Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case filed by a woman alleging rape charges under Penal Code, 1860 (‘IPC’) and Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), Jasmeet Singh, J. granted bail to the applicant accused as the case, in the opinion of the Court and based on the materials presented before it, prima facie seemed one of ‘honey trapping’. The Court directed the Commissioner of Police to conduct a detailed investigation and further clarified that mere having an Aadhar and PAN card and the date of birth mentioned in it is sufficient for someone to form an opinion that he is not indulging in physical relations with a minor, verification of such documents by the partner before sex is not required.

The petition was filed seeking bail in an FIR registered u/s 376, 34 IPC read with Section 6 POCSO Act registered at P.S. Pahar Ganj, Delhi. It was alleged in the FIR that the applicant and prosecutrix met in September 2019, exchanged numbers and became friends. It was further alleged that the applicant called the prosecutrix at a hotel, established physical relations with her, made a video and blackmailed her. It was also alleged that she was held captive at a place in Rohini where she managed to escape and met Savita who is an advocate and helped the prosecutrix to file the instant case.

The Court noted that as per the prosecutrix’s claim she had relationship with the applicant from 2019, and the applicant was blackmailing the prosecutrix and the fact that the prosecutrix escaped from the captivity of the applicant-accused 8 months before the FIR was lodged, therefore, the FIR was lodged with such delay.

On the contention raised by the counsel for applicant that the prosecutrix has 4 different dates of birth thus making the grounds of POCSO charges shaky, the Court noted that it seems the prosecutrix has 3 different dates of birth and the Aadhar card show her date of birth as 01-01-1998 and hence on the date of the alleged incident, the prosecutrix was supposed to be a major.

The Court observed that the person who is in a consensual physical relationship with another person is not required to judicially scrutinize the date of birth of the other person. He is not required to see Aadhar card, PAN card and verify the date of birth from her school record before he enters into a physical relationship. The very fact that there is an Aadhar Card and the very fact that the same date of birth shows 01-01-1998 is sufficient for the applicant to form an opinion that he was not indulging in a physical relationship with a minor.

The Court opined that there being transfers of huge amounts of money in favour of the prosecutrix amounting to Rs 50,00,000 for which no reasonable explanation was given by the prosecutrix, the present seems a case of honey trapping where innocent persons are being honey trapped and huge amounts of money are being extracted from them.

Thus, the Court directed the Police Commissioner to have a detailed investigation as regards the prosecutrix and find if any similar FIR is registered by the prosecutrix against any other person in Delhi and further investigate the Aadhar card, date of issuance of the same and the supporting documents filed for issuance of the said Aadhar card.

The Court granted bail subject to the following conditions:

i. The applicant shall furnish a personal bond with one local surety in the sum of Rs. 20,000/- each, to the satisfaction of the Trial Court;

ii. He shall appear before the Court as and when the matter is taken up for a hearing;

iii. The applicant shall provide his mobile number to the Investigating Officer (IO) concerned- at the time of release, which shall be kept in a working condition at all times. The applicant shall not switch off, or change the same without prior intimation to the IO concerned, during the bail period;

iv. He shall report to the local Police Station on the first Monday of every month at 10:30 A.M. He shall not be forced to sit for more than half an hour on any such occasion;

v. In case he changes his address, he will inform the IO concerned and this Court also;

vi. The applicant shall not leave the country during the bail period and surrender his passport, if any, at the time of release before the Trial Court;

vii. The applicant shall not indulge in any criminal activity during the bail period;

viii. The applicant shall not communicate with, or come into contact with any of the prosecution witnesses, or any member of the victim’s family, or tamper with the evidence of the case

[Hanzla Iqbal v. State, 2022 SCC OnLine Del 2598, decided on 24-08-2022]


Advocates who appeared in this case :

Mr. Amit Chadha, Adv. with Mr. Arpit Bhalla, Mr. Antim Chadha, Ms. Anjali Dhingra, Advocates, for the Petitioner;

Mr. Aashneet Singh, APP for State, Ms. Astha, Adv., DHCLSC SI Rajnandini, PS Pahar Ganj, Advocates, for the Respondent.


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

Andhra Pradesh High Court
Case BriefsHigh Courts

   

Andhra Pradesh High Court: In a case where the complainant alleged offence under Section 376 Penal Code, 1860 (‘IPC') and bail is sought in the instant petition, Ravi Cheemalapatti, J. granted bail to the petitioner accused as alleged sexual relationship was consensual in nature and perusal of records showed that when the relationship eventually did not work out, complaint was filed alleging serious offences.

The complainant alleged that the petitioner, on the pretext of love and marrying the de facto complainant, took her to his residence at Gollapudi, Krishna District with the consent of his parents and exploited her sexually. She was also threatened and abused by the friends of the petitioner as alleged in the complaint. The accused was thereby arrested and has been languishing in jail since 15-06-2022.

Thus, instant criminal petition was filed under Sections 437 & 439, Criminal Procedure Code (‘CrPC'), seeking regular bail, by the petitioner/ Accused 1 in crime No. 340 of 2022 of Bhavanipuram Police Station, Vijayawada City, registered for the offences punishable under Sections 376 (2)(n), 417, 420, 323, 384, 506 read with 109 IPC.

The Court observed that on perusal of the record it is clear that there was consent between the de facto complainant and the petitioner and it is also prima facie evident that when the de facto complainant felt that the relationship between her and the petitioner is not going to work out, she filed the present complaint.

Placing reliance on Ansaar Mohammad v. State of Rajasthan, 2022 SCC OnLine 886, the Court noted that when the complainant is willingly stayed and had relationship, if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) of IPC. Thus, the Court categorically remarked this complaint was lodged when the relationship between the de facto complainant and the petitioner is not working out.

Thus, the Court granted bail subject to the following conditions:

(i) The petitioner shall be released on bail on his executing self-bond for Rs.25,000/- (Rupees twenty-five thousand only) with two sureties for a like sum each to the satisfaction of the learned Chief Metropolitan Magistrate, Vijayawada, NTR District;

(ii) The petitioner shall appear before the Station House Officer, Bhavanipuram Police Station, Vijayawada City, once a week i.e., every Sunday between 10.00 a.m. and 02.00 p.m. till filing of the charge sheet; and

(iii) The petitioner shall not directly or indirectly contact the complainant or any other witnesses under any circumstances and any such attempt shall be construed as an attempt to influence the witnesses and shall not tamper the evidence and shall co-operate with the investigation.

[Jatoth Aditya Rathod v. State of Andhra Pradesh, Criminal Petition No. 5704 of 2022, decided on 12-08-2022]


Advocates who appeared in this case :

Arun Kumar R, Advocate, for the Petitioner.


*Arunima Bose, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Agarwal, J. dismissed a bail application of an applicant who was in custody since 29-06-2022 for the offence punishable under Sections 376, 506 of Penal Code, 1860.

Counsel for the applicant submitted that incident took place on 03-12-2020 then on 18-03-2022 prosecutrix pressurized the present applicant for marriage and, thereafter, on 12-04-2022, FIR was lodged. Applicant is a differently abled person working as Canteen Attendant in Ministry of Defence. The prosecutrix was a consenting party and allegation was only in regard to false promise of marriage. It was also submitted that the prosecutrix herself has refused to marry initially and later sent a message that the applicant can marry any other girl.

Government Advocate for the respondent-State submitted that on the last date, applicant had sought time to seek instructions because it was informed that applicant is willing to marry but because of family pressure, he has to wriggle out. It is also submitted that it is not a case of simplicitor consensual pre-marital sex. Both the applicant and the complainant are handicapped and knew each other. Applicant approached the complainant with a promise of marriage and enticed her in physical relationship. Later on, he refused to marry as soon as applicant could get a job with the defence establishment as his expectations were on wings but in the present hearing counsel for the applicant submitted that though sister of the applicant is willing for performance of marriage of the applicant with the complainant but since father of the applicant has refused because of age difference and caste difference, marriage is not possible.

The Court after hearing the parties noted that it was evident that applicant always had knowledge about the age difference between him and the complainant. There was also conscious knowledge of difference in the caste. The only uniting factor was emotional bonding on account of both being differently abled and there was a promise on part of the applicant but later on as soon as he could get a job, he has changed his attitude.

The Court was astonished by the fact that in the 21st century, still in the name of caste and creed, social differentiation is being created. The Court noted that prosecutrix has not been examined in the Court of law and she is a vulnerable witness. The court believed that if applicant is enlarged on bail then there is possibility of witness being tampered with.

The Court thus dismissed that bail application opining that to secure the interest of justice so also interest of a vulnerable witness, this is not the correct stage to extend benefit of bail to the applicant.

