Cruelty

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In a case filed by a wife (‘appellant') challenging the Family Court order that granted decree of divorce without giving her opportunity to adduce evidence and without deciding her interim application for maintenance, a Division Bench of A S Chandurkar and Urmila Joshi Phalke, JJ., remanded the matter back to the Family Court to decide the proceedings afresh by giving opportunity to both the sides (husband and wife) to adduce the evidence. The Court also issued directions to the Trial Court to decide the interim application preferred by the appellant for maintenance pendente lite in accordance with the provision of Hindu Marriage Act, 1955.

The appellant and defendant got married and some marital disputes arose, due to whichshe left the matrimonial home and did not return even after consistent requests made by the husband alleging cruelty. The appellant-wife then filed for maintenance under Section 125 of Criminal Procedure Code before Family Court, Nanded which was thereby allowed and maintenance at the rate of Rs.3,000/- was granted to the children however rejecting the claim by appellant-wife.

Thereafter, the husband filed for restitution of conjugal rights, but the appellant did not return and then he filed for decree of divorce in July 2018 on the grounds of cruelty and desertion. The appellant filed her written statement in January 2019 and filed an application under Section 24 for maintenance pendente lite on the same day. The Family Court without deciding the interim application decided the petition by granting the decree of divorce on the ground that that after sufficient opportunity appellant wife remained absent and, therefore, matter is proceeded and accordingly decided.

The Court noted that the roznama reflects that it is not only the appellant-wife who remained absent during the proceedings, but, on several occasions both the parties were absent and on some occasions even the respondent-husband remained absent. Though the appellant had filed an interim application for maintenance pendente lite, it was not decided and the main petition for divorce was decided without assigning any reason even without following the timeline that interim application is to be decided within 60 days.

The Court further noted that Section 24 of Hindu Marriage Act, 1955, is a benevolent provision enacted with the object to provide relief by way of maintenance and litigation expenses to the spouse. In the above circumstances, it is necessary to give proper opportunity to the appellant to defend the grounds of divorce by adducing the evidence.

The Court thus set aside the decree for divorce and remanded back to the Family Court, Akola to decide afresh by affording an opportunity to both the sides to lead evidence.

[Chanda Rathod v. Prakash Singh Rathod, 2022 SCC OnLine Bom 2760, decided on 19-09-2022]

Advocates who appeared in this case :

Ms. Shilpa Tapadia, Advocate, for the Appellant;

Shri Ravikumar Tiwari with Shri C.A. Joshi, Advocate, for the Respondent.

*Arunima Bose, Editorial Assistant has put this report together.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court | Quashing a divorce order against the wife on the ground of cruelty, a division bench comprising of Vivek Rusia* and Amar Nath (Kesharwani), JJ., held that minor difference of opinion between husband and wife cannot be termed as cruelty.

The Court observed that the husband should not expect an overnight change in the behaviour of the spouse and could have given the wife a second chance.

The appellant “wife” and respondent “husband” had an arrange marriage. According to the husband the foundation of the marriage was based on lies. The husband alleged that the wife had given him wrong date of birth, educational qualification and didn’t want to look after his old parents and often threatened to implicate his family members in criminal cases. On the other hand, the wife did not make any allegation against the husband or his parents and had expressed her desire to live with her husband.

The Court observed that the husband could not prove most of his contentions based on which he had contended that he was subjected with mental cruelty by his wife. The husband had deserted her within less than six months of marriage basis of a few instances which are normal between newly wedded couples. Even when the wife has shown her willingness to live with him, he is not ready to take her back to his home. The Court held that the respondent has deserted the appellant without any valid reason.

“All these alleged episodes took place within one year of marriage and the respondent has decided to take divorce from the appellant. He did not give second chance to her. even today appellant is ready to go with him from the court, but he has refused straightway which shows that he has deserted the wife on the basis of a few instances which are normal between newly wedded couples.“

The Court relied on various judgement of Supreme Court as well as the Division Bench of this Court:

In Romesh Chander v. Savitri, (1995) 2 SCC 7, it was held that in cases where the marriage is emotionally and practically dead and there is no chance of that the marriage can be retrieved, its continuance would amount to cruelty.

In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 78, it was held that the decree of divorce can be granted if facts of the case indicate that the parties had crossed the point of return and it would be futile to drag a dead relationship and if the wife stays with the husband it may be injurious to her health.

In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, it was held that where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. There can never be a straitjacket formula to determine mental cruelty in a matrimonial matter and it would be to evaluate on the facts and circumstances while considering the factors in each case.

The Court stated that “Law does not permit him to spoil the whole life of an innocent lady by giving divorce on grounds other than enumerated in section 13 of the HM Act.”

In the light of facts of the case and authorities cited, the Court set asides the decree of divorce and the decree of restitution of conjugal right was granted to the appellant/wife. The awarded maintenance of Rs 8,000/- per month from the respondent till the date of compliance with the decree of restitution of conjugal right and Rs. 10,000/- as cost of litigation in favor of the wife. [Sarita Sharma v. Gourav Sharma, 2022 SCC OnLine MP 2235, decided on 23.08.2022]

Advocates who appeared in this case:

Mr. Satish Tomar, Counsel for the Appellant;

Mr. Avinash Sirpurkar and Mr. Harshad Wadnerkar, Counsel for the Respondent.

*Ritu Singh, Editorial Assistant has put this report together.

High Court Round UpLegal RoundUp

The High Court Roundup brings a curated list of the top stories of the month to ensure readers do not miss any important updates. This month’s roundup covers the stories of Rights of LGBTQIA+, Bigamy & Talaq under Muslim Law, Non-payment of GST, Deceased’s right to dignity, WhatsApp’s Privacy Policy, Trademark Infringements, and many more:

Allahabad High Court

Top Story—Deceased’s Right to Dignity

The Court in Suo-Moto v. State of U.P., 2020 SCC OnLine All 1088 while dealing with the extremely sensitive matter of Hathras gangrape where dead body of the victim was taken to her native village but surprisingly and painfully enough it was not handed over to the family members so that the last rites of the deceased victim could be performed as per prevalent customs and religious inclinations in a decent and dignified manner but it was cremated with the help of some other persons at about 2- 2.30 a.m.

“The right of dignified life under Article 21 of the Constitution of India is not only available to a living person but also to the ‘dead’. These rights are not only for the deceased but, his family members also have a right to perform last rites as per religious traditions.” Read more…

On the trend of Compromise

Allahabad High Court points out the trend of compromise after receiving the compensation from the State; Suggests disbursement only after conviction. The Court opined,

“Taxpayers’ money is being misused in this process. It would be appropriate to disburse the compensation only on conviction of the accused and not filing of the FIR and submission of the charge-sheet.” Read more…

On Trade Tax

Allahabad High Court upholds order by Trade Tax Tribunal holding insulated glass as taxable unclassified commodity @ 10%. Read more…

On Sidhique Kappan Bail

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]. Read more…

On Age Relaxation in Recruitment

Over-aged candidates can neither claim participation in selection process nor seek conduct of recruitment every year as a matter of right. Read more…

On PIL in Service Matters

“PIL in service-related matters ought not to be entertained”; Allahabad High Court dismisses PIL seeking increase in retirement age of PwD. Read more…

On Social, Moral Responsibility to Maintain Wife

Allahabad High Court | Social, Legal and Moral Responsibility of a man to maintain his wife; Appeal dismissed. Read more…

Andhra Pradesh High Court

On Abetment of Suicide

Subba Reddy Satti J. granted anticipatory bail to the Chief Executing Officer (applicant-accused) as on perusal of complaint there was no sign of instigation and abetment and mere allegation of harassment will not attract offence under Section 306 Penal Code, 1860 (‘IPC’) unless such actions compelled the victim to commit suicide. Read more…

Bombay High Court

Top Story—Environment Protection

While perusing the newly framed Policy for Environmentally Safe Making and Immersion of Idols/Tazia and its Enforcement (‘the Policy’), as drafted by Maharashtra Government’s Environment and Climate Change Ministry, the Division Bench of A.S. Chandurkar and Urmila Joshi-Phalke, JJ., observed that the presented Policy which will be operational for this year (2022), must be given adequate publicity so as to create awareness in the public. The Bench also expressed its hope that the local authorities will also take necessary steps to dutifully follow the Policy, so that it achieves its intended targets for this year. Read more…

On Unhygienic Sanitary Conditions of Schools

DLSA’s to conduct surprise inspections in Government schools over unclean and unhygienic sanitary conditions. Bombay High Court takes cognizance of a PIL alleging unclean and unhygienic state of affairs in the washrooms and toilets for the young girl students in Government aided schools. Read more…

On wrongful Arrest of Nigerian National

Bombay High Court grants bail to Nigerian national who spent 2 years in jail on NDPS charges due to a typing error in forensic report; asks State to come up with compensation proposal. Read more…

On Abetment to Suicide

Sudden reaction of a 19-year-old boy to the news of pregnancy, May fall short of the essential ingredients required to form the offence of abetment to suicide: Bombay High Court Read more…

On Rape

Once prosecution has proved the offence of rape, there is no reason for the Trial Court to award a lesser sentence than what the statute prescribes: Bombay High Court Read more…

On SARFAESI

S. 14 of SARFAESI Act empowers the Designated Authority only to assist secured creditors in taking possession of secured assets and nothing more: Bombay High Court Read more…

Calcutta High Court

Top Story—Non-payment of GST

Calcutta High Court stays any coercive action until final decision in matter of arbitrary action of State for non-payment of GST on contracts executed prior GST regime. Md. Nizamuddin, J. directed the respondents authority concerned to consider neutralizing the impact of unforeseen additional tax burden on Government contracts since the introduction of GST w.e.f. 01-07-2017 for ongoing contract awarded before the said date and to update the State SOR incorporating applicable GST in lieu of inapplicable West Bengal VAT henceforth. Read more…

On Arbitration

Conduct of Parties — not a substitute for an arbitration agreement| Calcutta High Court holds the court cannot substitute arbitration agreement with conduct of parties while exercising powers under Section 11 of the Arbitration and Conciliation Act, 1996. Read more…

Illegal procedure for appointment of Arbitrator does not render Arbitration agreement illegal in toto; Guiding Principles for Appointment of Arbitrator reiterated Read more…

Chhattisgarh High Court

On Election

Chhattisgarh High Court declares election null and void for non-disclosure of criminal antecedents, including acquittal in criminal case. In a case where an election was declared null and void on the grounds of non-disclosure of criminal antecedents by the winning candidate, Deepak Kumari Tiwari J dismissed the revision petition being devoid of merit. The Court stated that non-disclosure of criminal antecedents amounts to undue influence and interferes with the free exercise of electoral right. Read more…

Delhi High Court

Top Story—Anti-competitive WhatsApp Terms

Delhi High Court upholds CCI’s direction to investigate alleged anti-competitive WhatsApp Terms of Service and Privacy Policy, 2021; Prima facie case established to investigate; FB a proper party. The appeals were filed by WhatsApp and its parent company Facebook challenging the jurisdiction of Competition Commission of India (CCI) to direct investigation into the 2021 Terms of Service and Privacy Policy of the Appellant on the ground that it violates the provisions of the Competition Act, 2002, when the matters arising from the same issue is pending before Supreme Court. Read more…

On Copyright Infringement

Delhi High Court denies injunction against News Laundry Media on allegations of copyright infringement, defamation and commercial disparagement by TV Today Network. Commenting on commercial disparagement, the Court said,

“Commercial Disparagement would occur when one player in the field derides a rival and belittles or discredits or detracts from the reputation of such a rival in respect of its products, services or business. While claiming to be the best, any statement about a competitor’s goods, which could be untrue or misleading and is made to influence or tend to influence the public, would amount to disparagement”. Read more…

On False Rape

Delhi High Court reprimands filing false FIR alleging rape charges; Directs woman to work at blind school; Directs man to plant 50 trees as punitive measure. Read more…

On Trademark Infringement

Theo recognizes Theobroma as owner and proprietor of mark “THEOBROMA”; Settlement terms agreed between parties. Read more…

Delhi High Court injuncts Royal Champ from using Royal Stag/ Seagram marks; Similar label also amounts to copyright infringement; Directs Rs 20 lakh as damages . Read more…

Delhi High Court grants ad-interim injunction against Bikaner’s Madhav Namkeens having deceptively similar logo as of Pepsico’s Lays. Read more…

Delhi High Court injuncts myshoeshop from violating trademark rights by selling first copy shoes of NB Device mark as well as Adidas, Nike, Louis Vuitton etc. Read more…

On Flipkart’s “Latching On” Feature

Delhi High Court restrains Flipkart from allowing third-party sellers to ‘latch on’ to mark ‘V Tradition’; Directs to ensure ‘Latching On’ feature is disabled. Read more…

On Chinese Manjha

Delhi High Court denies complete ban on kite flying but directs to comply directions already in place against use of Chinese Maanjha. Reade more…

On Non-compliance of Sports Code

Compliance with Sports Code non-negotiable; Delhi High Court warns IOA of derecognition if compliance with Sports Code is not made; Temporary CoA constituted. Read more…

On Criminal Liability of Intermediary

Intermediary entitled to claim protection u/s 79 IT Act for criminal liability unless ‘active role’ is disclosed; Delhi High Court quashes FIR against Flipkart. Read more…

On Legitimate Expectations of Students

Delhi High Court grants relief to a student seeking admission in BITS Pilani after CBSE violates ‘legitimate expectation of the students’. Read more…

On POCSO

Judicial scrutiny of date of birth for establishing consensual sexual relation not necessary; Delhi High Court grants bail in light of accused being honey trapped Read more…

Gujarat High Court

Top Story—On Right to Medical Claim

Gujarat High Court reiterates right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order; Reimbursement directed. The Court stated,

“The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds.” Read more…

On Electricity

‘Occupier’ of the land cannot be denied electricity connection only because land is in dispute. Read more…

On Pharmacy Diploma

Students of Diploma in Pharmacy Course can’t be denied registration as Pharmacists on Council’s failure to approve medical stores for training. Read more…

