Op EdsOP. ED.

While a Division Bench of the Delhi High Court is hearing a challenge to the constitutional validity of the law relating to marital rape, this article aspires to examine another aspect of rape: whether consensual sexual intercourse on a false promise to marry would amount to rape. As per the century-and-a-half old Penal Code1, “consent” or the lack of it is the cornerstone to classify copulation as rape. If one exists, the other disappears.2So, this piece examines the dichotomy in the judicial opinions on the subject.

Sections 375 to 3773 IPC define “sexual offences” and prescribe punishment too. As adverted to above, of pivotal importance for attracting these offences is whether there is wilful consent for the act. In the language of Section 3754 itself, the legislature has specified seven descriptive circumstances when the offence of rape occurs. Of course, consent obtained by threat or coercion or under intoxication cannot be considered consent given by free will. As is evident from a bare reading of the above seven circumstances mentioned in the provision, none of them can be considered “consent” by free will.

It was in Uday v. State of Karnataka[1], the Supreme Court had, for the first time, an occasion to consider the question whether consent given by a woman based on a promise to marry by the man would amount to rape. In that case, the woman and the man were in love with each other, and the woman had consented to sexual intercourse. It led to her pregnancy. While acquitting the accused, the Court held that the question whether consent was given on a misconception of fact was to be decided on a case-to-case basis; after examining several judgments of various High Courts, the Court in Uday6 has held:

  1. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under misconception of fact. A false promise is not a fact within the meaning of the Code….

While thus holding, the Court has also noted that the issue whether the consent was free or not and the surrounding circumstances of the “consent” have to be examined on a case-to-case basis. The Court, in the end, holds:

25.… In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC7. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception….8

The Court, however, has not answered the question whether “misconception of fact” in Section 90 has to be restricted to circumstances spelt out in Section 375 and whether Section 90, too, applies to circumstances not enumerated in Section 375.9

            Subsequently, in Deelip Singh v. State of Bihar10, the Court has also laid down the test whether at the very inception of his making the promise, the accused held out a false promise to secure the consent. The Court has noted that the phrase “against the will” seemed “to connote that the offending act was done despite resistance and opposition of the woman”.11 The Court has placed reliance on Section 90, and held:

  1. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirement of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person given the consent had given it under fear of injury or misconception of fact and the court should also be satisfied … of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.12

Neither in Uday13 nor in Deelip Singh14 was the consent obtained forcibly. Contrast this with Yedla Srinivasa Rao v. State of A.P.15In that case, the accused had intercourse with the victim forcibly. Then, after impregnating, he pacified her by promising marriage. The conviction was upheld, as the Court held that the intention was not honest from the beginning; he only promised to marry the prosecutrix when she became pregnant. The facts of this case are different to the extent that there was no consent for sexual intercourse; therefore, the circumstance mentioned as “firstly”—against her will—stood satisfied. Coercive element established, the Court ought not have even enquired into the existence of any promise or assurance to marry. It is non sequitur. Respectfully, it is submitted that Court has erred in holding:

  1. In the present case, in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law….16

In Deepak Gulati v. State of Haryana17, the woman consented to sexual intercourse on the understanding that the accused would marry her, though “she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor”. On his conviction, the accused had served over three years of his sentence before the Supreme Court acquitted him. In that context, the Court has held:

  1. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understating the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.18

In Kaini Rajan v. State of Kerala19, the accused was acquitted on a reasonable doubt in the prosecution’s case. The Supreme  Court has observed:

  1. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her or any person in whom she is interested in fear of death or hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See State of H.P. v. Mango Ram20)

In Karthi v. State21, as was in Yedla Srinivasa Rao22, to the first instance of sexual intercourse, there was no consent. But later, the accused silenced the prosecutrix with a promise of marriage. Thereafter, several acts of intercourse took place—with her consent. In that backdrop, the Supreme Court has upheld the conviction for rape. Similarly, in State of U.P. v. Naushad23, the Court placed reliance on Section 90 and held:

  1. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have been obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. 

More recently, in Pramod SuryabhanPawar v. State of Maharashtra24, while acquitting the accused, the Supreme Court has summarised the law:

  1. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two proportions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the women’s decision to engage in the sexual act.

 The law regarding “consent” has been followed in Anurag Soni v. State of Chhattisgarh25. In that case, the consent for sexual intercourse was found to be on “a misconception of fact” as understood under Section 90. From the beginning, as it emerged, the accused had no intention to marry the prosecutrix. While making his promise, the accused knew it to be a false one. In Dhruvaram Murlidhar Sonar v. State of Maharashtra26, while allowing the appeal, the Supreme Court has examined the law on the subject and held:

  1. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by the accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant (sic) had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC27.

