Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna J. allowed the petition and quashed the impugned order and remitted the matter back to Sessions Judge for cross-examination.

The instant petition was filed on a complaint being registered for offences punishable under Section 376(n) read with Section 34 of Penal Code, 1860 i.e. IPC, Sections 4, 6, 8, 12 and 17 of the POCSO Act and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act. The State is before the Court in the subject petition challenging the order dated 16-09-2019 passed by the Principal District and Sessions Judge, Chamarajnagar whereby the Sessions Judge declined to permit the State to cross-examine the victim on her turning hostile in a case arising out of the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006.

The Court relied on judgment Doula v. State, Criminal Appeal No.100260/2016 decided on 22-07-2020 observed that in terms of sub-section (2) of Section 33 of the POCSO Act, the Special Public Prosecutor or as the case would be, the counsel appearing for the accused shall, while recording examination-in-chief, cross-examination or re-examination of the child communicates the questions to be put to the child to the Special Court which shall in turn put those questions to the child. Therefore, the victim is permitted to be cross-examined under the POCSO Act itself on her turning hostile which would also cover the situation under sub-section (2) of Section 33 of the POCSO Act.

The Court thus observed that from a perusal of the impugned order is that it runs counter to Section 33 of the POCSO Act, judgments rendered by various courts and resultantly becomes unsustainable. Therefore, the State is to be permitted to cross-examine the victim. But, such cross-examination can be only in terms of Section 33 of the POCSO Act which mandates that while cross-examination questions shall be put to the Court and the Court in turn to put the same questions to the victim. The Sessions Judge shall take such care and caution in transmitting the questions to the victim to be in strict consonance.

The Court held “Criminal Petition is allowed and the order dated 16.09.2019 passed by the Principal District and Sessions Judge, Chamarajnagar in Special Case No.184 of 2019, stands quashed.”

[State v. Somanna, 2022 SCC OnLine Kar 370, decided on 03-03-2022]


For petitioners: Mr. Shankar HS


Arunima Bose, Editorial Assistant has reported this brief.

High Court Round UpLegal RoundUp

Allahabad High Court


POCSO

Putting penis into mouth will fall under which category – Aggravated Sexual Assault or Penetrative Sexual Assault?

 Anil Kumar Ojha, J., while addressing a matter of child sexual assault, expressed that,

Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of POCSO Act.

Read more…

Workman

Can workman who was employed for particular project be considered employee of the company and given permanent status after project is over?

Siddhartha Verma, J. reiterated the law laid down by the Supreme Court in Lal Mohammad v. Indian Railway Construction Co. Ltd.(2007) 2 SCC 513, wherein it was decided that when a workman is employed for a particular project then the services of that employee came to an end as soon as the project was over and he could not be given permanent status. It was also held that shortfall of period of notice or compensation, after completion of the project would not render the termination bad on that count.

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Arbitration

If arbitrator becomes functus officio, can provisions under Ss. 14 and 15 of the A&C Act to appoint substitute arbitrator be invoked?

Noting the significance of Sections 14 and 15 of the Arbitration and Conciliation Act, 1996, Jayant Banerji, J., expressed that,

If the arbitrator had been rendered functus officio, there existed no occasion to invoke the provisions of Sections 14 and 15 of the Act for appointing a substitute arbitrator.

Read more…

 Guardianship Rights v. Welfare of Minor 

What is more significant: Competing rights of guardianship or Welfare of minor?

Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care. 

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Auction

Property of dead person sold in auction: Is it bad in law?

Siddhartha Varma, J., while deciding a matter with regard to the auction of the property of a dead person held that the proceeding conducted against a dead person is bad in law.

Read more…


Bombay High Court


 NDPS

Whether the blotter paper forms an integral part of the LSD drug when put on a blotter paper for consumption?

Addressing a very crucial question having relevance with the Narcotics Drugs and Psychotropic Substances cases, Revati Mohite Dere, J., decided whether blotter paper forms an integral part of the LSD Drug when put on blotter paper for consumption.

Read more…

Did Aryan Khan with other two accused hatch a conspiracy to commit offence under NDPS Act?

Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants.

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Documents

Does accused has right to demand production of documents withheld by investigator at framing of charge? Does S. 91 CrPC include witness statement?

Sandeep K. Shinde, J., expressed that it is settled law that at the stage of framing the charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, trial court is required to consider only police report referred to under Section 173 of the Code and documents sent with.  

Read more…

Rape & Murder

‘Hang by neck till dead’: Bom HC confirms death sentence in a rarest of rare cases for committing rape and murder of a 3-years 9-months old child

 While confirming the death sentence in this rarest of rare cases, the High Court observed:    

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

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Abetment of Suicide

Is it possible to frame a charge against accused for abetment of suicide and in the alternative for committing murder?

Sandeep K. Shinde, J., explained as to when a charge in the alternative can be framed against an accused and when it is not permissible to do so.

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Bail

Bom HC discusses law where accused already granted bail but further non-bailable offences are added by prosecution

Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand(2019) 17 SCC 326 wherein it was held:

“where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

Read more…


Calcutta High Court


 Anticipatory Bail

‘Citizens must refrain from taking law in their own hands’: Cal HC observes while granting anticipatory bail to petitioners apprehending arrest for rioting, vandalism, etc.

 Expressing that, “Time has come that every dutiful citizen of the country must realize their duties and accountability to the society and must refrain from taking the law in their own hands”, Division Bench of Harish Tandon and Rabindranath Samanta, JJ., held that,

Destruction of public property has a ramification on society and the taxpayers are burdened for no fault on their part. The charging sections would evince that not only the Public Officers but the public properties have also been destroyed.

Read more…

Rape

Court explains “Intelligible testimony” and “reverse burden of proof”; dismisses appeal of accused charged for raping 3 year old girl under S. 6, POCSO Act

The Division Bench of Soumen Sen and Rabindranath Samanta, JJ., dismissed a criminal appeal which was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge–cum-Special Judge under POCSO Act, 2012 whereby the appellant had been convicted for commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 376 (2) (i), Indian Penal Code and sentenced to suffer rigorous imprisonment for life without remission and to pay a fine of Rs. 2,000,00.