Himachal Pradesh High Court

Top Story—Family Pension to Second Wife

In a petition related to family pension, Jyotsna Rewal Dua, J has held that the second wife of a deceased employee is not entitled to family pension under the Central Civil Services (Pension) Rules, 1972 unless the personal law of the deceased employee allows more than one subsisting marriage. Read more…

On MV Compensation

Himachal Pradesh High Court | Inability to produce documentary evidence of deceased’s income may not justify adoption of lowest tier of minimum wage for computing Motor Vehicle Accident compensation. Read more…

Jammu & Kashmir and Ladakh High Court

Top Story—Right to Property

While deciding the instant petition wherein the issue was that whether misuse of a building from residential to commercial or vice versa in violation of the permitted land use as per the master plan would fall within the ambit of unauthorized ‘erection or re-erection’; the Division Bench of Wasim Sadiq Nargal and Tashi Rabstan, JJ., observed,

“In a democratic polity governed by the rule of law, the State by no stretch of imagination, can deprive a citizen of his/her property without the sanction of law, besides complying with the procedure envisaged in the statutory provision.” Read more…

On Matrimonial Crimes

Courts must carefully scrutinize the allegations of matrimonial crimes against a husband’s relatives. Read more…

On Compassionate Appointments

Compassionate Appointments are not for conferring status on a family; Jammu and Kashmir and Ladakh High Court holds an applicant has no right to claim a compassionate appointment in a particular class or group and it is not for conferring status on the family. Read more…

Jharkhand High Court

On Renewal of Competency Certificate

Past record of competent person for renewal of competency certificate held to be a relevant consideration for renewal; Petition dismissed. Read more…

On Income Tax

Liability cannot be fastened upon the company for delay in TDS when it had taken steps within time. Read more…

Karnataka High Court

Top Story—Eidgah Maidan Controversy

In a case where the State has filed an appeal to seek modification in an interim order passed by Single Judge giving permission for using Eidgah Maidan, the land under challenge for title, for celebrating Independence Day/Republic Day or as a public playground or for offering prayers by Muslim community only in Ramzan and Bakri Eid festivals, a Division Bench of Abhay Shreeniwas Oka CJ., and Vishwajith Shetty J. permitted the State Government to consider applications filed by organizations seeking use of the land in question for holding religious and cultural activities. Read more…

On Bhang under NDPS Act

In a case where the applicant-accused seeks bail on being apprehended by police, having possession of Ganja and Bhang together, K Natarajan, J. granted bail to the applicant as Bhang will not be considered along with Ganja to measure commercial quantity. The Court held that until forensic science lap report does not confirm that Bhang is prepared out of charas or ganja, it is not safe to conclude the same. Read more…

On Azan & Fundamental Right to Faith

A Division Bench of Alok Aradhe CJ., and S. Viswajith Shetty, J., held that azan or the contents of azan does not violate fundamental rights of petitioner of any person from a different faith. The use of loudspeakers, however, must be ensured to be within permissible limits from 10pm to 6 am in accordance with law. Read more…

On Wrongful Arrest

Karnataka High Court appalled to see a case of wrongful arrest as fathers’ name was similar; Directs DGP to issue SOP/Guidelines if not in place; Compensates aggrieved. Read more…

On POCSO

Pulling down pants of kid forcefully as a punishment measure; Karnataka High Court denies relief u/s 482 CrPC to the female teacher. Read more…

On Minimum Wage

Whether Head cooks and cooks employed under Mid-Day Meal Scheme covered under Minimum Wages Act, 1948? Karnataka High Court analyses Read more…

Kerala High Court

Top Story—Mental Cruelty

In a divorce case, Anil K. Narendran and C. S. Sudha, JJ., held that constant and repeated taunts by the husband towards his wife that she is not a wife of his expectations; the comparisons with other women, etc. would certainly be mental cruelty which a wife cannot be expected to put up with. Read more…

On Transgenders Right to Participation in Sports

In a case where a transgender person was declined participation in District Judo Competition, V.G. Arun, J., held that if the organisers have not made arrangements for participating transgenders, they have to allow the petitioner to participate in her chosen category. Read more…

On Talaq and Bigamy under Muslim Law

In a case relating to talaq as per Muslim personal law and bigamy, A. Muhamed Mustaque, J. held that the Family Courts have no jurisdiction to restrain a person from pronouncing talaq or conducting a second marriage as per personal law. The Court remarked,

“The Court has no role in restraining the parties invoking their personal law remedies. The Court should not forget the mandate of Article 25 of the Constitution, which not only allows one to profess religion but also to practice.” Read more…

On Road Safety

Can’t let the roads of Kerala be a killing field; Kerala HC issues directions to NHAI and District Collectors to ensure the roads are craters & potholes free. Read more…

On Medical Termination of Pregnancy

Kerala HC allows a 14-year-old girl to get medical termination of her 28-week pregnancy. Read more…

On Offence of Insulting National Flag

Kerala HC grants anticipatory bail to BJP State General Secretary accused of insulting National Flag by holding it upside down. Read more…

On Rights of PWD

Kerala HC issues notice to Centre & State in a PIL seeking extension of facilities to every person with disability in need of special assistance irrespective of percentage of disability. Read more…

Madhya Pradesh High Court

Top Story—Order XLVII Rule 9

The Division Bench of Ravi Malimath, CJ. and Vishal Mishra, J. dismissed a second review petition holding that pursuant to the provision under Order XLVII Rule 9 Civil Procedure Code, 1908 (CPC), a review of an order passed in a review petition is not maintainable. Read more…

On Illegal Detention

Madhya Pradesh High Court directs State to pay 3 lacs as compensation for illegal detention; Registrar to conduct an inquiry Read more…

On Modification of Criminal Charges

Madhya Pradesh High Court| Charge of Murder added at the time of framing of charge based on Hospital’s MLC can be altered only after further examination. Read more…

Madras High Court

Top Story—Medical Examination for Impotency

In a case where husband filed for annulment of marriage alleging suppression by wife regarding her hormonal imbalance and irregular periods resulting in non-consummation of marriage, R N Manjula J. quashed Family Court’s ruling that directed the wife ‘revision petitioner’ to undergo medical examination of the same and even went ahead to direct medical examination of her genitals which was beyond the scope of the original petition. Read more…

On Removal of Husband from Matrimonial Home

n a case of marital discord and petitioner-wife, a practicing advocate was seeking removal of respondent-husband from the matrimonial home, R N Manjula, J. granted protection order and directed the husband to move out of the matrimonial home in the best interest and welfare of the children and to ensure peaceful possession and enjoyment of the petitioner wife in the home in any manner. The Court said,

“Allowing the respondent to be at the same home but directing him that he should not disturb the other inmates of the home is something impractical. A relief for a person who fears about an impending atom bomb, would be just to remove the bomb from his/her vicinity.” Read more…

On Virtual Wedding

Virtual wedding would meet the requirements of law under S. 12 of Special Marriage Act, 1954. Read more…

On Doctrine of Substantial Compliance

Madras High Court applies doctrine of ‘substantial compliance’ to determine implications of limitation period in the Customs Act, 1962. Read more…

On Nalla Thangal Syndrome

Madras High Court condemns a scornful society that sees misfortune with the birth of a girl child and reduces punishment in the instance of ‘Nalla Thangal Syndrome’. Read more…

On Colonial Slavery

Extracting household work by trained uniformed Police personnel in the residences of the higher Police officials; Madras High Court calls it ‘colonial’ and slap on Constitution and democracy. Read more…

On Orderly System

‘Orderly system’ unconstitutional: Madras High Court directs Tamil Nadu government to eradicate it completely in four months. Read more…

On Appointment of Archaka

Madras High Court holds the temple or group of temples which were constructed as per the Agamas would be governed by the custom and practice, not only in respect of the worship of the deity, but in all respects, which includes even the appointment of Archakas, and not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. Read more…

On Rights of LGBTQIA+

Madras High Court| LGBTQIA+ community sidelined from society’s mainstream for too long; Time for Tamil Nadu Government to frame guidelines to protect their rights. Read more…

On Criminal Procedure

PT warrant can never be converted into regular warrant in a case where the accused person is already on bail; opportunity should be given to the accused to explain his non-appearance Read more…

Meghalaya High Court

On Consensual Sex with Minor Wife

W. Diengdoh, J. allowed a petition where a man was arrested under the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) for allegedly having ‘consensual sex’ with his minor wife. The Court opined that it would be an injustice to separate or to divide a well knitted family unit. Read more…

Manipur High Court

On Accused’s Right to Dignity

In a case where the criminal appeal was pending and the applicant convicted under Section 6 of the Protection of children from sexual offences Act, 2012 (POCSO Act) filed an application for the suspension of sentence, on the ground of ill-health, M.V. Muralidaran, J. observed,

“Under-trial prisoner’s right to life does not diminish even a wee bit when in jail as an accused/convict for an offence and such person’s health concerns have to be taken care by the State and if not done so, by the judiciary. The right to dignity of an accused does not dry out with the Judges. Rather, it subsists beyond the prison gates and operates until his last breath”. Read more…

Orissa High Court

On Tortious Liability of State

Unfortunate death of 7-year-old girl by collapse of newly constructed kitchen wall in school; Orissa High Court directs compensation to the family of the deceased. The Court noted,

“The negligence of the State authorities in using defective materials to construct a kitchen on the school premises has already been established during the enquiry. The death of the young child was totally avoidable. The responsibility for death definitely rests with the State. The death would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed.” Read more…

Punjab and Haryana High Court

Top Story—Downgrading of VIP security Cover

Withdrawal/Downgrading of VIP security cover: Punjab and Haryana High Court directs State to make fresh assessment of security threats; Provide one security personnel until then. The Court said,

“Security issue is not a static phenomenon, rather it is a dynamic process. The security reviews have to be done on a periodical basis by assessing the security threat of the protectees with the passage of time on the basis of official inputs provided by the different agencies including State and Central agencies”. Read more…

On Arbitration

Merely showing existence of another reasonable interpretation not sufficient to allow for interference; Punjab and Haryana HC refuses to interfere with arbitration award. Read more…

On Co-ownership

Possession of joint land by one co-owner valid in absence of proof showing disagreement between other co-owners. Read more…

Rajasthan High Court

On Arms License

Vijay Bishnoi, J. held the appeal filed by District Magistrate before Divisional Commissioner under Section 18 of Arms Act, 1959 challenging the issuance of arms license in favour of the petitioner who was the holder of license, as non — maintainable. The Court noted that a bare perusal of Section 18 Arms Act, 1959 clearly reveals that there is no provision where appeal can be entertained under Section 18 of the Arms Act against the order of issuance of arms license. Read more…

Tripura High Court

On Allotment of Land

In suit for recovery of possession of land, the Tripura High Court observed that,

“It is not for this Court to decide the validity of the allotment of land by the Government in favour of the respondents in this second appeal. If there is any violation of conditions or attraction of disqualifications, it is for the appropriate authorities to look into the matter.” Read more…

On Conviction

Mere presence of the accused person and last seen of the offence cannot draw an inference to committing of the crime ; Conviction reversed Read more…

On Employees’ Dues

Tripura High Court directs TSECL to pay all the cumulative dues to employee who suffered accident while discharging duty. Read more…

Uttaranchal High Court

On Service Rules

Uttaranchal High Court holds non-communication of all the Service Rules does not indicate that there are no Rules. The Division bench of Vipin Sanghi, C.J., and R.C. Khulbe, J., had held that merely because the communication sanctioning a post does not indicate the promotion rules, does not mean that there are no Rules framed or applicable for promotion, requiring minimum service in the feeder cadre. Read more…

*Kamini Sharma, Editorial Assistant has put this report together.

Chhattisgarh High Court
Case BriefsHigh Courts

   

Chhattisgarh High Court: In a case relating to the appeal filed by the wife against the decision of the family court allowing the application of husband for seeking divorce on the ground of cruelty, the division bench of Goutam Bhaduri and Radhakishan Agrawal, JJ. observed that in a situation when a wife goes to the office premises of the husband, abuses him and accuses him of illicit relation, naturally it would result in diminishing the image of the husband before the colleagues and the office stature will certainly go down. Further, abusing the in-laws and stopping the husband from meeting his parents would also amount to cruelty.

The Court while taking note off all the evidence observed that the act of pulling back the husband mid-way from his brother's marriage ,whereby he was forced to leave the marriage is also an unnatural cruel act and such act would bring down the image and the prestige of a family in the eyes of public, which may also amount to cruelty. Further, the wife has made void allegation of illicit relationship of the husband with a lady outside the marriage and even made a complaint to the Chief Minister to transfer the husband from a particular posting in the office with allegation of illicit relations.

The Court took note of the ruling in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, wherein the court held that no uniform standard can ever be laid down for guidance and defined a non-exhaustive list of instances that constitutes mental cruelty. It further relied on Narendra v. K. Meena (2016) 9 SCC 455, wherein the court held that when the assassination of character is made by either of the parties it would constitute a mental cruelty for which a claim for divorce under S.13(1)(i-a) of the Hindu Marriage Act, 1955 would be sustainable.

[Nalini Mishra v. Surendra Kumar Patel, First Appeal (MAT) No. 8 of 2020, decided on 18.08.2022]

Advocates who appeared in this case :

Shishir Shrivastava, Advocate, for the Appellant;

C. Jayant K. Rao, Advocate, for the Respondent.

Gujarat High Court
Case BriefsHigh Courts

Gujarat High Court: Nirzar S. Desai, J. quashed an FIR and its consequential proceedings which were registered for the offences punishable under Sections 498-A, 323, 504, 114 and 506(2) of the IPC and Section 4 of the Dowry Prohibition Act, 1961.

Respondent 2 (original complainant) had filed the above FIR stating that she got married with Anil R. Panchal and everything was good for 6 months and she delivered a baby girl but thereafter, as the job of the husband required him to stay at the place of job, he used to come once in a week to home and respondent 2 used to stay with her in laws. The present applicant, who happens to be son of maternal uncle of the husband of the complainant used to visit matrimonial home of the complainant and along with other family members, he used to taunt the complainant that she got married by cheating and she has not brought anything which would suit the reputation of the family of the husband in the society.