Even in Maheshwar Tigga v. State of Jharkhand28, the Supreme Court adhered to the law laid down from Uday29 onwards. But in the facts and circumstances of that case, the Court has held that “the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her….”30 As a result, the accused was acquitted. More recently, in Sonu v. State of U.P.31, the Supreme Court quashed an FIR, on the ground that:

  1. (t)here is no allegation to the effect that the promise to marry was given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR.32

Thus, for almost two decades, the law has consistently been that a consent given for sexual intercourse on a false promise to marry would be a consent given on the “misconception of fact” and hence, does not amount to valid consent under Section 90. In other words, it amounts to rape. The Court, in all the above quoted judgments, has not considered Explanation 2 to Section 375, which reads as under:

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.33

Put plainly, “consent” must unequivocally be for the sexual act, and the basis for the consent is not relevant for the purpose of the section. Further, the word “fact” in Section 90, of which there must be a “misconception”, ought to be of the sexual act, and not some other circumstance or fact. That is, for the offence not to be attracted, the sexual act must be consented to. Indeed, the Court has recognised in KainiRajan34 that “consent” was “an act of reason coupled with deliberation” and that it denotes “an active will in the mind of a person to permit the doing of an act complained of”.35

In our respectful view, if there is free and unequivocal consent for the sexual act—in the absence of any specific legislative mandate—the basis for such free and unequivocal consent, such as a promise to marry, is irrelevant. The intent of the legislature is clear from the second explanation. With utmost respect, when the provision categorically enumerates situations in which consent obtained under either threat or coercion as being no consent, and the section having categorically left out conditional consent, it cannot be said that consent obtained on a promise to marry is not free consent. What is germane to Section 375 is whether there is consent by free will for sexual intercourse, and such consent is not obtained from a girl of less than 18 years of age or such consent is not obtained by threat, coercion or intoxication. When none of these factors are directly attracted, and a consent is given on “promise to marry”, it can hardly be said that such consent is not consent by free will.

For example, in R. v. Flattery36, a nineteen-year-old girl consulted the accused, a doctor, for treatment for an illness. And the accused, on the pretext of giving her surgical treatment, had carnal intercourse. The victim having submitted herself on the genuine belief that she was being treated, the accused was held guilty of rape. Similarly, in R. v. Williams37, when the accused, who was engaged by the victim to give her lessons in singing, had sexual intercourse with the victim on the pretext that he had to perform an operation on her to produce her voice properly. Thus, the victim having submitted herself on this premise but without any intention of having sexual intercourse, the King’s Bench upheld the conviction of rape. In Williams38, the King’s Bench Court placed reliance on the opinion of Branson, J. in Reg. v. Dicken39 thus:

Branson, J. stated the law in the course of the summing up in the present case in accurate terms. He said: “The law has laid it down that where a girl’s consent is procured by the means which the girl says this prisoner adopted, that is to say, where she is persuaded that what is being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her relief from some disability from which she is suffering, then that is rape although the actual thing that was done was done with her consent, because she never consented to the act of sexual intercourse. She was persuaded to consent to what he did because she thought it was a surgical operation.40

In other words, only when the consent is given for an act, which the consent giver is not knowing to be a sexual act, can the offence of rape be attracted. Such a consent would fall within the ambit of “misconception of fact” even under Section 90 IPC. It is settled law that a criminal statute must be interpreted in a strict manner, and, it is submitted, the law laid down by the Supreme Court regarding “the consent for sexual intercourse on a false promise to marry” as attracting the offence of rape would amount to reading words into the statute—words that do not exist.

Recently, two High Courts, while taking a completely contrary stand on the issue, have expressed a need for the legislature to clarify the issue. The Allahabad High Court, in Harshvardhan Yadav v. State of U.P.41, has noted that till the legislature provides for “a clear and specific legal framework where the accused obtained consent for sexual intercourse on the false promise of marriage”, the Court should continue to give protection “to such women who have suffered on account of false promise of marriage”.42 Conversely, the Orissa High Court in G. Achyut Kumar v. State of Odisha43, while hearing an application for bail, has opined that “the automatic extension of provision of Section 90 IPC to determine the effect of a consent under Section 375 deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous”.44

It is submitted that intertwining consent for intercourse with marriage may not reflect the change in societal attitude. In the present day and age, the law recognises a “relationship in the nature of marriage”45 —colloquially called a live-in relationship. It was once frowned upon as morally decadent. O tempora, o mores! So, the interpretation given by the Supreme Court, with marching times and changing social mores, requires a reconsideration. From Uday46 to Sonu47, the law on this aspect has stood like a rock—fossilised, so to say. In an appropriate case, the Supreme Court must revisit the purport of “misconception of fact” in Section 90 for the offence of rape.


*Advocate on Record, Supreme Court of India.

**Advocate on Record, Supreme Court of India. Author can be reached at amitpaioffice@gmail.com.

1Penal Code, 1860.

