Case BriefsHigh Courts

Calcutta High Court: Rajasekhar Mantha, J., held that,

To compel a senior citizen to approach either a civil court (the jurisdiction of which is any way barred under Section 27 of the 2007 Act) or take recourse to a special Statute like the 2007 Act would in most cases be extremely erroneous and painful for a person in the sunset days of life.

It is well settled that children and their spouses living in the senior citizen’s house are at best “licensees”. It is also stated that the said license comes to an end once the senior citizens are not comfortable with their children and their families.

The above-said principle was followed by the Delhi High Court in Sandeep Gulati v. Divisional Commissioner, WP (C) 2761 of 2020 and Punjab and Haryana High Court in Manmohan Singh v. UT Chandigarh, Case No. 1365 of 2015; Samsher Singh v. District Magistrate, U.T. Chandigarh (Case No. 2017 CWP 6365) and Gurpreet Singh v. State of Punjab, Case No. 2016 (1) RCR (Civil) 324.

Issues for consideration:

  • Availability of alternative remedy under the provisions of the Maintenance and Welfare of Parents Senior Citizens Act, 2007.
  • Right of a daughter-in-law of residence to be provided by either the husband or the father-in-law, if directed by a competent court under the provisions of the Domestic Violence Act, 2005.

Supreme Court in S. Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023, expressed that since both, the Senior Citizens Act, 2007 as also the Domestic Violence Act, 2005 are special legislations, the two must be construed harmoniously and applied suitably by a writ court hearing a plea of the senior citizens that they do not want their children to live with them. In the said decision, Supreme Court elaborately dealt with the principle under the headline “E. Harmonising competing reliefs under the PWDV Act 2005 and Senior Citizens Act 2007”.

In the present matter, since no right of residence was sought by the daughter-in-law, the Court opined that there was no impediment in allowing exclusive residentiary rights to the senior citizens to direct eviction of son and daughter-in-law.

Therefore, while concluding, the High Court stated that the right of a senior citizen to exclusively reside in his own house, must be viewed from the prism of Article 21 of the Constitution of India.

Further, the Court added that the principle of alternative remedy cannot be strictly applied to Senior Citizens and a Writ Court must come to the aid of a Senior Citizen in a given case.

A nation that cannot take care of its aged, old and infirm citizens cannot be regarded as having achieved complete civilization.

In view of the above discussion, petition was disposed of.[Ramapada Basak v. State of West Bengal, WPA 10835 of 2021, decided on 23-07-2021]


Advocates before the Court:

Mr. Sobhan Majumder
… … for the petitioners

Mr. Raja Saha Mr. Simanta Kabir

… for the State

Hot Off The PressNews

The National Human Rights Commission constituted a Committee to enquire into the post-poll violence in West Bengal, as per the directions of the Calcutta High Court. The Committee submitted its report to the Court on 13th July, 2021.

On the further directions of the Court, the Committee provided a copy of the said report to its Advocate in Calcutta, who shared with the Advocates of all the parties concerned in the related multiple writ petitions.

The matter being sub-judice, the Committee of the NHRC did not share its report to any entity other than those specified by the Court.

Since the report is already available with all the concerned parties as per the directives of the Court, there is no question of leakage at the level of the NHRC.

The attribution regarding the alleged leakage of the said Report to the NHRC is absolutely baseless and factually incorrect.


National Huma Rights Commission

[Press Statement dt. 15-07-2021]

Case BriefsHigh Courts

Calcutta High Court: Full Bench of Rajesh Bindal, ACJ and I.P. Mukerji, Harish Tandon, Soumen Sen, Subrata Talukdar, JJ., decided that the arguments in the case begin from 22-07-2021 after the NHRC submitted its final report vide order dated 18-06-2021. The committee submitted five sets of reports in separate sealed covers along with annexures.

On 02-07-2021, the Court had perused the interim report submitted by the NHRC, and it was derived that stand taken by the petitioners was established. Vide order dated 02-07-2021, Court had directed that second autopsy of deceased Abhijit Sarkar, whose dead body was lying in hospital be undertaken by a team of doctors in the Command Hospital, Kolkata.

Mr Y.J. Dastoor, Additional Solicitor General of India apprised the Court that an autopsy of the deceased has been conducted and report was being prepared. It was further submitted that the brother of the deceased expressed his inability to identify the body on account of its bad condition. Sample for DNA analysis of the deceased has been taken to confirm the identity of the body.

The Court ordered that the samples for DNA analysis of Biswajit Sarkar (brother of the deceased) be taken at the Command Hospital on 15-07-2021 at 11 A.M and he should carry his Aadhar Card at the time of giving his sample. Director, CFSL, Kolkata was directed to conduct DNA analysis of both the samples at the earliest on a priority basis and submit a report to the Court in a sealed cover within one week.

The Court directed that the body of the deceased be shifted back to the Hospital Mortuary and shall be retained in a safe condition until further order.[Anindya Sundar Das v. Union of India, WPA(P) 142 of 2021, dated: 13-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: The Full Bench of Rajesh Bindal, ACJ and  I.P. Mukerji, Harish Tandon, Soumen Sen and Subrata Talukdar, JJ., on 02-07-2021 perused the interim report filed by the NHRC in pursuance to court order dated 18-06-2021 on 30-06-2021.