[Naresh Rajoriya v. State of Madhya Pradesh, Miscellaneous Criminal Case No. 34551 of 2022, decided on 04-08-2022]


For applicant: Ankit Saxena

For respondent: Aditya Narayan Gupta, Rajkumar Raghuwanshi


*Suchita Shukla, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Sathish Chandra Sharma, CJ and Subramonium Prasad, J refused termination of pregnancy to an unmarried woman whose pregnancy arose out of a consensual relationship after holding that her case was clearly not covered by any of the categories mentioned under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 as on the date of the judgment.

The Petitioner aged 25 years is a 24 weeks pregnant unmarried woman. Her pregnancy arose out of consensual relationship that eventually failed. It was her case that she cannot give birth to the child due to her financial incapacity to raise and handle the child along with mental incapacity to be a mother in order to secure her future from social stigma.

The Court noted that a perusal of Section 3(2)(a) Medical Termination of Pregnancy Act, 1971 provides that the Medical Practitioner can terminate the pregnancy, provided the pregnancy does not exceed 20 weeks. Section 3(2) (b) of the Act provides for termination in circumstances where the pregnancy exceeds 20 weeks but does not exceed 24 weeks.

Further, it was noted that a perusal of Section 3(2)(b) Medical Termination of Pregnancy Act, 1971 provides that the said sub-Section is applicable only to those women who are covered under the Medical Termination of Pregnancy Rules, 2003. Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which permits termination of pregnancy up to 24 weeks, reads as under: –

“3-B. Women eligible for termination of pregnancy up to twenty-four weeks.

The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub-section (2) section 3 of the Act, for a period of up to twenty-four weeks, namely:

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c)change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”

The Court observed that the petitioner, who is an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act is not applicable to the facts of this case.

A noteworthy mention was made by the counsel for petitioners regarding non-inclusion of unmarried women under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 being violative of Article 14 of the Constitution of India. The Court, however, observed that whether such rule is valid or not can be decided only after the said rule is held ultra vires, for which purpose, notice has to be issued in the writ petition and has been done so by this Court.

Noting that granting interim relief to the petitioner now would amount to allowing the writ petition itself, the Court held that in light of the law prevailing on the date of the passing of the order, Rule 3B Medical Termination of Pregnancy Rules, 2003, stands, and thus “this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute.”

This order, however, stands modified by the Supreme Court vide order dated 21-07-2022 wherein it has been held that woman cannot be denied right to safe abortion only on the ground of her being unmarried.

[X v. Principal Secretary, 2022 SCC OnLine Del 2171, decided on 15-07-2022]


Advocates who appeared in this case :

Dr. Amit Mishra, Advocate, for the Petitioner;

Ms. Hetu Arora Sethi, ASC for GNCTD with Mr. Arjun Basra, Advocate for R-1 Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor, Ms. Kunjala Bhardwaj, Advocates for R-2, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Tis-hazari
Case BriefsDistrict Court

Tis Hazari Court, Delhi: While deciding a bail application, Kamini Lau, J. granted anticipatory in a case where the complainant-girl was a major and was held to be in a consensual relationship and thus, consent forms part of the subject matter in the said case. The Court granted bail since the accused joined the investigations and therefore, his custodial interrogation was not warranted.The applicant/accused got into a relationship with the prosecutrix/complainant after getting acquainted at work. The applicant had also introduced the complainant to his parents, and they approved of her. Subsequently, since March 2021, they started developing sexual relations on various occasions at different places like his residence, office and different hotels. The complainant alleged that these relations were non-consensual, and she was coerced based on the false promise of marriageby the applicant. The applicant contended that due to professional and personal issues he had been unable to marry the complainant, but she was pressurizing him to marry her. However, the complainant contended that after their last encounter on 11-06-2022, the applicant started ignoring her and avoided all communication with her. Pursuant to this,, the complainant filed a case against the applicant under Sections 354-D and 376 Penal Code, 1860 (‘IPC’). The applicant filed the instant anticipatory bail application under Section 438 Criminal Procedure Code (‘CrPC’)

The Court vide order dated 12-07-2022 granted interim protection to the applicant/accused and directed them to file a detailed report at the next hearing. Thus, a detailed report was filed by the Investigating officer who admitted that the applicant/accused Rahul Sharma joined investigations on 13-07-2022.

The Court observed that there is rarely any cogent or tangible proof to establish/ prove the existence of a criminal intention which has to be gathered, deciphered or inferred from circumstances.

Placing reliance on Uday v. State of Karnataka (2003) 4 SCC 46, and Jayanti Rani Panda v. State 1983 SCC OnLine Cal 98, the Courtobserved that “it is evident that there is no straitjacket formula which can be evolved for determining whether the consent was given under a misconception of fact or not and it has to be deciphered from the facts and circumstances of each case.”

The court concluded to note that, according to the applicant, he was ready and willing to marry the complainant, but it was the family of the complainant who had an issue with an inter-caste marriage. Additionally, the applicant joined the investigation and therefore, his custodial interrogation is not required , thus, the court granted anticipatory bail to the applicant on a bail bond of Rs. 1 lakh subject to the conditions as mentioned in the order.

[Rahul Sharma v. State, 2022 SCC OnLine Dis Crt (Del) 27, decided on 19-07-2022]


Advocates who appeared in this case :

Mr Pankaj Bhatia, Advocate, for the State;

Mr Kapil Madan, Mr Gurmukh Singh Arora and Mr Saurabh Gauba, Advocates, for the Applicant/Accused;

Complainant in person with Ms Sudershna Chakraborty Advocate from Delhi Commission, for the Women.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J. rejected an anticipatory bail application which was filed apprehending arrest for the offences punishable under Sections 376(2)(n), 376(2)(h) and 417 of the Penal Code, 1860.

The complainant who is 22-year-old girl who was briefly acquainted with the applicant along with her friend had visited residential premises of a third friend and the applicant was alleged to have committed forcible sexual intercourse with her. She alleged that when she opposed, he expressed that he likes her and, in any case, he was going to marry her. Thereafter, on multiple occasions, the act was repeated. The complainant conceived and was found to be carrying six weeks’ pregnancy, she informed the applicant, but he refused to take up any responsibility and on the other hand, attributed her a bad character and alleged that she was in relationship with some other person.

The Court observed that reading of the complaint revealed that the girl, who is major, developed a liking for the applicant, but her version as far as the sexual relationship was concerned, is that she gave her consent, since the applicant gave a promise of marriage. However, when the girl conceived, the applicant attributed infidelity, but once again committed forcible sexual intercourse with her on the last date as mentioned in the complaint.

The Court stated that merely sharing friendly relationship with a girl does not permit a boy to take her for granted and construe it as her consent to establish physical relationship.

This friendship with the person of fairer sex, does not confer a licence upon a man to force himself upon her, when she specifically refuse copulation. Every woman expects ‘Respect’ in a relationship, be it in the nature of friendship based on mutual affection.

The Court rejected the application and held that accusations faced by the applicant definitely requires a thorough investigation to ascertain the version of the prosecutrix that she was forced to give her consent for sex.

[Ashish Ashok Chakor v. State of Maharashtra, 2022 SCC OnLine Bom 1349, decided on 24-06-2022]


Advocates who appeared in this case :

Dr Samarth S. Karmarkar with Mr. Haresh R. B. (Karmarkar & Associates), Advocate, for the Applicant;

Ms. Anamika Malhotra, A.P.P., Advocate, for the State/Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

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

“Women in most parts of the world are treated as individuals, free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing.”

–Justice Rajiv Shakdher

Whether or not Exception 2 Section 375 of the Penal Code, 1860 should remain on the statute?

 Remarks before pronouncing the ruling

I must state, with all humility at my command, that as I began to pen this judgment, the enormity of its impact on the society was not lost on me. I do not lay claim to being the repository of all wisdom that must be brought to bear in dealing with a sensitive issue that I am to rule on. 

— Justice Rajiv Shakdher

Whether Marital Rape Exception should be struck down?

Those wanting to strike down Exception 2 to Section 375 IPC, also seek striking down of Section 376B which concerns sexual intercourse by a separated husband with his wife, albeit, without her consent.

Further, prayer to strike down Section 198B of the Code of Criminal Procedure, 1973 which prohibits a Court from taking cognizance of an offence punishable under Section 376B IPC except upon satisfaction of facts which constitutes the offence once a complaint is lodged by the wife against her husband was also filed.

Analysis, Law and Decision

Justice Rajiv Shakdher’s Opinion

Constitutional Viability of classification between married and unmarried women in the context of Article 14

Justice Rajiv Shakdher expressed that there can be no doubt that the legislature seeks to punish offenders who are guilty of committing rape, the said principle is the bedrock on which Section 375 IPC was founded.

Further, it cannot be doubted that there is a differentia between married, separated, and unmarried couples.

Marital Rape Exception grants impunity to an offender based on his relationship with the victim.

In Justice Shakdher’s opinion, the classification was unreasonable and manifestly arbitrary as it seemed to convey that forced sex outside marriage is “real rape” and that the same act within marriage is anything else but rape.