2This would not apply to “consent” by a girl less than 18 years of age.

3Penal Code, 1860, Ss. 375-377.

4Penal Code, S. 375.

[1](2003) 4 SCC 46.

6(2003) 4 SCC 46, 56-57.

7Penal Code, 1860, S. 90.

8Uday v. State of Karnataka, (2003) 4 SCC 46, 58.

9Uday v. State of Karnataka, (2003) 4 SCC 46, 59, para 26.

10(2005) 1 SCC 88.

11Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 97, para 12.

12Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 99.

13(2003) 4 SCC 46.

14(2005) 1 SCC 88.

15(2006) 11 SCC 615.

16Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615, 624.

17(2013) 7 SCC 675.

18Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, 682.

19(2013) 9 SCC 113, 118.

20(2000) 7 SCC 224.

21(2013) 12 SCC 710.

22(2006) 11 SCC 615.

23(2013) 16 SCC 651, 658.

24(2019) 9 SCC 608, 620.

25(2019) 13 SCC 1.

26(2019) 18 SCC 191, 202.

27Penal Code, 1860, S. 376.

28(2020) 10 SCC 108.

29(2003) 4 SCC 46.

30Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108, 117,para 20.

312021 SCC OnLine SC 181.

32Sonu v. State of U.P., 2021 SCC OnLine SC 181.

33Penal Code, 1860, Expln. 2 to S. 375.

34(2013) 9 SCC 113.

35KainiRajan v. State of Kerala, (2013) 9 SCC 113, 118.

36(1877) 2 QBD 410.

37(1923) 1 KB 340.

38(1923) 1 KB 340.

39 (1877) 14 Cox, C.C. 8.

40See R. v. Williams, (1923) 1 KB 340, 347.

412021 SCC OnLine All 500.

42Harshvardhan Yadav v. State of U.P., 2021 SCC OnLine All 500, para 30.

432020 SCC OnLine Ori 417.

44G. Achyut Kumar v. State of Odisha, 2020 SCC OnLine Ori 417, para 15.

45See, Protection of Women from Domestic Violence Act, 2005.

46(2003) 4 SCC 46.

472021 SCC OnLine SC 181.

Case BriefsHigh Courts

Karnataka High Court: S. Sunil Dutt Yadav J. disposed off the petition and reinstated an observation “If any money is due to the Government, the Government should take steps but not take extra steps or maneuver…”

Factual Background

The facts of the case are such that the petitioner operates an e commerce platform under the name ‘Swiggy’ and is registered under the Central Goods and Services tax Act, 2017. Due to spike in food orders during holidays and festive season, third party service providers i.e. Greenfich in the present case, are engaged who charge consideration for the same along with GST which is paid by the petitioner as Input Tax Credit. An investigation was conducted by the respondent Department on the ground that Greenfich was a non existent entity and ITC availed are fraudulent. The petitioner alleged that a sum of Rs. 27 crores was illegally collected from the petitioner during the investigation proceedings under threat of arrest and coercion. Hence the instant petition was filed seeking a writ of mandamus directing the respondents to refund the amount illegally collected.

 Submissions

Counsel for the petitioners Mr. Lakshmikumaran and Mr. Ravi Raghavan submitted that payment has been collected under duress and coercion which is clear from a letter presented before the Court dated 30-11-2019. It was further submitted that the manner in which the investigation was conducted and payments were made reflects an unfair and arbitrary treatment of a bonafide tax payer as petitioner’s credibility as tax payer could never have been doubt by presenting documents for the same.

Counsel for the respondents Mr. M B Naragund and Mr. Amit Despande submitted that according to letter dated 30-11-2019 it is clear that the payments were made as a goodwill gesture and are to be construed as payment of tax in furtherance of self ascertainment as contemplated under section 74(5) of the CGST Act. It was further submitted that the petitioner has exercised its statutory right of refund and is bound to follow the procedure to its logical end by invoking the remedies available under the statutory scheme of the Act, thus invoking writ jurisdiction is impermissible.

Observations

The Court observed that the mere fact that application has been made for refund does not in anyway take away the right of the petitioner to seek for appropriate direction in the present proceedings, as the application for refund has merely been deferred and in effect no decision is taken, even otherwise, the question of alternate remedy is of no significance, when the eventual direction in the present writ is only for consideration of the refund application.

The Court further observed that the letter dated 30-11-2019 is clear and unambiguous wherein it is stated that the amount is made in furtherance of their goodwill conduct and bonafide during the pendency of the inspection proceedings and seeking necessary refund should not be regarded as an admission of liability.

The Court observed that the scheme of self ascertainment as contained in sub sections (5) (6) (7) (8) of Section 74 of CGST Act does not call for making of payment and continuance of investigation. “Upon payment of tax after collection of the same with penalty, if the same is accepted even before the issuance of notice under Section 74 (1) during investigation, there ends the matter and there is nothing further to be proceeded with.”