After perusal, it was established that there had been post poll violence and the state was found on a wrong foot, where throughout it was on a denial mode. In violence, number of persons were killed. Many suffered sexual violence and grievous injuries. Even minor girls were not spared. They have been brutally assaulted sexually. The properties of many of them were damaged and number of them were forced to leave their houses and even migrate to neighbouring states. Investigation of the cases registered was in slip shod manner and hardly any arrests were made in such heinous crimes. Some of the cases have not been registered although prima facie they disclosed commission of cognizable offence. In most of the cases accused have been bailed out.

The Court was taken to surprise by the fact that state authorities, had been claiming throughout, that there were no complaints received by them but when opportunity was given to the complainants to file complaints with the State Legal Services Authority or the NHRC, the authorities were flooded with complaints. The report suggested that there is more to conceal than to reveal.

The Court issued certain directions in relation to the same,

  1. The police is directed to register cases in all matters which have either been reported to it or have been placed before the NHRC or any other authority/Commission. Steps be taken to get the statements of the victims recorded under section 164 CrPC immediately, as per law.
  2. The State shall make all arrangements for medical treatment of all who have been injured in the violence, post assembly elections.
  3. Supply of rations be ensured to the persons, even if they have lost their ration cards.
  4. The state is directed to place before the committee complete details of the cases in which the accused were arrested and have been enlarged on bail by the courts, so as to enable it to place the same before the court.
  5. Whatever information has been asked for by the committee from different authorities in the state, be supplied immediately. Any delay may call for adverse inference.
  6. Second autopsy of Abhijit Sarkar, Vice President of Bhartiya Mazdoor Trade Union Council in district Kolkata, whose body is lying in hospital be got done from a team of doctors to be constituted by the head of the Hospital at Command Hospital, Kolkata. For the purpose, the Chairperson of the Committee constituted by the National Human Rights Commission shall coordinate with the hospital concerned where the body of the deceased is lying and also the Head of the Command Hospital. The body shall be shifted to the Command Hospital for carrying out the second autopsy. The report shall specifically mention about the condition of the body as to whether it was properly preserved in the hospital where it was.
  7. Let a notice be issued to Rashid Munir Khan, Deputy Commissioner of Police, South Suburban Division, Kolkata to show cause as to why proceedings for contempt be not initiated against him for violation of the order passed by this court on June 18, 2021.
  8. All the central agencies and service providers of various services to assist the committee and provide the requisite information wherever required, to the extent permissible in law.
  9. The Chief Secretary of the State is directed to ensure preservation of the correspondence of the Special Branch/ Intelligence Branch of the State Police. Logs of different control rooms should also be preserved. The entire material from May 02, 2021 till date be kept in a sealed cover duly signed by the members of the committee, immediately. Any lapse or delay in the matter will invite adverse inference.

Matter adjourned to 13-07-2021.[Anindya Sundar Das v. Union of India, WPA(P) 142 of 2021, dated: 02-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhuri, J., expressed that, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection on regard, would not fall within the mischief of the expression ‘dowry’ made punishable under the Dowry Prohibition Act.

Appellants were convicted for committing an offence under Sections 498-A and 304-B Penal Code, 1860.

It was submitted that the de facto complainant would give a gold chain to the appellants within 6 months of the marriage of his daughter Soma with Netai Ghosh (appellant 1). immediately after marriage, the appellants started abusing Soma with filthy language. The same was conveyed by the daughter to the de facto complainant and other paternal relations. Soma’s husband also physically assaulted her.

Demand of Dowry

Later, de facto complainant came to know that his daughter Soma died consuming poison and according to him Soma committed suicide failing to bear physical and mental torture on demand of dowry inflicted upon her.

Trial judge held the appellant guilty for committing offence under Section 498A and 304B of the Penal Code, 1860.

In the instant case, the marriage of Soma was solemnized only before 44 days of her unnatural death.

Analysis and Decision

In a case of cruelty and dowry death, direct evidence is hardly available, and it is the circumstantial evidence and the conduct of the accused persons to be taken into consideration.

In the present matter, it was alleged in the FIR that the mother-in-law of the deceased used to abuse the deceased with filthy language as her father failed to give a gold chain at the time of the marriage

Allegation of cruelty and unnatural death of the deceased was made by the defacto complainant only after the death of the deceased.

Further, it is significant to note that the de facto complainant did not state in the FIR as well as in course of his evidence that the accused persons demanded dowry as a consequence of marriage.

Definition of expression “dowry” contained in Section 2 of the Dowry Prohibition Act, 1961 cannot be applied merely to the “demand” of money, property or valuable security made at or after the performance of marriage. 

Elaborating more on the concept of dowry, it was expressed that under Section 4 of the Act, mere demand of dowry is not sufficient to bring home the offence of an accused.

Any demand of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fall within the mischief of “dowry” under the Act where such demand is not properly referable to any legally recognized claim and is relatable only to the consideration of marriage.

 It was noted that there was absolutely no evidence that prior to her death the witnesses being PW1, PW2, PW4 and PW5 and others try to settle the alleged dispute between the parties during the lifetime of Soma.

As per the evidence Soma was ill-tempered, therefore, if at any incident of quarrel broke between the appellants and Soma, her nature was not such that she would silently digest the allegations made against her.

Since trial Judge failed to consider the above circumstances while holding the accused persons guilty and prosecution failed to prove the cause of death of the deceased, High Court set aside the decision of trial court. [Netai Ghosh v. State of West Bengal, 2021 SCC OnLine Cal 1938, decided on 21-06-2021]


Advocates before the Court:

For the Petitioner: Younush Mondal, Adv.

For the State: Swapan Banerjee, Adv., Suman De, Adv.