Advocate for the applicant submitted that barring one sentence involving the applicant, there is no allegation against the applicant in the FIR. The only allegation against the applicant is verbal taunting to the complainant and that also of absolutely general nature.

Advocate for the respondent 2, vehemently opposed the petition by submitting that because of pendency of this application and as the relief has been granted in favour of the applicant, the Investigating Officer is not filing charge sheet even against the husband. Additional Public Prosecutor could not point out any material against the applicant.

The Court after hearing the parties noted that in the entire FIR there is only one sentence whereby some role has been attributed to the applicant. Further considering the fact that the applicant happened to be the distant relative of the husband of the complainant, it seems that the impugned order is nothing but an attempt to falsely implicate the applicant as accused just with a view to harass the applicant.

The Court set aside the FIR and quashed the consequential proceedings holding that allegation against the applicant is purely of general in nature and considering the fact, that the applicant stays at a different place, the registration of impugned FIR against the applicant is nothing but an abuse of process of law.

[Paavanbhai Jagdishbhai Panchal v. State of Gujarat, 2022 SCC OnLine Guj 1127, decided on 04-08-2022]

Advocates who appeared in this case :

Ishan Rajdev for Sanat B. Pandya, Advocates, for the Applicant 1;

Montubhai G Patel, Amit N Chaudhary, Advocate, for the Respondent 2;

Maithili Mehta, Advocate, for the Respondent 1.

*Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a divorce case, Anil K. Narendran and C. S. Sudha, JJ., held that constant and repeated taunts by the husband towards his wife that she is not a wife of his expectations; the comparisons with other women, etc. would certainly be mental cruelty which a wife cannot be expected to put up with.

The petitioner-wife had moved a petition under Section 10(x) of the Divorce Act, 1869 (‘the Act’), before the Family Court seeking dissolution of her marriage to the respondent on the ground of cruelty. Later on, the petition was amended to bring in an additional ground for dissolution of marriage; i.e., non-consummation of marriage under Section 10(vii) of the Act.

The Family Court allowed the petition and the marriage between the petitioner and the respondent was declared dissolved by a decree of dissolution of marriage on the ground of non-consummation of marriage. However, the Family Court rejected the allegation of cruelty.

Aggrieved by the decree of dissolution of marriage granted under Section 10(vii), the respondent-husband had assailed the same in the instant case.

Consummation of Marriage

Noticeably, on the direction of the Court below a virginity test of the petitioner was conducted. The petitioner had relied on her virginity certificate to establish that the marriage has not been consummated and that she continues to be a virgin.

To conclude whether the pleadings in the instant case are sufficient to attract the ground under Section 10(vii) of the Act, the Court considered the following allegations raised by the petitioner:

  • After a few weeks of marriage, the respondent confided to the petitioner that she was not cute enough to suit the girl of his expectations and that she had married her only out of the pressure exerted by his mother.

  • Even when they met on weekends at his residence, he did not evince any interest in the petitioner. Instead, he preferred to work on his laptop.

  • Though the petitioner had stayed with the respondent for about 40 days, there was never any sexual relations between the parties, as the latter refused to have it and as such the marriage between the parties has not been consummated.

  • The respondent was not interested in sexual relationship with the petitioner. After the first two weeks of the marriage, they stayed together only on the night of Saturdays. Never there was any sexual relationship between them during those days.

Considering the aforementioned, the Court observed that in spite of the fact that both the spouses are normal and healthy, the marriage had not been consummated, for which no cogent reasons had been given by the respondent, except a bald assertion that he had consummated the marriage, which case stands disproved by the testimony of the doctor who examined the petitioner and the virginity certificate.

Hence, the Court concluded that the aforesaid pleadings do make out a case of studied neglect and indifference on the part of the respondent towards the petitioner.

Wilful Refusal to Consummate

The respondent alleged that the court below had erroneously framed the issue as to whether the marriage has not been consummated; which according to the respondent was incorrectly framed because the right issue should be whether the marriage has not been consummated due to wilful refusal by the respondent.

The respondent alleged that as the petitioner had complained of pain during coitus, they had consulted a gynaecologist at the Medical Trust Hospital. The doctor on examination opined that the petitioner has a thick hymen membrane, which could be rectified by minor surgery or by repeated coitus. However, the petitioner never underwent the surgery, as the problem was solved by repeated coitus.

On the contrary, the petitioner claimed that the pain she had to endure during coitus was quite normal and that the gynecologist, consulted at the instance of the respondent had advised them that regular/repeated coitus would solve the problem and that the pain would subside. However, the respondent never took any interest in the same. While the mother of the petitioner submitted that her daughter had told her that the respondent had not been engaging in coitus with her and that it was to find out the reason for the same, the couple had consulted the doctor.

Hence, the Court opined that the fact that there had been no consummation of the marriage was established by the testimony of the doctor who conducted the virginity test and the virginity certificate. However, the petitioner was not able to prove that it was due to wilful abstinence or refusal by the respondent to consummate the marriage within the meaning of Section 10(vii).

Mental Cruelty

The petitioner had a case of physical as well as mental cruelty by the respondent. She contended that the repeated bullying and humiliating behaviour of the respondent had caused quite a stress, strain, and tension to her and had a deep impact on her mind and health, as a result of which she was not even able to concentrate on her work, which seriously impacted her profession too.

The petitioner referred to the following instances of physical cruelty as well as mental cruelty in her petition as well as in her testimony:

  • The respondent, a man of short temper, and when he loses his temper, he turns violent and physically assaults anyone and everybody including his mother and sister apart from the petitioner and is also in the habit of hurling things like ashtray, flower vase, etc. and breaking them.

  • He had abused her in the most obscene, foulest, and filthiest language, and on one occasion he even attempted to strangle/choke her and it was the respondent’s mother who had got her extricated/released from the respondent’s grip.

  • Once, the respondent even dragged her out of the house, and at night she was not let into their room and was made to sleep in her sister-in-law’s room instead.

  • Respondent even suspected her fidelity and used to get wild and furious whenever the petitioner would receive messages from her male friends.

  • That the respondent was always in the habit of belittling and humiliating the petitioner by comparing her with other women.

The Court noted that the Family Court had disbelieved the petitioner’s allegation of cruelty on two occasions: initially she was disbelieved because there was only the sole testimony of the petitioner to substantiate the allegations; and later on, when she produced further evidence by examining her mother, the court below opined that the same was the outcome of a plan hatched by the mother and the daughter. Criticising the approach adopted by the court below, the Court remarked,

“Then who is the witness to be brought in, to substantiate the petitioner’s case? …the court below has found fault with the petitioner for not examining the mother of the respondent, who in its opinion is the best witness to substantiate the case of the petitioner. Nevertheless, the petitioner cannot be expected to prove her case by examining the opposite party’s own mother. That would be expecting the impossible from her.”

Analysis and Findings

Considering the above mentioned, the Court opined that though there was only the testimony of the petitioner and her mother to substantiate the case alleged, it is a time-honoured principle that evidence must be weighed and not counted.

Further, both the parties were MCA graduates. Hence the Court held that the petitioner could not be expected to put up with such attitude and behaviour of the respondent. The Court expressed,

“The marriage between the parties was solemnized on 17-01-2009. The petition for dissolution of marriage is seen filed on 02-11-2009. Going by the materials on record, the couple seems to have been together for hardly a month or so. Almost 14 years have elapsed since the filing of the present petition. The couple still continues to be separated and are hotly contesting the matter.”

Hence, the Court held that the conduct of the respondent/husband could, by no stretch of imagination, be said to be the outcome of the normal “wear and tear” of family life, especially when the parties cohabited for quite a short period of time.

Conclusion

Consequently, applying the philosophy that “human life has a short span and situations causing misery, cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom”, the Court concluded that the petitioner had succeeded in establishing the ground under Section 10(x) of the Act and so the finding of the court below to the contrary deserved to be interfered with.

The appeal was dismissed. The decree granted by the court below for dissolution of marriage between the petitioner and the respondent was modified as one under Section 10(x) of the Act.

[X v. X, Mat. 2022 SCC OnLine Ker 3928, decided on 04-08-2022]

Advocates who appeared in this case :

Thushara James and M.S.Amal Dharsan, Advocates, for the Petitioner;

K.P.Sreeja and M.B.Sandeep, Advocates, for the Respondent.

*Kamini Sharma, Editorial Assistant has put this report together.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant petition wherein the Single Judge Bench of Justice Sanjay Dhar deliberated upon 2 important issues— firstly, approach of the Courts while examining allegations against relatives of a husband accused of matrimonial crimes; secondly, approach of investigating agencies while undertaking investigation of the offences stated to have taken place about few years prior to the lodging of the FIR. The Court held that, in matters of matrimonial crimes, allegations against a husband’s relatives must be carefully scrutinized by the Courts. Sanjay Dhar, J., also observed that Section 473, CrPC gives jurisdiction to a Court to take cognizance of an offence beyond the prescribed period of limitation in certain cases like cruelty to women etc.

Facts of the case: On 18-10-2021, an FIR was lodged with the Women’s Police Station, Rambagh, Srinagar, against the petitioners by the complainant-wife. In the report it was alleged that about seven years back, she had married the petitioner Azhar Hassan Masoodi out of which, a son was born. It was further alleged that she was being subjected to mental and physical torture after her marriage in connection with demands of dowry. The wife also levied allegations of harassment and stated that she was being threatened with divorce. In the report it was also alleged that on 29-09-2015 she was thrown out of her matrimonial house along with her minor child. As regards the delay in lodging FIR, the wife stated that there were talks of compromise going on between the parties, which is why she was unable to lodge FIR in the time.

The FIR was lodged against the husband and his brother, sister and brother-in-law.

Contentions: The petitioners contended that the impugned FIR was filed six years after the complainant-wife was thrown out of her matrimonial home, therefore, the instant prosecution is barred under the provisions in Section 468 CrPC. The counsels also contended that impugned FIR and the material collected by the investigating agency does not disclose commission of any offence against the petitioners.

It was further submitted that the complainant has roped in all the relatives of her husband without there being any specific allegations against them.

Per contra, the respondents argued that the impugned FIR and the material collected by the investigating agency clearly discloses commission of cognizable offences against the petitioners. It was also submitted that offences alleged to have been committed by the petitioners are continuing in nature; therefore, the bar contained in Section 468, CrPC is not applicable to the instant case. It was further contended that the bar contained in Section 468 is regarding taking of cognizance and not about undertaking of investigation of an offence.

Observations and Decision: Perusing the facts and contentions, the Court observed that the impugned FIR contains very specific allegations against the husband; however, the allegations against relatives are very general in nature.

  • The High Court relied on K. Subba Rao v. State of Telangana, (2018) 14 SCC 452; Rajesh Sharma v. State of U.P., (2018) 10 SCC 472 and other related cases wherein it was observed that, “Courts should be careful in proceeding against the relatives in crimes pertaining to matrimonial disputes and dowry deaths (…) the relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out”.

  • It was thus held that allegations against husband’s relatives require careful scrutiny by the Courts. Since the impugned FIR does not mention any specific instances of cruelty alleged to have been committed by the relatives in the instant case, thus, the prosecution against them cannot be sustained.

  • Vis-a-vis the delay in lodging of FIR by the complainant-wife, the Court observed that Section 468, CrPC creates a bar to taking of cognizance after a lapse of period of limitation. Cognizance of an offence is taken only after final report of investigation of the FIR is laid before the Court. Registration of an FIR does not amount to taking of cognizance, therefore, the bar contained in Section 468 cannot be made applicable to the registration of FIR and undertaking investigation into an offence. The Court also noted the fact that there were talks of compromise going on between the parties, hence the delay.

  • The Court further stated under Section 473, CrPC, Courts can take cognizance of an offence beyond the prescribed period of limitation and mere delay on the part of the complainant in lodging the complaint, cannot by itself be a ground to quash the FIR [Skoda Auto Volkswagen (India) (P) Ltd. v. State of U.P., (2021) 5 SCC 795]

[Junaid Hassan Masoodi v. UT of J&K, 2022 SCC OnLine J&K 606, decided on 01-08-2022]

Advocates who appeared in this case :

Z. A. Qureshi, Sr. Advocate, with Ms. Farhana, Advocates, for the Petitioners;

Usman Gani, GA and Wajid Haseeb, Advocates, for the Respondents.

*Sucheta Sarkar, Editorial Assistant has prepared this brief

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Ananda Kumar Mukherjee, J. took cognizance of a petition which was preferred by the petitioner -wife praying for transfer of Matrimonial Suit pending before the Additional District Judge, Fast Track Court, Coochbehar to any other Court of Additional District Judge at Siliguri, allowing the transfer.

Petitioner’s marriage with the respondent was solemnized on 11-03-2020 and they stayed together as husband and wife in the house of the respondent at Coochbehar for 15 days. The respondent filed the Matrimonial suit under Section 13(1)(ia) of the Hindu Marriage Act, 1955 against the petitioner praying for a decree of divorce as a counter blast of the F.I.R. lodged by her. The petitioner contended that she is residing with her mother at Siliguri and has no earning of her own. On the contrary, the husband is employed. She further contended that the relationship between the wife and her husband is strained, and she feels insecure to travel to Coochbehar Court for the purpose of taking part in the proceedings.

Counsel for the respondent submitted that he is a contractual worker, having work for 26 days with a marginal monthly income and is also suffering from Cardiac ailments which requires immediate surgery. He further argued that the petitioner had voluntarily left the matrimonial home within 15 days of the marriage and the present suit for divorce has been filed on the ground of cruelty. Regarding transfer of the case, it was contended that there is conveyance facility to conveniently travel to Coochbehar and the petitioner has no cogent ground for preferring this revisional application and the same is liable to be dismissed.