The Court observed that while considering the time at which the amount was deposited and the date of the deposit, it would indicate that amounts were paid during times when there was no legal obligation to make payment. It was further observed that the matter regarding wrongful availment of input tax credit was pending investigation and the Department acted in undue haste to ensure that taxes are paid during the process of investigation instead of allowing the investigation to proceed and conclude in accordance with law.

The Court relied on judgment Dabur India Limited v. State of Uttar Pradesh, (1990) 4 SCC 113 and observed that This is unfortunate. We would not like to hear from a litigant in this country that the Government is coercing citizens of this country to make payment of duties which the litigant is contending not to be leviable. Government, of course, is entitled to enforce payment and for that purpose to take all legal steps but the Government, Central or State, cannot be permitted to play dirty games with the citizens of this country to coerce them in making payments which the citizens were not legally obliged to make.”

The Court further observed that it does not desire to place any sort of fetter on the power of investigation and it would be unwise to impose any kind of time limit, for it is the authority which should be permitted to complete its investigation in a manner as may be desired by it as is permissible.

The Court thus held “the consideration of right of refund in the present factual matrix would be independent of the process of investigation and two cannot be linked together”

“Accordingly refund applications are to be considered and suitable orders be passed within a period of four weeks from the date of the release of the order.

[Bundl Technologies Private Limited v. Union of India, 2021 SCC OnLine Kar 14702, decided on 14-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.

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

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States: Roberts, CJ., while addressing a matter with regard to artworks obtained by Nazis from Jewish art dealers with the usage of coercion, held that:

The phrase “rights in property taken in violation of international law,” as used in the Foreign Sovereign Immunities Act expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.

The Foreign Sovereign Immunities Act provides that foreign nations are presumptively immune from the jurisdiction of United States Courts. One of the exceptions under the statute is:

a sovereign does not enjoy immunity in any case “in which rights in property taken in violation of international law are in issue.”

 The question to be considered in view of the above exception is: Whether a country’s alleged taking of property from its own nationals falls in the above exception?

 Factual Matrix

Present matter is in with regard to the dozen medieval relics and devotional objects known as the Welfnschatz. The pieces date back to the early days of the Holy Roman Empire and occupy a unique position in German History and culture.

The collection was assembled within Germany’s Brunswick Cathedral over the course of several centuries, before being moved to a Hanoverian chapel in 1671 and later to Switzerland for safekeeping in the wake of World War I.

During the waning years of the Weimar Republic, a consortium of three art firms owned by Jewish residents of Frankfurt purchased the Welfenschatz from the Duke of Brunswick. By 1931, the consortium had sold about half of the collection’s pieces to museums and individuals in Europe and the United States, including many to the Cleveland Museum of Art, where they reside today.

After ascending to power, Hermann Goering—Adolf Hitler’s deputy and the Prime Minister of Prussia—became interested in the remainder of the Welfenschatz.

Reasons for the Complaint filed and what does it allege?

It has been alleged in the complaint that Hermann Goering employed a combination of political prosecution and physical threats to coerce the consortium into selling the remaining pieces to Prussia in 1935 for approximately one-third of their value.

What happened to the consortium members and how are the respondents related to them?

Two of the consortium members fled the country following the sale, and the third died in Germany shortly thereafter.

Respondents are two United States citizens and a citizen of the United Kingdom who traces their lineages back to the three members of the consortium.

The United States took possession of the Welfenschatz in the course of the occupation of Nazi Germany at the end of the war, eventually turning the collection over to the Federal Republic of Germany.

For nearly 60 years, the treasure has been maintained by Stiftung Preussischer Kulturbesitz (SPK)—the Prussian Cultural Heritage Foundation—and it is now displayed at a museum in Berlin. SPK is an instrumentality of the Federal Republic.

SPK conducted an investigation on heirs approaching them claiming that the sale of the Welfenschatz to Prussian Government was unlawful. In the investigation, it was determined that the transaction occurred at a fair market price without coercion.

German Advisory Commission

Parties agreed to submit the claim to the German Advisory Commission for Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property.

Commission concluded after reviewing the witnesses and hearing from expert witnesses the sale had occurred at a fair price without duress.

Federal District Court in Washington, D.C.

Germany argued that it was immune from suit because the heirs’ claims did not fall within the FSIA’s exception to immunity for “property taken in violation of international law.”

Panel while agreeing with the heirs that the exception for property taken in violation of international law was satisfied because “genocide perpetrated by a state even against its own nationals is a violation of international law.”

Whether the sale of the consortium’s property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. 

Bench recognized that ‘United States law governs domestically but does not rule the world.’ Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 115 (2013).

