Case BriefsHigh Courts

Rajasthan High Court: Sanjeev Prakash Sharma, J., allowed a petition which dealt with the issue as to whether the third child born to the petitioner on account of failure of the ligation operation can be said to come within the ambit of memorandum dated 01-06-2017 to deny the ACP to the petitioner for three years.

The wife of the petitioner had undergone a ligation operation however the said operation was unsuccessful and she gave birth to a girl child. The petitioner already had two male children making the total to three. State Authorities had denied the petitioner to grant ACP thereafter.

Counsel for the petitioner, Mr Tanveer Ahamad submitted documentary proof to show that the third child cannot be said to have been born with deliberate intentions and was born on account of failure of operation which cannot be treated to come within the ambit of the Memorandum dated 1-6-2017. It was further informed that petitioner submitted a certificate issued from a Doctor who had conducted the concerned Tubal Ligation operation on applying and also produced relevant proof of registration relating to the admission of petitioner for the concerned operation. Counsel further submitted that petitioner’s case cannot be said to be one where a third child was born out of willingness of the parents and that the third child was born after a period of 12 years of the earlier child and in such circumstances, the submission of the petitioner cannot be doubted.

The Court after perusing all the documents came to a conclusion that it cannot be said that the certificate was ambiguous or suspicious and the authorities ought to have taken a pragmatic view. The Court then perused the memorandum and found that it was apparent that an employee who has more than two children on or after 1-6-2002 shall not be granted next ACP for three years from the date on which his/ her ACP becomes due and it would have a consequential effect on the subsequent financial upgradation. The Court however noticed that circular does not take into consideration the circumstances which may have arisen in the birth of a third child.

The Court explained that in the present case, the child was born on account of the

failure of the ligation operation and getting an operation done showed the intention of the couple not to have a third child. However, on account of failure, if a child was born, they cannot be penalized for the same. The Court held that these were exceptions to the rule and has to be taken into consideration.

The very purpose of the rule is to deter Government servants from having a third child. However, if a third child is born, without there being any deliberate intent, the circular would not come in way to deprive the concerned individual of the benefits which are available under the service rules.

The Court allowing the petition opined that any child born after 1-6-2002 to a couple already having two children cannot be denied ACP by applying the memorandum by a blanket order. The circumstances need to be examined and exceptions to be taken into consideration.

The Court directed the respondents to grant ACP to the petitioner on completion of 20 years of service from the date it became due without applying the circular dated 1-6-2017 and arrears of salary to be released.[Rajveer Sharma v. State of Rajasthan, S.B. Civil Writ Petition No. 134 of 2018, decided on 13-01-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., while addressing a matter with respect to menace being caused due to online games expressed its opinion whether the Court can ban the same or not.

Petitioner in the instant matter complained of online business enterprises preying on children and young adults by offering divers online games that are addictive.

Submission of petitioner went by stating that since mobile phones have completely taken over our lives and even children and minors crave for an obtain mobile phones, they are supposed to being lured by unscrupulous business enterprises and particularly during the lockdown when schools and educational institutions are closed, many children and young adults are hooked to online games.

In petitioner’s opinion, the said addiction is devastating and life-threatening in the sense that it destroys the career-building phase of a young adult which may even lead to suicidal tendencies and extreme anger against parents and elders seeking to check the habit.

There is no doubt that children and young adults these days are addicted to their phones and their worlds appear to revolve around their mobile phones.

Bench expressed that even constitutional courts should be slow in entering into such areas and dealing with such matters on the personal sense of morality of the individual complainant or the Judge or Judges concerned.

Court elaborated stating that,

There is no doubt that when there is some illegal action or something which is detrimental to larger public interest, constitutional courts intervene; but in the matters of the present kind, especially when elected governments are in place, such matters of policy should be left to the wisdom of those representing the people and having their mandate instead of the Court issuing a diktat.

 High Court added that the duty of the Court is to direct the complainants to the executive for a more wholesome and studied policy decision to be taken by the executive than what may be possible before any Court.

Concluding the matter permitting the petitioner to make representations to the Union of India and to the State added that the larger or long-time effects that these online games have on children and young adults have not been gone into in any great detail in the present proceedings, particularly in the absence of any scientific material in such regard.  [E. Martin Jayakumar v. Government of India, 2021 SCC OnLine Mad 2335, decided on 1-07-2021]


Advocates before the Court:

For Petitioner:

Ms.Selvi George

For Respondents:

Mr. K. Srinivasamurthy, Senior Panel Counsel, for respondents 1 to 3

Mr. P. Muthukumar, Counsel for State for respondents 4 to 6

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while allowing in part the revision petition filed challenging the Family Court’s maintenance order made a very crucial observation, that father’s obligation to maintain a child cannot come to an end once the child turns 18 years of age. Read more to know why.

Instant petition was directed against the Family Court’s Order declining maintenance to the petitioner 1/wife and granting maintenance only to petitioner 2 and 3.

