SCC Online Weekly Rewind Episode 23rd ft. Devika Sharma, Senior Editorial Assistant is out now. The written episode along with the video episode can be watched and read below.
Kerala High Court
Is marital rape a form of cruelty?
Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.
In a very significant decision, Kerala High Court held that merely for the reason that law does not recognize marital rape under the penal law, it does not inhibit the Court from recognizing the same as a form of cruelty to grant divorce.
High Court expressed:
if marriage is seen as a symbol to project status, without reflecting the values the individuals or society would cherish to profess, we may miss the basic concept required for marriage
https://www.scconline.com/blog/post/2021/08/10/marital-rape/
Supreme Court
SC issues directions to make voter’s right to information more effective; penalises political parties for non-compliance with earlier directions regarding disclosure of criminal antecedents: Read full report
“The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government.”
In a matter arising out of the elections held at Bihar Legislative Assembly, the Supreme Court found several political parties guilty of contempt of court for non-compliance of directions given by the Supreme Court in Rambabu Singh Thakur v. Sunil Arora, in connection with disclosure of information of candidates with criminal antecedents. Penalties have been imposed on the political parties found guilty. The Court also issued further directions in order to make the right of information of a voter more effective and meaningful.
https://www.scconline.com/blog/post/2021/08/13/fine-on-political-parties/
Foreign arbitral award enforceable against non-signatories to agreement; ‘perversity’ no longer a ground to challenge foreign award; tort claims arising in connection with agreement are arbitrable: SC expounds law on foreign awards
A foreign arbitral award is enforceable against non-signatories to arbitration agreement. The Supreme Court reiterated that grounds for resisting a foreign arbitral award contained in Section 48(1)(a) to (e) of the Arbitration and Conciliation Act, 1996 are to be narrowly construed, and that a non-signatory’s objection cannot possibly fit into Section 48(1)(a). Furthermore, a foreign arbitral award cannot be challenged on the ground of “perversity”.
Incidental to the main issue, it was also held that Section 44 recognises the fact that tort claims may be decided by an arbitrator provided they are disputes that arise in connection with the subject agreement.
The instant appeals before the Supreme Court raised interesting questions relatable to Part II of the Arbitration and Conciliation Act which provisions deal, inter alia, with recognition and enforcement of foreign awards.
https://www.scconline.com/blog/post/2021/08/11/foreign-arbitral-awards/
Conundrum of res judicata and rejection of plaint: SC summarises guiding principles for deciding an application under Or. 7 R. 11(d) CPC
Another very interesting development from the Supreme Court was that, the Court summarized the guiding principles for deciding an application under Order 7 Rule 11(d) of CPC.
(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;
(ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application;
(iii) To determine whether a suit is barred by res judicata, it is necessary that (a) the ‘previous suit’ is decided, (b) the issues in the subsequent suit were directly and substantially in issue in the former suit; (c) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (d) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and
(iv) Since an adjudication of the plea of res judicata requires consideration of pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused.
https://www.scconline.com/blog/post/2021/08/10/conundrum-of-res-judicata-and-rejection-of-plaint/
15 years after superannuation, a Govt. Employee still accommodated at Govt. accommodation: Does SC finds this legitimized?
In a conflict of Right to Shelter v. Right to Govt. accommodation, SC noted that a Kashmiri Migrant retired from the Intelligence Bureau was even after 15 years of his retirement still staying at the accommodation provided by the Government.
Court in view of the stated backdrop affirmed that,
If a retired government employee have no residence, they have an option to avail transit accommodation or to receive cash compensation in the place of transit accommodation.
Further, the Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office.
Holding that the right to shelter does not mean right to government accommodation, the matter was disposed of directing the retired officer to vacant the accommodation.
https://www.scconline.com/blog/post/2021/08/13/right-to-government-accommodation/
Telangana High Court
Mother allows her live-in partner to sexually assault minor daughter continuously
In a gruesome matter, Telangana High Court noted that a mother allowed her live-in partner to commit sexual assault on her minor daughter as result of which the minor became pregnant and gave birth to a male child.
High Court rejected the bail application of the mother.
Kerala High Court
Penetration between thighs of the victim held together; will it fall within the ambit of Rape?
Whether penetration to any part of the body of such woman as mentioned in Section 375(c) of IPC brings within its ambit a penile sexual act committed between the thighs held together; which do not qualify to be called an orifice?
In a historic decision the Kerala High Court held that the sexual act of penetration committed between the thighs of the victim held together is an act of manipulation of the body of the victim to obtain sexual gratification and the same fell within the ambit of the amended definition of rape.