As a Nation, we would be surprised—and might even initiate reciprocal action—if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States Government years ago. There is no reason to anticipate that Germany’s reaction would be any different were American courts to exercise the jurisdiction claimed in this case.

Court found that none of the arguments submitted by the heirs could overcome the text, context and history of the expropriation exception.

Heirs could not show that the FSIA allows them to bring their claims against Germany.

Further, while concluding its decision, Supreme Court expressed as follows:

We hold that the phrase “rights in property taken in violation of international law,” as used in the FSIA’s expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.

While vacating the decision of the  Court of Appeals for the D.C. Circuit, Bench remanded the case for further proceedings.[Federal Republic of Germany v. Philipp,  2021 SCC OnLine US SC 1, decided on 03-02-2021]

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath (Presiding Member) observed that:

“Conduct of the insured becomes relevant on the facts of each case to ascertain whether the discharge voucher in the full and final settlement was given  voluntarily or there was coercion or undue influence on the Complainant.”

The instant application was filed under Section 19 of the Consumer Protection Act, 1986 against the Maharashtra State Consumer Disputes Redressal Commission’s Order.

Complainant had obtained “Standard Fire and Special Perils” Insurance Policies for stocks of cotton etc. and plant and machinery. Due to a fire break out at the complainant’s factory, huge stock of cotton got damaged.

Surveyor assessed the loss at Rs 32,92,525 only, though the total loss suffered was to the tune of Rs 99,45,286. Complainant submitted that since he was facing financial difficulties he accepted the settlement offered by the OP and executed the Indemnity Bond and Discharge Voucher in the name of OP.

Further, alleging the deficiency in service by OP, he filed a Complaint before the State Commission.

Aggrieved by the State Commission’s Order, complainant preferred the present appeal before this Commission.

Analysis and Decision

Bench noted that in several insurance claim cases under the Consumer Protection Act, it has been held that if a Complainant satisfies the Consumer Forum that Discharge Vouchers were obtained by fraud, coercion, undue influence etc., they should be ignored, but if they were found to be voluntary, the Complainant will be bound by it resulting in rejection of the Complaint.

“…mere signing of Discharge Voucher will not bar the Complainant/Claimant from raising a dispute before this Commission.”

 Commission further stated the only question to be addressed is whether the Discharge Voucher was signed under undue influence or coercion?

Whether the Complainant received Rs 39,72,829 towards full and final settlement or under protest pending investigation?

Further, respondents counsel submitted that there was a clarity expressed to the Complainant that unless the Discharge Voucher was signed, payment would not be released and therefore, the Discharge voucher was signed under coercion.

Bench while concluding held that “If at all the Complainant had an objection to the nature of the settlement, he should have recorded the same while signing the settlement”, hence no infirmity in the State Commission’s order was found.

In light of the above, the instant appeal was dismissed. [Arihant Industries v. United India Insurance Co. Ltd., 2021 SCC OnLine NCDRC 8, decided on 04-01-2021]


Advocates for the parties:

For the Appellant: S.M. Tripathi, Advocate

For the Respondent: Nanita Sharma, Advocate

Legislation UpdatesStatutes/Bills/Ordinances

Governor of Madhya Pradesh promulgates the Madhya Pradesh Freedom of Religion Ordinance, 2020.

Purpose of this Ordinance

To provide freedom of religion by prohibiting conversion from one religion to another by misrepresentation, allurement, use of threat or force, undue influence, coercion, marriage or any fraudulent means and for the matters connected therewith.

Prohibition of unlawful conversion from one religion to other religions [Section 3]

The said ordinance states that no person shall:

  • Convert or attempt to convert, either directly or otherwise, any other person by use of misrepresentation, allurement, use of threat or force, undue influence, coercion or marriage or by any other fraudulent means;
  • Abet or conspire such conversion

Complaint against conversion of religion [Section 4]

No police officer shall inquire or investigate except upon written complaint of a person converted in contravention of Section 3 above or his parents or siblings or with leave of the Court by any other person who is related by blood, marriage or adoption, guardianship or custodianship as may be applicable.

Punishment for contravention of provisions of Section 3 [Section 5]

Imprisonment for a term not less than one year but which may extend to 5 years and the person shall also be liable to not less than Rs 25,000 fine.

There are certain proviso clauses mentioned under the said Section.

Marriages performed with the intent to convert a person shall be null and void [Section 6]

Marriages performed in contravention of Section 3 shall be deemed to be null and void.

Jurisdiction of Court [Section 7]

To declare the marriage null and void, the petition shall be presented by any person mentioned in Section 4 before the family court or where a family court is not established, the Court having jurisdiction of a family court within the local limits wherein, —

  • The marriage was solemnized or
  • Respondent at the time of the presentation resides or
  • Either parties to the marriage last resided together or
  • Where the petitioner is residing on the date of presentation of the petition.