Since the interim maintenance order was an interlocutory order, the respondent’s counsel submitted that the present application was barred under Section 397(2) CrPC.

Further, the counsel for the petitioners contended that after holding that each of the children is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent.

Analysis, Law and Decision

High Court stated that since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and fact which are to be proved by the parties.

Further, Bench elaborated with regard to other contention of children being entitled to 25% of salary earned by respondent, that, petitioner 1/wife who was earning and was equally responsible for the child can take care of the balance as respondent was married again and had a child from the second marriage.

Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage.

Petitioner 1/Wife was working as an Upper Division Clerk in Delhi Municipal Corporation earning Rs 60,000 per month and the two children were living with the mother and after the age of majority, entire expenditure of petitioner 2 was being borne by petitioner 1 as petitioner 2 turned major and was still studying but was not earning anything.

Therefore, the family court failed to appreciate that since the respondent was making no contribution towards the maintenance of petitioner 2, the salary earned by petitioner 1 was not sufficient to maintain herself.

Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner 2 is not yet over and the petitioner 2 cannot sustain himself.

Bench held that it cannot be said that the obligation of the father would come to an end as the son reached 18 years of age and the entire burden of his education and other expenses would fall only on the mother.

Adding to the above analysis, it was stated that It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.

Hence, Court granted a sum of Rs 15,000 per month as interim maintenance to petitioner 1 from the date of petitioner 2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier.

In view of the above, the revision petition was allowed in part and disposed of. [Urvashi Aggarwal v. Inderpaul Aggarwal, 2021 SCC OnLine Del 3242, decided on 14-06-2021]


Advocates before the Court:

For the Petitioners: Mr Praveen Suri and Ms. Komal Chibber, Advocates

For the Respondent: Mr Digvijay Rai and Mr. Aman Yadav, Advocates

Case BriefsHigh Courts

Patna High Court: While addressing the issue of minors being put to observational homes in routine manner in spite of them (minors) being willing to reside with relatives, the Bench of Rajeev Ranjan Prasad, J., observed that, the judicial officers are required to be sensitized on the subject. The Bench remarked,

It is only when there is no possibility of keeping the victim girl with her family or with a guardian, she would be required to be sent to an Observation Home.

The instant application had been preferred by the victim girl who had been kept in the Remand Home since 20-03-2020 in connection with a Case registered under Section 363, 366(A) of the IPC lodged by her father alleging that his daughter was seen being taken away by the accused. On recovery, the victim disclosed that she had gone to the house of her maternal grandmother because her parents wanted to marry her to someone else. She disclosed her age as 18 years but the Magistrate assessed the same as 17 years without there being any basis for the same. Moreover, without considering the request of the victim girl to allow her to live with her maternal grandmother, the Magistrate had sent her to the Observation Home.

The Bench opined that the Additional Chief Judicial Magistrate while passing the impugned order should have acted with more circumspection and care. In all fairness, he should have called for the school certificate of the victim girl because he was aware that the victim girl was a student of Class-XII. The Magistrate had also failed to consider the submission of the victim girl that she wanted to live with her maternal grandmother. It was not the case that the parents of the victim girl had objected to sending the victim girl to her maternal grand-mother. Opining that the judicial officers were required to be sensitive towards the rights of the child and need to take care of them on the principles of parens patriae; the Bench remarked,

The judicial officers are required to be sensitized on this issue otherwise similar examples will kept on coming before this Court. The need to keep a child in the Observation Home or to allow him/her to stay with her parents/guardians is one of the most essential consideration which is required to be given by the Magistrates when they find that a minor girl or victim of a crime is produced before them. There cannot be a remand of a victim girl to an Observation Home in a routine manner.

The Bench stated that all possibilities were required to be explored keeping the best interest of the child in the mind, to facilitate her stay either with her own family or with a trusted guardian where her security would also be intact. In the instant case, there was no dispute that the petitioner was major and was entitled to set free. In Bar and Bench v. State of Bihar, 2018 SCC Online Pat 1179, the Court had heavily relied on the decision of Supreme Court in Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, and had observed that:

“…If we analyze the aforesaid judgment in the backdrop of facts and circumstances of the present case, even though we are conscious of the fact that the parents have various reasons to resist the wishes of their daughter, but once the daughter in categorical term on two occasions when she appeared before us, i.e. today and earlier to that on 26.06.2018, expressed her desire to have her own way of life and exercise her fundamental right, we have no hesitation in allowing her to go the way she desires and exercise the constitutional right available to her. She is a free citizen and no one even her parents have a right to curtail or withhold the freedom available to her under the Constitution…

For the reasons stated above, the Court set aside the impugned order and directed respondent 5 to release the petitioner from the Observation Home. The Bench further directed that it would be open to the petitioner to choose her place of residence and to her father to persuade her to live with the family without resorting to any force or extra-judicial method to pressurize the petitioner in any manner. Additionally, observing that the judicial officers are required to be sensitized on the subject, the Bench urged the Chief Justice to consider issuing appropriate directions to the Bihar Judicial Academy to hold classes on the subject and take efforts to sensitize the judicial officers of the State as to how to deal with such cases in accordance with law.[Khushi Kumari v. State of Bihar, 2021 SCC OnLine Pat 1352, decided on 25-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Upendra Kumar Singh
For the Respondent/s: APP Sheo Shankar Prasad

Hot Off The PressNews

The persistence of the National Human Rights Commission, India in a case of food poisoning of 15 children in a government school in Maliguda, Odisha, resulted in the payment of Rs. 8 lakh. Out of which Rs. 50,000 each has been paid to the 14 students who fell sick and Rs. 1 lakh to the mother of boy who succumbed to his illness.