Elaborating more, the Court stated that , when the body of the victim is manipulated to hold the legs together for the purpose of simulating a sensation akin to penetration of an orifice; the offence of rape is attracted. When penetration is thus made in between the thighs so held together, it would certainly amount to “rape” as defined under Section 375.
https://www.scconline.com/blog/post/2021/08/09/rape-3/
Kerala HC directs Kerala to reinstate the woman terminated for unauthorised absence on availing maternity leave
While addressing the grievances of a woman whose request for maternity leave was turned down by the State and to then exacerbate her agony, she was terminated from service on the accusation of unauthorised absence. Voicing the plight of the pregnant women in general, the Kerala High Court stated,
“Life as a new mother is like being on a roller-coaster and being a working mother is tougher. The minutiae of motherhood can never be properly contemplated and it involves navigation through myriad daily issues, which ultimately determine the health and future of the child.”
https://www.scconline.com/blog/post/2021/08/13/maternity-leave-3/
Bombay High Court
Can mere dishonour of cheque amount to abetment of suicide?
In the backdrop of a matter wherein a person committed suicide living behind an alleged suicide note naming the person who did not repay the deceased’s money. Though there was a big question mark on the genuineness of the suicide note.
High Court held that mere dishonour of cheque and refusal to pay the remaining balance amount involved in the transaction does not amount to abetment to commit suicide.
https://www.scconline.com/blog/post/2021/08/10/mere-dishonour-of-cheque/
Would throwing love chit on person of a married woman amount to outraging her modesty?
Modesty of a woman is most precious jewel and there cannot be a straitjacket formula to ascertain whether modesty is outraged.
Bombay High Court dealt with a matter wherein a 45 year old married woman was subjected to a situation where a man threw a chit on the person of woman professing love for her, noting the said fact Court held that this act was sufficient to be categorized under the ambit of Outraging the modesty of woman, As even on earlier occasions the man used flirted with the woman making gestures like pouting lips and hitting her with small pebbles.
https://www.scconline.com/blog/post/2021/08/11/outraging-modesty-of-a-woman/
Central Information Commission
Centre’s denial on information relating to committee set up to ensure adequate availability of medical oxygen during COVID-19, is justified?
Two weeks back, Central Information Commission dealt with a very pertinent matter, wherein an activist approached the Commission seeking certain information on the 9-Member Committee set up in April 2020 to ensure the adequate availability of medical oxygen during COVID-19 Pandemic.
In the arguments submitted by the Centre, they contended that the said information cannot be provided as the High level discussions of the empowered group frequently form part of the discussions within the highest decision-making body to avert and mitigate the impact of COVID-19 pandemic in the country and thus must be protected from disclosure given the larger intent to protect such information from being misused or being adversely used against the interest of the state.
The Commission directed the Centre to provide a point wise reply the activist within 10 days and in case if any information was being denied then the same should be suitably justified.
Appointments
Appointment | Kerala High Court gets 2 new Additional Judges
Two new Additions in the form of Additional Judges were made to the Kerala High Court vide notification dated 11th August 2021 by the Ministry of Law and Justice.
Read the Notification here:
https://www.scconline.com/blog/post/2021/08/11/appointment-of-additional-judges/
Legislation updates
IBC (Amendment) Act, 2021
The Central Government has notified the Insolvency and Bankruptcy Code Amendment Act, 2021 which has brought Pre-packaged Insolvency Resolution Process for MSMEs. The Act repeals the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2021 and amends the provisions of IBC Act, 2016.
The Application for initiating Prepacked Insolvency Resolution Process may be filed in the event of a default of at least one lakh rupees. However, the Central Government may increase the threshold of minimum default up to one crore rupees through a notification.
Rent-a-Cab (Amendment) Scheme 2021
The Central Government has notified Rent-a-Cab (Amendment) Scheme 2021 which provides that the battery-operated motor cabs and motor cabs driven on methanol and ethanol is exempted from the provisions under S. 66 of the Motor Vehicles Act, 1988.
Income tax Amendment (22nd Amendment), Rules, 2021
The Central Board of Direct taxes has notified the Income tax Amendment (22nd Amendment), Rules, 2021 which provides the procedure for computation of income of a specified fund attributable to units held by non-resident as well as the procedure for computation of exempt income of specified funds.
In the Monsoon Session, Various Bills Have Been Passed by Parliament Such as:
- Tribunal Reforms Bill, 2021 [ https://www.scconline.com/blog/post/2021/08/10/parliament-passes-tribunal-reforms-bill-2021/]
- General Insurance Business (Nationalisation) Amendment Bill, 2021 [ https://www.scconline.com/blog/post/2021/08/12/parliament-passes-general-insurance-business-nationalisation-amendment-bill-2021/]
- National Commission for Homoeopathy (Amendment) Bill, 2021
- National Commission for Indian System of Medicine (Amendment) Bill, 2021