Read more…

Fundamental Rights

Festival of lights would spread joy, but few are deprived of basic necessities: Is Aadhaar the only criteria for identification of beneficiaries under National Food Security Act?

The Division Bench of Prasanna B. Varale and Madhav J. Jamdar, JJ., while addressing a petition expressed that,

It is disheartening situation for us when we the fortunates are eagerly awaiting as the festive season is approaching and the festival of lights would spread joy and happiness in the society throughout the State or the whole nation, here are the few petitioners who are the members of the marginalised section in general and tribals in particular who have approached this Court on a grievance that they are deprived of the basic requirement of human life, i.e., food, only on account that the State machinery is not technically equipped to give them the benefits flowing from the scheme formulated and floated by the Union of India and to be implemented and executed by the respective States.

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State Machinery 

13-years of long fight, yet State’s investigation unsatisfactory: Whether exemplary costs to a wife fighting for a decade to secure her missing husband’s presence would be granted or not?

 While noting the failure of State Machinery in securing the presence of a person for 13 years, Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., expressed that,

Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to a procedure established by law. Right to life and personal liberty is the primordial right which every human being everywhere at all times ought to have it.

Read more…


Delhi High Court


 Contempt of Court

Husband stubbornly and obstinately refused to comply with the orders of the Court; No full disclosure of income

While addressing an issue of non-compliance of Court’s order with regard to paying maintenance to wife, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

The actions/ omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted, it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned.

Read more…

Role of Advocate 

An advocate engaged by a client, can he also act as his power of attorney in the proceedings and verify pleadings?

Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

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Kalkaji Temple

Del HC issues directions for removal of unauthorized shopkeepers, Sanitation facilities, Potable Drinking Water, Garbage Disposal, etc.

The shopkeepers or their families also cannot reside in the Mandir complex. The same is impermissible and is nothing but unauthorized encroachment and trespass into the Mandir’s premises.

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Right to demand Respect & Inter Cadre Transfers

Significance of ‘cogent reason’ while declining inter-cadre transfer

Addressing a grievance with regard to the denial of inter-cadre transfer Division Bench of Rajiv Shakdher and Talwant Singh, JJ., held that, denial with no cogent reasons impinges upon such person’s right to demand respect for her/his family life.

Read more…

Territorial Jurisdiction

Where can a petition under S. 125 CrPC be filed?

Subramonium Prasad, J., reiterated the law relating to the territorial jurisdiction of the court to entertain a petition under Section 125 CrPC.

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Section 125 CrPC

Can wife claim maintenance under S. 125 CrPC where she as well as husband had spouses living at the time of alleged marriage?

A second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision.

Read more…

Maintenance can be claimed under DV Act even if already granted under S. 125 CrPC: Del HC reiterates

Amit Bansal, J., reversed the order of the trial court as it dismissed the application filed by the petitioner under Section 26 of the Protection of Women from Domestic Violence Act only on the basis that it had been filed towards execution of maintenance already granted.

Read more…

Cruelty

Wife made serious criminal allegations against husband and his parents but couldn’t prove: Would this amount to cruelty against husband to grant divorce?

While addressing a matrimonial matter wherein a wife caused cruelty to husband, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

For a man to see his parents to be taken into custody and being incarcerated even for a single day would have caused immense and untold pain and agony to him.

Read more…

Can allegations of demand of dowry and alcohol consumption made by wife amount to ‘cruelty’?

Expressing that, allegations made by the wife with regard to the husband demanding dowry and indulging in alcohol consumption, do not tantamount to making serious allegations impinging on the character of the husband, to such an extent, that they would be the cause of immense mental agony and cruelty, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., dismissed the petition.

Read more…

INX Media Case

Can accused be allowed to inspect documents kept in “malkhana”?

Mukta Gupta, J., expressed that,

“…while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on.”

Read more…

Arbitration

What happens if parties fail to agree on arbitrator within 30 days from receipt of request by one party?

Sanjeev Narula, J., allowed an arbitration petition by appointing a sole arbitrator to adjudicate the disputes between the contesting parties.

Read more…

What is the remedy against an order allowing application under S. 8 of Arbitration Act, where existence of arbitration clause is not disputed?

Amit Bansal, J., dismissed a petition challenging the order passed by the lower court whereby respondent’s application under Section 8 of Arbitration and Conciliation Act, 1996 was admitted.

Read more…

Assault by Policemen

Law does not permit people to be beaten-up in police custody or during interrogation

While addressing a very unfortunate incident of police assault, Najmi Waziri, J., expressed that

Let no one have to repeat the tragic last words like George Perry Floyd, Jr.: “I can’t breathe”.

Read more…

Law on Offences against property

While committing the act of robbery, if revolver is brandished, would that be an offence under S. 397 IPC?

Subramonium Prasad, J., addressed a very pertinent question of whether brandishing a revolver during the act of robbery be covered under Section 397 of Penal Code, 1860.

Read more…

Dissolution of Marriage

Materialistic attitude of husband considering wife as cash cow: Is it a ground to dissolve marriage?

The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., noted in a matrimonial matter that the wife was being viewed as a cash cow and the husband became interested in her only after she got a job with Delhi Police.

Read more…


Jammu and Kashmir and Ladakh High Court


Preventive Detention

“No Court should tune out terrorist activities”; HC refuses to interfere with preventive detention of man involved in Pulwama conspiracy

While dismissing the petition seeking release from preventive detention to the detenu involved in Pulwama conspiracy, Tashi Rabstan, J., remarked,

“Acts or activities of individual or a group of individuals, prejudicial to the security of the State or public order, has magnitude of across-the boarder disfigurement of societies. No court should tune out such activities, being swayed by passion of mercy.”

Read more…

Selection

“Neither irrational, unreasonable nor arbitrary”; HC holds higher qualification than the maximum qualification prescribed is not suitable qualification

The Division Bench of Ali Mohammad Magrey, Sanjay Dhar, JJ., held that in case of appointments to Class-IV posts, higher qualification than the prescribed 10+2 may not be suitable for many reasons.

Read more...

Run Away Couple

No law or religion gives a license to a father to harass his daughter”

“No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person.”

Read more…


Jharkhand High Court


Specific ingredients must clearly asserted in the notice so that the noticee has an opportunity to explain and defend himself in accordance with S. 74 of JGST Act, 2007

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and directed the respondents to initiate fresh proceedings from the same stage in accordance with law.