The Court heard the parties and agreed that travelling at odd hours of the day is a physical hardship for the petitioner and by filing a suit for divorce directly without any attempt to restore the marital relationship, the petitioner-wife cannot be put to such inconvenience. The Court drew its support from the judgment relied on by the counsel of the petitioner in Madhu Saxena v. Pankaj Saxena, (2005) 13 SCC 158 where the principle of “showing leniency towards the wife” was followed.

The Court allowed the petition and opined that it would be appropriate to transfer the Matrimonial Suit from the Court of Additional District Judge, F.T.C., Coochbehar to the Court of District Judge, Darjeeling.

[Sandipa Gupta v. Suraj Gupta, 2022 SCC OnLine Cal 2027, decided on 14-07-2022]

Advocates who appeared in this case :

Mr Sanjay Mazoomdar, Ms Sukanya Adhikary, Advocates, for the Petitioner;

Mr Subhasish Mishra, Mr Swarup Das, Advocates, for the Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In an interesting case the Vacation Bench comprising Dinesh Maheshwari and Krishna Murari, JJ., disapproved a strange bail condition imposed by the M.P. High Court. The High Court had directed the husband to surrender as a condition for pre-arrest bail of his wife.

The petitioner’s wife (applicant herein after) had approached the M.P. High Court with an application for pre-arrest bail apprehending her arrest in connection with a case registered against her husband’s family for offences punishable under Sections 304-B, 498-A, 34 of the Penal Code, 1860.

Considering that the applicant’s husband is posted at Mohana, District Gwalior which is a distant place from where the deceased resided last and the applicant has to take care of her children (two children aged 6 years and 3 years respectively), the High Court granted her pre-arrest bail with a direction to her husband to immediately surrender.

Aggrieved thereby, the petitioner, elder brother of the husband of the deceased, assailed the impugned order in the instant petition. The petitioner contended that the High Court had—while granting the prayer for pre-arrest bail to his wife— apart from the requirements of furnishing the bail bonds and surety, imposed further several conditions and then, before concluding the matter, observed as under:

“It is expected that husband of the applicant shall immediately surrender to the course of justice.”

The petitioner contended that such an observation of the High Court, practically forming a condition for grant of bail to his wife, has put all his rights in jeopardy and his plea for grant of pre-arrest bail is not being considered by the Sessions Judge because of such an observation.

Opining that the petitioner’s grievances were justified, the Court stated that it is inexplicable how the High Court can, while granting pre-arrest bail to the petitioner’s wife make such an observation that may operate against the interests of the petitioner; that too without extending him an opportunity to be heard. Considering the facts and circumstances of the case and the nature of accusations, the Court remarked,

“We are unable to find any logic in such a condition.”  

Hence, the Court disapproved of the condition imposed on the petitioner by the High Court.

Though the Court refrained to comment on the merits of the petitioner’s case for grant of pre-arrest bail, it held that the observations occurring in the impugned order cannot and shall not operate for being prejudicial to the interests of the petitioner.

Consequently, the Court directed that the petitioner’s bail plea shall be examined by the Court concerned on its own merits. Additionally, the Court added that since the instant order was passed without notice to the other side, the respondent-State will have the liberty to apply for a modification or for any other order, if necessary.

[Ajay Singh Rajpoot v. State of M.P., 2022 SCC OnLine SC 875, decided on 07-07-2022]

Appearance by:

For the Petitioner: Mr. Shishir Kumar Saxena, Adv., Mr. R.N. Pareek, Adv., Ms. Payal Swarup, Adv. and Mr. Praveen Swarup, AOR

*Kamini Sharma, Editorial Assistant has put this report together 

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: Hemant Chandangoudar J. quashed the FIR against accused 5 being the woman who had illicit relations with the husband of the complainant, for the offence punishable under Section 498-A Penal Code, 1860 (‘IPC').

An FIR was filed by R2, being the legally wedded wife of accused 1 (‘the husband') for the offence punishable under Section 498-A, 506, 504 and 34 of IPC and Section 3 and 4 of Dowry Prohibition Act, 1961. The FIR was filed against accused 1 to 4 being family members of the husband and accused 5 being the woman alleged of having illicit relations with the husband.

Counsel for accused 5, in this case being the petitioner, submitted that the allegation made against the petitioner does not constitute the commission of the offences alleged and therefore, the registration of the FIR for the aforesaid offences was impermissible.

The Court noted that the only allegation against the petitioner — accused 5 is that she is having an illicit relationship with the accused 1 who is the husband of the respondent 2- complainant. Thus, the Court held that “this allegation does not constitute the commission of the offences alleged against the petitioner — accused 5 and in the absence of any essential ingredients so as to constitute the commission of the said offences, registration of the FIR against accused 5 is without any substance.”

[Shilpa SC v. State of Karnataka, Criminal Petition No. 2743 of 2017, decided on 02-06-2022]

Advocates who appeared in this case :

Nagaraj G., Advocate, for the petitioner;

S. Vishwamurthy, Advocate, for R1;

Babu Reddy, Advocate, for R2.

*Arunima Bose, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising A. Muhamed Mustaque and Sophy Thomas, JJ., held that cruelty has to be assessed from the perspective of a spouse, i.e., how he/she would perceive the conduct of the other spouse.

Reversing the impugned judgment of the Family Court, the Court held,

“Mere attempt by the mediators cannot save the laches which otherwise looms large to strain such relationship. She had felt neglect and a sense of insecurity which prompted her to seek divorce.”

Factual Matrix

The marriage between the appellant-wife and the respondent-husband was solemnised on 17-03-2010. It was the case of the appellant that they have lived as husband and wife only for 24 after which the respondent left for his employment in Abu Dhabi. The appellant contended that after reaching Abu Dhabi, the respondent never cared to contact her nor inquired about her well-being.

Further, the appellant alleged that the respondent always suspected her chastity and fidelity; and had even asked her to keep her mobile phone on loudspeaker mode to enable him to listen to the incoming calls. On the contrary, the respondent denied all the allegations and contended that though they had lived as husband and wife only for 24 days, it was the appellant who left the matrimonial home of her own volition and failed to return to the matrimonial home in spite of intervention of many well-wishers.

Findings of the Family Court

The Family Court found that the appellant failed to make out a case for divorce on the ground of cruelty and desertion. The Family Court relied on an excerpt of the diary of the appellant, wherein she had written:

“I always like his presence. His absence pains me. I pray that Sun will not rise today, with the Sunset I remain alone without his presence, without his smile and soft look.”

Thus, the Family Court held that the diary entries did not reflect any bitter experience by the appellant from her husband and that those are the words of the wife who is craving for the presence of her loved husband. Consequently, the Family Court refused to believe the case of cruelty.

The Family Court also noted that the appellant left the matrimonial home for employment and therefore, it could not be construed as desertion. Hence, the case of divorce was dismissed also on the ground of desertion.

Analysis and Findings

Whether the husband going abroad for employment amounts to desertion?

Concurring with the finding of the Family Court dismissing the petition on the ground of desertion, the High Court noted that the respondent left for Abu Dhabi for his job. He had no intention to abandon the marriage. He had also not refused to cohabit with the appellant. The Court expressed,

“There must be an element on the part of the party alleging to be deserted either to abandon the marriage or to forsake the cohabitation permanently. In the absence of those elements, any sort of separation cannot be construed as a ground constituting desertion.”

Cruelty as a Ground for Divorce

Referring to the diary entries, the High Court opined that it portrayed reflection of the mind of a person who felt isolated for want of the presence of her husband. The Court observed,

“Being a lady, she appears to be one who was looking forward to the care and love of her beloved husband. There was no contact from the side of the respondent.”

The Court noted that the diary itself would show that the appellant was longing to live with her husband which never happened and no attempt was made by the respondent to be in her company. Opining that one would not refuse to return to the matrimonial home for no reason, the Court held that there must be some reason that persuaded the appellant to remain at the parental house.

With regard to the ground canvassed by the appellant as cruelty, the Court noted that it was not a singular incident of misconduct that mattered for consideration, but the approach should be to consider the whole conduct of the spouse to analyse if cruelty is meted out or not.

The appellant had a case that she was promised that she would be taken to gulf country and, on that pretext, gold ornaments belonging to her were collected by the respondent. It was only when her hope to live together came to an end, that she decided to have a separation.

Resultantly, the Court held that cruelty has to be assessed from a perspective in which a spouse would perceive the relationship with the other spouse. The Court remarked,

“If he cannot nurse the feelings of the spouse and live up to her expectation, that would result in mental frustration.”

Conclusion

In the backdrop of above, the Court concluded that since the parties had been living separately for more than a decade, the marriage had become deadwood for all practical purposes. Consequently, the appeal was allowed and the impugned judgment was set aside. The marriage between the petitioner and the respondent was declared dissolved.

[Subhi N. v. Sreeraj E., 2021 SCC OnLine Ker 12117, decided on 25-11-2021]

Advocates who appeared in this case :

Cibi Thomas, Advocate, for the Appellant;

Bindumol Joseph and Advocate B.S. Syamanthak, Advocates, for the Respondent;

*Kamini Sharma, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: The Division Bench of S. Sunil Dutt Yadav and K.S. Hemalekha, JJ. allowed the petition in part and dissolved the marriage between the parties on account of mental cruelty for levelling unsubstantiated claims against husband by the wife. 

  

The present appeal was preferred by the husband assailing the judgment and decree passed by Principal Judge, Family Court, Dharwad, whereby the petition filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking decree of divorce on the ground of cruelty was dismissed. The grounds for divorce are regarding allegations levelled against him that the husband is impotent in front of relatives which amounts to mental agony and cruelty to the husband. 

  

The issue under consideration is whether the allegation made by the wife that the husband is impotent and not competent to perform matrimonial obligations has resulted in mental cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act, 1955 or not. 

  

The Court observed that cruelty includes both physical and mental cruelty as enumerated under the Section 13(1) (ia) Hindu Marriage Act, 1955, and cruelty would require the assessment of the cumulative effect of the attending facts and circumstances established by evidence on record. 

  

The Court noted

No prudent woman would think of making allegation of impotency in the presence of others, rather she would take necessary steps to see that the reputation of the husband is not affected and not thrown out in public.

  

The Court relied on G Padmini v. G Sivananda Babu, 1999 SCC OnLine AP 678 wherein it was observed that putting unnecessary allegations on the husband to not being able to bear children, without presenting any proof, will lead to intense mental agony and anguish for the husband. 

  

The Court also observed, though Section 13 Hindu Marriage Act, 1955 does not consider the impotency as the ground for divorce, the false allegation of impotency being made by the wife would definitely cause mental disharmony and this would amount to mental cruelty within the meaning of Section 13(1)(ia) of the Act, and enables the husband to seek divorce on the ground of cruelty. 

  

The Supreme Court held in Pramila Bhatia v. Vijay Kumar Bhatia, 2000 SCC OnLine Raj 54, as no evidence having been specifically adduced by the wife to prove that the husband is actually impotent; the allegation would remain only an allegation and has the effect of lowering the dignity of the husband, which amounts to cruelty. 

  

The Court held “in light of the allegations having not been proved to be genuine, and calling the husband an impotent without legally substantiating the same, itself would amount to cruelty within the meaning of Section 13(ia) of the Act and the trial Court was not justified in holding that the cruelty asserted by the husband is not proved. Thus, we are of the considered opinion that the judgment and decree of the Family Court needs to be set aside and the petition filed by the husband under Section 13(1) (ia) of the Act needs to be allowed granting a decree of divorce in favour of the husband.”

[X v Y, MFA No. 10265 of 2022, decided on 31-05-2022] 

Appearances:
For the appellant:  Mr. Srinand A. Pachhapure 

For the respondent: Mr. S.R. Hegde 

*Arunima Bose, Editorial Assistant has reported this brief. 

Legal RoundUpWeekly Rewind

Top Story of the Week

Aadhaar Card for Sex Workers| Supreme Court bats for sex workers’ right to dignity; directs UIDAI to issue Aadhaar Card without insisting on address proof 

The Supreme Court has upheld sex workers right to identity and issued detailed directions for their protection and upliftment. The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Adhar Card for them without insisting on address proof. 

It was observed that  

“…basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.” 

Read here: https://www.scconline.com/blog/post/2022/05/26/aadhaar-sex-workers-without-address-proof-supreme-court-india-judgement-legal-news-updates-research-rights/  

Supreme Court

Insurance companies refusing claims on flimsy/technical grounds must stop! Don’t ask for documents that insured can’t produce 

Insurance companies refusing claims on flimsy/technical grounds must stop! This is what the Supreme Court observed while dealing with  a case where an Insurance Company had refused to settle an insurance claim on non-submission of the duplicate certified copy of certificate of registration of the stolen vehicle. The COurt held that while settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. 

The Court was dealing with a case where a truck was stolen when and the Court observed the appellant had produced the photocopy of certificate of registration and the registration particulars as provided by the RTO, solely on the ground that the original certificate of registration (which has been stolen) is not produced, non-settlement of claim can be said to be deficiency in service. Therefore, the appellant has been wrongly denied the insurance claim. 

Read here: https://www.scconline.com/blog/post/2022/05/23/insurance-claim-rejection-technical-ground-insurance-company-non-production-document-supreme-court-india-judgments-mr-shah-legal-reserach-updates-news/  

Hindu widow’s pre-existing right to maintenance automatically ripens into full ownership when she is in settled legal possession of the property 

Observing that a Hindu woman’s right to maintenance is not an empty formality, the Supreme Court has held that by virtue of Section 14(1) of the Hindu Succession Act, 1956, the Hindu widow’s limited interest gets automatically enlarged into an absolute right, when such property is possessed by her whether acquired before or after the commencement of 1956 Act in lieu of her right to maintenance. 

Where a Hindu widow is found to be in exclusive settled legal possession of the HUF property, that itself would create a presumption that such property was earmarked for realization of her pre-existing right of maintenance, more particularly when the surviving co-parcener did not earmark any alternative property for recognizing her pre-existing right of maintenance. 