Sex-worker has been invested with the power to say “no”; by the law; but not a married woman.

In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law; but not the offending husband only because of his relationship with the victim. A married woman’s ability to say “no” to sexual communion with her husband when he is infected with a communicable disease, or she is herself unwell finds no space in the present framework of rape law. Thus, the rape law as it stands at present is completely skewed insofar as married women are concerned.

Hence, in his view MRE, violates the equality clause contained in Article 14 of the Constitution and MRE with one stroke deprives nearly one-half of the population of equal protection of the laws.

The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman.

Conjugal expectation

Conjugal expectations, though legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-à-vis his wife disregarding the circumstances which obtain at the given point in time as also her physical and mental condition.

Non-consensual sexual intercourse is not labelled as “rape” to save the institution of marriage

Justice Shakdher agreeing with Karuna Nundy, Advocate stated that sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage.

Invasion of Private Space 

The prosecution of the offending husband for a rape offence would result in invading the private space of a married couple is nothing but an attempt to keep the law at bay even when a heinous crime such as rape has occurred within what some would refer to as “sacrosanct” space.

In Justice Shakdher’s opinion, the above was morally suspect and legally untenable.

The attempt to keep away the law even when a woman is subjected to forced sex by her husband, by demarcating private and public space is to deny her the agency and autonomy that the Constitution confers on her.

Gathering evidentiary material would be difficult

In the opinion of Justice Shakdher, the difficulty in collecting evidentiary material should not be the reason for keeping an offending husband who subjects his wife to forced sex out of the purview of the substantive rape law.

New Offence 

To strike down MRE, would create a new offence, is misconceived for the following reasons:

(i) Firstly, the offence of rape is already defined in the substantive part of Section 375 of IPC. The sexual acts which are described in Clauses (a) to (d) of Section 375 constitute rape if they fall within any of the seven circumstances alluded to in the said provision. There are two exceptions provided in Section 375 and, thus, those who come within the ambit of the exception cannot be prosecuted for the offence of rape. The first exception concerns a circumstance where the woman undergoes a medical procedure or intervention. The second exception (which is the exception under challenge) concerns the act of sexual intercourse or sexual acts which involve a man and his wife who is not under 18 years of age. The exception clearly subsumes the main provision without providing a determining principle or rationale as to why husbands who have subjected their wives to forced sex should not face the full force of the rape law. Since the stated objective of the rape law is to protect women from sexual abuse of the worst kind i.e., rape, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is excised, all that would happen is, it would extend the ambit of Section 375 to even offending husbands.

(ii) Secondly, a new offence/new crime would perhaps have been created if the ingredients of the offence had changed. [See People v. Liberta] It is no one’s case that the ingredients of the offence have changed; all that would happen if MRE is struck down is that the offending husband would fall within the ambit of the offence.

iii) Thirdly, reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful. [See C.B. Gautam v. Union of India (1993) 1 SCC 78; Navtej Singh Johar; and Harsora v. Harsora.]

(iv) Fourthly, MRE (Exception 2 to Section 375 of the IPC) seeks to ring- fence the offender based on his marital relationship with the accused. The main provision is neutral to the relationship that may or may not subsist between the offender and the victim. Thus, a person who is a stranger or is in a live-in relationship with the victim can be prosecuted for the offence of rape. As a matter of fact, the legislature pursuant to the Criminal (Amendment) Act, 2013 has brought within the sway of rape law (Section 375) even separated husbands by inserting Section 376B in Chapter XVI of the IPC; a provision which is challenged by the petitioners on different grounds.

(v) Fifthly, what is principally punished under the criminal law is the act of omission or commission, as etched out in the IPC.

MRE violates Article 21 of the Constitution

The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing.

“Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally.”

 “Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals.”

MRE violates Articles 15 and 19(1)(a) of the Constitution

Continuance of MRE, violates Article 15 of the Constitution since it triggers discrimination against women based on their marital status. The said exception impairs and abstain the power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses.

MRE is violative of Article 19(1)(a) of the Constitution as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country.

Separated husbands

Since Justice Shakdher concluded that granted impunity to offending husbands under the MRE is violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution, the class which comprises separated husbands would also necessarily have to be dealt with as any other rapist.

“…separated husbands would suffer the same punishment, as prescribed for any other rapist under Section 376(1) of the IPC, as that would be the logical sequitur of striking down MRE.”

Conclusion

(i) That the impugned provisions [i.e. Exception 2 to Section 375 (MRE) and Section 376B of the IPC as also Section 198B of the Code], insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years of age), albeit, without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and, hence, are struck down.

(ii) The aforesaid declaration would, however, operate from the date of the decision.

(iii) The offending husbands do not fall within the ambit of the expression “relative” contained in Section 376 (2)(f) of the IPC and, consequently, the presumption created under Section 114A of the Evidence Act will not apply to them.

(iv) Certificate of leave to appeal to the Supreme Court is granted under Article 134A(a) read with Article 133(1)(a)&(b) of the Constitution as the issue involved in this case raises a substantial question of law which, in my opinion, requires a decision by the Supreme Court.

Justice Shakdher concluded that Exception 2 to Section 375 and Section 376B of the IPC as well as Section 198B of the Code of Criminal Procedure (CrPC), as they relate to husband or separated husband having sexual intercourse with his wife without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and therefore deserve to be struck down.

Justice C. Hari Shankar’s Opinion

Justice Shankar stated that it is not to judge whether non-consensual sex within marriage ought, or ought not, to be punished or, if it is, to opine appropriate punishment that should visit the perpetrator of the act.

Re: Article 14

Justice Shankar stated that the act of sex, when it takes place between parties who are joined by marriage, declares the impugned Exception, is in no case rape.

“Applying the “intelligible differentia” test, the impugned Exception would, therefore, infract Article 14 only if the relationship of marriage, between the man and woman involved in the act, does not provide any intelligible differentia having a rational nexus to the object sought to be achieved by the impugned Exception.”

The ‘institution of marriage’, and the intelligible differentia that results

Petitioners completely failed to note the uniqueness of marriage as an institution, its peculiar demographics and incidents, and the emotional, psychological, social and other complex equations that exist between a wife and a husband.

“Between a husband and wife, who spend their days and nights together, living in a house which, by the dint of their joint effort, they make a home, there exists a bond which defies, and indeed transcends, all known and identifiable parameters.”

Further, Justice Shankar added that, there can be no comparison, whatsoever, between the relationship between a husband and a wife, with any other relationship between man and woman. It is for this reason that there is an enforceable legal right – which even Ms Nundy acknowledged – of each party in a marriage, to cohabit with, and for the consortium of, the other.

Petitioner’s counsel completely failed to accord to the marital relationship, the status and importance it deserves.

“Marriage is an institution which epitomizes, at the highest level, the most sublime relationship that can exist between man and woman.”

In this relationship, given its unique character and complexity, the legislature has, advisedly, felt that no allegation of “rape” has place. Sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred. In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable. The marital bedroom is inviolable. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of ‘rape’, in my view, is completely immune to interference.

—Justice Shankar

In his view, introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist if he has, on one or more occasions, sex with her without her consent, would be completely antithetical to the very institution of marriage.

Adding to the above observation, it was expressed that,

“Marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined. The impugned Exception does not, however, either expressly or by necessary implication, confer, on the husband in a marriage, an entitlement to insist on sex with his wife, against her willingness or consent.”

 “The expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond.”

Elaborating further, Justice Shankar remarked that, any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, is not only unjustified, but ex facie unrealistic.

Stating that, if the legislature, decided to treat non-consensual sex by a man with a woman, where the woman is a stranger, as rape, and non-consensual sex by a husband with his wife, as not rape, Justice Shakdher was unable to subscribe to the submission that the distinction violates Article 14 of the Constitution of India.

Re. the argument that the impugned Exception creates “three classes of victims”

In the case of an act of non-consensual sex between a husband and wife, there is no societal ramification whatsoever, unlike in the case of a woman raped by a stranger, as the act takes place within the privacy of the marital bedroom and, more empirically, because the man and the woman are married.

Conjugal right v. Conjugal expectation

The impugned Exception does not, either directly or by necessary implication, state that, by reason of marriage, a husband has a right to have sex with the wife against her will or consent. All that it says is that, if he does so, he, unlike a stranger committing such an act, cannot be treated as a rapist. There is a clear intelligible differentia between the two situations, stated Justice Shankar.

“The impugned Exception does not seek, directly or indirectly, to enforce a non-enforceable conjugal right, or even a conjugal expectation.”

Justice Shankar elaborated its observation stating that, the impugned Exception, applies to subsisting and surviving marriages, where the husband and wife are together, and not separated.

“In a subsisting, and surviving, marriage, where the husband and wife are staying together and cohabiting, if the legislature feels that an allegation of rape – and, consequently, the chance of the husband being called a rapist – should find no place even if, on one occasion or the other, the wife is compelled to have sex with the husband without willingness or consent, can it be said that the legislature acts unconstitutionally?”