Read more…

“Petitioner cannot be treated as a consumer of bulk supply of electricity”; Term “bulk supply” is confined to energy supplied to industrial units and consumers engaged in mining only

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and sets aside the impugned assessment orders as well as demand notices arising therefrom, which has been passed by treating the petitioner as a consumer of bulk supply of electricity.

Read more…


Karnataka High Court


Value Added Tax

‘Common parlance test, ‘Marketability test’ are tools for interpretation to arrive at a decision on proper classification of a tariff entry

A Division Bench of S. Sujatha and Ravi V Hosmani, JJ., allowed the revision petition and set aside the impugned judgment by the Tribunal.

Read more…


Kerala High Court


Rape

Being in love isn’t synonymous to consent for sexual intercourse; HC upholds conviction for rape

While clarifying the difference between consent and submission, the Bench expressed,

“Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.”

Read more…

Duty of Police Officer

“Mere abusive, humiliating or defamative words by itself cannot attract an offence of obscenity under Section 294 (b) of IPC”; HC quashes proceedings against person who allegedly harassed the Police

Rejecting the allegation of obscenity against the petitioner for abusing and using humiliating words against the Police officer, the Bench clarified,

“It is to be noted that the test of obscenity under Section 294 (b) of the Indian Penal Code is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”

Read more…

Kidney Transplant

Swap Kidney Transplantation between non-relatives; HC removes legal hurdles

Nagaresh, J., allowed swap kidney transplant between non-relatives. Opining that any law prescribing procedure for organ transplantation should satisfy the test of reasonableness, the Bench remarked,

“When Section 9(3) permits transplant of organs to persons not being a near relative, with the prior approval of the Authorisation Committee, there is no logic or rationale to say that swap transaction will not be allowed when members of each pair are not near relatives, even if the Authorisation Committee approves such transaction.”

Read more…

Influence of Alcohol

Presence at a Police Station while being under influence of alcohol; will it attract any offence?

Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

Read more…

Child Molestation

“Child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused”

The Division Bench of K.Vinod Chandran and C. Jayachandran, JJ., acquitted the father accused of raping his own minor daughter. Considering the contention that the allegation was raised due to instigation by the stepmother, observing discrepancies in statements of victim and her stepmother and failure to prove age of the victim by the prosecution, the Bench remarked,

“Forensic and semantics apart, child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted.”

Read more…

Public Space

Ensure no new flag masts and posts be permitted to be brought on to the roads and public spaces; HC directs Kerala government

“This is an extremely unfortunate situation and it prevents a complete breakdown of law, because there can be no doubt that any such installation can be made on any public space or road only after obtaining necessary permission from the Local Self Government Institution or such other competent Authority.”

Read more…

Interim Orders

No appeals will lie against ad interim orders in a pending case

P.B. Suresh Kumar and C.S. Sudha, JJ., held that ad interim orders cannot be impugned in an appeal under Section 5(i) of the Act. The Bench stated,

 “If appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of the Court under Article 226 of the Constitution.”

Read more…

Animal Rights

“Illegal and Unconstitutional”; HC declares stipulations prohibiting residents from keeping pets void and unenforceable

The High Court of Kerala has once again advocated for animal rights and welfare as the Division Bench of A. K. Jayasankaran Nambiar and Gopinath P. JJ., held that stipulations in resident agreements prohibiting the residents from keeping pets of their choice in their individual apartments are unreasonable and unconstitutional. The Bench remarked,

“We believe the time has indeed come to nudge our citizenry into respecting the claims of other living beings that too have rights in our shared ecosystem. Compassion and empathy are the very essence of civilization and we must strive to preserve these values as part of our culture.”

Read more…


Madhya Pradesh High Court


Minor Wife

Does physical relationship with a minor wife come within the category of rape?

G.S. Ahluwalia J., rejected a bail application under Section 439 of CrPC. The appellant was arrested on 31-01-2021 in connection for offence under Sections 363, 376, 366 of IPC and Section 5/6 of POCSO Act.

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Contempt

“To err is human and to forgive is divine”; Court directs advocate to plant and take care of 20 saplings as punishment for contempt of female judge after unconditional apology

The Division Bench of Sheel Nagu and Anand Pathak, JJ., decided upon a petition which was in reference under Section 15(2) of The Contempt of Courts Act, 1971 sent by Judicial Magistrate First Class, Datia in respect of the conduct of respondent.

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Meghalaya High Court


Bail

“Bail and not Jail” Court grants bail to accused charge sheeted for raping own mother

Diengdoh, J., allowed a bail application which was filed under Section 439 CrPC with a prayer for grant of bail wherein the petitioner was accused of raping his own mother.

Read more…

Public Interest Litigation

Court allows PIL highlighting delay in establishing comprehensive and modern cancer care facilities in the State

Read more…


Orissa High Court


Termination of Pregnancy

Infringement of fundamental right to life of the victim heavily outweighs the right to life of the child in womb; Ori HC refuses to terminate 24+ week pregnancy of a rape victim

K. Panigrahi, J. disposed of the petition and refused to terminate 24+ week pregnancy of a rape victim.

Read more…

Government Health Facilities

Ori HC issued directions regarding doctors being attached to Government Health Facilities and carrying on private practice without attending their duties at the Government Health Facilities

A Division Bench of S. Muralidhar, CJ and A. K Mohapatra, J., issued directions regarding Doctors being attached to Government Health Facilities and carrying on private practice without attending to their duties at the Government Health Facilities.

Read more…

Firecrackers

Burst only ‘green fireworks’, for 2 hrs only on Diwali

The Division Bench of Dr S. Muralidhar, CJ and B.P. Routray, J. disposed of a writ petition while noting with approval the directions issued by Special Relief Commissioner relating to bursting of green fireworks for a limited period on Diwali day.

Read more…


Patna High Court


Breach of Trust and Misappropriation of Client’s money; HC denies bail to Advocate booked for enchasing compensation granted to his client by Railway Claims Tribunal

Rajeev Ranjan Prasad, J., denied bail to the advocate booked for allegedly misappropriating his client’s money and committing breach of trust being an attorney. The Bench stated,

“Despite repeated caution made to learned counsel for the appellant that the appellant being an Advocate must come out with a fair stand even at this stage, there is no change of stand.”