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Rajesh Bindal, ACJ. and Arijit Banerjee, J., suo moto took up a matter in larger public interest which was brought into notice by Shivakant Prasad, J., wherein he had noticed disturbing news published in the daily Hindi newspaper ‘Sanmarg’ regarding apprehension of waste of medicines worth a crore of rupees in Beliaghata ID hospital. The relevant part of the communication mentioned by Shivakant Prasad, J. included apprehension of medicinal wastage worth Rs. 1 crore, whereas the patients are crying for the medicines and injections, a big chunk of medicine is lying without use in Beliaghata ID hospital and if it is not allowed to be looked into then it is going to be wastage which is sheer loss to public exchequer and the patient go without medicine and injection in other hospitals.

He further showed concern about the absence of proper management and distribution of medicine and injections by the Health Department, Government of West Bengal as in other hospitals. He further proposed that the Government should be directed to place such a mechanism to improve store management capacity by employing competent professionals, equipping the store with necessary technology and introducing monitoring and evaluating health supply chain performance system in the health facilities.

The Court found that the note by Shivakant Prasad, J. was self-explanatory and that there was a need to develop a mechanism whereby wasteful expenditure on purchase of medicines in different hospitals and also the medical colleges which are not required and have to be thrown in the dustbin after its expiry, need to be examined.

The Court directed that notice of the petition be issued to the State of West Bengal through its Chief Secretary and the Secretary, Health and Family Welfare Department and they were asked to apprise the Court about the amount spent on purchase of different medicines and other consumables in the State of West Bengal during the last five years in different hospitals and medical colleges and the amount of medicines which had to be disposed of as the same could not be utilized before their expiry date, and also whether there is any software used for monitoring the purchase, supply and utilization of medicines in different hospitals in the State to check wastage and unnecessary purchase thereof.

The Court opined that “The entire system has to be maintained with the help of information and technology, the era in which we are living. One needs to keep in mind that taxpayers’ money of which the State is a trustee cannot be allowed to be wasted like this.”

The Court added that, “The entire mind and energy should not be used for framing the schemes to make the voters happy.”

Matter to be heard on 08-07-2021.[Court on its own motion v. State of West Bengal, WPA (P) 180 of 2021, order dated: 22-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: Full Bench of Rajesh Bindal, C.J.(A), I.P. Mukerji, Harish Tandon, Soumen Sen, Subrata Talukdar, JJ., on 18-06-2021 heard a series of petitions which dealt with the issue of the number of persons been made to run away from their houses to save their lives and are not being allowed to come back. The Court had given liberty to send complaints to the official e-mail ID of the West Bengal State Legal Services Authority and reinstatement had to be done e in the presence of a Committee of the officers nominated by the National Human Rights Commission and the West Bengal State Human Rights Commission and the Member Secretary of the West Bengal State Legal Services Authority.

The Court opined that in a case like where the allegation is that life and property of the residents of the State is in danger on account of alleged post poll violence, the State cannot be allowed to proceed in the manner it likes. The complaints required immediate action. The Court found that such an action was missing and it was the duty of the State to maintain law and order in the State and inspire confidence in the residents of the State.  The Court further added that, “State from the very beginning had been denying everything but the facts as having been placed on record by the petitioners and also as is evident little bit from the report dated June 3, 2021, filed by the Member Secretary of the West Bengal State Legal Services Authority, are different.”

The Court held that keeping in view the fact that there was infrastructure available with the NHRC, directed the Chairperson to constitute a Committee of which the Member Secretary of State Legal Services Authority shall be a member, to examine all the cases, the complaints of which have already been received by the Commission or which may be received. The Matter was adjourned to 30-06-2021.

On 21-06-2021 the Bench dismissed all the petitions which were filed by the State for recalling/modifying the order dated 18-06-2021.

It was contended that the State was not given any opportunity to place complete facts before the Court. In fact, the State had taken appropriate action. Counsel for the non-applicants had raised serious objections to the prayers made in the applications. Arguments raised are that considering the conduct of the State, ever since this Court had taken cognizance of the matter, this Court was constrained to pass the order directing the National Human Rights Commission along with the representatives from the State Human Rights Commission and the West Bengal State Legal Services Authority to go into the various complaints filed by the different persons.

The Court found that no case is made out for recalling, modification or stay of the order passed by this Court on 18-06-2021. The Court added that the way the State was proceeding in the matter which required immediate action, did not inspire confidence. Whatever information the State now wants to produce with reference to the complaints, may be placed before the National Human Rights Commission, which is to examine all the complaints along with the information supplied by the State and submit a report before this Court.

On 21-06-2021 Chairperson, NHRC constituted a Committee to be headed by Mr Rajiv Jain, Member, NHRC to enquire into complaints of post-poll violence in West Bengal.

The Committee is as under:

  1. Shri Rajiv Jain, Member, NHRC, head of the Committee.
  2. Shri Atif Rasheed, Vice Chairperson, National Commission for Minorities.
  3. Smt. (Dr.) Rajulben L. Desai, Member, National Commission for Women.
  4. Shri Santosh Mehra, Director General (Investigation), NHRC.
  5. Shri Pradip Kumar Panja, Registrar, West Bengal State Human Rights Commission.
  6. Shri Raju Mukherjee, Member Secretary, West Bengal State Legal Services Authority.
  7. Smt. Manzil Saini, DIG (Investigation), NHRC.

