Dismissed

Kishwar Mirza v. the State of Maharashtra through Public Pleader and 4 Ors.

Bombay HC11 Mar 2016PIL/9/2017

Case brief

AI extract

What is this about?

In this PIL, the Bombay High Court refused to permit the withdrawal of the petition and denied a writ of mandamus seeking directions to family courts to implement NGO-framed guidelines or mandating access to non-custodial parents outside the court complex. The Court held such directions would unduly interfere with judicial discretion.

What did the court decide?

Petition dismissed; writ of mandamus refused; material from NGO passed to Maharashtra Judicial Academy for consideration.

Kishwar Mirza Vs the State of Maharashtra through… — Service and Employment | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
 PUBLIC INTEREST LITIGATION (L)NO.27 OF 2015

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ALONG WITH

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 CHAMBER SUMMONS NO.350 OF 2015

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Kishwar Mirza...Petitioner
vs.

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State of Maharashtra & Anr. ...Respondents

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Mr.Santosh Baliga i/b S.S.Abbas Naqvi for the
Petitioner

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Mr.P.H.Kantharia, GP for the respondent No.1
Mr.Vijay Hiranath for intervenor For MAJLIS Manch
Ms Surabhi Singh for intervenor for SCREAM
Mr.V.R.Singh for intervenor for Child Rights
Foundation.

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CORAM : A.S.OKA, &
 G.S.KULKARNI, JJ.

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 DATE : MARCH 11, 2016

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P.C.:

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1The learned counsel for the petitioners seeks
permission to withdraw this petition. This being
PIL, we cannot permit withdrawal.

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2We have perused the prayers made in this
petition. The substantive prayers in this petition
are in terms of prayer clauses (a) to(c) which read
thus:

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“(a)that this Hon'ble Court be pleased to
issue Writ of Mandamus or any other Writ in
the nature of Mandamus and pass necessary
directions/orders.

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(b) that this Hon'ble Court be pleased
approve and authenticate the said Guidelines

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(being Exhibit `A' herein) and thereby,
direct the Ld. Principle Judge of the Family
Courts and the Marriage Counsellors across
the State of Maharashtra to implement the
said Guidelines which has already been
circulated to the said Courts by the Registry
(Appellate Side) of this Hon'ble Court.

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(c)that in the alternative, this Hon'ble
Court be pleased to frame guidelines
pertaining to the issue of access of minor
child to the non-custodian parent outside the
Family Court Children Complex.”

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3Guidelines have been annexed as Exhibit-A. The
guidelines have been prepared by the Child Rights
Foundation, a NGO. A letter dated 6th January 2011
addressed by the Registrar Inspection-II of this
Court to Shri Jatin Katira, of the Child Rights
Foundation is a part of the said guidelines. It
itself records that the said guidelines have been
directed to be circulated to the Judges of the
Family Courts and Marriage Counsellors attached to
the State of Maharashtra.

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4Not only the guidelines but certain other
material is placed on record. Prayer (b) suggests
that this Court should approve the guidelines and
direct the learned Principal Judges of the Family
Courts and the Marriage Counsellors to implement the
guidelines which are already circulated. All the
Judges of the Family Courts and the Marriage

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3 ospill27

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Counsellors are bound by law. All matters which are
placed before the learned Judges of the Family
Courts are required to be decided in accordance with
law. The Guidelines cannot take place of a law. We
are sure that as the guidelines have been already
circulated, the learned Judges of the Family Courts
are bound to go through the said guidelines.

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5Therefore, a writ of mandamus directing the
Judges of the Family Courts and Marriage Counsellors
to implement the guidelines issued by the NGO can
never be issued. Issuing such a writ will amount to
the interference with the judicial discretion of
the Judges who are under an obligation to decide all
the matters placed before them in accordance with
law. As far as prayer(c) is concerned, the decisions
of the Family Courts on the issue of access to minor
child will have to be in terms of the settled law
and not in terms of the guidelines. As far as the
place where the access should be provided is
concerned, it depends upon the facts and
circumstances of each case. It can be never laid
down as a proposition of law that in every case, the
access to the minor child should be provided outside

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the Family Court children complex. Paramount
consideration in such cases is the welfare of the
minor child. If considering the paramount interest
of the minor child, in the facts of a case, the
learned Judge of the Family Court comes to the
conclusion that access will have to be given outside
the Family Court children complex, we are sure that
such orders will be passed by the learned Judge of

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the Family Courts.

6If any NGO has any material which is relevant
to deal with the issues which are dealt with by the
Family Courts, the NGOs can certainly forward the
said material to the High Court Administration so
that Maharashtra Judicial Academy can certainly look
into it.

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7If the Maharashtra Judicial Academy is of the
view that the guidelines are material which are
supplied by an NGO and are beneficial for the Judges
of the Family Courts, we are sure that necessary
steps will be taken by the Maharashtra Judicial
Academy.

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8What we want to emphasis is that no NGO can
come before the Court and seek a writ of mandamus
directing the Family Courts to implement the
guidelines framed by it. A writ Court cannot issue
a writ of mandamus which will directly interfere
with the judicial discretion of the Judicial
Officers who are bound to decide the matters in
accordance with law. Hence, we are unable to issue
a writ of mandamus as prayed for in terms of prayer
clauses(a) to(c).

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9Subject to what is observed above, we dispose
of the PIL. Pending Chamber Summons and Notice of
Motion do not survive and the same are disposed of.

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(G.S.KULKARNI,J.)

Kishwar Mirza v. the State of Maharashtra through Public Pleader and 4 Ors.

Case brief

What is this about?

What did the court decide?

Kishwar Mirza v. the State of Maharashtra through Public Pleader and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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