Read more…


Punjab and Haryana High Court


Child Marriage

Marriage with a minor is valid if no attempt is made to declare it invalid once the child turns major

The Division Bench of Ritu Bahri and Arun Monga, JJ., held that marriage with minor is valid if no attempt is made to declare the same invalid once the child turns 18.

Read more…

NDPS

Challan filled without FSL report is not a complete challan under NDPS Act; HC grants bail to the man in alleged possession of 1.6 kg ganja

Anupinder Singh Grewal, J., granted bail to the person accused of carrying 1.6 kg of ganja on the ground that the challan filled without FSL report would not be a complete challan.

Read more…


Rajasthan High Court


Encroachment

Raj HC issued directions to provide a pan-Rajasthan solution for persisting problem of encroachment on the land of public way, johar paitan, river bed etc.

A Division Bench of Vinit Kumar Mathur and Sangeet Lodha, JJ., disposed of the petition and issued directions to the respondents to remove encroachments made over the land in question.

Read more…


Sikkim High Court


Rape

Prosecution not able to establish beyond a reasonable doubt that the Appellant was the perpetrator of rape of the minor; acquits accused

The Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., allowed an appeal which was filed in order for the Court to determine as to whether the Appellant was the perpetrator of the offence of rape.

Read more…


Telangana High Court


Education Institution

Educational Institution: Is it an ‘establishment’ under Telangana Shops and Establishments Act?

The Division Bench of Satish Chandra Sharma, CJ and B. Vijaysen Reddy, J. decides whether an educational institution is covered within the meaning and definition ‘establishment’ under the Telangana Shops and Establishments Act, 1988.

Read more…

Influence of Alcohol

Know the 9 directions that Police Officers have to follow on finding vehicle being driven under influence of alcohol

Lakshman, J., while addressing a very pertinent issue expressed that,

Intention of the Legislature is to reduce the accidents and deaths that may be caused due to driving of vehicles in intoxicated condition, and it is not the intention to harass the owners of the vehicles by detaining the vehicles for days together.

Read more…


Uttaranchal High Court


Judicial Order

Judicial order necessarily has to be a reasoned one; Court finds reasoning by the Single Judge cryptic, remands the case back

The Division Bench of Raghvendra Singh Chauhan, CJ. and Narayan Singh Dhanik, J. decided on a petition which was filed challenging the validity of the order passed by the Single Judge whereby the respondent-writ petitioner, M/s Kohli Enterprises, was not only blacklisted, but even its registration was cancelled by the appellants.

Read more…

Arbitration Agreement

Relief under S. 9 of the Arbitration and Conciliation Act: Can it be granted to a party who is not party to arbitration agreement?

Emphasizing on the purpose and object of Section 9 of the Arbitration and Conciliation Act, 1996, Division bench of Raghvendra Singh Chauhan, CJ and Alok Kumar Verma, J., held that,

A person not a party to an arbitration agreement cannot invoke jurisdiction of the Court for interim relief under Section 9 of the Act, 1996.

Read more…

Arrears

State directed to release the arrears of the deceased-in harness in the favour of the family along with interest

The Division Bench of Raghvendra Singh Chauhan, CJ. and Sanjaya Kumar Mishra, J., allowed a petition which was filed by the widowed wife of Mr. Babu Ram, who had died-in harness on 26-08-2020 for the release of gratuity, leave encashment, arrears of ACPs’, and the arrears of the 7th Pay Commission of her late husband in her favour.

Read more…

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Ritu Bahri and Arun Monga, JJ., held that marriage with minor is valid if no attempt is made to declare the same invalid once the child turns 18.

The brief facts of the present case were that at the time of marriage in 2009, the respondent-wife was of the age 17 years, 6 months and 8 days. Both the parties continued to live together and cohabited as husband and wife till 31-08-2017 and a male child namely Manas was born out of the wedlock, who had been living with the appellant-husband since 2017.

The grievance of the appellant was that the Family Court had dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 for divorce by mutual consent by holding that the marriage of the parties was not a valid marriage as the respondent (wife) had not completed the age of 18 years as per the mandate of Section 5(iii) of the Hindu Marriage Act, 1955. The Family Court had referred to a judgment passed by the Madras High Court in Prema Kumari v. M. Palani, 2011 SCC OnLine Mad 1815, and held that parties were required to get their marriage nullified as per Section 13(2)(iv) of the Hindu Marriage Act.

Opinion and Analysis

Section 13(2)(iv) is reproduced as under:-

13-(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. The girl who has attained 15 years of age and has got married can seek dissolution of marriage before she attains the age of 18 years by filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.

Differentiating the judgment relied by the Family Court, the Bench stated that the wife was not 15 years of age and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act and had she been 15 years of age, she could have invoked the provisions only when she attains the age of 18.

In Lajja Devi v. State, 2012 SCC OnLine Del 3937, the Delhi High Court had observed that  a marriage contracted with a female of less than 18 years or a male of less than 21 years, would not be a void marriage but voidable one, which would become valid if no steps are taken by such “child” within the meaning of Section 2(a) of the Prohibition of Child Marriage Act, 2006 seeking declaration of this marriage as void.

In the present case, after marriage both the parties continued to live together till 2017 and the respondent (wife) wife had not chosen to file a petition for getting her marriage void before turning major, therefore, the Bench held that the Family Court had wrongly dismissed the petition as when the couple made a petition under Section 13-B of Hindu Marriage Act, 1955, the respondent-wife was major and the marriage was valid.

Accordingly, the appeal was allowed and the impugned order was set aside. The decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 was granted to the parties. [Yogesh Kumar v. Priya, FAO 855 of 2021, decided on 26-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Gitanjali Chhabra, Advocate

For the Respondent: Raman B.Garg, Advocate

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Ritu Bahri and Arun Monga, JJ., held that in case of child marriage, the marriage is voidable not void and a petition for nullity under Section 13(2)(iv) could only be filed if she-wife had got married at the age of 15 that too only before she attains the age of 18.