In Justice Shankar’s opinion, this Court cannot approach the issue before it with a view of pronouncing on whether non-consensual sex within marriage ought to be punished, or not, and, if it feels that it should, find a way of doing so. That is exclusively the province of the legislature.

Consent and the ‘effect doctrine’

In Court’s opinion, there was nothing in the impugned Exception which obligated a wife to consent to having sex with her husband, wherever he so requests. It does not even obliquely refer to consent, or want of consent.

Conclusion

(i) the petitioners’ case is premised on a fundamentally erroneous postulate, for which there is no support available, either statutory or precedential, that every act of non-consensual sex by any man with any woman is rape,
(ii) the impugned Exception does not violate Article 14, but is based on an intelligible differentia having a rational nexus with the object both of the impugned Exception as well as Section 375 itself,
(iii) the impugned Exception does not violate Article 19(1)(a),

(iv)  the impugned Exception does not violate Article 21,

(v)  none of the indicia, on which a statutory provision may  be struck down as unconstitutional, therefore, can be said to exist, and

vi) in such circumstances, the Court cannot substitute its subjective value judgement for the view of the democratically elected legislature, hence challenges laid by the petitioners to the constitutional validity of Exception 2 to Section 375 and Section 376B of the IPC, and Section 198B of the Cr PC, have to fail.

Lastly, Justice Shankar concurred with the opinion of Justice Shakdher in his decision to grant certificate of leave to appeal to the Supreme Court as the present matter involved substantial questions of law.[RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404, decided on 11-5-2022]


Advocates before the Court

….. Petitioner
Ms Karuna Nundy with Mr Mukesh Sharma and Mr Raghav Awasthy,

….. Respondent
Mr Tushar Mehta, SG and Mr Chetan Sharma, ASG with Ms Monika Arora, CGSC along with Mr Vinay Yadav, Mr Amit Gupta, Mr Akshya Gadeock, Mr Rishav Dubey, Mr Rajat Nair, Mr Sahaj Garg and Mr R.V. Prabhat, Advs.

for UOI.
Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advs.
Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.
Mr Amit Lakhani and Mr Ritwik Bisaria as Intervenors for Men’s Welfare Trust.

W.P.(C) 5858/2017 & CM No.45279/2021

… Petitioner
Mr Colin Gonsalves, Sr. Adv. With Ms. Olivia Bang, Ms Sneha Mukherjee, Ms Mugdha and Ms Aimy Shukla, Advs

….. Respondents

Mr Ruchir Mishra, Mr Sanjiv Kumar Saxena, Mr Mukesh Kumar Tiwari and Mr Ramneek Mishra, Advs. for UOI. Mr Gautam Narayan, ASC, GNCTD with Ms Nikita Pancholi, Adv.

Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.

Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

Mr R.K. Kapoor, Advocate for applicant in CM 19948/2016.

W.P.(C) 6024/2017

…Petitioner

Ms Karuna Nundy, Ms Ruchira Goel, Mr Rahul Narayan, Mr Nitish Chaudhary, Ms Ragini Nagpal, Ms Muskan Tibrewala, Mr Utsav Mukherjee and Mr Shashwat Goel, Advs.

…. Respondent
Mr Chetan Sharma, ASG with Mr Anil Soni, CGSC along with Mr Devesh Dubey, Mr Vinay Yadav, Mr Amit  Gupta, Mr Akshya Gadeock, Mr Rishav Dubey, Mr Sahaj Garg and Mr R.V. Prabhat, Advs. for UOI.
Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.
Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

W.P.(CRL) 964/2017

…… Petitioner

Mr Sahil Malik, Adv.

….. Respondents Ms Nandita Rao, ASC for State.

Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.

Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.


Read More:

Split Verdict on Criminalisation of Marital Rape Decision: One strikes down the exception, one upholds [Report to be updated]

Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

Hot Off The PressNews

Delhi High Court will be soon pronouncing its ruling with respect to a batch of petitions filed asking for striking down marital rape to be an exception under the Penal Code, 1860.

How can killing your own wife be criminal but indulging in sexual activity without her consent (forcibly) be not a criminal activity?

Delhi High Court to decide on Exception 2 to Section 375 of the Penal Code, 1860. (IPC)

What does Section 375 Exception 2 state?


Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

On 21-2-2022, the Delhi High Court had reserved its order.

[To be updated once Judgment is pronounced]


Also Read:

Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

High Court Round UpLegal RoundUp

110 Reports from 20 High Courts


Allahabad High Court


  • Money Laundering

For money launderers “jail is the rule and bail is an exception”

While addressing a matter with regard to anticipatory bail, Krishan Pahal, J., observed that, Money Laundering being an offence is economic threat to national interest and is committed by the white-collar offenders who are deeply rooted in society and cannot be traced out easily.

Read full report here…

  • Right to Approach the Court

Person whose case is based on falsehood has no right to approach the Court

Expressing that Courts of law are meant for imparting justice, Sanjay Kumar Singh, J., observed that more often the process of Court is being abused by unscrupulous litigants to achieve their nefarious design.

Read full report here…

  • Bail

Cogent and clinching evidence found regarding conversion of deaf and dumb students to Islam; Bail denied

The Division Bench of Brij Raj Singh and Ramesh Sinha, JJ. dismissed a criminal appeal which was filed under Section 21 (4) of the National Investigation Agency Act, 2008 of refusal of bail to the appellant.

Read full report here…

Unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans; foundations of our nation are more enduring: All HC while granting bail to Kashmiri Students

Expressing that Students travelling freely to different parts of the country in the quest for knowledge is the true celebration of India diversity and a vivid manifestation of India’s unity, Ajay Bhanot, J., stated that it is the duty of the people of the hosting State to create enabling conditions for visiting scholars to learn and to live the constitutional values of our nation.

Read full report here….


Andhra Pradesh High Court


  • Arms Act

Will carrying of toy gun in public attract S. 25 of Arms Act? Bail granted to a man giving stills as a hero with an air gun in a cinema theatre

“…the offences punishable under Sections 290, 506(2) IPC are bailable in nature. As regards the offence punishable under Section 25 of the Arms Act, 1959, is concerned, the pistol which was seized from the possession of A-1 is an air gun. It is a toy gun.”

Read full report here…

  • Wilful Negligence

No offence made out under POA Act against bank officials who misplaced the house documents and title deeds of a claimant as FIR does not show wilful Negligence by a public servant

The Court after perusing Section 3(1) (v) and 3(2) (vii) and Section 4 of POA, Act, which deals with punishment for neglect of duties it is clear that these cannot be made applicable to the facts in issue. Section 3(2)(vii) postulates a situation where a person being a public servant commits any offence under this section i.e., Section 3(2) shall be punishable with imprisonment for a term which shall be less than one year but which may extend to the punishment provided for that offence. 

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  • Vakalat and Written

Signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard for want of expert opinion under S. 45 Evidence Act

Ninala Surya, J., decided to not interfere with the impugned order and dismissed the civil writ petition.

Read full report here…


Bombay High Court


  • Child Marriages

Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation

Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

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  • Decorum of Court

Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

Anuja Prabhudessai, J., expressed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice.

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  • Compassionate Appointment

Can legal heir of deceased employee be granted compassionate appointment, who took voluntary retirement due to being medically unfit?

Ravindra V. Ghuge, J., decides a matter as to whether the benefit of compassionate appointment can be granted to the legal heir of the employee, who took voluntary retirement and was never certified as being medically unfit to perform any work, though the reason for opting for retirement was a serious medical condition.

Read full report here…

  • Religious Verses

Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic expectation.

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  • Eviction

Son not expected to brand his aged father a ‘swindler’ or allege that aged parents have lost mental balance

In a matter wherein, the parents sought eviction of their sonRohit B. Deo, J., expressed that,

“In the conservative Indian society, a son is not expected to brand his aged father a ‘swindler’ or then allege that the aged parents have lost mental balance.”

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  • Arbitration and Conciliation Act

Can mere filing of proceedings under S. 7 IBC be treated as an embargo on Court exercising jurisdiction under S. 11 of Arbitration & Conciliation Act?

A very interesting question was considered by G.S. Kulkarni, J., the question being, whether mere filing of a proceeding under Section 7 of the Insolvency and Bankruptcy Code, 2016 would amount to an embargo on the Court considering an application under Section 11 of the Arbitration and Conciliation Act, 1996, to appoint an arbitral tribunal?

Read full report here…

  • Land Acquisition

For determining land acquisition compensation, market value, if any, specified in Stamp Act for registration of Sale Deed and/or Agreement of Sale has to be considered

The Division Bench of S.V. Gangapurwala and Vinay Joshi, JJ., expressed that only because 83% of the property for the project is acquired, it would be egregious not to apply the provision of the statute for determination of compensation.