For negligence, 2 teachers were put under suspension and departmental proceedings initiated against them. The complaint was received about the incident on 20th January 2018.

Notice by NHRC 

Earlier, in response to the notices of the Commission, the reports from the State Govt. revealed that an ex-gratia of Rs.2 Lakhs was already sanctioned by the Collector for the payment to the NoK of the victim. Punitive action was initiated against the 2 teachers for negligence.

Show Cause Notice

Subsequently, the Commission issued a show-cause notice to the Chief Secretary, Govt. of Odisha why a sum of Rs.1 Lakh be not recommended to be paid u/s 18 of the Protection of Human Rights Act to the Next of kin of the deceased student in addition to the ex-gratia of Rs.2 Lakhs already sanctioned by the Collector.

Compensation

Pursuant to the directions of the Commission, the Govt. of Odisha submitted the compliance report along with proof of payment, wherein it has been stated that Rs. 1 lakh has been paid to the mother of the deceased boy and Rs. 50,000/- each to other 14 students.


National Human Rights Commission

[Dt. 09-04-2021]

Case BriefsHigh Courts

Kerala High Court: Mary Joseph, J., while addressing an issue of maintenance under Section 125 of Criminal Procedure Code, 1973, expressed that the said provision does not say that wife, children or parents who are at the mercy of the parents, grandparents or relatives are not entitled to get monthly maintenance or else in the case of a wife, children or parents who are neglected and surviving at the mercy of other near relatives are not entitled to get maintenance.

Respondents in the present matter had sought for enhancement of the sum ordered originally by the Family Court as monthly maintenance which was ordered at the rate of Rs 1,000 but the petitioner defaulted in payment after some time.

Revision petitioner contended that he was physically handicapped and that the eldest of the children being employed and financially affluent were maintaining the respondents. Hence, due to being devoid of any means of livelihood he submitted that he was not liable to maintain the respondents.

Petitioner had proved before the Family Court that the respondent was remarried and respondents contention that he had no means and therefore was not liable to pay maintenance to the petitioners could not be accepted for the sole reason that he got married secondly and begotten children.

Muslim Personal Law is self-contained of the obligation of the husband to maintain his wife by providing her with food, clothing and lodging. In the Code, a legal recognition is given to the right of a deserted wife, son/daughter, and parents who are unable to maintain themselves.

Section 125 CrPC specifically provides that wife, children or parents unable to maintain themselves are entitled to receive monthly maintenance from a male who holds status respectively with reference to them as husband, father or son.

Bench held that the Husband cannot be exonerated from his legal obligation to maintain on the ground that deserted or neglected ones are surviving somehow or else being maintained by someone.

Hence, the Family Court rightly appreciated the evidence and passed the impugned orders modifying the monthly maintenance payable to the petitioner justly and reasonably. [Mohammedkunhi v. Safura, 2021 SCC OnLine Ker 407, decided on 04-01-2021]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Sisira J. De Abrew, Murdu N.B. Fernando and S. Thurairaja, JJ., allowed an application which was filed in the matter of violation of Fundamental Right guaranteed under Article 11, 17 and 126 of the Constitution.

Petitioner 3 (minor) was a student at Puhulwella Central College and petitioner 1 and 2 were the father and mother of the child petitioner. Respondent was the Art Teacher, Teacher in Charge of Discipline and Sectional head of Puhulwella College.

On 13-02-2017 petitioner attended school, as usual, 1st and 2nd periods of the day allocated for Agriculture, the Petitioner was made part of one of three groups in the class and was directed to plough a designated area of the school grounds at the plant nursery in order to plant vegetables. During the execution of this exercise he had felt fatigued and had sat on a half wall near the plant nursery for a short amount of time prior to resuming this activity. He further stated that while he was washing his hands and tools, two students had approached him and told him that the Respondent asked him to come to his office, Respondent also admitted to this and added that on seeing the Child Petitioner seated on the culvert during the previous period, he had summoned him and reminded him that the Principal had previously warned them not to sit on that specific culvert as it was dangerous and questioned him as to why he had done so even after the warning. It was observed by the material submitted that the Respondent had slapped the child petitioner across the face and the blow landed on his face, upon his left ear after which he felt excruciating pain, severe discomfort, and been startled and disoriented. When Respondent was informed about the petitioner’s condition he did not take it seriously after which he informed the class teacher about the incident and that he wanted to go home because he was in pain to which the class teacher did not pay any attention and advised him not to exaggerate and tell the incident to his parent. It was further alleged that no staff member offered any form of medical assistance to the Child petitioner, he himself had bought 2 Panadol pills as painkillers from the school canteen.