Read here: https://www.scconline.com/blog/post/2022/05/25/hindu-woman-right-to-maintenance-settled-possession-absolute-ownership-section-14-hindu-succession-act-supreme-court-judgment-india-legal-research-updates-news/  

IGST on Ocean Freight for imports unconstitutional; Won’t create a level playing field but will drive Indian shipping lines out of business 

In the case where the constitutionality of two Central Government notifications related to IGST was under scanner, the Supreme Court has held that since the Indian importer is liable to pay IGST on the ‘composite supply’, comprising of supply of goods and supply of services of transportation, insurance, etc. in a CIF contract, a separate levy on the Indian importer for the ‘supply of services’ by the shipping line would be in violation of Section 8 of the CGST Act. 

The Court observed that, 

“If Indian shipping lines continue to be taxed and not their competitors, it would drive the Indian shipping lines out of business.” 

Read here: https://www.scconline.com/blog/post/2022/05/21/igst-ocean-freight-imports-unconstituional-indian-importers-shipping-lines-supreme-court-india-legal-research-updates-tax-law-news/  

High Courts

Kerala High Court| Right of Press to report truthfully and faithfully; Press shall NOT indulge in sensationalism

Stating that, though the Press has a duty to inform the public, the Division Bench of Devan Ramachandran and Sophy Thomas, JJ., observed that, it is the well-accepted thumb rule that the Press shall not indulge in sensationalism; or in speculating upon the guilt or otherwise of any accused or other individual; or to create an opinion about the comportment or character of a person involved in the Trial; and not to embellish, by impelling or sponsoring an opinion they seek. 

High Court also observed that,

“Press has a duty to inform the public, the publication of lurid details and other sensitive investigative inputs, which are within the sole jurisdiction of the courts to decide upon, certainly require to be put on a tight leash.” 

Read here: https://www.scconline.com/blog/post/2022/05/25/right-of-press-to-report-truthfully-and-faithfully-legal-news-legal-updates-law-kerala-highcourt/

Chhattisgarh High Court| Would pledge of ornaments kept for marriage of a daughter and use for self without knowledge of husband would amount to cruelty? 

In a matter pertaining to mental cruelty, the Division Bench of Kerala HC, expressed that, if a spouse by her own conduct, without caring about the future of the daughter, parts with ornaments which were meant for the marriage, it will be within the ambit of mental cruelty done by the wife. 

The Bench also added to its observation that, during the marriage ceremony in the Indian household, the presentation of the ornament is normally done for which the parents start the effort, from an early date. 

Read here: https://www.scconline.com/blog/post/2022/05/24/would-pledge-of-ornaments-kept-for-marriage-of-a-daughter-and-use-for-self-without-knowledge-of-husband-would-amount-to-cruelty-chhattisgarh-high-court-law-legal-news-legal-updates/ 

P&H High Court| Can an act of dissent be labeled as sedition? 

Expressing that, in a democratic set-up, there always would be voices of dissent and opinions against rules and protest against actions, P&H HC, observed that, some protests may have aggression but still an act of dissent would not be ordinarily labeled as sedition. 

Bench added to its observation that, to attract an offence such as Section 124-A IPC, there must be deliberate resistance and conscious defiance of authority with a conceived plan aimed to unsettle elected government. 

Read here: https://www.scconline.com/blog/post/2022/05/26/can-an-act-of-dissent-be-labelled-as-sedition-punjab-and-haryana-high-court-law-legal-news-legal-updates/ 

Delhi High Court| Once tenant starts paying rent, can he/she turn around and challenge title of landlord? 

In a matter with regard to the grant of leave to defend, Subramonium Prasad, J., expressed that, the tenant cannot merely make allegations that the landlord has other premises without producing some material to substantiate the same. 

High Court added to its observations that, it is a well-settled position that a tenant may take all kinds of pleas in its application for leave to defend but the Rent Controller has to ensure that the purpose of Chapter III of the Rent Control Act is not defeated by granting leave to defend in every frivolous plea raised by the tenant which may result in protracting the case. 

Read here: https://www.scconline.com/blog/post/2022/05/27/once-tenant-starts-paying-rent-can-he-she-turn-around-and-challenge-title-of-landlord-delhi-high-court-law-legalnews-legal-updates/ 

Legislations

Motor Vehicles (Third Party Insurance Base Premium and Liability) Rules, 2022 

On May 25, 2022, the Ministry of Road Transport and Highways, in consultation with the Insurance Regulatory and Development Authority of India, has published Motor Vehicles (Third Party Insurance Base Premium and Liability) Rules, 2022 in order to revise the base premium for third party insurance for unlimited liability. The rules shall come into force on 1st June, 2022. 

Read here: https://www.scconline.com/blog/post/2022/05/26/base-premium-for-third-party-insurance-for-unlimited-liability-revised-vide-motor-vehicles-third-party-insurance-base-premium-and-liability-rules-2022/  

IFSCA (Fund Management) Regulations, 2022 

The International Financial Services Centers Authority has revised the Application and Registration Fee under IFSCA (Fund Management) Regulations, 2022. 

Read here: https://www.scconline.com/blog/post/2022/05/23/fee-structure-under-ifsca-fund-management-regulations-2022-revised/  

New Releases 

 

High Court Round UpLegal RoundUp

TOP STORY OF THE MONTH 

Marital Rape

Split Verdict on Criminalisation of Marital Rape| Can a Husband be labelled as a rapist? Does MRE provide impunity to offender? One says ‘Yes’, other says ‘No’

In a split verdict the Division Bench of Rajiv Shakdher and C. Hari Shankar, JJ., laid down their opinion on “Should a husband be held criminally liable for raping his wife who is not under 18 years of age?”

Read more, here…

Allahabad High Court

Employees State Insurance Act

Whether ‘Printing Press’ is a manufacturing process under Employees State Insurance Act?

Stating that the word ‘manufacturing process’ has been expansively defined under the Factories Act even to include Printing Press activity as a manufacturing process whereas in common parlance Printing Press cannot be termed as a ‘manufacturing process’, Pankaj Bhatia, J., held that, the term ‘manufacturing process’ was added to the ESI Act after the 1989 Amendment, hence, there would be no application of the said term prior to the said amendment.

Read more, here…

Abetment of Suicide

Biggest jolt for any married woman that her husband is being shared by some other lady or he is going to marry some other lady: Court dismisses discharge application of husband accused of abetting suicide of wife

Rahul Chaturvedi, J., noted that a lady soon after coming to know that her husband got married in clandestine way with some other lady, committed suicide.

Read more, here…

Loudspeaker

Use of loudspeaker in mosque is not a fundamental right

The Division Bench of Vivek Kumar Birla and Vikas Budhwar, JJ., held that the law has been settled, that use of loudspeaker from mosque is not a fundamental right.

Read more, here…

Maintenance

If wife sells out some property, in order to maintain her children, would that mean the wife will not have opportunity to claim maintenance under S. 125 CrPC?

Brij Raj Singh, J., while discussing the matter with regard to providing maintenance to a wife, noted that the Court below had made observations on being influenced by factual aspects which were not proved.

Read more, here…

Duty of father to maintain child, daughter entitled to seek maintenance from father

Brij Raj Singh, J., expressed that, a father is legally bound to maintain his child according to the status and lifestyle.

Read more, here…

Taj Mahal

Judges by experience and training not equipped to pronounce any verdict on non-justiciable issues: Sealed 22 rooms at Taj Mahal to stay locked

In a matter wherein the petitioner sought commissioning of a study so that the history of Taj Mahal could be explored, and controversy be put to rest, the Division Bench of Devendra Upadhyaya and Subhash Vidyarthi, JJ., held that the as to which subject should be studied or researched or which topic of a particular area or discipline are not issues where this Court can be said to be possessed of any judicially manageable standards to adjudicate upon.

Read more, here…

Divorce

If divorce is declared in one go and Fatwa is issued, Is muslim wife entitled to maintenance under S. 125 CrPC?

Brij Raj Singh, J., while addressing a maintenance case, observed that if a wife proves that she is unable to maintain herself, she will be entitled to maintenance.

Read more, here…

Sexual Assault

Junior of a practicing advocate alleges to have been subjected to sexual assault: Will All HC grant him bail?

In an alleged sexual assault case, Samit Gopal, J., noted that allegations of sexual assault were against a practicing lawyer by a junior in his office.

Read more, here…

Andhra Pradesh High Court

[Doctrine of Separability] AP HC discussed the enforceability of arbitration clause embedded in an unstamped charter party/agreement

“The doctrine of separability treats an agreement to arbitrate contained within a contract as an independent agreement that is deemed to be separable from the main contract. The doctrine preserves the validity and enforceability of the arbitration clause in a contract, even when the primary contract is found to be invalid and unenforceable, providing autonomy to the arbitration clause. The UNCITRAL Model law on International Commercial Arbitration, 1985, Article 16[1], integrates the doctrine of separability as an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.”

Read more, here…

Bombay High Court

News Items

Article on a rift between police officers published in newspaper: Will the reporter be punished under S. 505 IPC?

In a matter wherein, a journalist sought to quash proceedings against him for publishing news items regarding the rift between the officers of the police departments, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that:

“If we will say that any news article pertaining to two Sections of any Department will fall within the purview of Section 505(2) of the Indian Penal Code, in that case, we are interpreting the provisions of Section 505(2) of the Indian Penal Code too far and it is not expected by legislatures.”

Read more, here…

Dying Declaration

Dying declaration is by itself sufficient to convict an accused of accusation levelled against him provided dying declaration is found to be voluntary, truthful and hence, could inspire confidence of Court

While addressing a matter with regard to a husband setting ablaze his wife, the Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., made an observation with respect to dying declaration that,

It is by itself sufficient to convict an accused for the accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the court.

Read more, here…

Medical Test

Bom HC provides succor to a girl who was declared “male” in medical test, Directs State to consider her for post in Police department

The Division Bench of Revati Mohite Dere and Madhav J. Jamdar, JJ., directs the State Government of Maharashtra, to consider a woman who was declared as “male” in her medical test for the non-constabulary post in the police department.

Read more, here…

Section 377 Penal Code, 1860

Would kissing on lips and touching private parts of a minor be an offence under S. 377 Penal Code, 1860?

Anuja Prabhudessai, J., observed that touching private parts and kissing on the lips of a minor would not constitute to be an offence under Section 377 of Penal Code, 1860.

Read more, here…

Cruelty

Can filing of divorce petition by husband be an act of ‘Cruelty’?

Vibha Kankanwadi, J., held that, if a husband files a divorce petition that cannot be taken as an act of cruelty.

Read more, here…

Maintenance to in-laws

Can Maintenance and Welfare of Parents and Senior Citizens’ Tribunal direct the daughter-in-law to pay maintenance to her in-laws?

The Division Bench of S.S. Shinde and Revati Mohite Dere, JJ., observed that the daughter-in-law cannot be directed by the  Maintenance and Welfare of Parents and Senior Citizens’ Tribunal to pay maintenance to her in-laws.

Read more, here…

Bonafide Passenger

If a passenger carries a season ticket on local train but fails to provide an identity card, would he be not covered under ‘Bonafide Passenger’?

While partly allowing the appeal wherein a passenger sustained injuries in an untoward incident, Sandeep K. Shinde, J., expressed that, Railway Claim Tribunal, shall proceed to grant compensation to the appellants in terms of Rule 3 of the Rules, 1990, after verifying the medical evidence produced by the appellant in support of his claim.

Read more, here…

Calcutta High Court

Spot Memos

None of the proceedings initiated by the department shown to have been taken to the logical end; spot memos cannot be enforced

The Court was unclear about the fact that why different wings of the very same department have been issuing notices and summons to the appellants without taking any of the earlier proceedings to the logical end.

Read more, here…

Ocular Testimony

In case of discrepancy between ocular and medical evidence, ocular testimony shall prevail; Conviction set aside entitling benefit of doubt

Bibek Chaudhury, J. allowed an appeal which was filed assailing the judgment and order of conviction passed by the Trial Court for committing offence under Section 324 of the Penal Code, 1860 and consequence sentence of imprisonment for a term of one year with fine.

Read more, here…

Vital Facts

Vital facts overlooked by the Trial Court; Conviction set aside under Essential Commodities Act, 1955

Moushumi Bhattacharya, J. allowed an appeal which was filed assailing the impugned judgment passed under section 7 (1) (a) (ii), of the Essential Commodities Act, 1955 and paragraph 12 of the West Bengal Kerosene Control Order, 1968. The appellant was convicted under the aforesaid provisions with fine and simple imprisonment.

Read more, here…

Bail

Bail granted to NDPS accused with 100% speech and hearing impairment

The Division Bench of Kesang Doma Bhutia and Moushumi Bhattacharya, JJ. allowed a bail application of the petitioner suffering from 100% speech and hearing impairment under Section 439 of the Code of Criminal Procedure, 1973 under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Read more, here…

Income Tax

Not providing an opportunity to file a reply to the show-cause notice violation of principle of natural justice; Case remanded back to the Assessing Officer for fresh assessment

Md. Nizamuddin, J. allowed a petition which was filed challenging the impugned assessment order under Section 147 read with Section 144B of the Income Tax Act, 1961 relating to assessment year 2013-2014 on the ground of violation of principle of natural justice by not providing the petitioner with an opportunity to file a reply to the show-cause-notice.

Read more, here…

Conviction

Abscondence of an accused by itself does not establish his guilt; Conviction and sentence for punishment of murder set aside

The Division Bench of Joymalya Bagchi and Ananya Bandyopadhyay, JJ. allowed an appeal which was directed against the judgment and order convicting the appellant for commission of offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine.

Read more, here…

Chhattisgarh High Court

Irretrievable breakdown of Marriage

Chh HC dissolves marriage on appeal filed by husband against trial court order

Sanjay S. Agrawal, J., reversed the judgment of the trial court and granted divorce in an application filed by the husband, while granting Rs 15 lakhs permanent alimony to the wife.

Read more, here…

Excise Act

Confiscation order can only be challenged when it reaches its finality and the statute does not give any space to challenge any other order except the final one

Goutam Bhaduri, J., allowed the petition and directed the vehicle to be released on certain conditions.

