Chandra Kumar Vs. State - Court Judgment

Excerpt:
- section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. order and military army act discipline. section 63 in that he, at filed, on 17th nov. 1988, improperly utilised for himself iaft-1752-pa/53- 869651 dated 15th nov. 1988, single/return journey railway warrant from jammu to new delhi and back.' 3. the petitioner at the first instance made a grievance as to the constitution of the court saying that the officers manning the same were subordinate to the convening officer against whom the petitioner had filed a statutory complaint and, thereforee, he had no confidence in the court. this objection was adjudicated upon by the court and over-ruled vide its order dated 15th march, 1990. the petitioner chose not to carry his grievance any further instead participated in the proceedings till the very end. he challenged the same only by way of this writ petition in 1991, where inter alias he took grounds of bias based on his objections taken by him earlier before the court.4. i have heard learned counsel for the petitioner who has strenuously argued that once the petitioner had shown lack of confidence in the composition of the court, it was incumbent upon the convening officer to have attached him to another unit. learned counsel has also submitted that the defense of the petit (sic) was handicapped inasmuch as a biased court had not allowed him to produce (sic) witness essential to his case.5. i have carefully examined the record of the case. undoubtedly, it is (sic) within the purview of this court to examine the sufficiency of evidence add (sic) however, the correctness of the court martial, procedural error or any lapse (sic)fairness could always be enquired into by way of judicial review. i have been (sic) through the record of the case by learned counsel for the respondent(sic) submitted that the statutory complaint alleged to have been made by the petit (sic)was against commander 71, sub area, who at that time was brig. i.s. sahni (sic) the convening officer of the present court martial was brig. j.s. phoolka. there (sic) the contention of the learned counsel that prejudice has been caused to him (sic) convening of the court is misfounded. from the record it appears that (sic) contention of the learned counsel for the respondent is correct and that (sic) petitioner's basis of this objection is factually erroneous. the next attack sic) learned counsel for the petitioner is to his denial of defense inasmuch as transp(sic) who transported his goods was not examined. that also is factually incorrect.(sic)2 6, sh. satinder pal singh s/o sh. janak singh has been produced by the petit (sic) in his defense as the transporter who is alleged to have transported his goods (sic) witness categorically states that only a receipt for transporting of goods was (sic) but no goods were in fact transported. the toll in charge has been examined as (sic) 13 who sates that the trucks alleged to have carried the goods of the petitioner (sic) namely, jkq 3285 and jkr 9587 did not cross the check-posts of the (sic) thereforee, this contention of the petitioner is also baseless. the next conten(sic) namely that he has been punished twice for use of ltc is denied by the respon (sic) and the petitioner has not placed on record any order by which he was punish (sic) the first instance. this also to my mind holds no water.6. having, thereforee, examined the record of the case, in order to ascerta (sic) fairness of the proceedings as also the legality thereof, i am of the firm opinion (sic) the proceedings of the court martial sought to be challenged in this writ pe(sic) suffers from no infirmity that calls for interference by the court.7. crl. writ petition 590/1991 is dismissed.8. writ petition dismissed.

Judgment:
ORDER

AND MILITARY

Army Act DISCIPLINE.

Section 63

in that he,

at filed, on 17th Nov. 1988, improperly utilised for himself IAFT-1752-PA/53- 869651 dated 15th Nov. 1988, single/return journey railway warrant from Jammu to New Delhi and back.'

3. The petitioner at the first instance made a grievance as to the constitution of the Court saying that the officers manning the same were subordinate to the Convening Officer against whom the petitioner had filed a statutory complaint and, thereforee, he had no confidence in the Court. This objection was adjudicated upon by the Court and over-ruled vide its order dated 15th March, 1990. The petitioner chose not to carry his grievance any further instead participated in the proceedings till the very end. He challenged the same only by way of this writ petition in 1991, where inter alias he took grounds of bias based on his objections taken by him earlier before the Court.

4. I have heard learned Counsel for the petitioner who has strenuously argued that once the petitioner had shown lack of confidence in the composition of the Court, it was incumbent upon the Convening Officer to have attached him to another unit. Learned Counsel has also submitted that the defense of the petit (SIC) was handicapped inasmuch as a biased Court had not allowed him to produce (SIC) witness essential to his case.

5. I have carefully examined the record of the case. Undoubtedly, it is (SIC) within the purview of this Court to examine the sufficiency of evidence add (SIC) However, the correctness of the Court Martial, procedural error or any lapse (SIC)fairness could always be enquired into by way of judicial review. I have been (SIC) through the record of the case by learned Counsel for the respondent(SIC) submitted that the statutory complaint alleged to have been made by the petit (SIC)was against Commander 71, Sub Area, who at that time was Brig. I.S. Sahni (SIC) the Convening Officer of the present Court Martial was Brig. J.S. Phoolka. There (SIC) the contention of the learned Counsel that prejudice has been caused to him (SIC) convening of the Court is misfounded. From the record it appears that (SIC) contention of the learned Counsel for the respondent is correct and that (SIC) petitioner's basis of this objection is factually erroneous. The next attack SIC) learned Counsel for the petitioner is to his denial of defense inasmuch as transp(SIC) who transported his goods was not examined. That also is factually incorrect.(SIC)2 6, Sh. Satinder Pal Singh s/o Sh. Janak Singh has been produced by the petit (SIC) in his defense as the transporter who is alleged to have transported his goods (SIC) witness categorically states that only a receipt for transporting of goods was (SIC) but no goods were in fact transported. The Toll in charge has been examined as (SIC) 13 who sates that the trucks alleged to have carried the goods of the petitioner (SIC) namely, JKQ 3285 and JKR 9587 did not cross the check-posts of the (SIC) thereforee, this contention of the petitioner is also baseless. The next conten(SIC) namely that he has been punished twice for use of LTC is denied by the respon (SIC) and the petitioner has not placed on record any order by which he was punish (SIC) the first instance. This also to my mind holds no water.

6. Having, thereforee, examined the record of the case, in order to ascerta (SIC) fairness of the proceedings as also the legality thereof, I am of the firm opinion (SIC) the proceedings of the Court Martial sought to be challenged in this writ pe(SIC) suffers from no infirmity that calls for interference by the Court.

7. Crl. Writ Petition 590/1991 is dismissed.

8. Writ Petition dismissed.