After the Child Petitioner returned home from school at the end of the school day, he told his grandmother that the Art teacher had slapped him and that his ear was aching. Thereafter the Child Petitioner was taken to the Kirinda-Puhulwella Rural Hospital and his ear had been examined. The Doctor has commented that there is eardrum damage and recommended that he be admitted to the Matara General Hospital. The Child Petitioner was thereafter transferred to Karapitiya Teaching Hospital on 14-02-2017 for further investigation and had returned to Matara General Hospital on the same day. A statement was recorded by the Police while the Child Petitioner was at the Matara General Hospital and the Petitioner was thereafter discharged. However, as there had been no conclusive treatment, the Child Petitioner continued to be in excruciating pain after returning home. Being unsatisfied with the treatment at the previous hospitals, petitioner 2 after discussing with Petitioner 1 decided to admit the Child Petitioner to Colombo National Hospital on the 15-02-2017 for treatment and further investigation.

The medical investigations written by the Doctors of the Colombo National Hospital, demonstrated that the finding was that one of a perforated ear drum and that the Child Petitioner was suffering from “conductive hearing loss” on the left ear in hearing low frequencies. The Petitioners believed this to have been caused by the assault on the Child Petitioner by Respondent as the Child Petitioner did not have any history of hearing loss prior to this incident. The report from the Audiology Department made the comment that there was normal hearing in the right ear, but that there was Mild Conductive hearing loss only at low frequencies in the left ear.

The Court discussed Article 11 of the Constitution, Article 37 of Child Rights Convention, Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights and Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment all of which dealt with Violation of Fundamental Rights (Corporal Punishment and torture).

The Court further relied on the judgment of Bandara v. Wickremasinghe, (1995) 2 SLR 167 where it was held that,

            “I agree that discipline of students is a matter within the purview of schoolteachers. It would follow that whenever they purport to maintain discipline, they act under the colour of office. If in doing so, they exceed their power, they may become liable for infringement of fundamental rights by executive or administrative action.”

The Court further dealt with the contention of the respondent where he had stated that he did not know any details of the Child Petitioner, and bore no personal grudge against the Child Petitioner prior to this incident and thus that there was never any malicious intent on his part, the Court explained that there was a requirement of malice or intent required for the violation of Article 11 or Article 17 of the Constitution. Further, it is established through the circulars by the Education Ministry, in circular 12/2016 paragraph 2.4, that even with the best interest of the child and the discipline of the school in mind, a teacher may be in violation of all relevant provisions in reference to Corporal Punishment. Thus, the intention of the perpetrator is irrelevant to the illegality of Corporal Punishment, be it a teacher, parent, guardian or any other adult under who’s care or contact that the minor may be in, for the sole reason that it is the duty of the State to protect children from all forms of physical violence.

The Court held that, I must also recognise that the elimination of the practice of Corporal Punishment may not be achieved through isolated incidents, but a profound understanding by those entrusted with the care of children that violence is not a justifiable means to the end of discipline. Cruelty, violence, physical harm, particularly in the view of setting an example is condemned by all major faiths of our country, which forms the bedrock of our culture. The Dhammapada, profoundly states as follows:

As one instructs others, so should one act; if one would tame others, one should first be well tamed. Truly, it is very hard to tame oneself”

It is thus clear, that those guiding and instructing impressionable children, do not set a suitable example in impulsively engaging in violent acts that harm children in the name of disciplining them, as children are only likely to carry forward this behavior. If teachers aim to instill self-discipline and non-violence in children, they must set the example by instilling the same values in themselves. While this is difficult practice, if one is to expect this of children, they are to reflect it and expect it of themselves.

The Court allowed the application finding that Fundamental Rights of the Child Petitioner enshrined in Article 11 of the Constitution had been violated by the Respondent and the State. The Court after careful examination of all facts and relevant matters, especially permanent lifelong damage to the Child Petitioner’s hearing ability ordered compensation of Rs. 1,50,000 from the Respondent to the Child Petitioner and a further sum of Rs 5,00,000 by the State to be paid to the Child Petitioner.[Hewa Maddumage Karunapala v. Jayantha Prema Kumara Siriwardhana, Case no. SC/FR/97 of 2017, decided on 12-02-2021]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., while addressing the instant matter, observed that:

The wife and children of a personnel of the Air Force who has sworn to put his life in peril deserve a treatment different from that of a civilian who has no obligation to sacrifice his life for the country.

Petitioner, a sergeant in the Indian Air Force (IAF) filed the petition in regard to the following:

  • impugning the Air Force Order issued by respondent 2 Chief of Air Staff
  • impugning the administrative order issued by the Chief of Air Staff, sanctioning maintenance claim against the petitioner.
  • Seeking maintenance, directing respondent 2 Chief of Air Staff to refund the amount of maintenance granted under the administrative order, to the son of the petitioner and payable to the respondent 5 i.e. wife of the petitioner.