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  • Pension

If service of an employee at his superannuation is less than ten years, then previous temporary or officiating service needed to be counted for qualifying service for pension

The Division Bench of R.D. Dhanuka and S.G. Mehare, JJ., expressed that, for condoning the interruption in service, the total service pensionary benefit in respect of which will lost should not be less than five years duration, excluding one or two interruptions.

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  • Partition

In a suit for partition, the heads of all the branches are necessary parties

Mangesh S. Patil, J., decided on the following questions for consideration:

  • Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
  • Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
  • Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

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  • Maintenance

Can filing of a maintenance proceeding, a criminal case for harassment be said to be sufficient to jump to a conclusion that wife intended to harass husband and his relations?

In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

Read full report here…

  • “No Confidence”

If directly elected Sarpanch acts in a manner rendering functioning of Panchayat at a standstill, would member of panchayat get right to move motion of ‘no confidence’?

Stating that in the democratic setup, the will of the majority is the rule, the Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., held that if the directly elected Sarpanch fails to call the meetings of the Panchayat or acts in a manner rendering the functioning of the Panchayat at a standstill, the member of the Panchayat would certainly get a right to move a motion of no confidence.

Read full report here…

  • Motor Accident Case

Determination of a just compensation cannot be equated to be a bonanza

Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

Read full report here…

  • Society

Can minority members of a Society act against will of majority members and foist delay in commencement of redevelopment work of Society?

Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigationG.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

Read full report here…

  • Abortion

Past pregnancy can be determined on account of permanent changes in the body of a woman

While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

Read full report here…

  • Custody of Child

Non-custodial parent cannot be deprived of his right to spend quality time and enjoy company of children

Anuja Prabhudessai, J., expressed that the children also have the right to love and affection from both parents as well as grandparents as it is essential for the personal development and overall well-being of the children.

Read full report here…

  • Partnership Act

Every partner is liable, jointly with all other partners and also severally for all acts of firm done while he is a partner: Is it true?

Expressing that, a firm is not a legal entity, N.J. Jamadar, J., held that a partnership firm is only a collective or compendious name for all the partners.

Read full report here…

  • Constitutional Validity of S. 29A of Consumer Protection Act

Whether absence of President of State Commission or District Forum for reasons beyond control is sufficient for striking down S. 29A as unconstitutional?

Stating that, the Courts cannot examine the constitutional validity if a situation created by impugned legislation is irremediable, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., addressed a matter wherein the constitutional validity of Section 29A of the Consumer Protection Act, 1986 has been challenged.

Read full report here…

  • Lawyer-Client Relationship

Lawyer-client relationship is a fiduciary one; any act which is detrimental to legal rights of clients’ needs to be punished

Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justicethe Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated.

Read full report here…

  • Sale Deed

Whether a natural guardian having executed sale-deed of property of a minor in favour of a third party and thereafter repurchased part of it, can be prosecuted for offences under Ss. 420, 467, 468, 471 of IPC that too, after more than 35 years from date of attaining majority by minor?

The Division Bench of V.M. Deshpande and Amit Borkar, JJ., expressed that a transaction by a natural guardian of a minor with respect to his immovable properties is valid till a Court strikes it down.

Read full report here…

  • Muslim Personal Law

Under Muslim Personal law, can Family Court dissolve the marriage of a couple?

The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

Read full report here…

  • Competition Commission of India

Competition Commission of India not to take any coercive actions against Asianet, Disney and Star India until 8th June

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., directed the Competition Commission of India not to take any coercive actions against Asianet Star Communications Private Limited, Disney Broadcasting and Star India.

Read full report here…

  • Alimony

Whether the husband is entitled to claim alimony under Section 25 of the Hindu Marriage Act, 1955?

Bharati Dangre, J., held that provision of maintenance/permanent alimony being a beneficial provision for the indigent spouse, Section 25 can be invoked by either of the spouse, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by such decree of the court.

Read full report here…

  • Properties

Daughters and widow of a deceased would inherit properties of deceased as tenants in common or joint tenants?

Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

Read full report here…


Calcutta High Court


  • Departmental Proceedings

DGP directed to initiate departmental proceedings against Police Officers; CID to take over investigation

Rajasekhar Mantha, J. while adjudicating a case involving serious offences under Section 365, 354B and other provisions of IPC directed the Director General of Police, West Bengal to initiate appropriate departmental proceeding against the ASI, Arnab Chakraborty and any other person that he may feel was responsible for misleading the Court further handing over the investigation to CID, West Bengal.

Read full report here…

  • Policy Decisions

Policy decisions of State not to be disturbed unless found to be grossly arbitrary or irrational; prayer for extension of lease rejected

Shampa Sarkar, J. decided on a petition which was filed for a direction upon the respondents 7 and 8 to cancel and/or quash the notice dated April 6, 2022, with regard to handing over the possession of the ferry ghat to the Pradhan of the Mahanandatola Gram Panchayat, upon expiry of the lease of the petitioner.

Read full report here…

  • Currency Notes

There are many known heroes and unsung heroes, if everybody starts making such a claim there will not be an end; Petition for printing Netaji’s picture on currency notes dismissed

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. dismissed a petition which was filed by the petitioner with the plea that having regard to the contribution of Netaji Subhas Chandra Bose in the freedom struggle, his picture should be printed on the Indian currency.

Read full report here…

  • Arbitration and Conciliation Act

Scope of S. 9 of A&C Act cannot be extended to enforcement of award or granting fruits of award to award holder as an interim measure; application dismissed

Ravi Krishan Kapur, J. dismissed an application which was filed under Section 9 of the Arbitration and Conciliation Act, 1996 (‘the Act’) wherein liberty to withdraw a sum of Rs 4,11,89,759/- deposited by the award debtor, State of West Bengal, with the Registrar, Original Side of this Court upon furnishing of appropriate security was sought.

Read full report here…

  • Rape

Lady IPS Officer directed to investigate in the recent matter of 4 rape cases in the villages

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. took up a petition and directed Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police to investigate in the matter of rape cases at village Nehalpur, Nandipara, incident on Dol Purnima and English Bazar.

Read full report here…

  • Indian Forest Act

Court orders release of vehicles confiscated under the Indian Forest Act with unprecedented observations

Rabindranath Samanta, J. allowed a criminal revision petition which was filed aggrieved by the order of Magistrate wherein he had rejected the prayers made by the petitioners for return of two vehicles which were seized by the Deputy Ranger (Beat Officer), Bamonpokhari Range Office of the Forest Range, Kurseong Forest Range, Darjeeling

Read full report here…

  • GST Act

The interest of revenue has been safeguarded; Order of detention against the State upheld in matter of GST Act

The Division Bench of T. S. Sivagnanam and Hiranmay Bhattacharyya, JJ., dismissed an appeal and connected application which was filed by the State against  the order of detention passed by the authority detaining two trucks containing consignment of steel and other products in WPA 17611 of 2021 dated: 07-12-2021 wherein petitioner was the wife of late Mohit Madhogoria, who was a registered dealer under the provisions of the W.B.V.A.T. Act presently under the GST Act.

Read full report here…


Chhattisgarh High Court


  • Legislation

Whenever substantive obligation/rights/ interests are impaired/adversely affected through any piece of subordinate legislation, then its source must be traced within express provisions in four corners of parent enactment

“…the very object and reason behind framing of the Pharmacy Act, 1948 was to ensure that only persons with a minimum standard of professional education should be permitted to practice the profession of pharmacy.”

Read full report here…

  • Unlawful Detention

Writ of habeas corpus is a writ of right, it is not a writ of course; a prima facie case of unlawful detention must be made

The writ of habeas corpus is an effective means of immediate release from the unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient. For issuance of a writ of habeas corpus, the applicant must show a prima facie case of unlawful detention of the subject.

Read full report here…

  • Section 304 B of Penal Code, 1860

An order of acquittal is not to be set aside lightly; Chh HC observes in a case where daughter in law committed suicide in unnatural circumstances

The Court after perusing evidence and facts observed that the finding of the Trial Court that the prosecution has failed to prove that soon before the death of the deceased she was subjected to cruelty on account of demand of dowry is totally based on the evidence available on record.

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  • Will

Daughters also entitled for getting equal share in the property inherited by their parents; Court reiterates and allows appeal deciding validity of will

Narendra Kumar Vyas, J. allowed an appeal filed by the defendants setting aside the judgment and decree by the Trial Court whereby trial Court had decreed the suit filed by plaintiff/respondent 1, dismissed the counter claim filed by appellants/defendants 1 to 3.

Read full report here…

  • Criminal Trial

Criminal trial and confiscation proceedings may run simultaneously; Once the information of confiscation proceeding under S. 52 (e) Indian Forest Act is given to DM, Trial Magistrate has no power over it

“…a bare reading of Section 52, Indian Forest Act, 1927 makes it clear that Forest Officer has power to confiscate the vehicle and the Competent Authority after giving show cause notice to the petitioner.”