Inheritance Right [Section 8]

Child born out of a marriage performed in contravention of Section 3 will be legitimate and succession to the property by such child shall be regulated according to the law governing inheritance of the father.

Right to Maintenance [Section 9]

Woman whose marriage is declared null and void under Section 7, children born out of that marriage shall be entitled to maintenance.

Declaration before conversion of religion [Section 10]

Any person who desires to convert shall submit a declaration to that effect 60 days prior to such conversion to the District Magistrate stating his desire to convert without any force, coercion, undue influence or allurement.

Section 11 states the punishment for violation of provisions of Ordinance by an institution or organization.

Burden of Proof [Section 12]

Burden of Proof as to whether a conversion was not effected through misrepresentation, allurement, use of force, threat of force, undue influence, coercion or by marriage or any other fraudulent means done for the purpose of carrying out conversion lies on the accused.

Investigation [Section 14]

No police officer below the rank of sub-inspector of police shall investigate any offence registered under the ordinance.


Also Read:

Prohibition of Unlawful Religious Conversion | Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 [Brief Explainer]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Sanjib Banerjee and Arijit Banerjee, JJ., observed that an adult woman is free to marry the person of her choice covert.

In the instant matter, it was traced out that the girl’s age was 19 years old and she married a person of her choice and doesn’t want to return to her parental home.

Upon the petitioning father complaining that his daughter’s statement under Section 164 of the CrPC may not have been recorded in an atmosphere where she felt comfortable, the 19-year-old girl was required to meet the senior-most Additional District Judge and for sufficient care to be taken so that she was not under any coercion or undue influence.

Despite a clear and clean report, father harboured some suspicion.

Bench held that,

If an adult marries as per her choice and decides to convert and not return to her paternal house, there can be no interference in the matter.

Matter has been listed on 24-12-2020.[Palash Sarkar v. State of W.B., WPA No. 9732 of 2020, decided on 21-12-2020]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Naqvi and Vivek Agarwal, JJ., directed for no coercive action to be taken against a person booked under Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, and highlighted the significance of the right to privacy.

Petitioner sought the issuance of a writ of certiorari quashing the impugned FIR under Sections 504, 506 and 120-B IPC and Section 3/5 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020.

The victim is the informant’s wife and mother of two children. Allegation against the petitioner was that he used to visit informant’s house and taking due advantage of acquaintance with the informant’s wife, he attempted to persuade her to change her religion so that he may marry her.

Senior Counsel on behalf of the petitioner submitted that as far as the validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 was concerned, same is the subject matter of challenge in Writ (PIL) Nos. 1756 of 2020 and 1757 of 2020, but the present case, is in regard to upholding the right of privacy as a basic fundamental right covered by Part-III of the Constitution.

Further, it was added to the submissions that no material to substantiate the above contentions were raised and were based on mere suspicion.

Decision

Article 25 provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion, subject to public order, morality and health and to the other provisions of Part-III of the Constitution.

Bench observed that no material was placed before the Court which would show that any force or coercive process was being adopted by the petitioner to convert informant’s wife.

Adding to its observation, the Court also expressed that the victim being an adult understands her well being.

She as well as the petitioner have a fundamental right to privacy and being grown up adults who are aware of the consequences of their alleged relationship.

Referring to the Supreme Court’s decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, the Bench stated that Right to Privacy was upheld in the said decision.

In Joseph Shine v. Union of India, (2019) 3 SCC 39, issue of the right to privacy has been held to depend on the exercise of autonomy and agency by individuals.

Present is a case where all the allegations are prima facie based on suspicion.

In view of the above discussion, the Court stated that the matter requires consideration.

The matter has been listed for consideration on 07-01-2021 and till the next date, no coercive measure shall be taken against the petitioner.[Nadeem v. State of U.P.,  2020 SCC OnLine All 1496, decided on 18-12-2020]


Advocates who appeared before the Court: 

Counsel for Petitioner: Syed Ahmed Faizan, Syed Farman Ahmad Naqvi (Senior Adv.), Zaheer Asghar

Counsel for Respondent: G.A.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Anjani Kumar Mishra and Prakash Padia, JJ., addressed a petition wherein, two major adults who were in a live-in relation sought protection from harassment for living together.

The facts in the instant case are that petitioner 1 is a major and is aged about 24 years and petitioner 2 is aged about 28 years.

Both the petitioners decided to be in a live-in relationship without any compulsion or coercion.

Though respondents 4 and 5 forcibly tried to solemnize petitioner 1’s marriage against her wishes and on knowing the said fact, petitioner 1 decided to live with Ajay Kumar with her own free will and without fear and pressure.

It has been added that both the petitioners have been happily living with each other but respondent 4 and 5 tried to harass them.