What the petitioner alleged?

Petitioner’s wife left matrimonial home along with her son and refused to join the petitioner in spite of repeated efforts of the petitioner. Petitioner approached the family court for dissolution of marriage and further initiated custody proceedings for his son.

As a counterblast, wife of the petitioner initiated proceedings under Section 125 of the Criminal Procedure Code, 1973 for maintenance and also approached the Court under Section 156(3) CrPC for registration of a case under Sections 141, 149, 363, 504 & 506 of the Penal Code, 1860 against the petitioner and his parents.

Wife of the petitioner also filed a false and fabricated case under Section 498A of the IPC against the petitioner and his parents but the proceedings in the criminal complaint, as well as the case under Section 498A of the IPC, were stayed by the Allahabad High Court.

Analysis and Decision

Petitioner’s counsel drew the Court’s attention to Sections 190, 191 and 191A of the Air Force Act, 1950 empowering the Central Government to make regulations for all or any of the purposes of the Act other than those specified in Section 189 and requiring the regulations so made to be published in the Gazette and to be laid before the Parliament.

Section 91(i), in exercise of powers whereunder the impugned AFO No. 03/2013 has been issued, shows the same as authorising deduction from pay and allowances of an officer of any sum required by order of the Central Government to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

Petitioner being a sergeant, the above-stated section would not apply to him.

Section 92(i) authorises deduction from the pay and allowances of an airman, of any sum required by order of the Central Government or any prescribed officer to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

The Court opined that once (a) there is a specific provision in the Air Force Act i.e. in Sections 91(i) and 92(i) thereof and to which there is no challenge, qua deduction from the pay and allowances, for payment of maintenance; (b) Rule 162, to which also there is no challenge, defines the ‘prescribed officer’ within the meaning of Section 92(i); and, (c) the Air Force Regulations in Regulation 917, to which also there is no challenge, provides that Air Force orders will be issued by the Chief of Air Staff, the impugned order has been issued in compliance of all the said provisions and there was no the need for the said order to be laid before the Parliament or to be notified/ratified इन accordance with Sections 190, 191 and 191A of the Act.

Just like the Courts draw their power to pass orders/decrees for payment of maintenance, from the statutes mentioned hereinabove, so does the Central Government and/or the prescribed officer draw power to award maintenance to wife and children of Air Force personnel from the provisions of the Air Force Act.

Next plea in the petition that was considered was, of the Air Force personnel being discriminated against vis-a-vis civilians, orders for payment of maintenance to wife and children whereagainst can be passed only by the Courts and not by the Central Government or the prescribed officer.

Regarding this, the Bench observed that:

Certainly it is not open to Air Force personnel, to have the privileges not available to civilians and reject the obligations, also not imposed on the civilians. The counsel for the petitioner also forgets that while the civilians can be punished only by the Courts of the land, the Air Force personnel can be tried and punished also by the Authorities under the Air Force Act. What is evident therefrom is, that personnel of the Air Force, form a class by themselves, distinct from the civilians.

Additional observations of the Court:

Sections 16 and 17 of the Air Force Act provides for all persons, enrolled as combatants, selected to hold a non- commissioned rank and subject to the Air Force Act, to be attested and which attestation is in the form of administration of oath containing a promise inter alia to obey all commands of any officer set over him, even to the peril of his life.

The said oath taken by the defence personnel, to the said extent is different from the oath required to be taken vide Articles 60, 69, 124 and 219 of the Constitution of India by the President, Vice-President, Judges of the Supreme Court and the Judges of the High Courts respectively, none of whom swear to place their life at peril for the service of the country.

Bench found no merit in the challenge by petitioner to AFO No. 3 of 2013. The said AFO did not make any legislative change and only guided the exercise of discretion and power vested by Sections 91(i) and 92(i) in the Central Government and the prescribed officer to make deductions from the salary and allowance for payment of maintenance to wife and children.

In Suneel v. Union of India 2003 SCC OnLine Del 810, question in the context of Army Act was considered and it was held that in view of the statutory provisions, the Authorities under the Army Act could not be debarred from making an order of maintenance in favour of wife and children of an Army personnel.[Sergeant Ajit Kumar Shukla v. Union of India,  2020 SCC OnLine Del 1590, decided on 10-11-2020]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., confirmed the conviction and sentence of the appellant, who was convicted by the trial court for the offence punishable under Section 6 (punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) and Section 366-A (procuration of minor girl) of the Penal Code, 1860.

Crime and conviction

The appellant was a tenant in the house of the child-victim’s maternal grandmother (“nani”). The victim called the appellant “mama” (maternal uncle). As per the victim, one day when she was returning her home from her nani’s house, the appellant stopped her on the staircase and took her to his room where he inserted his hand in her private part. She tried to stop him and threw her “chappal” (slipper) at him. After which, she opened the lock of the room from inside and ran to her home where she narrated the entire incident to her mother. The mother of the victim took her to the police station where crime was registered.