Read full report here…

  • Abduction

If a girl runs away voluntarily without any persuasion, can boy with whom she eloped be held responsible for abducting the girl?

Deepak Kumar Tiwari, J., held that, when the accused has not played any active role or persuaded the victim and the victim voluntarily left the protection of her parents and having capacity to know her action, no offence of abduction is made out.

Read full report here…


Delhi High Court


  • Maintenance

Husband with sufficient means, is obligated to maintain wife and children?

In a maintenance matter, Subramonium Prasad, J., expressed that, if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities

Read full report here…

  • Rule of Law

Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin?

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Subramonium Prasad, J., held that,

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.”

Read full report here…

  • Framing of Charge

Does framing of charge means that accused is guilty or does it imply that accused may be guilty?

“The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.”

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  • Levy of Liquidated Damages

 If a contract comprises, several components awarded to different contractors, would it be inapposite to blame contractor that was last in completing work for loss suffered on account of delay in completing Project?

While reiterating the law on award of liquidated damages, Vibhu Bakhru, J., expressed that, where a contract comprises, several components awarded to different contractors, it is inapposite to blame the contractor that is last in completing the work for loss suffered on account of delay in completing the Project.

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  • Arbitration Agreement

Rule of priority in favour of arbitrators is counterbalanced by Courts’ power to review existence and validity of arbitration agreement

“Once a valid arbitration agreement exists between the parties, the issue whether the petitioner is entitled to any relief in the absence of a third party to the agreement or that third party is required to be impleaded in the proceedings, is covered by the Doctrine of Competence-Competence and it will be for the Arbitrator to decide the said issue.”

Read full report here…

  • PC & PNDT Act

Can Court take cognizance of complaint filed by single-member Appropriate Authority for offences under PC&PNDT Act, 1994?

Mukta Gupta, J., held that, the Metropolitan Magistrate/ Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under the PC&PNDT Act on the complaint of an Appropriate Authority or any officer authorised on this behalf by the Central Government or the State Government or the Appropriate Authority under sub-Section (1) of Section 28 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

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  • Jurisdiction

Can power under S. 482 CrPC be exercised where allegations are required to be proved in Court of law?

Rajnish Bhatnagar, J., expressed that the Court in the exercise of its jurisdiction under Section 482 CrPC cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts.

Read full report here…

  • Recusal of Judge

When a Judge recuses without reasons, can a litigant or third party intervene, comment or enquire?

Asha Menon, J., held that, when a Judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt out in detail or not.

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  • Adultery

Only continuous and repeated acts of adultery and/or cohabitation in adultery would attract rigours of provision under S. 125(4) CrPC

While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Read full report here…

  • Civil Contempt

Disobedience of an order of Court, if permitted, will result in striking at root of rule of law

Whether the third party can be absolved from contempt if they are informed that their conduct would violate the Court order, Subramonium Prasad, J., reiterated the well-settled position that though broadly a person who is not a party to the proceedings cannot be proceeded against for violation of the order, but a third party cannot seek to absolve themselves if they are informed about the fact that their conduct amounts to a violation of the Court and that despite the information, they choose to willfully flout the mandate of the Court.

Read full report here…

  • Denial of Sex

Whether denial of sex can qualify as “exceptional depravity” under S. 14 of the Hindu Marriage Act and allow waiver of one-year mandatory period?

Noting that, Section 14 of the Hindu Marriage Act intends to discourage the couples from breaking the sacred bond of marriage in haste, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, a mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

Read full report here…

  • Bail

Person accused of defrauding Government: Will Del HC grant bail to the accused?

Prateek Jalan, J., grants bail to a person who was alleged to cause fraudulent transactions and loss to the government.

Read full report here…

Cocoon of protection, afforded by a bail order insulates suspect and he could thwart interrogation reducing it to futile rituals

Asha Menon, J., expressed that, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

Read full report here…

  • Arbitration and Conciliation Act

Scope of examination under S. 11 of A&C Act is confined to existence of arbitration agreement or does it extend to adjudicating nature of contract as well?

Vibhu Bakhru, J., held that whether claims are barred by limitation is a mixed question of fact and law and is required to be examined by the Arbitral Tribunal.

Read full report here…

Whether an award passed under S. 34(4) of the A&C Act is a fresh award for the purpose of S. 34 of the Act?

Vibhu Bakhru, J., allowed an amendment application seeking amendment of a petition filed under Section 34 of the Arbitration and Conciliation Act.

Read full report here…

  • Infringement

Red Bull v. Sting | Injunction application against Pepsico’s tagline “STIMULATES MIND ENERGIZES BODY”: Whether Pepsi has committed infringement?

Amit Bansal, J., observed that the taglines of ‘Red Bull’ and ‘Sting’ are descriptive and laudatory in nature.

Read full report here…

  • Scholarship Advertisement

If an advertisement regarding scholarship was published in Urdu language, can it be presumed that it was targeted at students belonging to a particular community only?

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., expressed that just because the scholarship advertisement was published in the Urdu language, does not mean that it was targeted at students belonging to a particular community only.

Read full report here…

  • COVID-19

Can Delhi High Court direct State for payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19?

The Division Bench of Vipin Sanghi, ACJ and Navin Chawla, J., held that this Court cannot direct payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19.

Read full report here…

  • Physical relations on Promise to Marry

 Long term relationship with intent of marriage ended on hostile terms, would it be covered under S. 376(2)(n) IPC?

Noting that the Trial Court failed to perform its duty and rendered a mechanical order, Subramonium Prasad, J., set aside the trial Court’s order in a matter wherein, a woman had alleged that she was subjected to physical relationship with a boy on a false promise of marriage.

Read full report here…

  • Political Clearance

Judges required to seek political clearance qua private visits abroad: Did Del HC strike down Ministry of External Affairs’ Office Memorandum requiring the same?

The Division Bench of Rajiv Shakdher and Jasmeet Singh, JJ., strikes down the OM dated 13-7-2021, to the extent it requires Judges of the Supreme Court and the High Court to seek political clearance qua private visits abroad.

Read full report here…

  • Natural Justice

Refusal of a trade mark without even affording a hearing would be contrary to fundamental tenets of natural justice

Prathiba M. Singh, J., expressed that, refusing trade mark without even affording a hearing would be contrary to the fundamental tenets of natural justice.

Read full report here…

  • LOC issued against Rana Ayyub

Infringement of Human Rights and restraint of her freedom of speech and expression?

While expressing that a LOC is a coercive measure to make a person surrenderChandra Dhari Singh, J., noting that the petitioner had appeared on each and every date before the Investigating Agency when summoned, quashed the LOC issued against Rana Ayyub.

Read full report here…

  • Arbitration and Conciliation Act

Vibhu Bakhru, J., forms an arbitration tribunal to adjudicate the matter with regard to use the brand name/trademark “Hero”.

Read full report here…

  • Custodial Interrogation

Father of deceased accuses brother-in-law for her suicide: If chargesheet has already been filed, is there any need of custodial interrogation?

Chandra Dhari Singh, J., decides a bail matter wherein a woman was alleged to have committed suicide due to harassment and dowry demands by in-laws.

Read full report here…


Gujarat High Court


  • Reinstatement of Employee

Court directs reinstatement of employee alleged of corruption charges; termination order quashed

Biren Vaishnav, J. allowed a petition which was filed challenging the order of termination passed by the respondent – authority, by which, the services as Assistant Motor Vehicle Inspector, Class-III of the petitioner has been terminated on the ground of lodging of an FIR under Sections 7, 8, 12, 13(1)(D) and 13(2) of the Prevention of Corruption Act.

Read full report here…

  • Bail

First step of turning him into a hardcore criminal will be sending him behind bars; Court allows bail

A.S. Supehia, J. allowed a bail application in connection with FIR filed for the offences under Sections 363, 366, 376(2)(n), 376(3) of the Penal Code, 1860 as well as Sections 4, 6, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

Read full report here…

  • Custody of Children

Mother alleged to have extra-marital affair, will father be granted custody of children?

Ashok Kumar C. Joshi, J., denied granting child custody to father, wherein the mother was alleged to have extra-marital affairs.

Read full report here…


Himachal Pradesh High Court


  • COVID-19

PIL filed by an advocate for grant of stipend to her as well other Advocates, who have not completed 3 years of practice on account of Covid-19; HP HC directs to approach State Bar

A Division Bench of Mohammad Rafiq CJ. and Jyotsna Rewal Dua JJ. disposed of the petition and directed to approach State Bar Council.

Read full report here…


Jharkhand High Court


  • Natural Justice

Principles of natural justice required to be followed and cannot be waived out depending upon quantum of punishment; Reiterated mandate of natural justice in blacklisting cases

The Court remarked that the cardinal principle of natural justice is mandatory to be followed in a case where any adverse decision/action is being taken against one or the other. The issuance of notice means that the person against whom any adverse action proposed to be taken, is required to be provided with the opportunity of hearing.