As per the directions of the High Court:-

a) This Committee shall examine all cases of post-poll violence in West Bengal, complaints about which have already been received in the National Human Rights Commission or which may be received.

b) The Committee shall also examine the complaints which have been received by the West Bengal State Legal Services Authority and also further complaints that may be received by the Legal Services Authority.

c) The cases shall be examined, including by visiting the affected areas and shall submit a comprehensive report to the High Court of Calcutta about the present situation and also steps to be taken to ensure confidence of the people that they can peacefully live in their houses and also carry on their occupation or business to earn their livelihood.

d) The Committee shall also point out the persons, prima-facie, responsible for crime and the officers who maintained calculated silence on the issue.

[Anindya Sundar Das v. Union of India, WPA(P) 142 of 2021, decided on 18-06-2021 & 21-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Appointments & TransfersNews

Order of Appointment 

President appoints Justice Rajesh Bindal, Senior-Most Judge of Calcutta High Court to perform the duties of the office of the Chief Justice of that High Court with effect from 29-04-2021 consequent upon the retirement of Justice Thottathil Bhaskaran Nair Radhakrishnan, Chief Justice of Calcutta High Court.


Ministry of Law and Justice

Notification dt. 27-04-2021]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., expressed that circulars issued by the Election Commission of India show the route map and protocol for human behaviour.

Court while addressing the matter stated that it is unable to reconcile the fact that the Election Commission of India was not able to update the Court as to what action by way of enforcement of the circulars had been obtained.

Issuance of circulars and holding of meetings by themselves do not discharge the onerous responsibility of the Election Commission of India and officers under its command in due performance of not only the statutory power and authority under Representation of People Act, 1950 and the Representation of People Act, 1951 but the confidence that the Indian polity would have on it to carry forward the mechanism of upholding the democracy by use of requisite facilities even in pandemic times like heightened challenge by COVID-19 virus and its variants.

Bench remarked that it is not satisfied with the materials on record to state that the Election Commission of India and its officers on the ground in West Bengal enforced the circulars.

“We are sure that circulars are not merely advisories to be wrapped up by the political parties or those involved in the political propaganda or even the public at large.” 

Further, High Court observed that

Circulars of the Election Commission of India show the route map and the protocol for  behaviour of the political parties, their workers, the people at large and responsible management by the officers including the police and other forces under the command of the Election Commission of India.

Lastly while concluding the matter, Court directed the counsel for Election Commission to return to make submission with a very short affidavit reflecting on whatever has been stated above. [Nitish Debnath v. Election Commission of India, 2021 SCC OnLine Cal 1521, decided on 22-04-2021]


Advocates before the Court:

Mr. Srijib Chakraborty, adv. Mr. Arindam Das, adv.

Mr. Dipayan Choudhury, adv. Mr. Suvradal Choudhury, adv.

Ms. Priyanka Chowdhury, adv.

… For the Election Commission of India

Mr. Y.J. Dastoor, ld. ASG Mr. Phiroze Edulji, adv. Ms. Amrita Panday, adv. Mr. Arijit Majumdar, adv.

…For the Union of India

Mr. Kishore Dutta, A.G.

Mr. Abhrathosh Majumdar, ld. AAG Mr. Sayan Sinha, adv.

… For the State

Mr. Sonal Sinha, adv.

… for the State Election Commission

Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J., expressed that Hindu Marriage Act is a gender-neutral provision and further expressed the scope of maintenance.

In the present revisional application, the issue was with respect to the wife being aggrieved with the quantum of maintenance.

Wife had filed an application under Section 24 of the Hindu Marriage Act and maintenance pendente lite @Rs 30,000 per month and Rs 75,000 as litigation cost was prayed.

Wife was aggrieved that the lower court allowed 1/5th of the husband’s income as maintenance pendente lite and considering the husband’s income as Rs 60,000, Court proceeded to grant an amount of Rs 12,000 as maintenance.

Hindu Marriage Act provides for the rights, liabilities and obligations arising from a marriage between two Hindus.

Sections 24 and 25 make provisions for providing maintenance to a party who has no independent income sufficient for his or her support and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance. The pre-requisite is that the applicant did not have independent income which is sufficient for his or her support during the pendency of the lis.

Justice Krishna Iyer’s decision of Supreme Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 was referred to regarding the object of maintenance laws.

Supreme Court’s decision in Rajnesh v. Neha, (2021) 2 SCC 324 discussed the criteria for determining the quantum of maintenance and the relevant factors to be taken into consideration in order to quantify the amount. The object behind granting maintenance is to ensure that the dependent spouse was not reduced to destitution or vagrancy on account of failure of the marriage and not as a punishment to the other spouse.

In the instant case, wife’s potential to earn may exist as she had a post-graduate degree but as per the evidence, it appeared that she had been out of employment Since May, 2014. Records revealed that the husband had been appointed at a salary of Rs 23,000. It was expected that in the intervening period, husband’s income must have gone up by at least 3 times.

Supreme Court noted that some guesswork could not be ruled out estimating the income when the sources or correct sources are not disclosed. Hence, Trial Court rounded the figure at Rs 60,000 as the expected income of the husband at present.

Bench considered it prudent to award Rs 20,000 to the wife as maintenance pendente lite.

Bench dismissed Mr Chatterjee’s contention that wife should be directed to disclose her present income and file the affidavit of assets.

Further, the Court stated that in the absence of any evidence on the part of the husband, this Court is of the opinion that taking into consideration the criteria as laid down by several judicial precedents on the subject from time to time, Rs 20,000/- as maintenance pendete lite per month is just and proper.