The appellant was convicted by the trial court for under Section 6 of POCSO and Section 366-A IPC and sentenced to suffer 10 years RI and 5 years RI along with the imposition of fine respectively under the two provisions.

Appeal

Aggrieved by the decision of the trial court, the appellant preferred the present appeal where he submitted, among other things, that the child-victim’s testimony was doubtful as she had stated that the appellant inserted his hand in her private part, but on medical examination, no injury or swelling was noticed. It was also submitted that the appellant was falsely implicated due to certain monetary dispute between him and family of the victim. The State, on the other hand, opposed the present appeal.

The appellant was represented by Kanhaiya Singhal, Advocate; while Radhika Kolluru, APP, appeared for the State.

Analysis, law and decision

The High Court noted that as per the medical examination of the victim, there was no abrasion, swelling or bleeding in her private part.

At the outset, the Court referred to the Supreme Court decisions in Vijay v. State of M.P., (2010) 8 SCC 191 and Rajinder v. State of H.P., (2009) 16 SCC 69 to restate the settled law that that in a case of rape, the finding of guilt can be recorded even on the basis of uncorroborated testimony of the prosecutrix, provided it is cogent and reliable. Reliance was also placed on State of M.P. v. Ramesh, (2011) 4 SCC 786 and Ranjit Kumar Ram v. State of Bihar, (2015) SCC OnLine SC 500 for remembering that testimony of a child witness has to be evaluated more carefully as it is susceptible to tutoring.

In the present case, however, the Court found that the child was not tutored and her testimony stood the test of extra caution.

Regarding the absence of injury on the child-victim, the Court observed:

A perusal of the testimony of the child-victim would show that the present case is of ‘insertion’ and not of ‘penetration’. Although on local examination, the Doctor did not notice any abrasion/swelling/bleeding but absence of any injury on superficial examination does not lead to an inference that no offence took place. Even in a case of penetration, the consistent judicial diktat is that absence of injuries may not always be fatal to the prosecution case and the same would depend on the facts of each case.

On the contention of false implication, the Court noted that there were contradictions in the appellant’s own defence and thus there was no merit in such submission.

After careful consideration of the testimony of the child-victim, the Court was of the opinion that she had consistently stated about the incident in all of her statements. Her evidence was trustworthy, reliable and also admissible. The appellant failed to dislodge the statutory presumption under Sections 29 and 30 of the POCSO Act.

In such view of the matter, the Court dismissed the appeal and affirmed the decision of the trial court. [Ishwer Soni v. State (NCT of Delhi),  2020 SCC OnLine Del 1378, decided on 23-10-2020]

Law made Easy

“Child” as defined by the Child Labour (Prohibition and Regulation) Act, 1986 is a person who has not completed the age of fourteen years.

Children, by will or by force are employed to work in the harsh conditions and atmosphere which becomes a threat to their life.

No child (below the age of 14 years) shall be employed or permitted to work in any occupation or process.

Hiring children below the age of 14 years for any kind of work, other than in certain family-based work, is a cognizable offence and will attract a jail term of upto 2 years. Adolescents between the age of 14 – 18 years cannot be employed in any hazardous occupation.

Hazardous Employment

Hazardous child labour is work that is performed by children in dangerous and unhealthy conditions that can lead to a child being killed, injured or made ill as a result of poor safety and health standards or employment conditions. This is referred to as hazardous child labour.

Examples of hazardous employment are-

  • Anything that can cause spills or trips such as cords running across the floor or ice
  • Anything that can cause falls such as working from heights, including ladders, scaffolds, roofs, or any raised work area
  • Unguarded machinery and moving machinery parts that a worker can accidentally touch
  • Electrical hazards like frayed cords, missing ground pins, improper wiring
  • Confined spaces.

Rules for employing Adolescents

The Child Labour (Prevention and Regulation) Amendment Act allows adolescents to work in non-hazardous occupations and processes. If an adolescent is employed, the following conditions must be satisfied by the employer:

  • The period of work on each day should be fixed in a manner that no period or work would exceed three hours.
  • The adolescent must have an interval for rest for at least one hour after working for three hours.
  • The total time spent working by an adolescent cannot exceed 6 hours in a day, including the time spent in waiting for work.
  • Adolescents cannot be employed during the hours of 7PM to 8AM.
  • Adolescents cannot be made to work overtime.
  • Adolescents cannot work in more than one establishment, at anytime.
  • Adolescents must be provided in every week, a holiday of one whole day.

Punishments relating to child labour

  • For parents/guardians There shall not be any punishment in case of a first offence by parents/guardians. In case of a second and subsequent offence, the penalty prescribed is a maximum fine of Rs. 10,000.
  • For employer- Any offence committed by an employer which is punishable under the Child Labour act has been made a cognizable offence. Accordingly, the authorities can file a first information report and commence investigations into the offence without a court order and can arrest without a warrant.
  • PenaltyEmployment of a child or permitting a child to work in any occupation or process in contravention to the statute would lead to Imprisonment of: 6 months to 2 years Fine: Rs.20,000 to Rs. 50,000 or both.