Read full report here…


Jammu and Kashmir and Ladakh High Court


Advocates are officers of Court and deserve same respect and dignity as is being given to Judicial and Presiding Officers of Courts

Sanjay Dhar, J., expressed that, there may be stray incidents where the advocates have resorted to levelling allegations against the Judicial Officers in order to seek transfer of their cases from one Court to another to suit their convenience, but then this cannot be generalized.

Read full report here…

  • Maintenance

Minor seeks maintenance but issue of her paternity is in question: Will J&K and Ladakh HC grant maintenance amidst the dispute?

“…grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 CrPC, but when the paternity of a child is seriously disputed and there is no prima facie material to suggest that the respondent happens to be the father of the child, it would not be prudent for a Magistrate to fasten the respondent with the liability of maintaining the child.”

Read full report here…


Kerala High Court


  • Sexual Assault

In the guise of applying makeup, a bridal make up artist alleged sexually assaulted several women: Can he be granted anticipatory bail?

Gopinath P., J., granted bail to the bridal make up artist who was alleged to have sexually assaulted several women in the guise of applying make up.

Read full report here…

  • Media Trial

Can media be given right to speculate on outcome of one going investigations or Court proceedings or criminal trials?

While addressing the matter with regard to the media trial, Mohammed Nias C.P., J., expressed that, half-truths and misinformation cannot be the basis of publications or telecast.

Read full report here…

  • Alimony

Can children claim any amount under the head of permanent alimony under S. 25 of the Hindu Marriage Act?

Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

Read full report here…

  • Consensual Sex

Can promise to marry a married woman be legally enforceable wherein she voluntarily formed sexual relations with a man?

Dr Kauser Edappagath, J., addressed a matter wherein a married woman voluntarily had sex with her former lover.

Read full report here…

  • Maintenance Tribunal

Whether power of Maintenance Tribunal under Senior Citizen Act is circumscribed to ordering of monthly allowance?

In a matter, wherein a senior citizen has approached the Court with her grievance with respect to her son, Murali Purushothaman, J., expressed that,

“When the Senior Citizen or parent who has earnings makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the Senior Citizen or parent is able to maintain herself from her earnings.”

“To care for those who once cared for us is one of the biggest honours.”

Read full report here…

  • Family Court

Do Family Courts have to remain as a neutral umpire of the real dispute between the parties?

Expressing that, Family Court has been functioning in like manner of an ordinary Civil Court, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., remarked that, family courts have to be impartial or neutral.

Dissatisfaction with the administration of justice in the Family Courts is writ large on the face of many orders challenged before this Court.

Read full report here…


Karnataka High Court


Mere suspicion is not enough to prosecute the petitioner for offence punishable under S. 370 of the IPC for human trafficking; Kar HC observes in a case where AIO caught 3 Indian nationals on suspicion

The Court after perusing complaint, charge sheet and Section 370 of the IPC observed that the petitioner had indulged himself in human trafficking and thus the soul of the provision is exploitation.

Read full report here…

  • Election

Kar HC quotes “The Vajpayee led NDA–Government was toppled for want of one vote” and Benjamin Franklin while deciding a case of a returning candidate whose election was set aside

“…A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election.”

Read full report here…

  • Solid Waste Management

PIL filed seeking to shift the location identified for setting up solid waste management; directions issued

A Division Bench of Ritu Raj Awasthi CJ. and S. R Krishna Kumar JJ. issued directions regarding setting up of solid waste management units after expert opinion from concerned authorities.

Read full report here…

  • A&C Act

Kar HC deals whether an international commercial arbitral award rendered outside India between the parties who have no connection to India can be enforced in India

“…a foreign award under a New York Convention has been given a special status. India being a signatory to the said New York Convention it is required that all countries which are signatories to the New York Convention enable execution of a foreign arbitral award rendered in a reciprocating country in the event of a property against which the arbitral award is sought to be enforced is situated within the jurisdiction of that particular country.”

Read full report here…

  • Dishonour of Cheque

Kar HC decides contours of law in a classic case where cash of Rs 2 crore was borrowed as hand loan and a cheque obtained for the repayment of the same got dishonoured

The Court observed that the Act was amended by the Amendment Act of 2018 and Section 143A came to be inserted. The purport of the amendment is that the Court may in certain circumstances award interim compensation which shall not exceed 20% of the amount of the cheque and such interim compensation can be permitted to be withdrawn in terms of the said amendment.

Read full report here…


Madras High Court


  • Tax Liability

If an assessee under stress of investigation, signs a statement admitting tax liability and makes a few payments, can it lead to self-ascertainment?

Merely because an assessee has, under stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment.

Read full report here…

  • Two-Finger Test

Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of R. Subramanian and N. Sathish Kumar, JJ., directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals.

Read full report here…

  • Co-parcenary Right

Are Coparcenary rights taken away by Hindu Succession Act?

Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters

Read full report here…

  • Legal Profession

Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice

Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the ConstitutionM. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice.

Read full report here…

  • Law of Limitation

Exercise of power of discretion if made excessively, it would defeat the purpose and object of law of limitation; Courts not to travel beyond permissible extent

Expressing that, Power of discretion is to be exercised to mitigate the injustice if any occurred to the litigantsS.M. Subramaniam, J., remarked that,

“Litigations/appeals are expected to be filed within the period of limitation as contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable.”

Read full report here…


Madhya Pradesh High Court


  • Live-in Relationships

Live-in relationships are engulfing ethos of Indian society, and promoting promiscuity and lascivious behavior, giving further rise to sexual offences

Subodh Abhyankar, J., expressed that, the bane of live-in-relationship is a by-product of the Constitutional guarantee as provided under Article 21 of the Constitution of India.

Read full report here…

  • Divorce

Woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman; Appeal for divorce dismissed

“Based on Hindu law, marriage is a sacred tie and the last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth. Also, it is not only considered as sacred but it is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties. Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman.”

Read full report here…

  • Criminal Proceeding

Criminal proceeding maliciously instituted with an ulterior motive for wrecking vengeance deserves to be quashed; Court allows petition by husband

Rajeev Kumar Shrivastava, J. allowed a petition which was filed to quash FIR for offence under Sections 498-A, 506, 34 of IPC and other subsequent proceedings initiated therefrom.

Read full report here…

  • Bail

Warning issued to Additional Session Judge for granting bail on caste and bias

Vivek Agarwal, J. allowed a bail application issuing a warning to First Additional Session Judge, Maihar, District Satna to be more cautious and judicious in his approach in future so that image of the judiciary can be saved and allegations of casteism and bias are not allowed to be levied so to tarnish collective image of judiciary.

Read full report here…

  • Mental Cruelty

Mental cruelty inflicted by the wife over her husband through her conduct a valid ground for divorce; Court allows appeal

The Division Bench of Sheel Nagu and Anand Pathak, JJ., allowed an appeal which was preferred under Section 19 of the Family Court Act, 1984 against the judgment and decree dated 27-03- 2019 passed by the Link Family Court whereby the application preferred by the appellant/applicant/husband under Section 13(1)(iA) of Hindu Marriage Act, 1955 had been rejected.

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  • Dishonour of Cheque

Whether dishonour of cheques could have only given a cause of action to register an FIR for an offence under S. 420 IPC?

The Court stated it is a well-settled principle of law that the general law will not prevail over the Special Law as enshrined in the maxim generalia specialibus non derogant.

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Orissa High Court


  • Dishonour of Cheque

Ori HC considers whether any difference exists between a case where default is committed and prosecution immediately launched and where prosecution is deferred till cheque presented again gets dishonored for second or successive time?

R K Pattnaik, J. dismissed the petition and held that the ground on which the petition is raised is misconceived and therefore, cannot be sustained.

Read full report here…


Rajasthan High Court


  • Sexual Assault

Ex–fiancée levelled charges of sexual assault to harass and destroy present married life of the boy; Raj HC issues notice and directs police to neither harass nor arrest him

Dinesh Mehta, J., issues notice and directs police to neither harass nor arrest the petitioner boy.

Read full report here…

  • Bail

Raj HC granted temporary bail for a period of 15 days to enable the appellant to perform Kanyadaan on daughter’s marriage

A Division bench of Manindra Mohan Srivastava, CJ. and Madan Gopal Vyas J. allowed the application and granted bail for a period of 15 days.

Read full report here…

  • Mining Operations

PIL filed seeking permit for gypsum mining in the districts Shriganganagar and Haumangarh; Raj HC observes citizen does not have any vested right to carry on mining operations, absolute right lies with State

A Division Bench of Farjand Ali J and Sandeep Mehta JJ.  directed that as and when the gypsum mining operations are opened in Sriganganagar and Hanumangarh districts, the petitioners shall not be entitled to apply for mining licenses for this purpose in either of these two districts.

