulating some policy or scheme of safeguarding the children facing with such an awkwardly situation. It goes without saying that in such cases, children who have been disowned or left by their parents, are not at fault.
(8) The Judgment of the Apex Court in the case of Lata Singh vs. State of U.P. and others reported in (2006)5 SCC 475, in due course of time may create tricky situation in the society where children may be disowned by their own parents on account of dissolution of marriage due to their being infatuated by opposite gender. An ugly situation may crop up when because of such union of male and female may result in giving birth to child, and in case either of them does not have any property, then even the courts shall be handicapped to pass appropriate orders or direction for grant of maintenance in an unlikely event of desertion or dissolution of marriage. The complexity of the situation seems not to have been taken into account while propagating for 'living in' relationship or dissolution of marriage. The courts and law framers has not understood the complexity of situation while giving jolt to joint family system and old ancient civilization which even today is continuing in substantial part of this country across the board. Giving more weight to individual right against the culture, tradition and practice perpetuating 6000 years of our civilization may result with disastrous consequence in due course of time. These are certain issues which requires to be considered not only by the Government but also by the socially active persons.
(9) So far as petitioner is concerned, keeping in view the observations made hereinabove he has right to approach the competent court, or authority, as the case may be, for payment of compensation or seeking injunction over his ancestral property subject to fulfillment of requirement of law.
Writ Petition No.9164(M/B) of 2014:
(10) In this writ petition, grievance of petitioner Shahnaz Bano is against her own son Mohd. Mohsin-respondent no.4, who is persecuting his mother after death of his father Dr. Jalil Ahmad. The petitioner has got three sons and three daughters. Respondent no. 4 is the eldest one, who is dealing with his own mother in highhanded manner due to his being in company of anti social elements, and also his being in relation with a girl on whose instigation respondent no. 4 wants to grab petitioner's house. The petitioner has submitted representations to the District Magistrate, Pratapgarh and Superintendent of Police, Pratapgarh, copies of which have been annexed as Annexures 1 to the writ petition.
(11) This is another instance where own son is alleged to threatening the mother and treating her shabbily. Being mother of six children, after death of her children, the petitioner is facing adverse consequences. Prima facie it appears that one of the reasons may be financial crisis to maintain the family because of being mother of six children. Ordinarily, we have noticed that when the number of the children is more in the family, the family suffers from financial crunch and is not able to maintain and taking care of the children resulting in complex socio-economic problems amongst the members of the family. The mother, about 48 years of age, is facing problems prima facie because of financial crunch and the eldest son seems to wants to get lion share in the family property. All this happening is because of failure on the part of the Government and the society. At this stage, we feel it apposite to mention that petitioner Shahnaz Bano has disowned her own son in compelling circumstances and a notice has been published in the newspapers (Annexure-2 to the writ petition)
(12) It is high time when the Parliament or the State Legislature must come forward to have and legislate law for family planning in proper and justifiable manner so that the citizens and future generations may not suffer from any adverse consequences without any fault on their part due to shortening of resources.
(13) So far as petitioner Shahnaz Bano is concerned she has already submitted representation to the District Magistrate and Superintendent of Police, Pratapgarh. They are directed to look into her plight and ensure that no untoward incident happens to her.
(14) Since we have not entered into the merits of the case, issuance of notice to the private respondents is dispensed with.
(15) In case petitioner approaches appropriate forum then such court or authority shall consider their case/petition independent of factual observation made in the body of the present judgment.
Subject to the above observations and liberty, both these writ petitions are disposed of.
[Justice Arvind Kumar Tripathi-II] [ Justice Devi Prasad Singh]
Order Date :- 17.9.2014
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