Background

The brief facts of the present case were that at the time of marriage i.e. on 27-02-2009, the appellant (husband) was major being of the age of 23 years, 5 months and 10 days the respondent (wife) was of the age of 17 years, 6 months and 8 days. Both the parties continued to live together and cohabited as husband and wife till 31-08-2017 and had a male child out of the wedlock. The child had been living his father since 2017.

Findings of the Family Court

The grievance of the appellant was that the Family Court had dismissed his petition filed under Section 13-B of Hindu Marriage Act, 1955 for divorce by mutual consent. Relying on the decision of Madras High Court in Prema Kumari v. M. Palani, 2013 (6) RCR (Civil) 2953, the Family Court held that the marriage was not a valid one as the respondent (wife) had not completed the age of 18 years as per the mandate of Section 5(iii) of the Hindu Marriage Act, 1955, therefore the parties were required to get their marriage nullified as per Section 13(2)(iv) of the Hindu Marriage Act.

Section 13(2)(iv) is reproduced as under:-

13-(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

The girl who has attained 15 years of age and has got married can seek dissolution of marriage before she attains the age of 18 years by filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.

Analysis and Reasoning

Differentiating the judgment relied by the Family Court, the Bench stated that the wife was not 15 years of age and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act. Had she been 15 years of age, she could have invoked the provisions only before she attains the age of 18. Referring to the Delhi High Court’s decision in Lajja Devi v. State, 2012 (4) R.C.R. (Civil) 821, wherein the Delhi High Court while referring to Sections 5(iii), 11 and 12 of Hindu Marriage Act, 1955 and Sections 2 and 3 of the Prohibition of Child Marriage Act, 2006, observed that if a marriage contracted with a female of less than 18 years or a male of less than 21 years, it would not be a void marriage but voidable one, which would become valid if no steps are taken by such “child” within the meaning of Section 2(a) of the Prohibition of Child Marriage Act, 2006 seeking declaration of this marriage as void.

Since both the parties continued to live together and cohabited as husband and wife since 2009 till 2017 and the respondent-wife had not chosen to file a petition for declaring her marriage void their marriage became a valid one, for all intents and purposes, when they made a petition under Section 13-B of Hindu Marriage Act, 1955, the respondent-wife was major and the marriage was valid. Hence, the Bench held that the Family Court had wrongly dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 and a petition for nullity under Section 13(2)(iv) could only be filed if she-wife had got married at the age of 15 that too only before she attains the age of 18.

Verdict

In the light of the above, the appeal was allowed and the impugned decision was set aside. The decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 was granted to the parties. [Yogesh Kumar v. Priya, FAO-855 of 2021, decided on 26-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Ms. Gitanjali Chhabra, Advocate for the appellant.

Mr. Raman B.Garg, Advocate for the respondent

Legislation UpdatesStatutes/Bills/Ordinances

On September 17, 2021, the Rajasthan Assembly passed the Compulsory Registration of Marriages (Amendment) Bill, 2021 in order to amend the Rajasthan Compulsory Registration of Marriages Act, 2009.

Key Amendments:

  • Section 8 relating the duty to submit memorandum has been modified. It has been substituted with the following : 

(1) The parties to the marriage, or in case the  bridegroom has not completed the age of twenty one years and/or bride has not completed the age of eighteen years, the parents or, as the case may be, guardian of the parties shall be responsible to submit the memorandum, in such manner, as may be prescribed, within a period of thirty days from the date of solemnization of the marriage to the Registrar within whose jurisdiction the marriage is solemnized, or the parties to the marriage or either of them are residing for at least thirty days before the date of submission of the memorandum.
(1A) If, at any time, death of either of the parties  to the marriage or of both occurs, the surviving party, parents, adult child or, as the case may be, guardian of the parties may submit the memorandum, in such manner, as may be prescribed, to the Registrar within whose jurisdiction the marriage is solemnized, or the surviving party, parents, adult child or, as the case may be, guardian of the parties is residing for at least thirty days before the date of submission of the memorandum.

  • Section 2 clause (f) of the Rajasthan Compulsory Registration of Marriages Act, 2009  substituted with the following:

(f) “District Marriage Registration Officer, Additional District Marriage Registration Officer and Block Marriage Registration Officer” mean the District Marriage Registration Officer, Additional District Marriage Registration Officer and Block Marriage Registration Officer respectively appointed under section 5;

Case BriefsHigh Courts

Allahabad High Court: Vikas Kunvar Srivastav, J., addresses whether a minor girl on attaining majority can ratify the agreement of marriage that she had entered into when she was a minor? The legality of such an agreement tested.

Instant petition was moved on behalf of ‘Sadhna Kumari’ aged about 18 years through her next friend. Next friend allegedly the husband aged about 19 years.

OPs 4 and 5 (Parents of Petitioner Sadhna Kumari) with whom petitioner’s unlawful detention was complained.

Next Friend pleaded that the detenue petitioner Sadhna Kumari and next friend Shekhar were legally wedded and living as husband and wife since after an agreement purported to be of marriage.

Analysis and Decision

Bench noted that the petitioner’s counsel failed to show material averment as to the ‘solemnization of marriage’. Its date, place and time so as to establish the wedding of the petitioner and her next friend the alleged husband.

‘Agreement’ dated 31-07-2020 was pleaded as the basis of legal authority of the next friend to seek habeas corpus of petitioner Sadhna Kumari.

Purpose of Writ

It is to facilitate the next friend to cohabit with petitioner without interruption of anyone else, even the parents of Sadhna Kumari (OPs 4 and 5) with whom she is presently residing.

Legality of Agreement dated 31-07-2020

As per the High School Examination certificate, Sadhna Kumari’s date of birth was 17-03-2003. In view of the stated material fact, the ‘agreement’ purported to be of marriage when allegedly executed by the petitioner Sadhna Kumari on 31-7-2020 she was a minor aged about 17 years and 4 months, therefore, at the relevant date of agreement despite the alleged agreement of her consent to cohabit with Shekhar Pandey, the next friend as husband and wife, she could not be supposed to give valid consent in law.

A criminal case has been registered against the next friend on the complaint of the petitioner’s mother.

Agreement of which either party to it is a minor- Legal Status 

Agreements which are made enforceable in law are provided under the Indian Contract Act, 1872. Section 11 of the Indian Contract Act states that:

“every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”

 It is pertinent to keep in mind the age of the majority which capacitates a person to contract.