Read more, here…

Negative Equality

Art. 14 of the Constitution does not envisage negative equality; Grant of study leave to employees under probation, cannot be a ground for claiming negative parity in the teeth of R. 42 (5) of Chhattisgarh Civil Services (Leave) Rules, 2010

A Division Bench of Arup Kumar Goswami CJ. and Rajendra Chandra Singh Samant J. dismissed the appeal and remarked that quality cannot be claimed in illegality.

Read more, here…

Appellate Tribunal

Whether the power exercised by the single-member Appellate Tribunal of STAT formed under MV Act would be valid under RERA and within jurisdiction?

The Division Bench of Goutam Bhaduri and Sanjay S Agarwal, JJ. directed that the State shall ensure that the Appellate Tribunal shall be made functional so that the grievance of the public at large who are affected are redressed.

Read more, here…

Cruelty

Would pledge of ornaments kept for marriage of a daughter and use for self without knowledge of husband would amount to cruelty?

In a matter pertaining to mental cruelty, the Division Bench of Goutam Bhaduri and N.K. Chandravanshi, JJ., expressed that, if a spouse by her own conduct, without caring about the future of the daughter, parts with ornaments which were meant for the marriage, it will be within the ambit of mental cruelty done by the wife.

Read more, here…

Delhi High Court

Shared Household

Visits of sundry family members to matrimonial home, without permanency or intention to treat premises as a shared household: Would it render family members as members of shared household?

Prateek Jalan, J., addressed the issue of whether visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as a shared household, would render them members of the “shared household.

Read more, here…

Irretrievable Breakdown of Marriage

Husband and wife, two pillars of family, if one gets weak or breaks, whole house crashes down

In a matter of dissolution of marriage, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., expressed that husband and wife together can deal with any situation, if one gets weak or breaks, the whole crashes down.

Read more, here…

Judicial Functions

How an Additional Rent Controller did not exhibit a great degree of temperance in discharge of judicial functions

Hari Shankar, J., expressed that, Unwarranted and needless hypersensitivity is not expected of Judicial Officers, who are expected, at all times to maintain composure and poise, befitting the office they hold.

Read more, here…

Negotiable Instruments Act

When no offence is attributable to Company, it is not possible to attach liability on Managing Director by deeming provisions of S. 141 of the NI Act

Asha Menon, J., held that if no offence is attributed to the company, its Directors and other persons responsible for the conduct of its business cannot be saddled with any liability.

Read more, here…

Trademark Infringement

Infringement of Starbucks trademark FRAPPUCCINO | Del HC awards Rs 2 lakh in damages and 9 lakh costs

In a matter wherein Starbucks trademark ‘frappuccino’ was being infringed, Jyoti Singh, J., while observing that, FRAPPUCCINO trademarks have acquired formidable reputation and goodwill in India, awarded Starbuck Rupees 2 lakhs damages and 9 lakh costs.

Read more, here…

Titles of films are capable of being recognised under trademark law? Read Del HC’s decision in light of film ‘SHOLAY’

Prathiba M. Singh, J., expressed that, the word ‘SHOLAY’, is the title of an iconic film, and consequently, as a mark having been associated with the film, cannot be held to be devoid of protection

Read more, here…

[Trademark Battle] Karim’s v. Kareem’s | Kareem’s related to or associated with Delhi’s iconic Karim’s restaurant?

Prathiba M. Singh, J., has restrained Kareem Dhanani from opening any further restaurants under the marks “KARIM/KARIM’S/KAREEM/KAREEM’S” or any other marks which are identical or deceptively similar to the Plaintiff’s marks “KARIM/KARIM’S/KAREEM” till the next date of hearing.

Read more, here…

Section 304B Penal Code, 1860

Injuries found on person of deceased who was more than 6 months pregnant, but MM ignored postmortem report: Will onus be on husband to offer an explanation under S. 104 Evidence Act?

Asha Menon, J., while setting aside the conclusion of the Metropolitan Magistrate and upholding the intervention by Sessions Court expressed that, injuries were found on the person of the deceased who was more than 6 months pregnant during her residence with her husband, hence the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

Read more, here…

Marital Rape

Explainer | Would striking down ‘Marital Rape Exception’ create a New Offence?

In the Split verdict on Criminalisation of Marital Rape Exception (MRE), the Division Bench of Delhi High Court pronounced a 393-Pages Judgment, wherein the Justices Rajiv Shakdher and C. Hari Shankar while disagreeing with each other on various issues, very significantly pointed out the issue if  “NEW OFFENCE”.

Read more, here…

Extradition

When does petitioner’s concern of lack of disclosure of evidence require court’s intervention?

Chandra Dhari Singh, J., while addressing a matter, expressed that,

Under Principles of Natural Justice, it is settled law that (a) where at the stage where an authority is merely required to form an opinion as to whether an enquiry should be held into allegations or contraventions, it is not required to give to the notice details of nature of evidence and documents, and (b) where a hearing for determination of guilt is to be held de novo, without any reference to any preliminary enquiry report, then the report need not be disclosed to the party affected.

Read more, here…

Post-Decisional Hearing

MeitY directed to provide original copy of blocking order and post-decisional hearing to owner and creator of website ‘Dowry Calculator’

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., in a matter with regard to blocking of a website ‘Dowry Calculator’, directed the MeitY committee to give a copy of the order to the creator of the website.

Read more, here…

Ration Delivery Scheme

Delhi HC strikes down Delhi Government’s Doorstep Ration Delivery Scheme | Lieutenant Governor expressed his difference of opinion

The Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, the Delhi Government’s Mukhya Matri Ghar Ghar Ration Yojana cannot be implemented and rolled out by the GNCTD since the LG expressed his difference of opinion.

Read more, here…

Society

Can an occupant deprived of his demarcated car parking in a Society registered under Delhi Cooperative Societies Act occupied by unauthorized occupants approach the Court?

The Division Bench of Mukta Gupta and Neena Bansal Krishna, JJ., observed that Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances.

Read more, here…

Condonation of Delay

Whether merely writing letters or making representations would give a sufficient cause or ground to a party to seek condonation of delay?

Stating that mere writing of a letter of representation cannot furnish an adequate explanation for the delay, Jyoti Singh, J., expressed that, it is a settled principle of law that in writ jurisdiction, the Court would not ordinarily assist those who are lethargic and indolent.

Read more, here…

Landlord-Tenant

Once tenant starts paying rent, can he/she turn around and challenge title of landlord?

In a matter with regard to the grant of leave to defend, Subramonium Prasad, J., expressed that, the tenant cannot merely make allegations that the landlord has other premises without producing some material to substantiate the same.

Read more, here…

Custom Duty

Import without custom duty, lower Court issued summons order, but Delhi HC sets aside: Read 5 reasons why impugned order was bad in law

Chandra Dhari Singh, J., while setting aside the order of lower Court in a case concerning Customs Act, laid down five reasons why the impugned order was bad in law.

Read more, here…

Maintenance

Whether right to claim maintenance under Domestic Violence Act and S. 125 CrPC are mutually exclusive?

Asha Menon, J., observed that, the right to claim maintenance under the Domestic Violence Act and those under Section 125 CrPC are not mutually exclusive i.e. the aggrieved person can seek interim maintenance before the Magistrate while also seeking permanent maintenance under Section 125 CrPC.

Read more, here…

Gauhati High Court

Can a husband escape from his liability to pay maintenance to his wife by signing an agreement to the contrary?

While addressing a matter with regard to maintenance of wife, Rumi Kumari Phukan, J., expressed that, the statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.

Read more, here…

Gujarat High Court

Gratuity

If there is a delay in payment of gratuity, whether interest on delayed gratuity will be mandatory or discretionary?

Biren Vaishnav, J., reiterated that, interest on delayed payment of gratuity is mandatory and not discretionary

Read more, here…

Convict

Admission of co-accused cannot be sole base to convict any person; application dismissed

B.N. Karia, J. rejected an application under Section 397 read with Section 401 of the Code of Criminal Procedure, wherein the applicant-State has requested to quash and set aside the order and stay the implementation of the said order till hearing and final disposal of the present application.

Read more, here…

Motor Accident Claims Tribunal

Appeal dismissed on grounds of meagre amount; Order of Motor Accident Claims Tribunal upheld

Sandeep N. Bhatt, J. dismissed an appeal preferred by the Insurance Company being aggrieved and dissatisfied with the judgment and award passed by the Motor Accident Claims Tribunal by which the Tribunal has awarded Rs.65,200/- with 7.5% interest p.a. from the date of the claim petition.

Read more, here…

Himachal Pradesh High Court

Section 125 CrPC

The findings in a proceeding under S. 125 CrPC cannot be binding on matrimonial Court while dealing with an application for divorce on the ground of res judicata

Tarlok Singh Chauhan, J. remarked, “there has been no matrimonial relationship between the parties for the last nearly two decades, which in itself establishes that the parties are not in a position to live together any longer.”

Read more, here…

Jammu and Kashmir and Ladakh High Court

Freedom of Speech and Expression

Statement that Kashmir is under occupation of armed forces and people of Kashmir reduced to slaves, will be protected under Right to Freedom of Speech and Expression?

Stating that, the intention of a person can be gathered from the words spoken or written or other expressions, Sanjay Dhar, J., expressed that,

Expression of outrage at the negligence and inhuman attitude of the security forces, police and establishment would come within the ambit of freedom of expression of an individual which includes freedom to criticize the Government of the day which is permissible under law but the same may not be the position if an individual questions the fact of a State being a part of the Country by using the expression ‘occupation of military or the people being slaves etc.

Read more, here…

Bail

63-year-old woman aided her 65-year-old husband to commit rape on a minor girl: Can she be granted bail?

Sanjay Dhar, J., expressed that, in the cases involving offences of serious nature falling under IPC or POCSO Act, where the victim happens to be a minor child, the Court has to be alive to the need for protecting the victims and the witnesses and it is the duty of the Court to ensure that victim and witnesses, in such serious matters, are made to feel secure while deposing before the Court.

Read more, here…

Karnataka High Court

Lok Adalat

Kar HC issues general directions in matters relating to compromise before the Lok Adalat which are challenged by way of writ petitions

Suraj Govindaraj, J., allowed the petition and quashed the compromise decree in the original suit filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings.

Read more, here…

Arbitration

Whether Arbitration involving third parties leading to other proceedings would be arbitrable?

B.M. Shyam Prasad, J., held that there cannot be a complete adjudication of the petitioner’s rights unless the third parties are also heard.

Read more, here…

Maintenance

Granting or non-granting interim maintenance is not punishing any litigant; Kar HC observes Proviso to S. 125 of CrPC provides discretion to court to order interim maintenance during pendency of proceedings

M Nagaprasanna, J., dismissed the petition and refused to grant prayer as the case is at a pre matured stage and is not the right time to post the matter for examination.

Read more, here…

Juvenile Justice Act

In the absence of any declaration that the child is deserted by his biological or adoptive parents or guardians; no offence can be made out under S. 80 JJ Act

Hemant Chandangoudar, J., allowed the petition and quashed the impugned proceedings initiated against alleged offence under Section 80 of Juvenile Justice (Care and Protection of Children) Act, 2015.

Read more, here…

Work From Home

Work From Home under Maternity Benefit Act can be availed only if nature of work assigned to women is possible for them to work from home

Noting that the nature of work assigned to a woman cannot be carried from home, R Devdas, J., held that, as per Section 5(5) of the Maternity Benefits Act, 1961 work from home after availing the maternity benefit could be given only in a case where the nature of work assigned to the women is such that it is possible for her to work from home.

Read more, here…

Industrial Disputes Act

Labour Court has no jurisdiction to first decide the workmen’s entitlement and then proceed to compute the benefit so adjudicated; Labour Court’s power like that of the Executing Court’s power

K.S. Mudagal, J., allowed the petition and set aside the impugned award awarding compensation as well as the silver medal allowance without considering the question of maintainability of the petition under Section 33C(2) of the I.D. Act.

Read more, here…

Indian Nursing Council

No objection from the Indian Nursing Council is not required for the purpose of University granting recognition or approval for the GNM Course

P Krishna Bhat, J. disposed of the application with a direction to KSNC and State to consider the applications of petitioners which were filed in the year 2019 and take a final decision on the same.

Read more, here…

Negotiable Instruments Act

A 138 NI complaint filed was barred by limitation but such issue was raised for the first time before the Appellate Court and not Trial Court

HP Sandesh J. dismissed the petition and upheld the judgment by the Appellate Court and further directed the complainant to file necessary application to condone the delay.

Read more, here…

POCSO

Teacher aged 55 years harassed a student on separate occasions, booked under POCSO, released on bail

H.P. Sandesh, J. allowed the petition and granted bail to the petitioner in connection with a crime registered in  Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the POCSO Act.

Read more, here…

GST Act

Whether on coming into force of GST Act a Municipal Corporation can levy advertisement tax/fee?

The Court observed that in the entire transaction of GST, the petitioners are only a collecting agency who collects the GST payable on the service rendered and deposits the same with the authorities, the incidence of tax, i.e., GST being on the services rendered or goods supplied, the obligation of payment being on the person availing the service and or receiving the goods.

Read more, here…

Kerala High Court

Suicide

Person tries to commit suicide after being subjected to severe mental stress, which is a punishable offence: Is there any provision which can save her from penal provision?

Expressing that, Criminal prosecution followed by conviction and imposing substantive sentences and fines on those convicted of suicidal behaviours are believed to constitute an affront to human dignity, K. Haripal, J., pointed out that a large section of the society considers that suicidal behaviour is typically a symptom of psychiatric illness or an act of psychological distress, suggesting that the person requires assistance in his personal and psychological life, not punishment with imprisonment or fine.

Read more, here…

Maternity Benefits

Do employers have a responsibility to ensure that delivering and raising a child, shall not be detrimental to female officer’s career?

Addressing a matter wherein maternity benefits were not being allowed to female officers, Raja Vijayaraghavan V, JJ., expressed that the employer is to take all steps possible to ensure that they are sympathetic to the cause of the female officer so that she can achieve her potential in the workplace and the time spent by her to deliver and raise her child shall not be detrimental to her career or her prospects.

