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Lawfully yours: By Retd Justice K Chandru
Your legal questions answeredby JusticeK Chandru, former Judge of the Madras High Court. Do you have a question? Email us at citizen.dtnext@ dt.co.in
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‘Best interest of minor child’gets paramount importance
I’ve separated from my husband but not legally as he is contesting the divorce. I have a six-year-old daughter and both of us want sole custody of her. I don’t have a job right now, but intend to look for one as I am a qualified professional. My parents are quite well-off and my father is willing to support my daughter and me. How can I get sole custody of my daughter as a non-working person? I am willing to forego child support and alimony too.
— Kiran (name changed on request)
As is universally accepted in all matters of child custody, the court will only consider what is in “best interest of the child”. Since she is a six-year-old girl, the court will examine only the better place for the child to be brought up and in case you are not employed at the moment, it need not be considered a disqualification. On the other hand, the court could direct the husband to pay maintenance for the child. Whoever has been given the custody, the other one will be given the right to visit the child periodically.
Winning domestic violence case not a claim to file libel
My ex-wife had filed a false case of domestic violence against me and my parents. We contested the case and the court ruled in our favour. Now I want to file a defamation case against her. As I want to get married again, I find many women hesitant on taking the proposal forward because of the charges I faced. Can I file a defamation case against her? Will it be a civil or criminal defamation case?
— Kumaraja, Gopalapuram
Pleadings filed before a court may not grant privilege to the person who filed the pleadings. In your case, it was your spouse who made allegations of domestic violence in a court of law. Merely because she did not prove those allegations and the court, based on its evidentiary value, did not accept her version, that will not rise to an action for defamation. You will be wasting your time by filing either civil or criminal proceedings and will be spoiling your chances of a second marriage.
Being on dating sites no ground for legal action
I have been married for five years and has a three-year-old child. During the lockdown, I found my husband active on dating sites. I came to know that he has been on dating apps for at least two years. I have not caught him meeting anyone but I have seen notifications from women he is actively talking to. Can this be considered as grounds for cheating? Can I legally stop him from using dating apps because he is a married man?
— Homemaker, Virugambakkam
Under the Hindu Marriage Act, either for judicial separation or for divorce, one has to prove the reasons set out in their provision and Sec.13(1)(i) reads as follows: “13 Divorce (1).. [(i) has, after the
solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse”. Since you have alleged that your husband is chatting with women on dating sites, that may not be a ground for initiating action against him under the law.
While retrenching, firm has to follow seniority rule
I have been laid off after 15 years of service due to lockdown but my company has retained many juniors saying they are low-cost resources. I am the sole earning member of my family. Is there any legal protection for me? Can the company remove one with exemplary service record and retain less qualified people?
—Wilson, Egmore
Layoff is the failure or inability of the employer to provide work due to several factors. In such cases, seniority is not the rule for laying off. However, when your employer wants to retrench any workmen, then under Sec. 25G seniority in that establishment has to be followed. It only means last come first go. Any violation, you can approach the labour court (in case you are a workman) or (if in any supervisory capacity in a commercial establishment) the Deputy Commissioner of Labour with an appeal under Sec. 41(2) of the TN Shops and Establishments Act, 1947.
DISCLAIMER: The views expressed here are of Justice K Chandru, who is providing guidance and direction based on his rich experience and knowledge of the law. This is not a substitute for legal recourse which must be taken as a follow-up if so recommended in these columns
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