Since petitioner’s date of birth was 17-03-2003, she was undoubtedly on the date of ‘agreement’ dated 31-07-2020 a minor.

As per the definitions given in Child Marriage Restraint Act, 1929 and Juvenile Justice (Care and Protection of Children) Act, 2015 such a person has termed a child.

Court stated that the petitioner was a minor as well as a child also when she allegedly entered into the agreement to marry on 31-7-2020. Further, she was party to an agreement of marriage.

An agreement must not be opposed to law. The law applicable to petitioner being a Hindu, is “The Hindu Marriage Act, 1955”.

Section 5 (iii) of the said Act provides the marriageable age, according to which the marriage may be solemnized between any two Hindus, if the following conditions are fulfilled: –

“(iii) the bride groom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage.”

High Court held that The Hindu Marriage Act, 1955 and The Indian Contract Act, 1872 the petitioner had no legal capacity and competence to enter into the agreement to marry with Shekhar. Court added that even Shekhar was not of marriageable age under the law.

India Law states that in marriage where either the woman is below the age of 18 years or the man is below the age of 21 years, such marriage, if solemnized by the guardians becomes voidable under Section 5 of the Hindu Marriage Act at the instance of minor. He has option to ratify the marriage also.

 In the present matter, marriage was being claimed as an agreement to cohabit as husband and wife by virtue of an agreement dated 31-07-2021. Hence, the question was – whether on attaining the majority age a minor was competent to ratify his/her agreement executed in the age of minority?

Legal Position to address the above question:

(i) contract with minor is void and no legal obligation can ever arise on him/her therein,

(ii) the minor party cannot ratify the contract upon attaining majority unless the law specifically allows this, and

(iii) no court can allow specific permission of a contract with minor because it is void altogether.

When a contract is entered on behalf of lawful authority of a minor then only the option is available attaining majority to minor either to ratify or to rescind the contract entered by the person having lawful authority on his behalf.

Therefore, in view of the above discussion, the agreement dated 31-7-2020 of which one of the parties namely petitioner Sadhna Kumari a minor, is void, as the same is in violation of Sections 11 and 23 of the Indian Contract Act, 1872.

Elaborating its conclusion, High Court added that agreement dated 31-7-2020 purporting to be of marriage and consent to cohabit together, cannot be given effect so as to issue notice to opposite parties for the production of the petitioner in court for the purpose of recording her desire to ratify her alleged agreement to marry/consent deed, for the reason of the same being a void agreement.

Bench while dismissing the petition stated that this decision shall not impede the petitioner to enter into marital relations with a person of her choice on attaining marriageable age through a lawfully solemnized marriage or otherwise. [Sadhna Kumari v. State of U.P., 2021 SCC OnLine All 276, decided on 15-04-2021]


Advocates before the Court:

Counsel for the Petitioner: Janardan Singh

Counsel for the Respondent: G.A.

Case BriefsHigh Courts

Allahabad High Court: J.J. Munir, J., directed that the minor in the instant case who stated that she married the accused of her free will, be housed in a State facility or shelter home which shall be other than a Nari Niketan or a home meant for delinquents, till she attains the age of eighteen years.

Chhavi a minor was the daughter of Chhanga who is the second petitioner. He had filed an FIR against Laxman under Sections 363 and 366 of Penal Code, 1860.

It was stated that Chhanga’s minor daughter had gone to fetch her cattle when the three accused were seen around her, after which she went traceless. A video was made viral by the co-accused in which it was shown that Chhavi was in the company of Laxman. Hence another FIR was registered under Section 66 of the Information Technology Act, 2000.

Chhavi in her statement before the Magistrate stated that she had accompanied Laxman of her free will and was in love with him. Further, it was added that she married Laxman and was now in her family way.

After investigation, a charge-sheet had been filed against Laxman under Sections 363, 366, 376 of IPC and Section 7/4 of the Protection of Children from Sexual Offences Act, 2012.

Bench noted that Chhavi was staying of her freewill without any compulsion, duress or pressure, which clearly implies that she was not in any kind of illegal confinement.

Whether Chhavi is within her rights under the law to stay of her freewill with Meena, who is Laxman’s sister, the man she has married?

If it were to be held that Chhavi was a minor on the date she married Laxman, a subsidiary question that would also be of some consequence to the parties’ future is, whether the marriage would be void or voidable?

With regard to the determination of age, Bench stated that principles applicable to the determination of age in the case of a juvenile would in terms apply to cases of determination of the age of a victim as well.

Bench noted that the provisions of Section 94(2) of the Act of 2015 spare no room for the Court to look into any evidence, in the face of date of birth certificate from the school or the matriculation, or an equivalent certificate from the examination board.

A plain reading of Section 94 of 2015, Act would reveal that only in absence of: (a) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board; and (b) the birth certificate given by a corporation or a municipal authority or a panchayat, age is to be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.

Therefore, notwithstanding the prosecutrix’s stand that she is 20-years-old and has married Laxman of her freewill, she cannot be heard to prove her age anything different from what it is recorded in her high school certificate.

Hence, Chhavi was to be held a minor on the date of her marriage and till date. CWC ordered her to be given in the foster care of Laxman’s sister.

Further, the Court added that even if Chhavi’s case that she married Laxman of her freewill were accepted, she cannot be permitted to live in the foster care of his sister, where access to each other cannot be guarded.

In view of the above discussed High Court held that so long as Chhavi is a minor, irrespective of the validity of her marriage to Laxman, she cannot be permitted to be placed in a position where there is a likelihood of carnal proximity. If it were permitted, it would be an offence both under the Penal Code and under the Act of 2012.

The Supreme Court decision in Independent Thought v. Union of India, (2017) 10 SCC 800 completely excludes the possibility of sanctioning or decriminalising carnal relations between a man and his wife, the wife being below the age of 18 years.

It is not difficult to infer that in the home, where Laxman’s sister Meena stays with her in-laws, Chhavi cannot be extended the protective cover envisaged for a girl below the age of 18 years, insulating her from any kind of sexual activity, even with her husband.

Validity of Chhavi’s marriage to Laxman

Court opined that, the validity of the marriage must be examined in order to do substantial justice to the parties.