Read more, here…

Floods

Persons who violate directions of Corporation, as mandated by law, against deposit of garbage into canals, shall be taken to task under fullest warrant of law

Expressing that, as much as this Court does not desire to control the management of the drains or the flood mitigating systems of the city on regular basis, it is forced to do so because of the large-scale inundation witnessed, Devan Ramachandran, J., held that it is necessary that citizens understand their duty to ensure that canals are fenced and maintained well and kept free of debris, which otherwise would challenge the lives of many other affected by the flooding.

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Educational Loan

Can low CIBIL Score of a co-borrower be a reason for denial of an education loan?

In a case wherein, due to low CIBIL Score education loan was denied, N. Nagaresh, J., directed for reconsideration of loan applications, disregarding the low Credit Score of the co-obligants.

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Right of Press

Right of Press to report truthfully and faithfully | Press shall NOT indulge in sensationalism

Stating that, though the Press has a duty to inform the public, the Division Bench of Devan Ramachandran and Sophy Thomas, JJ., observed that, it is the well-accepted thumb rule that the Press shall not indulge in sensationalism; or in speculating upon the guilt or otherwise of any accused or other individual; or to create an opinion about the comportment or character of a person involved in the Trial; and not to embellish, by impelling or sponsoring an opinion they seek.

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Promise to Marry

Whether promise to marry made to married women is legally enforceable?

In a bail matter,P.V. Kunhikrishnan, J., noted the position of law that, a promise to marry made to married women is not legally enforceable, the offence of rape is not attracted.

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Political Rallies

Can organisers of political rallies be responsible for provocative slogans raised by any of the participants during such rallies?

P.V. Kunhikrishnan, J., observed that, if a member of a rally raises provocative slogans, the persons who organize the rally is also responsible.

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Madras High Court

Legal Entity

Mother Nature is a living being having legal entity? Madras HC answers

Stating that the past generations have handed over the ‘Mother Earth’ to us in its pristine glory, S. Srimathy, J., expressed that it is the right time to declare/confer juristic status to the “Mother Nature”.

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Right to Worship

Whether constitutional guarantee of freedom of religion enshrined in Art. 25(1) of the Constitution of India extends even to rites and ceremonies associated with a religion?

Expressing that, the right of worship guaranteed under the Constitution to be respected by all concerned and devotees cannot be denied their right to worship under any circumstances, S.M. Subramaniam, J., held that every devotee has got a right to enter into the temple and worship Lord Sri Varadaraja Perumal in the way he likes without affecting the rights of other devotees/worshippers and temple activities.

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Negotiable Instruments Act

Obligation of Thumb Impression and Signature, both, for a Pro-Note under Negotiable Instruments Act: Mandatory or Not?

Teekaa Raman, J., observed that there is no mandatory provision under the Negotiable Instruments Act that both the signature and thumb impression has to be obtained for a pro-note and the lower Appellate Judge has totally misguided and misused the provision of the Negotiable Instruments Act, regarding the burden of proof and not even followed basic rudimentary of Section 20 of the Negotiable instruments Act.

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Public Employments

Can appointments be claimed as a matter of absolute right?

S.M. Subramaniam, J., observed that, equal opportunities in public employment is the Constitutional mandate.

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Madhya Pradesh High Court

Retiral Dues

Illicit deduction of amount from the retiral dues; Directions issued to refund the amount

Sushrut Arvind Dharmadhikari, J. allowed a writ petition which was filed assailing the legality, validity and propriety of the order dated 1-8-2018 whereby the excess amount of Rs.81,239/- has been sought to be recovered from the gratuity payable to him.

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Section 311 CrPC

Permission to change statement before Court would be dangerous for legal system and it may be also misused of S. 311 of CrPC; application for restatement after 2 years dismissed

Anil Verma, J. dismissed a criminal revision filed against the impugned order whereby an application preferred by the applicant/prosecutrix under Section 311 of CrPC was been dismissed.

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Civil Suit

Application under S. 151 of CPC maintainable despite the fact that order allowing the application under Or. 7 R. 11 of CPC is appealable; Trial Court directed to restore civil suit

Dwarka Dhish Bansal, J. allowed a civil revision under Section 115 of CPC against the order rejecting the application filed under Section 151 of CPC holding that the same was not maintainable.

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Bail

Not entitled to keep the amount of compensation paid to the State government in the event of a false rape case; Court allows bail

Vivek Agarwal, J. deciding a second bail application filed by the applicant in connection with Crime under Sections 376, 376(2)(N), 506 of IPC and Sections 3,4,5J(ii), 5L POCSO Act and Sections 3(1)(w)(II), 3(1)(w)(II), 3(II)(V) of SC/ST Act directed the Trial Court to ask the prosecutrix to refund the compensation amount paid by the State.

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Police Protection

Major Couple entitled to police protection in event of any future threats from parents; Permission granted to approach police commissioner directly

Vivek Rusia, J. decided on a petition which was filed seeking police protection.

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Termination of Pregnancy

Victim of rape allowed to terminate 13-week pregnancy; Direction issued to District Hospital for immediate action

Vivek Rusia, J. allowed an appeal which was filed seeking permission/ direction for termination of pregnancy.

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Principles of Natural Justice

Order by Trial Court violative of principles of natural justice; IO to be given opportunity to be heard

Atul Sreedharan, J. allowed a petition which was filed aggrieved by the order where after deciding a criminal case, the Additional Sessions Judge passed an order asking the Superintendent of Police to take action against the petitioner, who was the Investigating Officer of the case.

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Meghalaya High Court

Piling up Garbage

With serious menace of garbage piling up in one of the major towns, State administration seeks only to play the fiddle; matter receives the urgent attention at the highest quarters

The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. took up a petition on a matter pertaining to the piling-up of garbage in the town of Jowai. The petition was filed on 12-04-2022 complaining of household waste and general garbage not being collected in the Jowai urban township area from 04-02-2022. The Court had served the respondents served immediately and informed that the matter will appear a week hence for a preliminary hearing and appropriate directions on 20-04-2022.

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Orissa High Court

Exercise of power involving Application under Or. 1 R. 10 of CPC is completely different from Exercise of Power under Or. 21 Rules 97, 99 & 101 of CPC; Scope of latter is much wider

“…there exist two decrees passed by two different courts at the instance of third party and the other at the instance of the Plaintiff- Petitioner involved here in the Execution Proceeding.”

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Section 37 IT Act

The reasonableness of the expenditure had to be adjudged from the point of view of the businessman; Applied the test of commercial expediency

A Division Bench of S. Muralidhar CJ and R. K. Pattanaik J. dismissed the appeal filed by the assessee and upheld AO’s decision to disallow part of the payment towards commission.

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Food License

Any person selling article or food without a license would be punishable under S. 16 (I)(a)(ii) PFA Act as per S. 7(iii) PFA Act

Muralidhar CJ dismissed the revision petition and set aside the conviction decision of the Trial Court which was later affirmed by the Appellate Court.

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POCSO

Proceedings of the High Court cannot be held hostage to the whims of the investigating agency; granted bail to a CCL

V Narasingh, J. disposed of the bail application and restrained the Court to not grant any further adjournments and released the petitioner on bail.

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Industrial Disputes Act

It is not mandatory for Central Government to make a reference to a dispute which is of national importance to a National Tribunal in view of S. 7-B r/w S 10 (1-A) ID Act

A Division Bench of S. Muralidhar, CJ and R.K. Pattanaik J. dismissed the petition and upheld the judgment by CGIT, Bhubaneshwar declining the prayer of the Petitioner as regards the maintainability of the dispute before it.

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Contract

It is only when a purchase order is placed that a ‘contract’ would be entered into and only then arbitration clause would become part thereof

Muralidhar, CJ. dismissed the petition, declined the appointment of arbitrator and left it open to the petitioners to avail other remedies as may be available to them in accordance with law.

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Patna High Court

Negotiable Instruments Act

Can an order of interim compensation under S. 143-A NI Act, be enforced as ‘public demand’ under Bihar & Orissa Public Demands Recovery Act, 1914?

The Division Bench of Sanjay Karol, CJ and S. Kumar J., held that an order of payment of interim compensation under the Negotiable Instruments Act, 1881 can be enforced under the Bihar & Orissa Public Demands Recovery Act, 1914 as ‘public demand’.

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Punjab and Haryana High Court

Protection of Life and Liberty

State’s respect for individual independent choices has to be held high

“Courts’ responsibility to uphold the principles of constitutional morality, there exists a parallel duty to not infringe upon the personal relationship between two free willed adults.”

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Abetment of Suicide

Abetment of suicide by wife and mother-in-law of deceased?

Vikas Bahl, J., granted bail to mother-in-law and wife alleged to have incited husband to commit suicide.

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Maintenance Tribunal

If a person is aged below 58 years, Can Maintenance Tribunal invoke jurisdiction under the Maintenance and Welfare of Parents and Senior Citizen Act?

Arun Monga, J., held that the Maintenance Tribunal has no jurisdiction under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 if a person is aged below 58 years old.

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Mental Cruelty

If a husband stops talking to the wife, would that cause mental cruelty?

In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

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Sedition

Can an act of dissent be labeled as sedition?

Expressing that, in a democratic set-up, there always would be voices of dissent and opinions against rules and protest against actions, Vinod S. Bhardwaj, J., observed that, some protests may have aggression but still an act of dissent would not be ordinarily labeled as sedition.

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Rajasthan High Court

Remedy

Writ Petition not maintainable due to having an alternative and efficacious remedy under S. 17 of the SARFAESI Act

Mahendar Kumar Goyal, J. dismissed the writ petition in view of availability of alternative remedy to the petitioners under the provisions of the SARFAESI Act. 

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Sikkim High Court

Penetrative Sexual Assault

Trial Courts should exhibit sensitivity to the plight of a child victim but they cannot go overboard and stonewall steps that are mandatory to be complied with when analysing and interpreting evidence given by  witnesses; Sentence of rape accused modified

The Division Bench of Meenakshi Madan Rai and Bhaskar Rai Pradhan, JJ. partly allowed an appeal which was filed by the appellant who aged about 40 years, was accused of having committed the offence of aggravated penetrative sexual assault, as defined under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012, on the victim, aged about 10 years. Trial Court on consideration of the evidence on record convicted the Appellant of the offence under Section 5(m) punishable under Section 6 of the POCSO Act, 2012 by the impugned Judgment and Order on Sentence, both dated 11- 11-2020, and sentenced him to undergo rigorous imprisonment for a term of 40 years and to pay fine of Rs 30,000/- (Rupees thirty thousand) only, with a default clause of imprisonment of 5 years.

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Telangana High Court

Police Negligence

Tel HC remarks several writ petitions are filed complaining about police negligence and delays during investigation; Such issues cannot be decided by invoking jurisdiction under Art. 226 of the Constitution

“…The appropriate and efficacious remedy available to the petitioner, if she is aggrieved by the action/inaction of the Investigating Officer is to file a private complaint against the said officer before the competent Court.”

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Contempt of Court

‘slap- say sorry-forget cannot be accepted’; An apology can neither be a defence nor a justification for an act which tantamount to Contempt of Court

A Division Bench of P Naveen Rao and M G Priyadarshini, JJ. dismissed the petition and held that contempt has taken place and no apology must be given.

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Uttaranchal High Court

POCSO

Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case; appeal dismissed in POCSO matter

Ramesh Chandra Khulbe, J. dismissed a criminal appeal which was filed from jail assailing the judgment and order whereby the Trial Court had convicted and sentenced the appellant on the counts of Sections 376, 377, 506 Penal Code and Section 6 of POCSO Act.

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Juvenile Justice Act

Child in conflict with law cannot be allowed anticipatory bail as JJ Act does not make any provision for the same; Application dismissed

Ravindra Maithani, J. dismissed an application for anticipatory bail in regards to an ongoing trial under Sections 376, 323, 504, and 506 Penal Code, 1860. The previous anticipatory bail application of the applicant had been rejected by the Fast Track Court/Special Judge, POCSO/Additional Sessions Judge, Dehradun on the ground that since the applicant is a child in conflict with the law (“CIL”) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act”) does not make any provision for anticipatory bail, the application cannot be allowed.

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Intra-Court Appeal

Adequate opportunity of filing counter-affidavit should be afforded to State; intra-Court appeal allowed

The Division Bench of S.K. Mishra, ACJ and A.K. Verma, J. allowed an intra-Court appeal wherein the State has assailed the order passed by the Single Judge whereby the Writ Petition of the writ petitioners-respondents herein was allowed supposedly on the concession made by the government pleader.

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Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: In a matter pertaining to mental cruelty, the Division Bench of Goutam Bhaduri and N.K. Chandravanshi, JJ., expressed that, if a spouse by her own conduct, without caring about the future of the daughter, parts with ornaments which were meant for the marriage, it will be within the ambit of mental cruelty done by the wife.

Factual Background

In the present matter, the decision of the Family Court was challenged whereby the application filed by the appellant/husband for grant of decree of divorce on the ground of cruelty and desertion was rejected.

The appellant/husband pleaded that he was married to the respondent/wife. The husband was engaged in the job of railway guard, and it was stated that before filing the divorce petition, the wife deserted the husband without any lawful cause.

Further, it was alleged that the wife had availed different loans to the extent of Rs 10-12 lakhs, without the knowledge of the husband even by placing the ornaments which were meant for the marriage of their daughter as a pledge to different creditors.

Additionally, the allegation which was also levelled against the husband that he was having illicit relations outside marriage, damaged the reputation of the husband in society, amounting to cruelty and therefore the divorce was claimed.

Analysis, Law and Decision

High Court noted that reading the statements of the appellant, son, daughter and creditor together would lead to show that the wife in absence of knowledge of the husband had availed the loan from a third party.

“In a normal household of the Indian society, the narrative made by the son and daughter that the ornaments were purchased for the ensuing marriage of the daughter appears to be more logical.”