High Court modified the impugned order to the above extent. It was directed that the current maintenance shall be paid with effect from April, 2021 within 20th of the month.  Thereafter on and from May 2021 the maintenance shall be paid within 15th of every month as directed by lower court.[Upanita Das v. Arunava Das, C.O. No. 4386 of 2019, decided on 09-04-2021]


Advocates before the Court:

For the Petitioner: Mr Srijib Chakraborty and Ms Sudeshna Basu Thakur

For the Opposite Party: Mr Aniruddha Chatterjee and Mr Sachit Talukdar

COVID 19Hot Off The PressNews

Calcutta High Court in light of the COVID-19 Surge has notified that all matters shall be taken up only on virtual mode only and from Monday, 12th April 2021 i.e. today. Only such Lawyers who do not have video accessibility shall attend the Court physically.

The above Order has been issued under the directions of the Chief Justice of Calcutta High Court.

Link to the Notice.


Calcutta High Court

[Notification dt. 11-04-2021]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Arindam Sinha and Suvra Ghosh, JJ. confirmed a decree of divorce passed in favour of the husband by the trial court on grounds of cruelty by the wife. The instant appeal, dismissed by the High Court, was preferred by the wife against the judgment of the trial court.

Backdrop and Factual Matrix

The husband filed for divorce against the wife on grounds of cruelty, alleging that she made false allegations against him of having illicit relations with other women as well as their own daughter. The trial court found that no cogent proof of illicit relationship was forthcoming from the wife which could prove the allegations made by her against the husband. Therefore, the trial court held it amounted to cruelty against the husband under Section 13(i)(i-a) of the Hindu Marriage Act, 1955; and granted a decree of divorce in favour of the husband.

Contentions ─ Wife

The wife argued that the allegation of cruelty was erroneously held to be proved against her. She submitted that the persons named were not produced as witness. Extreme financial hardship had prevented her from fully participating at the trial, but that by itself did not justify finding in the trial court’s judgment and decree that the allegation of cruelty was proved against her.

Contentions ─ Husband

The husband submitted that the suit was filed in year 2004. Dilatory tactics were adopted by the wife. He gave evidence and was cross-examined, which could not shake his evidence. Such unshaken testimony was corroborated by their daughter. The daughter was married and living happily in her matrimonial home. Grave and serious allegations against him were made regarding carrying on with several women, including, their daughter. This part of the evidence was also corroborated by the daughter. The daughter took to the witness box and corroborated unshaken testimony of the husband, and therefore the wife did not cross-examine her, nor turn up to give evidence and be cross-examined. In such circumstances, further corroboration was not required and the Court below correctly appreciated the evidence to find cruelty inflicted on him.

It was further submitted that he had allowed the wife to stay in his flat and is regularly paying her enhanced permanent alimony. Eighteen years of separation had happened and there should not now be reversal of the trial court’s judgment and decree. He relied on the Supreme Court decision in Adhyaatmam Bhaamini v. Jagdish Ambala Shah, (1997) 9 SCC 471.

Law, Analysis and Decision

The High Court analysed the facts and allegations in two parts. Firstly, the allegations were regarding the wife having taken up a 9 am to 9 pm job, after which she became very ill. The husband, in his evidence, stated that he put pressure on the wife to leave the job. On the other hand, the wife said that the husband forced her to work on a sales office to earn money to meet family expenses. On examining the record, it appeared to the High Court that the wife took up the job, after which she fell ill, and the husband caused her to leave the job. Therefore, the wife’s account on this point was disbelieved by the Court.

Secondly, the allegation against the wife was that in July-August 2003, she visited the husband’s office, informing the Committee of Housing about him maintaining illicit relationship with their daughter. As a consequence, members of the Committee came to their residence. The wife admitted that on one occasion, she went to her husband’s office, but only to meet him. She did not meet allegations regarding her approaching the Committee members.

The allegations of the husband against the wife, were corroborated by their daughter in her evidence-in-chief. Although some statements in her affidavit were hearsay. The Court opined that:

There are some statements in her affidavit-in-chief, which are hearsay. The parts of her affidavit that can be attributed to be her evidence is in corroboration of what her father said in the petition, his affidavit-in-chief and from the Box, in cross-examination.”    

 On a complete analysis, the High Court held that the wife made reckless allegations against the husband, amounting to cruelty. The Court was convinced that there is no scope of interference in the trial court’s judgment and decree. The appeal was fount without any merit and was therefore dismissed. [Radha Majumder v. Arun Kumar Majumder, 2021 SCC OnLine Cal 1398, decided on 23-03-2021]


Advocates who appeared in this case:

Mr. Pradip Kumar Roy

Ms. Shraboni Sarkar … for appellant wife

Mr. Debabrata Acharyya

Mr. Sital Samanta … for respondent-husband

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., held that Judiciary is not the policy-making instrument on issues regarding conversion of marriage in terms of personal laws, though it may sit in Judgment on the validity, the enforceability of any piece of law made by a legislative body.

Petitioner’s counsel submitted that what has been demonstrated through the present petitions are merely tips of the iceberg and the larger canvass will disclose that there is a consorted effort in certain religious denominations to effectuate conversion under the guise of the institution of marriage.

Adding to the above, counsel stated that in the areas where there are no state legislation controlling or regulating religious conversion, the judiciary could consider stepping in to put regulatory measures in place.

Analysis and Decision

Judiciary—The policy-making instrument?

Bench opined that the pith and substance of all the issues relating to conversion of marriage and acceptability of marriage in terms of personal laws or municipal laws are matters on which the policy-making instrument would not be the judiciary.