In view of the harassment, petitioner 1 had filed a complaint seeking protection, but no action has been taken till date. Further, it was argued the law laid down by the Supreme Court from time to time petitioners are legally entitled to Live-­in relationship without any fear or pressure more especially when they are major.

Since no action was taken by the police authorities, the present petition was filed.

Decision

In the Supreme Court decision of Lata Singh v. State of U.P., (2006) 5 SCC 475, it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral.

In order to provide a remedy in civil law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having a relationship in the nature of marriage, persons related by consanguinity, marriages, etc.

Few other legislations have been provided with respect to reliefs to women placed in certain vulnerable situations.

The issue in the instant matter had been already dealt with in the Supreme Court decision of Indra Sarma v. V.K.V. Sharma, (2013) 15 SCC 755.

Apart from the Supreme Court decision, a long line of decisions has settled the law that:

where a boy and a girl are major and they are living with their free will, then, nobody including their parents has the authority to interfere with their living together.

Bench further opined that the petitioners are at liberty to live together and no person shall be permitted to interfere in their peaceful living.

Court further added that, in case any disturbance is caused in the peaceful living of the petitioners, the petitioners shall approach the Senior Superintendent of Police.[Kamini Devi v. State of U.P., Writ C No. 11108 of 2020, decided on 23-11-2020]

Legislation UpdatesStatutes/Bills/Ordinances

Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020

This Ordinance has been promulgated by the Governor of Uttar Pradesh, for the purpose of providing prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage and for the matters connected therewith.

Prohibition of conversion from one religion to another by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage [SECTION 3]

The ordinance states that no person shall convert or attempt to convert any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage.

If any person reconverts to his/her immediate previous religion, the same would not come under the ambit of this Ordinance.

Persons competent to lodge FIR [SECTION 4]

Aggrieved, his/her sister/brother, parents or any other person who is related to him/her by blood, marriage or adoption can file an FIR and report of such conversion that contravene the provisions of Section 3.

The ordinance lays down the punishment for contravention of provisions of Section 3 under Section 5.

Marriage done for the sole purpose of Unlawful Conversion or vice-versa to be declared void [SECTION 6]

If marriage is conducted for the sole purpose of unlawful conversion or vice-versa by the man of one religion with the woman of another religion, either by converting himself/herself before or after marriage or converting the woman either before or after the marriage shall be declared void.

Non-bailable and Cognizable [Section 7]

All the offences under this Ordinance shall be cognizable and non-bailable and triable by the Sessions Court.

Declaration before Conversion of religion and pre-report about conversion [SECTION 8]

Person who desires to convert to some other religion needs to provide a declaration in the form prescribed in Schedule-I at least sixty days in advance either to the District Magistrate or Additional District Magistrate and states that the same is being done with his/her free consent and without any force, coercion, undue influence or allurement.

Religious convertor who shall perform the above-stated act of conversion will also have to give one month’s advance notice in the form prescribed in Schedule -II TO District Magistrate or Additional District Magistrate regarding where the said ceremony would take place.

Declaration post-conversion of religion [SECTION 9]

The converted person shall send a declaration in the form prescribed in Schedule-III within 60 days of the date of conversion, to the District Magistrate in which the converted person resides ordinarily.

Punishment for violation of provisions of Ordinance by an institution or organization [SECTION 10]

If any institution or organization violates the provisions of the ordinance, they shall be subjected to punishment as provided under Section 5 and the registration of the said institution or organization shall stand cancelled.

Burden of Proof [SECTION 12]

The burden of proof of whether a religious conversion was not effected through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage would lie on the person who caused the conversion and where such conversion was facilitated by any person on such other person.

The above Ordinance will extend to the whole of Uttar Pradesh.


Details of the Ordinance can be read here: UP_Prohibition_of_Unlawful_Conversion_of_Religion_Ordinance,_2020

Hot Off The PressNews

Department of Drinking Water and Sanitation, Ministry of Jal Shakti has reiterated that any type of coercive action taken by anybody, including government or elected officials or private individuals with respect to sanitation behaviour of any kind is unacceptable under any circumstance. In such cases, the concerned authorities should prosecute the guilty to the fullest extent of the applicable law.

An advisory in this regard was issued by the Department today after it was brought to the notice of the Department that certain forms of inappropriate actions and extreme coercive actions are still being practiced. In this context, the tragic case of the death of two children in Madhya Pradesh has been reported. Positive behaviour change for the adoption of safe sanitation practices as well as ensuring that no one is left behind are key to achieve the goal of the Swachh Bharat Mission.

In the last five years, tireless efforts have been made by village motivators, elected panchayat officials, community-based organizations and government officials to take up extensive behaviour change communication activities to encourage rural households to stop defecating in the open and use toilets instead. This has led to a massive Jan Andolan that in turn has resulted in an unprecedented change in the rural sanitation situation of the country. People from all walks of life have shown an exemplary commitment towards making India Open Defecation Free (ODF).