Further, the Bench expressed that during the marriage ceremony in the Indian household, the presentation of the ornament is normally done for which the parents start the effort, from an early date.

Bench stated that, in the present matter, the conduct of the wife which had been projected and incidentally the children, who have supported such fact against the mother that wife without the knowledge of the husband had done away with the security of the marriage of the daughter and had obtained amount from the creditor by pledging the ornaments meant for the marriage of the daughter would certainly cause apprehension and fear and create financial pressure on the mind of the father as the hard reality cannot be forgotten which exists in the society to present a girl during the marriage with ornaments.

Illicit Relation

Regarding the extramarital affair, Court stated that no reliable evidence was found as the wife’s statement was itself inconsistent.

Further, the Bench stated that, it was obvious that to suffer an allegation pertaining to once character of having an extramarital affair is quite torturous for a person and whereas inconsistently in the statement and only allegation of extra marital affair is raised by the wife casually against the husband certainly which always has a bad impact on the image of a person qua the society, therefore would amount to mental cruelty.

High Court in view of the above discussion, asserted that parting away from the ornaments by pledging without knowledge of husband, which were meant for the marriage of daughter and further the unsubstantiated allegations levelled by wife, assassinating the character of the spouse/husband would amount to mental cruelty to the husband.

Hence, the marriage deserved to be dissolved by a decree of divorce.

Permanent Alimony

The Court granted an amount of Rs 15,000 per month to the wife as permanent alimony, which in turn would be adjustable to any amount paid under Section 125 CrPC.

In view of the above observations, the appeal was allowed. [S. Raju v. R. Rani, 2022 SCC OnLine Chh 711, decided on 8-4-2022]

Advocates before the Court:

For Appellant:- Mr. Shailendra Bajpai, Advocate

For Respondent: – Mr. Palash Rajani with Mr. Pankaj Bhaskar, Advocate on behalf of Dr. Shailesh Ahuja, Advocate

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

Appellant-wife came up in the present appeal against the decision of the Family Court by the respondent-husband under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage by a decree of divorce was allowed and he had been granted a divorce.

As per the husband, when he filed a petition under Section 13 of the HMA, the behaviour of the respondent was very cruel, barbaric, rude and crude towards the respondent from the very beginning.

It was stated that, the wife had tried to take forcible possession of the agricultural land owned and possessed by the respondent and a civil suit against the appellant was pending in the District Courts, Karnal.

Further, it was alleged that the appellant was living in adultery with some person in the year 2012 and she forcibly turned out the respondent along with his four children from the house.

When the marriage of the husband and wife was fixed by the respondent, husband had requested the appellant to join the marriage, but she taunted that she had no concern with the respondent and his children.

In view of the above, a divorce petition was filed.

Analysis, Law and Decision

High Court expressed that, even if husband and wife are staying together and the husband does not speak to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating a number of judicial proceedings can make the life of other spouse miserable.

The Bench stated that in the present case, after the acquittal in the FIR and dismissal of the domestic violence complaint, enough mental cruelty had been caused to the husband.

Hence, the appellant’s counsel was unable to point out any illegality or infirmity in the impugned judgment.

In view of the above, the appeal was dismissed. [Harbans v. Joginder Pal, 2022 SCC OnLine P&H 1101, decided on 6-5-2022]

Advocates before the Court:

Mr. Avtar Singh Sandhu, Advocate, for Mr. A.S. Rai, Advocate, for the appellant-wife.

Mr. R.S. Budhwar, Advocate, for the respondent-husband.

Case BriefsDistrict Court

Karkardooma Courts, Delhi: In a matter regarding providing maintenance to wife and children, Ramesh Kumar-1, Principal District & Sessions Judge, expressed that certain, factors such as husband’s liabilities, his standard of living, inflation rates, etc. are to be taken note of when Court decides the quantum of maintenance.

An appeal was filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against the impugned decision passed by the Metropolitan Magistrate whereby the maintenance of Rs 40,000 was awarded in favour of the respondent from the month and the year of filing of the petition before the trial court, and further awarded compensation of Rs 1,00,000 in favour of the respondent.

Factual Background

It was stated that the respondent was treated with love and care, at her matrimonial home, however, she was not happy with the marriage. Further, it was stated that, it was the second marriage of the respondent and the appellant had asked several times for the decree of divorce from her previous husband, but, the respondent never showed the same to him.

Additionally, it was stated that when the appellant tried to stop the respondent from frequently visiting her parental home, the respondent used to abuse and manhandle the appellant and would threaten the appellant to implicate him and his family in false criminal cases or to face the dire consequences.

It was added that the husband tolerated all the cruelties at the hands of the wife to save the matrimonial life.

In the year 2015, the respondent filed a case under Section 12 of the Protection of Women from Domestic Violence Act against the appellant and his family. Trial Court passed an order for interim maintenance in favour of the respondent and her minor son.

Appellant submitted that due to the prevailing circumstances, he used to remain under depression and could not perform his job obligations and due to his poor performance, he was terminated by his employer.

Analysis, Law and Decision

Court expressed that, it is a well-settled principle of law that,

“…it is the legal duty of every able bodied person to maintain his wife and children and provide them with the basic amenities of the life, as per his financial status.”

 Adding to the above, it was stated that while deciding the quantum of maintenance, the Court should take into account the earnings of the husband as well as his other liabilities and the due regard to be given to the standard of living of the husband as well as the inflation rates and high costs of living.

Bench stated that even if the appellant’s plea that he was terminated from service by his employer was accepted, the fact remained that the appellant was a qualified person and capable of earning. Hence, the trial Court had rightly assumed the appellant’s salary to be Rs 80,000.

“Appellant being the husband of the respondent, and father of minor child, has social as well as moral duty to provide maintenance to respondent.”

Settled Law

The appellant being the husband of the respondent, cannot escape from his moral duty of providing maintenance to his wife as well as a minor child.

Hence, the trial Court had rightly observed that the aspect of financial deprivation of woman, is included in the category of economic abuse.

“…an aggrieved woman needs economic support, in view of the domestic violence, perpetrated upon her, by a person, who is in domestic relation with her.”

Settled Law

Every able-bodied person is bound to maintain his wife and children and cannot run away from this responsibility.

 In view of the above, Court held that there was no infirmity or illegality in the impugned decision. [Pawan Sharma v. Aarti Sharma, 2022 SCC OnLine Dis Crt (Del) 17, decided on 10-5-2022]

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., held that, if a husband files a divorce petition that cannot be taken as an act of cruelty.

The informant, who was the wife of the applicant contended that the applicant had demanded 10 tolas of gold and high-quality furniture, at the time of the marriage. Further, it was stated that the parents-in-law had opposed the marriage since the day of marriage and started harassing her. They even used to give pinching words regarding non-payment of dowry.

Adding to the above, it was stated that the mother-in-law used to give messages to the applicant stating that informant is ugly looking girl and thereupon applicant started mentally harassing her.

Due to some medical condition, the informant had to leave her service and once she came back to India, the father-in-law started saying that since she was now unable to ring money by taking up service, she should bring amount of Rs 50,00,000 from her parents, otherwise she should give divorce to the applicant. In 2021, she was assaulted and driven out of the house.

Applicant had approached the Additional Sessions Judge; however, the application of the husband had been rejected and it was stated that the divorce petition have been considered. Further, it was stated that if the divorce petition would not been filed there was every possibility of patch up. However, the husband went one step ahead by filing a divorce petition and the said amount to cruelty.

It was stated that the nature of the applicants was aggressive, and they had treated the informant with cruelty. Further, it was added that if the applicants were enlarged on bail, there was strong possibility of tampering the prosecution witnesses.

Analysis and Decision

High Court expressed that,

“Filing of divorce petition by the husband cannot be taken as an act of cruelty or a ground for rejecting the anticipatory bail.”

Further, the Court stated that, certain articles valuable as well as general articles of the informant were stated to be with the applicant. In fact, she could get it under the provisions of Domestic Violence Act, it need not be seized.

In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, it was observed that there should be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.

It also to be noted that Courts should not get carried away with the desire of a party to see the other behind bars. The said may be sometimes to settle the personal score and, therefore, the Courts should be on guard as to whether really the arrest is necessary. Only prima facie case against the person is also not a criterion to be looked into. 

“…not only the police officer but also the learned Sessions Judge or Additional Sessions Judge dealing with an application under Section 438 of the Code of Criminal Procedure should question ‘why arrest’, ‘is it really require’, ‘what purpose it will serve’, ‘what object it will achieve’.”

The above was stated in view of the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

In view of the above, the application was allowed. [Anmol Madhukar Divekar v. State of Maharashtra, 2022 SCC OnLine Bom 1056, decided on 6-5-2022]

Advocates before the Court:

Mr. M.L. Muthal, Advocate for the applicant

Mrs. V.N. Patil-Jadhav, APP for the respondent

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., while setting aside the conclusion of the Metropolitan Magistrate and upholding the intervention by Sessions Court expressed that, injuries were found on the person of the deceased who was more than 6 months pregnant during her residence with her husband, hence the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

Further, the Court also remarked that,

“…shifting of the focus only to the injection pricks and the damage to the ribs caused by attempts to resuscitate the deceased, was a complete non-application of mind, bordering on perversity.”

A petition was filed under Section 482 of the Criminal Procedure Code by an accused in FIR under Section 498A of the Penal Code, 1860.

When the petitioner’s wife conceived and was carrying twins, she was allegedly given an injection for iron due to which she developed complications and died.

Respondent 2, father of the petitioner’s wife registered an FIR for an offence under Section 498A IPC against the petitioner, who was arrested and subsequently granted bail. While hearing the arguments, MM concluded stating that no prima facie case had been made out for framing of charge against the petitioner.

On being aggrieved with the above, the State preferred a revision before the ASJ who considered the matter and was of the view that the documents of the accused could not have been considered at the time of arguments on the point of charge as has been held by the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.

Analysis and Decision

High Court noted that the MM usurped the powers of the Sessions Court and concluded that the charge under Section 304B IPC could not be made out “by any stretch of imagination”, relying only on the first statements made to the SDM by the parents of the deceased and the observations in the postmortem report that in all probability the cause of death was natural due to some pathological state related to pregnancy rather than an unnatural external event. Hence, the Sessions Court rightly intervened to set aside the said conclusions.

The Bench observed that Section 304B IPC is attracted in cases where a woman dies under circumstances otherwise than normal, within 7 years of marriage, and was subjected, soon before her death, to cruelty or harassment.

With respect to the present matter, Court stated that the injuries were found on the person of the deceased who was more than 6 months pregnant with twins, during her residence with petitioner, and the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

In Court’s opinion, the conclusion drawn by the MM were wrong and the same had been corrected by the ASJ by a very well-reasoned order.

Hence, no perversity or miscarriage of justice was evident from the impugned order.[Jaikishan Datwani v. State, 2022 SCC OnLine Del 1380, decided on 9-5-2022]

Advocates before the Court:

For the Petitioner:

Mr Hitendra Kumar Nahata, Advocate.

For the Respondent:

Mr G.M. Farooqui, APP for State with SI Inder Veer Singh. Respondent No.2 in person.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay S. Agrawal, J., reversed the judgment of the trial court and granted divorce in an application filed by the husband, while granting Rs 15 lakhs permanent alimony to the wife.

Applicant-Husband had preferred an appeal under Section 28 of the Hindu Marriage Act, 1955 questioning the legality and propriety of the trial Court’s decision whereby the application seeking a decree for dissolution of marriage on the ground of desertion and cruelty was dismissed.

Questions for determination:

(i) Whether the Non-applicant – wife has deserted her husband since 12.08.2009 without any rhyme and reasons being assigned entitling the Applicant for the decree of dissolution of marriage on the ground of desertion under Section 13 (1) (ib) of the Act, 1955?

(ii) Whether the Non-Applicant – Wife has levelled the false allegations against her husband pertaining to the demand of dowry by lodging a false complaint under Section 498-A of IPC read with Section 4 of Dowry Prohibition Act entitling the Applicant for the decree of dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955?

Analysis and Decision

High Court on noting that the applicant was living with another woman, therefore, there was a reason as to why the non-applicant had started living separately from her husband.

Therefore, the husband failed to establish the fact that his wife had deserted him without any justifiable reasons so as to obtain a decree for dissolution of marriage on the ground of desertion under Section 13(1) (ib) of the Act, 1955.

Further, on close scrutiny of the wife’s statement, it was revealed that the wife was never subjected to cruelty with regard to the demand of dowry as no evidence was led by her in this regard. Hence, the alleged complaint by the non-applicant was false.

Court added that the alleged marriage of the husband and wife had irretrievably broken down and was dead for all purposes.

The husband and wife were not only living separately for over more than 11 years, but a false criminal case was also found to be lodged by the non-applicant-wife against her husband, which caused mental cruelty to him.

Therefore, the husband would be entitled to get a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955 and, the finding of the trial Court declining to grant a decree for divorce on the ground of cruelty was accordingly set aside and the applicant was held to be entitled to a decree for divorce under Section 13 (1) (ia) of the Act, 1955.

With regard to the alimony, Court stated that, by considering the conditions prescribed under Section 25 of the Act, 1955 relating to claim of permanent alimony/maintenance and considering further the fact that the Non-applicant – wife has no independent source of income and that by taking note of the income of the Applicant – husband as reflected and observed from the details furnished coupled with the period of marriage, the ends of justice would be served by fixing amount of permanent alimony/maintenance at Rs 15,00,000 in lump sum payable to the non-applicant wife.

In the above direction, Court added that the applicant shall be entitled to deduct the maintenance amount from the permanent alimony.

In view of the above, the appeal was allowed. [Vasudev Prajapati v. Sunita Kumari, FA (M) No. 9 of 2015, decided on 28-4-2022]

Advocates before the Court:

For Appellant: Shri Manoj Paranjpe appears along with Shri Anurag Singh and Shri Subhank Tiwari, Advocate.

For Respondent: Shri H.B. Agrawal, Sr. Advocate along with Shri Amit Tirkey, Advocate.