Marriage of a minor child to be void in certain circumstances.–Where a child, being a minor-

(a) is taken or enticed out of the keeping of the lawful guardian; or

(b) by force compelled, or by any deceitful means induced to go from any place; or

(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.

Since nothing was recorded by the Judicial Magistrate that may have attracted the provision of Section 12 of the  Prohibition of Child Marriage Act, 2006.

Thus, Chhavi’s marriage to Laxman was not a void marriage; rather a voidable marriage at the option of Chhavi, by virtue of Section 3 of the Act.

Lastly, the Bench held that Chhavi, after she turns a major or even before that, can petition the competent court to have the marriage annulled, and she could do so within two years of attaining majority. Of course, she can acknowledge and elect to accept the marriage.

Adding to its conclusion in view of the above discussion, Court stated that all that Chhavi chooses to do is not this Court’s determination, but it is to clarify the inter se rights of parties vis-à-vis their marriage, that the Court has ventured to examine the legal status of the marriage, which Chhavi supports as her voluntary act, while a minor.

In the opinion of this Court, under the circumstances, Chhavi has to be housed in a State facility or shelter home which shall be other than a Nari Niketan or a home meant for delinquents. She has to be accommodated in a safe home/shelter home with all necessary facilities, where she and her child can stay comfortably, till she attains the age of eighteen years.

Habeas Corpus Petition was allowed in view of the above. [Chhavi (Minor) v. State of U.P., 2021 SCC OnLine All 219, decided on 10-03-2021]


Advocates before the Court:

Counsel for Petitioner: Ajay Kumar

Counsel for Respondent :G.A., ,Pankaj Kumar Govil, Pankaj Govil

Case BriefsHigh Courts

Madras High Court: R. Pongiappan, J., observed that:

“…saptpadi for Hindus is the necessary requirement, which if completed make a marriage valid in the eyes of law provided the parties are of sound mind and don’t fall within the prohibited degrees of relationship with each other.”

Instant appeal was filed to set aside the judgment and conviction passed by Sessions Judge.

Accused was charged for the offences under Sections 366 and 376(1) of Penal Code, 1860.

Analysis and Decision

Bench noted that in respect to alleged marriage, PW 10 who is the victim girl had stated before the trial Court that on the date of occurrence, both herself and the accused ran away from the village and accused tied thali to her. In light of the said evidence, it appeared that the victim girl had also consented for the marriage.

Additional Public Prosecutor appearing for the State contended that since the alleged marriage had happened to the victim was at the age of 15 years and 10 months, the said marriage is not legally valid and also the same has not been solemnised as per Hindu rites and customs.

This Court also found that the girl had not completed the age of 16 years at the time of above-stated alleged marriage for which she consented

Further, the Bench observed that during the time of occurrence, the accused had induced the victim girl to go to Palani and afterwards, he tied a thali, Section 361 of IPC was referred which talks about the “kidnapping from lawful guardianship”.

Applying the abovesaid provision along with Section 366 IPC, Court stated that the victim girl was kidnapped for the purpose of marrying her.

Void Marriage

“… a marriage in which either the girl is below 18 years of age, or the boy is below 21 years of age is child marriage.”

Court expressed that in our country, the essential condition for the validity of any marriage is solemnization of the religious ceremonies prescribed by the religion to which the parties belong.

In respect to the instant matter, it was found that the accused and victim girl had not performed the necessary religious ceremonies prescribed by the religion and since the victim girl was of 16 years of age, the alleged marriage with the accused was void.

Sexual Intercourse

With regard to alleged forcible sexual intercourse, it was found that victim girl stayed the accused for a considerable period but during that time, she did not seek for help or even try running away from the place, the said attitude of the victim girl proves that the alleged sexual intercourse had happened only with her consent.

Section 375 IPC

As per the definition of Section 375 IPC, since the victim girl had not completed the age of 18 years at the time of occurrence, according to 6th description of the said Section, Court found that the accused had committed an offence of rape.

Therefore trial Court’s finding of charging the accused under Sections 366 and 376(1) IPC was within four corners of law and no infirmity was found in the said findings.

Since both the victim girl and accused got married themselves and separated along with respective spouses, Court modified the sentence as 5 years instead of 7 years under Section 366 IPC and for the offence under Section 376(1) IPC, Court modified the sentence as 7 years instead of 10 years.

Hence, the Criminal Appeal was partly allowed.[Prakash v. State, 2020 SCC OnLine Mad 6025, decided on 30-11-2020]


Advocates who appeared before the Court:

For Appellant: B. Thirumalai for S.Nagarajan

For Respondent: S. Karthikeyan Additional Public Prosecutor

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Harsh Tandon and Soumen Sen, JJ., addressed the matter in regard to the child marriages in the garb of child trafficking and called for detailed status reports for the same.

Additional Chief Secretary, Home Affairs Department and Home Secretary district-wise details of the cases in relation to violation of child rights of all forms till 15th June, 2020 has been disclosed.

The above-mentioned report details out the nature of the violation of child rights and the steps taken by the police authorities in connection with such cases.

Alarming rise of child marriages during the lockdown has given a strong impression that these child marriages may be in the garb of child trafficking.

In view of the above Court directed Superintendent of Police of every district to investigate into the cases regarding child marriage and to find out if child marriages are for economic consideration or under the garb of child trafficking.

With regard to North-24 Parganas report, Court directed the Home Secretary to file a report disclosing such “other violation of child rights” and the steps taken by the police against the violators.

Further the Court also directed the Superintendent of Police of all the districts to ensure that the victims are produced immediately and not later than 48 hours before the Magistrates for recording of statement under Section 164 of the CrPC.

Most of the Juvenile Justice Boards have been functioning under tremendous stress and infrastructure is extremely inadequate.

Court noted the following deficiencies:

  1. No chamber for the Principal Magistrate and other members of the committee,
  2. Lack of office space,
  3. No separate room for vulnerable child witnesses,
  4. No separate entrance for the C.C.L. and vulnerable witnesses,
  5. No official vehicle is assigned to the Principal Magistrate,
  6. Lack of broad-band connection and inconsistent bandwidth,
  7. Lack of hardware and software infrastructure required for audio- video linkage,
  8. Inadequate and/or no support staff like bench clerk, lower division clerk-cum-typist, counsellor etc.,
  9. No separate provision of wash-room for female staff/members/lady officers,
  10. No separate room for counselling for the C.C.L.s and for sitting of social worker members,
  11. Lack of maintenance of public toilets and wash-room of Principal Magistrates

Advocate General assured the Court that he would immediately take the the above issues with the Home Secretary and would apprise the steps taken to remove such deficiencies.