How can we eliminate child labour from our society?

Education is a human right with immense power to transform. On its foundation rest the cornerstones of freedom, democracy and sustainable human development Child labour can limit the time and energy children spend on education. Many forms of child labour are prohibited in international standards. While child labour can be an obstacle to education, at the same time education is instrumental in the prevention of child labour.  Through education, parents and children alike become more aware of its benefits, and the harm that child labour can cause.  And access to education helps reduce poverty, one of the root causes of child labour. It can be concluded that education is the key to abolish child labour across the globe.

Role/Importance of education or Right to Education Act in eliminating child labour

The RTE act is not innovative law. Universal adult franchise in the act was opposed since most of the population was illiterate. Article 45 in the Constitution of India was set up as an act: “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years”

  • The Act makes education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in elementary schools. It requires all private schools to reserve 25% of seats to children from poor families (to be reimbursed by the state as part of the public-private partnership plan).

STOP Child Labour- It promotes jobs & protects people.


*This Article is a part of the ‘Know Your Rights’ series by Centre for Clinical Legal Education, Maharashtra National Law University, Mumbai 

Tribunals/Commissions/Regulatory Bodies

NHRC notice to Karnataka Government over practice of neck deep burying of children in compost pits to find cure for their deformities 

The National Human Rights Commission,  India has taken suo motu cognizance of a media report that children with special needs were buried neck-deep in compost pits in Kalaburagi, Karnataka under the belief that exposure to sharp rays during a solar eclipse will cure them of their deformities.

The incidents were reported from three villages in the district: Taj-Sultanpur on the outskirts of Kalaburagi town and Ainolli and Gadi-Lingadalli villages in Chincholi Taluk. Reportedly, following a tip-off, the district child protection task force had rescued the children and reunited them with their families after a medical examination.

The Commission has observed that such rituals tantamount to violation of the human rights of the victim children. There is a need to sensitize the authorities as well as the parents of such children not to victimize the young ones in the name of blind faith.

Accordingly, it has issued a notice to the Govt. of Karnataka through its Chief Secretary calling for a detailed report in the matter.

The Commission would like to know whether, apart from Kalaburagi, this inhuman practice is prevalent in other districts of the State, if so, what action is being taken by the authorities. The report must include if the State Government has issued any guidelines with regard to the subject and status of its implementation. The response is expected within six weeks. The Chief Secretary of the State is expected to look into the matter personally.

Issuing the notice, the Commission has observed that due to spread of COVID-19 virus, the social distancing is being maintained and it is not advisable to organize awareness camps etc. in the villages but through local authorities, with the help of media and various digital modes like video conferencing etc., the awareness with regard to the ill practice and its impact on the tender minds of the children is required to be created amongst the public at large.

Commission has further observed that the ritual appears weird, unethical and cruel towards poor kids, who are being treated with indignity in the name of faith.

Today, when the medical science is progressing and very complicated surgeries are being conducted in the country itself, the young children with deformities required medical care and treatment and not such kind of inhuman practice, which not only subjects them to humiliation but may also cause a kind of inferiority complex. A child who would suffer such trauma will find it definitely very hard to overcome its adverse impact. It will be a nightmare for him/her throughout life.

According to the media report, some sources in the district administration had revealed that the poor children remained buried in the pits for the full duration of the solar eclipse in the rerun of a similar incident reported a decade ago.

The Child Welfare Committee had reportedly intervened into the matter and its Chairman had stated that the rescued children were handed over to their parents after a counseling session. The news report also revealed that one Dr. S. Kamareddy, an orthopaedic surgeon from Kalaburagi town, had offered to perform the rectification surgeries on children, without any cost. The incident was reported earlier also sometime back.


National Human Rights Commission

[Press Release dt. 10-08-2020]

Hot Off The PressNews

Information given by the Minister of Women and Child Development, Smriti Zubin Irani

“Police” and “Public Order” are State subjects as per the Constitution of India. States/UTs are primarily responsible for prevention, detection, investigation and prosecution of crimes including crimes related to exploitation of children; through their law enforcement machinery. The law enforcement agencies take legal action as per provisions of law against persons involved in digital sexual exploitation/ abuse of children. The Information Technology (IT) Act, 2000 has adequate provisions to deal with prevailing cybercrimes. Section 67B of the Act specifically provides stringent punishment for publishing, browsing or transmitting child pornography in electronic form. Further, sections 354A and 354D of Indian Penal Code provide punishment for cyber bullying and cyber stalking against women.