Expressing further in view of the above, High Court stated that the Courts may sit in Judgment on the validity, enforceability and/or otherwise of any piece of law which may be made by any legislative body.

Lastly, while concluding the matter, Bench held that in light of the ACJM, Tehatta, Nadia’s report and the accused girls in relation to whom the petitions were filed having been recovered, no purpose would be served by keeping the petitions on board since they stand discharged upon recovery of the alleged victims. [Palash Sarkar v. State of W.B., 2021 SCC OnLine Cal 530, decided on 03-03-2021]

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharya, J., reiterated the decision of Supreme Court in Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542, regarding whether NCLT and Resolution Professional have jurisdiction to take control and custody of any asset except as subject to the determination of ownership by a court or authority.

“…the power of the resolution professional to take control of any asset, itself, is subject to the determination of ownership by a court or authority.”

Factual Matrix

Kolkata Municipal Corporation filed the present petition challenging an order passed by the National Company Law Tribunal (NCLT) acting as Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016 for handing over physical possession of the office premises.

KMC, in exercise of its authority under Sections 217-220 of the Kolkata Municipal Corporation Act, 1980, had distrained the said property in the recovery of municipal tax dues from an assessee.

Debt of the assessee came within the purview of a Corporate Insolvency Resolution Process (CIRP), thus prompting respondent 4, the Resolution Professional, representing the owner of the asset, to approach the NCLT for handing over of such physical possession of the property-in-question from the KMC.

In view of the above, the instant petition was filed.

Questions that arise in the instant matter are:

  • Whether the writ jurisdiction of this court under Article 226 of the Constitution of India can be invoked in the matter, despite the availability of an alternative remedy;
  • Whether the property-in-question, having been seized by the KMC in recovery of its statutory claims against the debtor, can be the subject matter of a Corporate Resolution Process under the Insolvency and Bankruptcy Code, 2016.

While considering the first question, Bench referred to the decision of Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542, wherein it was held that, in so far as the question of exercise of the power conferred by Article 226, despite the distinction between lack of jurisdiction and the wrongful exercise of the available jurisdiction, should certainly be taken into account by High Courts, when Article 226 is sought to be invoked by passing a statutory alternative remedy provided by a special statute.

Petitioners urged that the NCLT and the Resolution Professional have no jurisdiction to take control and custody of any asset except as subject to the determination of ownership by a court or authority. KMC exercised its powers under Sections 217 to 220 of the 1980 Act to distraint the asset of the debtor and to attach the property, to be followed by sale in future, but the said exercise of power was argued to be beyond the purview of IBC. Resolution Professional and the NCLT acted de hors their statutory powers in seeking to take control and custody of the asset.

Hence, the challenge in the present petition was on the ground of absence of jurisdiction and not ‘wrongful exercise of the available jurisdiction’, thus bringing it within the fold of Article 226 of the Constitution. Therefore, petition is maintainable.

“…although a wrongful exercise of available jurisdiction would not be sufficient to invoke the High Court’s jurisdiction under Article 226 of the Constitution, the ground of absence of jurisdiction could trigger such invocation.”

Considering the second questions posed above, Bench stated that it would be particularly apt to consider the tests laid down by the Supreme Court in Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542.

In the above-referred decision, while discussing Section 60(5)(c) of IBC, Supreme Court held, “…a decision taken by the government or a statutory authority in relation to a matter which is in the realm of public law, cannot, by any stretch of imagination, be brought within the fold of the phrase “arising out of or in relation to the insolvency resolution”.

Further, the Court, while moving ahead in the analysis of the matter and reaching a conclusion expressed that there cannot be any doubt about the proposition that the contours of the powers conferred on the Adjudicating Authority, being the NCLT, under Section 60 of the IBC, are defined by the duties of the interim resolution professional under Section 18.

What is to be seen to examine the charter of the interim resolution professional is whether the assets, of which control and custody is sought to be taken by the professional, are sub judice before a court or authority for the purpose of “determination of ownership” thereof.

In the instant matter, petitioner proceeded with acquiring the possession of the property-in-question and putting up the same for attachment under its powers as flowing from Sections 217-220 of the 1980 Act.

The above-said provision envisages a situation where an amount of tax, for which a bill has been presented under Section 216 of the Act, is not paid within 30 days from the presentation thereof.

In view of the event, Municipal Commissioner may cause a demand notice to be served on the person for such liability and on the non-payment of such tax, petitioner shall under Section 219 of the 1980 Act issue a distress warrant, for distraint of the property. Further in the process, person charged with the execution of the warrant in the presence of two witnesses, makes an inventory of the property which he seizes under such warrant. Thereafter, steps are taken for disposal of such property, including attachment and sale.

KMC followed the above-laid procedure and took possession of the disputed property for non-payment of tax. Hence, there was no scope of any ‘determination’ of ownership of the property by the KMC. Thus, in view of the Supreme Court decision in Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542  a finalised claim would come within the purview of “operational debt” under Section 5(21) of the IBC. Hence, the Resolution Professional has jurisdiction to take custody and control of the same.

Parameters of powers of the NCLT, as an Adjudicating Authority under Section 60 of the IBC, is defined and circumscribed by the scope of Section 18(f)(vi) of the IBC. Such exercise of power would fall within the ambit of the expression “arising out of or in relation to the insolvency resolution”, as envisaged in Section 60(5)(c) of the IBC.

Crown Debts

Referring to the decision of Supreme Court in Commr. of Income-tax v. Monnet Ispat Energy Ltd., [Special Leave to Appeal (C) No (S) 6438 of 2018], wherein it was held that income tax dues, being in the nature of crown debts do not take precedence even over secured creditors, Bench stated that the said proposition holds true in the present matter as well.