This advisory for adoption of non-coercive approach under Swachh Bharat Mission (Grameen) has been issued as a follow up of an earlier similar advisory issued on 25thJuly, 2017 suggesting that the States must avoid any coercive measures for ensuring construction and usage of toilets.

The Government of India is committed to the achievement and sustaining of open defecation status across rural India and reiterates that no one should be left behind and that if there is an eligible beneficiary who has been left out, the concerned State and district should ensure that this basic service is speedily provided.


Ministry of Jal Shakti

[Press Release dt. 27-09-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Hari Pal Verma, J. quashed the criminal proceeding as there was a compromise signed between the parties.

A petition was filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing the FIR registered under Sections 406, 498-A of the Penal Code, 1860.

The records of the case are such that the parties appeared before the Judicial Magistrate 1st Class in which it was submitted that compromise was effected between the parties voluntarily without any coercion or undue influence. The complainant/respondent made a joint statement in which she had made the statement regarding the compromise between the two.

Gaganpreet Kaur, counsel for State had not disputed the fact of the compromise between the parties.

The Court thus opined that no useful purpose would be served to continue with the proceedings before the trial court. The Court reiterated the case of Gold Quest International (P) Ltd. v. State of T.N., 2014 (4) RCR (Criminal) 206, in which the Supreme Court held that “disputes which are substantially matrimonial in nature, or the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings under Section 482 CrPC read with Article 226 of the Constitution.” Thus, all the proceeding was quashed qua the petitioner on the basis of the compromise entered between the parties.[Pankaj v. State of Haryana, 2019 SCC OnLine P&H 1112, decided on 04-07-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. heard a writ petition that sought to quash the order passed by the respondent whereby the petitioner had been inflicted with the punishment of stoppage of annual increment for six months in Departmental Proceeding.

The petitioner was a constable and was accused of coercion and it was alleged that he forcibly took a thumb impression on a blank paper. He was also accused of several offences under different sections of Penal Code, 1860. Pursuant to that charge, Enquiry Officer was appointed and departmental proceeding was initiated against the petitioner. The charges against the petitioner were proved and an enquiry report was not supplied to him in the first instance but along with the second show cause notice.

Learned counsel for petitioner, D.K. Dubey, contended that the lady who made the accusation told the Conducting Officer that she had not given any application in the hands of the petitioner nor did she know him. Furthermore, he argued that she had not made any complaint against the petitioner. Counsel, thus, pleaded that if there were no accusations against the petitioner, then the order was fit to be quashed.

Learned counsel for respondent, Rajesh Kumar Singh, submitted that impression was taken on a blank paper by the accused and she had stated that in the complaint petition, no explanation was given to her for the same. Also, it came later to her knowledge that no complaint was lodged against the petitioner. The counsel, further, submitted that the statement given by the lady that no complaint was filed against the accused was made under coercion.

The Court observed that the enquiry officer took into account the two complaints which were brought on record in the writ petition and the enquiry officer came to a conclusion that usage of coercion to obtain the statement in favor of the petitioner could not be ruled out and therefore, the petitioner was held guilty. The Court remarked that there was no illegality in the inquiry report and punishment order was in accordance with the law. Moreover, the Court remarked that when an employee was dismissed or removed from service and the inquiry was set aside because the report is not furnished to him, the non-furnishing of the report would cause prejudice to him or might not affect the nature of punishment at all. However, in the instant case, the petitioner was not able to highlight what prejudice had been caused to him due to non-supply of the enquiry report. Hence, the writ petition was dismissed.[Amiruddin v. State of Jharkhand, Writ Petition (S) No. 3142 of 2014, decided on 20-06-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab & Haryana High Court: Appellant had prayed before the Bench of Surinder Gupta, J., that the Will made by mother of both the parties was illegal, null and void being obtained by the respondent under undue influence, coercion, misrepresentation and that she was incompetent to make Will of conjoint property.

The Trial Court had upheld the Will executed by the mother and suit of the appellant was dismissed. It was submitted that both the parties had equally contributed to purchase the land though it was purchased on their mother’s name who could not have purchased the land being a household lady. Thus, Will executed by her was illegal being obtained under undue influence, coercion, misrepresentation. Trial Court found the Will to be validly executed and thus under Section 14 of Hindu Succession Act, 1956 the mother was the absolute owner of the suit property and was competent to execute the Will. Statement of account was brought before Court as proof that the appellant had contributed to the sale of the property.

High Court was of the view that even if the financial contribution was done for sale the transaction cannot be said to be Benami transaction. Therefore, the appeal was dismissed and Courts below have not committed any error in stating that Will was valid, registered and rightly executed. [Dharam Singh v. Anil Kumar, 2019 SCC OnLine P&H 428, decided on 23-04-2019]