Report filed by the Secretary, Department of Health and Family Welfare shows that 75 children of the migratory workers have been found to be Covid-19 positive and subsequently they were referred to designated COVID hospitals, samples were collected from asymptomatic children of migratory workers and 43 of such samples were reported as positive.

Considering the safety of the children bench would like to know if any random test was carried out of the children of the migratory workers and if so, disclose the result of such random test with specific comment as to whether anyone of them tested positive, save and except the particulars already disclosed.

Report to be filed with regard to investigation in child trafficking case

Court has also asked the Advocate General to file a report with regard to a newspaper report wherein it appeared that one female minor girl had been recovered by Maharashtra Police.

Court adjourned the matter till 2nd July, 2020. [Contagion of COVID-19 Virus in Children, In Re., 2020 SCC OnLine Cal 1066   , decided on 25-06-2020]

Case BriefsSupreme Court

Supreme Court: In order to harmonise Exception 2 to Section 375 IPC of the with the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the spirit of other pro-child legislations and the human rights of a married girl child, the bench of Madan B. Lokur and Deepak Gupta, JJ held that the Exception 2 to Section 375 of the IPC to should now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” Both the judges wrote concurring but separate judgments.

Lokur, J, stating that holding sexual intercourse with a minor wife was the only way by which the intent of social justice to the married girl child and the constitutional vision of the framers of the Constitution could be preserved, said:

“Viewed from any perspective, there seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age. On the contrary, there is every reason to give a harmonious and purposive construction to the pro-child statutes to preserve and protect the human rights of the married girl child.”

Drawing an analogy between various laws land especially with POCSO Act, Lokur, J said that while the husband of a married girl child might not have committed rape for the purposes of the IPC but he would nevertheless have committed aggravated penetrative sexual assault for the purposes of the POCSO Act. He added that there is also no real distinction between the rape of a married girl child and aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. He said:

“marital rape of a girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under the provisions of the IPC.”

Gupta, J, on the question that whether the Court was creating a new offence, explained that the Court was merely reading down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and POCSO since the offence already exists in the main part of Section 375 IPC as well as in Section 3 and 5 of POCSO. He said:

“this Court is not creating any new offence but only removing what was unconstitutional and offensive.”

He also noticed that Exception 2 to Section 375 IPC was the only provision in various penal laws which gave immunity to the husband. He said:

“The husband is not immune from prosecution as far as other offences are concerned. Therefore, if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325 IPC etc. but he cannot be charged with rape.”

He further added:

“It does not stand to reason that only for the offence of rape the husband should be granted such an immunity especially where the “victim wife” is aged below 18 years i.e. below the legal age of marriage and is also not legally capable of giving consent to have sexual intercourse.”

The Court, hence, held that Exception 2 to Section 375 IPC was arbitrary, capricious, whimsical and violative of Article 14, 15 and 21 of the Constitution of India. It was, however, made clear that the verdict will apply prospectively. [Independent Thought v. Union of India, 2017 SCC OnLine SC 1222, decided on 11.10.2017]

Hot Off The PressNews

Supreme Court: Hearing the plea questioning the validity of a provision permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18 years, the bench of Madan B. Lokur and Deepak Gupta, JJ expressed dismay over the prevalence of the practice of child marriage despite the existence of the Child Marriage Prohibition Act and said

“It is a hard reality and is unfortunate that most of the child marriages happening in the country are done by parents of the girl child. However, to this, there are odd exceptions when a minor boy and girl fall in love and marry on their own.”

Advocate Gaurav Agarwal, appearing for NGO Independent Thought, brought to the Court’s notice that by the Criminal Law (Amendment) Act, 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years, however, exception 2 to section 375 of the IPC still retains the age of consent as 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl. He added that if the object behind increasing the age of consent to 18 years in 2013, was that a girl below that age is incapable of realising the consequences of her consent, then marriage of girl between the age of 15-17 years does not make the girl mature enough, mentally or physically, for the purpose of consent.

Taking note of the argument, the Court sought to know whether it can create an offence by striking down the exception 2 of section 375 of IPC which the Parliament has refused to do. It also showed concern over the fate of the children born from such marriages if the provision was struck down.

The Centre, on the other hand, had contended that child marriage were still happening in the country due to uneven economic and educational development and it has been, therefore, decided to retain the age of 15 years under exception 2 of section 375 of IPC, so as to give protection to husband and wife against criminalising the sexual activity between them.

The next date of hearing on the matter is 05.09.2017.

Source: PTI

Hot Off The PressNews

Supreme Court: The bench of Madan B. Lokur and Deepak gupta, JJ has sought response from the Centre as to whether Parliament has debated the aspect of protecting married girls between the age group of 15-18 years from the forced sexual acts by their spouses and whether the court could intervene to protect the rights of such married girls who may be sexually exploited by their spouses.

The Court was hearing the plea that had challenged the constitutionality of the exception under Section 375 IPC which says the intercourse or sexual act by a man with his wife, not below 15 years, is not a rape. NGO Independent Thought contended that the distinction made in between 18 and 15 is illegal and unconstitutional as a girl in the age group of 15-18 is not that physically developed and she is not capable of taking an informed decision or consent. It was argued that the Parliament cannot impinge upon Article 21 by allowing the girl to marry under 18 years of age and allowing her to get pregnant or have intercourse. Centre, however, responded by saying that all the aspects have been considered pragmatically by the Parliament and keeping the child marriage prevalent in some societies,  the age of 15 has been kept as a threshold.

The bench noticed that declaring the law unconstitutional may have some serious repercussions as there are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law and the boy suffers even when he is not at fault. Similarly, when a girl, under 18 years of age, elopes and engages in consensual sexual activity, the male gets booked for rape. The Court, hence, asked the Centre to apprise it about the number of prosecutions under the Child Marriage Act for past three years in three weeks and listed the matter for hearing after 4 weeks.

Source: PTI