Hence, KMC’s claim being in the nature of crown debts, cannot gain precedence over other secured creditors, as contemplated in the IBC.

Therefore, in view of the Supreme Court decision in Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542 Finalised claim of the KMC can very well be the subject-matter of a Corporate Resolution Process under the IBC.

Accordingly, the Court decided the above two questions in affirmative.[Kolkata Municipal Corpn. v. Union of India, 2021 SCC OnLine Cal 145, decided on 29-01-2021]


Advocates who appeared:

For Petitioners:

Ashok Kumar Banerjee, Sr. Adv.,

Rajdip Roy,
Anindya Sundar Chatterjee,
Goutam Dinda

For Respondent 3:

Jishnu Chowdhury,

Dilwar Khan,
Sondwip Sutradhar

For Respondent 4:

Rishav Banerjee,

Pronoy Agarwal,

Ankita Baid

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges of the Calcutta High Court:

1. Kesang Doma Bhutia,

2. Rabindranath Samanta,

3. Sugato Majumdar,

4. Ananya Bandyopadhyay,

5. Rai Chattopadhyay,

6. Bivas Pattanayak,

7. Subhendu Samanta, and

8.  Ananda Kumar Mukherjee.


Supreme Court of India

[Statement dt. 04-02-2021]

Case BriefsHigh Courts

Calcutta High Court: Shekhar B. Saraf, J., in the instant matter after a precedential examination with regard to judicial inquiry, laid down a few principles for the same.

Petitioners sought command towards Secretary of the West Bengal Central School Service Commission – Respondent 4 to allow petitioners to add their enhanced training qualifications, as prescribed in the Recruitment Rules, 2016 in the process of selection for appointment to the post of Assistant Teacher in Upper Primary Level of Schools in pursuance of the Appointment Notification dated September 23, 2016, as well as to consider their candidatures as trained candidates as per verifications to be submitted online in terms of the latest verification notification dated December 28, 2020.

Analysis, Law and Decision

Bench stated that in Aktarul Islam Kayal v. State of West Bengal, W.P.A. No. 9597 of 2019, Court did not set aside the advertisement published on September 23, 2016, and Commission was directed to hold a fresh selection of all candidates who were found to be eligible under Rule 12(2).

The above position clearly prevents the court from any intervention with regard to such advertisement.

Further, the fresh cause of action that arose was with regard to enhanced qualifications to be considered due to the fact that the selection process had been postponed by 4 years.

Supreme Court’s decision in Shankar K. Mandal v. State of Bihar, (2003) 9 SCC 519 which had also consciously considered the decision in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18, clearly reiterated the point of law that when there is no cut-off date provided for in the Rules, then such date shall be as appointed for the purpose in the advertisement/notification inviting such applications.

State or its constituent statutory bodies as the Commission have a right to fix a cut-off date in the advertisement for the purposes of such selection process. Furthermore, the cut-off date has to be adhered to and applied consistently for all persons and the same cannot be ignored for a particular person.

Bench expressed that one cannot lose sight of the fact that the Courts in this country including High Courts, are institutions tasked to adjudicate and not to legislate.

In the Supreme Court decision of Hari Krishna Mandir Trust v. State of Maharashtra, (2020) 9 SCC 356, Court had reiterated the scope of the powers of a High Court exercising its powers under Article 226 of the Constitution of India.

Moving on to the precedents of the Supreme Court that prescribe non-interference in policy decisions of the State under this Court’s judicial review powers, the Supreme Court had held in Ekta Shakti Foundation v. Govt. of NCT of Delhi, (2006) 10 SCC 337 as follows:

“11. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or [is violative of] the fundamental rights of the citizen or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the court, it cannot interfere.”

Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, dealt with the entrenched scope of judicial review concerning governmental policy.

3-Judge Bench headed by the then Chief Justice T.S. Thakur in Centre for Public Interest Litigation v. Union of India, (2016) 6 SCC 408, extensively discussed the scope of judicial interference in government policies.

Based on the above precedential examination, the following distinct principles emerged:

  • The scope of judicial enquiry apropos policy decisions/matters of the State is restricted to the “sole dimension” of whether such policy decision/matter is either :

i.against any statutory provision;
ii. violative of any fundamental rights of a citizen;

iii. in the teeth of any Constitutional provision;

iv. manifestly arbitrary/discriminatory;
v. based on irrelevant consideration.

  • Only the ‘legality’ of the policy decision, and not the wisdom or soundness of such decision can be a subject matter fir for judicial review under Article 226 of the Constitution of India.
  • Constitutional Courts, such as this Court ought to be hesitant in interfering in matters of such policy or the day-to-day functioning of any departments of the government or any statutory bodies.
  • Negligible interference in policy decisions when such decisions are the outcome of deliberations of technical experts as Courts lack the expertise to determine the basis/factors based on which such decisions might have been taken. This is also inclusive of “economic policies”.

In view of the above discussion, Bench stated that the policy decision of the Commission reflected through its initial notification/advertisement dated September 23, 2016, as a statutory body, in the present case does not touch the realm of arbitrariness and accordingly, no interference is called for.

Hence, Court doesn’t need to mould such advertisement to allow a change in the circumstances that may have taken place with regard to the enhanced qualifications of the writ petitioners. Attempt by this Court to allow the same would result in an unfair treatment for those who did not enhance their qualification and are not present before this Court, not to mention taking an erroneous step in encroaching into the domain of the executive branch of the government.