Details of further action taken by the Government are as under:

Ministry of Home Affairs has approved a scheme namely ‘Cyber Crime Prevention against Women and Children (CCPWC)’ under which an online Cyber Crime reporting portal, (www.cybercrime.gov.in) has been launched to enable public to report complaints pertaining to Child Pornography/ Child Sexual Abuse Material, rape/gang rape imageries or sexually explicit content. This portal facilitates the public to lodge complaints anonymously or through Report and track option. Steps have also been taken to spread awareness, issue of alerts/advisories, training of law enforcement agencies, improving cyber forensic facilities etc. These steps help to prevent such cases and speed up investigation. A handbook on Cyber Safety for Adolescents/Students has been released (Copy available on www.cybercrime.gov.in and www.mha.gov.in) and sent to all States/ Union Territories for wide circulation. Cyber Crime awareness campaign has been launched through twitter handle (@CyberDost) and radio across the country.

The Ministry of Women and Child Development had enacted the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) as a special law to protect children from offences of sexual assault, sexual harassment and pornography. Section 13 to Section 15 deals with the issue of child pornography.

Section 14 and Section 15 lays down the punishment for using the child for pornographic purposes and for storage of pornographic material involving the child.

Further Section 28 of the POCSO Act 2012 provides for the establishment of Special Courts for the purpose of providing speedy trial of offences under the Act.

Section 43 of the POCSO Act, 2012 provides that the Central Government and every State Government takes all measures to give wide publicity to the provisions of the Act. In accordance with this, MWCD has taken various steps from time to time to create awareness of the provisions of the POCSO Act through electronic and print media, consultations, workshops and training programmes with stakeholders concerned. Further, the National Commission for Protection of Child Rights (NCPCR) and State Commission for Protection of Child Rights (SCPCRs) are also mandated to monitor the implementation of the POCSO Act, 2012.

Government has taken a number of steps to be implemented by Internet Service Providers (ISPs) to protect children from sexual abuse online. These include:

Government blocks the websites containing extreme Child sexual Abuse Material (CSAM) based on INTERPOL’s “Worst-of-list” shared periodically by the Central Bureau of Investigation (CBI) which is the National Nodal Agency for Interpol. The list is shared with Department of Telecommunications (DoT), who then directs major ISPs to block such websites.

Government ordered major Internet Service Providers(ISPs) in India to adopt and disable/remove the online CSAM dynamically based on Internet Watch Foundation (IWF), UK list.

Ministry of Electronics and Information Technology (MeitY) has implemented a major programme on Information Security Education and Awareness (ISEA). A dedicated website for information security awareness (https://www.infosecawareness.in) has also been set up.


Press Release dt. 18-07-2019

[Source: PIB]

Legislation UpdatesNotifications

S.O. 1595(E)— In pursuance of Section 4 of the Commission for Protection of Child Rights Act, 2005 (4 of 2006), the Government of India hereby appoint Ms Pragna Parande as Member (Juvenile justice or care of neglected or marginalized children or children with disabilities), National Commission for Protection of Child Rights in the pay scale equivalent to that of an Additional Secretary to the Government of India with effect from 09th March, 2019(A/N) for a period of three years, or until on attaining the age of 60 years, or until further orders, whichever is the earlier.

S.O. 1596(E) — In pursuance of Section 4 of the Commission for Protection of Child Rights Act, 2005 (4 of 2006), the Government of India hereby appoint Ms Rosy Taba as Member (Elimination of child labour or children in distress), National Commission for Protection of Child Rights in the pay scale equivalent to that of an Additional Secretary to the Government of India with effect from 10th March, 2019(F/N) for a period of three years, or until on attaining the age of 60 years, or until further orders, whichever is the earlier.

[Dt. 27-03-2019]

Ministry of Women and Child Development

Case BriefsForeign Courts

United Kingdom Supreme Court: The 6-Judge Bench comprising of Lady Hale, President, Lord Kerr, Lord Wilson, Lord Carnwath and Lady Black addressed an appeal that concerns the limits of a local authority’s powers and duties to provide accommodation for children in need under Section 20 of the Children Act 1989 (CA).

The facts of the case state that the appellants are the parents of eight children and their 12 year old son was caught shop-lifting. The reasons stated by the child were that he had no money for lunch and that his father used to beat him. On visiting the child’s home, police found the conditions of his home to be unfit for habitation by children. Police exercised powers under Section 46 of the Children Act, 1989 in order to provide foster replacements to the children for a better environment to them. Further, the parents were arrested and interrogated but later released on bail with the condition that they could not have unsupervised contact with any of their children.

The Supreme Court observed in the present case that, the parents had signed a ‘Safeguarding Agreement’, by which they had agreed to let the children remain with their foster replacements and in order of the stated fact, and no objection or request been made by the parents for the return of children it was a lawful basis for the children’s continued accommodation under Section 20.

Therefore, the point of concern raised in the said appeal about the powers and limits of local authorities was answered in the following manner: “Section 20 gives local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it does”. Also, the parents should be given full information in regard to the said provision, as in the present case the parents were not provided with the same that they should have been. The Court dismissed the appeal for reasons which differ from those of the Court of Appeal. [William v. Borough of Hackney, [2018] 3 WLR 503, dated 18-07-2018]