Therefore, the batch of writ petition was dismissed. [Subhasis Negel v. State of West Bengal, 2021 SCC OnLine Cal 194, decided on 19-01-2021]

Hot Off The PressNews

Justice Ashis Kumar Chakraborty passed away on 30-01-2021 due to cardiac arrest.


About

He was Born on December 12, 1965. Graduated in Law (five years) from the University of Calcutta in November, 1992. Was enrolled as an Advocate on January 29, 1993. Practised mainly in the High Court at Calcutta as well as the Supreme Court of India in Civil, Company, Arbitration and Constitutional Matters.

Justice  Ashis Kumar Chakraborty was elevated to the Bench as an Additional Judge of the High Court at Calcutta on October 22, 2014. Appointed as Permanent Judge of the Calcutta High Court on 06-10-2016.


Few Judgments

Case BriefsHigh Courts

“[Sexual harassment] can be perpetrated by the members of any gender, even inter se.”

Calcutta High Court: Sabyasachi Bhattacharyya, J. held that a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH Act”], is maintainable even against “a person” belonging to the same gender as that of the complainant. In other words, a complaint under the POSH Act is maintainable against women.

Issue

In the present petition, the petitioner contended that the respondent authorities acted without jurisdiction in entertaining a complaint on alleged sexual harassment against her, despite the fact that both, the petitioner and the complainant, are of the same gender.

Arguments

Petitioner

The petitioner stressed that the allegations of the complainant revolved around alleged vilifying and defaming in public. It was submitted that the act as alleged, could not fall within the purview of “sexual harassment” as contemplated in the POSH Act. She placed particular reliance on the definition of “sexual harassment” in Section 2(n) of the POSH Act and sought to impress upon the Court that the acts contemplated therein have no nexus with the present complaint.

It was next submitted that, as per Section 19(h) of the POSH Act, an employer shall cause to initiate action under IPC or any other law for the time being in force, against the perpetrator. It was argued that such an action, as envisaged under IPC, only pertains to a man being involved in the offence, which ingredient has to be factored in while appreciating the connotation of “sexual harassment” under the POSH Act.

It was submitted that since the Vishakha judgment [Vishakha  v. State of Rajasthan, (1997) 6 SCC 241] was the genesis of the POSH Act, the concept of the POSH Act has to be read and interpreted in the light of the said judgment. It was argued that the question of gender equality acquires primacy in deciding whether a complaint falls within the periphery of the POSH Act. In the present case, since the gender of the complainant and the respondent (petitioner herein) is the same, the question of the POSH Act being invoked does not arise.

Complainant

The complainant made reference to the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 and submitted that the said Regulations are broad enough to encompass respondents of all genders, implicitly meaning that the gender of the complainant and the respondents can very well be the same in order to attract the rigours of the Regulations, which govern the present parties as well. By placing particular reliance on Regulation 8(2), it was argued that the expression “the respondents shall file his/her reply” has been used therein, thereby bringing within its purview respondents of both genders. This, read with the definition of “respondent” in Section 2(m) of the POSH Act, which contemplates “a person” as a respondent, indicates clearly that same gender allegations can also be entertained under the POSH Act.

Analysis

The High Court, stated at the outset, that a cursory glance at Section 2(m) of the POSH Act shows that the term “respondent” brings within its fold “a person”, thereby including persons of all genders.

The Court was of the opinion that although there was substance in the submission of the petitioner that the said expression has to be read in conjunction with the rest of the statue as a whole, there is nothing in Section 9 of the POSH Act [which has been referred to in Section 2(m)] to preclude a same-gender complaint under the POSH Act.

“Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized.”

It was also held that the definition of “sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the backdrop of the social perspective. Sexual harassment, as contemplated in the POSH Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the POSH Act.

“A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act.”

The Court further held that if sub-section (2) of Section 3 [Prevention of Sexual Harassment] is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se.

Decision

In such view of the matter, the High Court held that the act alleged by the complainant to have been perpetrated by the petitioner, as evident from her complaint was maintainable under the POSH Act. Hence, the complaint cannot be turned down at the outset.

It was however clarified that the merits of the allegations levelled by complainant against the petitioner have not been gone into in any manner by the court. And it will be open to the appropriate authorities to decide the matter independently, on its own merits. [Malabika Bhattacharjee v. Vivekananda College, WPA 9141 of 2020, dated 27-11-2020]

Appointments & TransfersNews

Appointment Orders

President is pleased to appoint Justice Sanjib Banerjee, Judge of the Calcutta High Court, to be the Chief Justice of the Madras High Court with effect from the date he assumes charge of his office.


President is pleased to appoint Justice Hima Kohli, Judge of the Delhi High Court, to be the Chief Justice of High Court for the State of Telangana with effect from the date she assumes charge of her office.


President is pleased to appoint Dr Justice S. Muralidhar, Judge of the Punjab and Haryana High Court, to be the Chief Justice of the Orissa High Court with effect from the date he assumes charge of his office.


Ministry of Law and Justice

Appointments & TransfersNews

Transfer Orders of Justice Joymalya Bagchi of Calcutta High Court as a Judge Andhra Pradesh

President, after consultation with the Chief Justice of India, is pleased to transfer Justice Joymalya Bagchi, Judge of the Calcutta High Court, as a Judge of the Andhra Pradesh High Court and directs him to assume charge of his office in the Andhra Pradesh High Court.

ORDER


Ministry of Law and Justice

[Notification dt. 31-12-2020]