Read full report here…

  • Maintenance of Senior Citizens

Ill-treatment meted out to respondent-mother, expelled from her own house, allegations of mental, physical and social abuse; Raj HC directs petitioner-son to vacate the house with his family

The Court observed that Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted by the Legislature in the background that the traditional norms and values of the Indian Society are lost due to withering of the joint family system as a large number of elderly are not being looked after by their family, particularly the widowed women, who are forced to spend their twilight years all alone and are exposed to emotional neglect, lack of financial support and are rather treated as a waste.

Read full report here…

  • Right to Procreation

Raj HC reiterated “Right to Procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution; Parole granted

The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

Read full report here…


Punjab and Haryana High Court


  • Duration of Marriage

Short duration of marriage cannot be the only ground to disallow organ transplant by spouse; writ petition allowed

 Raj Mohan Singh, J., contemplated the present petition and ruled that a short duration of marriage is absolutely no ground to deny an organ transplant.

Read full report here…

  • Mental Cruelty

Unworkable Marriage | Wife makes unfounded, indecent and defamatory allegations against husband to his senior officers, destroying his career & reputation: Mental Cruelty or not?

Expressing that, Matrimonial cases are matters of delicate human and emotional relationshipthe Division Bench of Ritu Bhari and Ashok Kumar Verma, JJ., expressed that, the Court no doubt should seriously make an endeavour to reconcile the parties, yet, if it is found that the breakdown is irreparable, then divorce should not be withheld.

Read full report here…

  • Voice Sample

S. 65-B (4) of the Evidence Act does not mention the stage of furnishing the certificate for admissibility; Court directs to give voice sample

Avneesh Jhingan, J., entertained a petition under Section 482 CrPC where the petitioner was aggrieved by the directions of the Chief Judicial Magistrate for giving voice samples.

Read full report here…


Telangana High Court


  • Employees State Insurance Act

Exhausting the remedy available for appeal is the rule and entertaining a writ petition is an exception

G Radha Rani, J., disposed of the petition and directed the petitioner to approach the EI Court under Section 75 of the ESI Act by filing an appropriate application.

Read full report here…


Tripura High Court


  • POCSO

Offence under S. 8 of the POCSO Act not been established beyond reasonable doubt; Court acquits man of POCSO charges

Arindam Lodh, J. partly allowed an appeal which was filed against the judgment and order of conviction whereby and whereunder the appellant has been found guilty for committing an offence punishable under Section 8 of the POCSO Act and sentenced him to suffer Rigorous Imprisonment for 3 years for the said offence and also found guilty under Section 448 of IPC and sentenced to suffer Rigorous Imprisonment for 1 year for the said offence.

Read full report here…

Statement of the victim show exaggerations and improved versions; Court reduces sentence in POCSO matter

Arindam Lodh, J. partly allowed an appeal which was filed challenging the judgment of conviction and order of sentence passed by Special POCSO judge wherein the appellant had been convicted under Section 10 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 20,000/- with default stipulation and further convicted under Section 451 IPC and sentenced him to suffer simple imprisonment for 6 months and to pay fine of Rs. 5000 with default stipulation.

Read full report here…


Sikkim High Court

State directed to ensure immediate escalation of progress of work of repairing of NH-10; meeting called to chalk out the immediate course of action before monsoon arrival

The Division Bench of Biswanath Somadder and Meenakshi Madan Rai, JJ. took up the PIL in order the peruse the status report concerned with the damaged roads and highways in the State.

Read full report here…

  • Missing Children

Directions issued for tracing out the missing children in the State; CCTV’s installed in police stations

The Division Bench of Biswanath Somadder, CJ. and Meenakshi Madan Rai, J. issued certain directions in the matter of a PIL concerning missing children in the State.

Read full report here…

Case BriefsHigh Courts

Delhi High Court: Noting that the Trial Court failed to perform its duty and rendered a mechanical order, Subramonium Prasad, J., set aside the trial Court’s order in a matter wherein, a woman had alleged that she was subjected to physical relationship with a boy on a false promise of marriage.

A petition was filed under Sections 397/401 CrPC read with Section 482 CrPC for setting aside the decision of Additional Sessions, Tis Hazari Courts arising out of an FIR registered for offences under Section 376(2)(n) of the Penal Code, 1860.

Factual Background

Petitioner had extended a false promise of marriage to the prosecutrix on the basis of which he had sustained a physical relationship with her.

It was stated that the prosecutrix and the petitioner were engaged, but the wedding was postponed due to some issues on the family of the prosecutrix. Prosecutrix had requested the petitioner to marry her by way of court marriage or in Arya Samaj Temple and the said request was rejected by the petitioner.

Prosecutrix alleged that the petitioner’s family raised the issue that the prosecutrix was not financially well-off and that the petitioner wanted to marry a girl whose father would have the wherewithal to invest money in his marriage. Hence the FIR was registered under Section 376(2)(n) IPC.

In January, 2020 the Court had granted anticipatory bail to the petitioner, after which a charge sheet was filed and Trial framed charges against the petitioner. On being aggrieved with the same, the instant revision petition was filed.

Analysis, Law and Decision

As per Section 376(2)(n) IPC, whoever commits rape repeatedly on the same woman shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life and shall also be liable to fine.

The primary allegation in the instant matter was that under the garb of marriage, the petitioner repeatedly raped the prosecutrix.

High Court examined the difference between a false promise of marriage and breach of promise to marry.

Breach of Promise to Marry: In this, sexual relations are initiated on the premise that two individuals will marry at a later point in time.

False Promise of Marriage: Sexual relations take place without any intention of marrying at all and the consent that is obtained for the said relations to take place is vitiated by way of misconception of fact. The said aspect was elaborate by the Supreme Court in various decisions, one of such judgments was:  Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608.

In the decision of Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, Supreme Court had categorically distinguished between rape and consensual sex, as well as the distinction between mere breach of a promise and not fulfilling a false promise.

Hence, in order to arrive at the conclusion that the sexual relations were coerced, it is necessary to examine whether at the stage of rendering a promise to marry, it was done with the intention of not keeping the promise and, therefore, was false at the inception of itself. (Sonu v. State of U.P., 2021 SCC OnLine SC 181)

As per the FIR, the prosecutrix and petitioner were in a long term relationship and were engaged.

On perusal of Section 90 IPC, it is clear that consent given under fear or misconception cannot be said to be consent. In the instant matter, Bench stated that the petitioner and prosecutrix were in a long-term relationship and furthermore, an engagement ceremony had taken place between the two.

The above-said indicated that the petitioner intended to marry the prosecutrix, but just because the relationship ended on hostile terms, it could not be concluded that the petitioner had no intent to marry the prosecutrix in the first place.

From the above, the High Court opined that consent so accorded by the prosecutrix for the establishment of a physical relationship was not predicated upon misconception or fear.

Bench concluded that the impugned order failed to accord the reasons to substantiate how there was sufficient material to proceed against the petitioner under Section 376(2)(n) of the IPC.

Trial Court is not a mere post office and must apply its mind to the facts of the case to arrive at the conclusion as to whether a prima facie case is made out against the accused that would warrant charges to be framed against them.

In view of the above petition was allowed. [Shailendra Kumar Yadav v. State, 2022 SCC OnLine Del 976, decided on 5-4-2022]


Advocates before the Court:

For the Petitioner:

Badar Mahmood, Advocate

For the Respondent:

Neelam Sharma, APP for the State with SI Ajay Singh, Police Station Paharganj. Complainant – in person

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar J. allowed the appeal for bail and set aside the order passed by the LXX Additional City Civil l and Sessions Judge and Special Judge, Bengaluru (on the application of the appellant under Section 439 Cr.P.C.

The instant appeal was filed under Section 14-A of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (‘SC/ST Act’ for short). The accused has preferred this appeal challenging the order passed by the LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru rejecting his application for bail under Section 439 Cr.P.C.

Counsel for appellants Mr. Hasmath Pasha and Mr. Nasir Ali submitted that no doubt, the contents of the report and the charge sheet indicate that they spent intimate moments, but it also shows that the second respondent might have had consensual intercourse with the appellant. Even when they went to the hospital for the purpose of terminating the pregnancy, it was disclosed to the Doctors that the second respondent was the wife of the appellant, and she gave consent for termination of the pregnancy. The age of the second respondent is 27 years and in this view, the relationship between the appellant and the second respondent could be consensual. She knew the consequences of what she was doing. These being the facts and circumstances, at this stage, the appellant has been able to make out a prima facie case for grant of bail.

Cousnel for respondent Mr. K S Abhijith and Ms. Dhanlakshmi submitted that the second respondent has given statement under Section 164 Cr.P.C which discloses that she was subjected to forcible intercourse by the appellant. Her pregnancy was also terminated forcibly. There are ample materials indicating the involvement of the appellant. He refused to marry the second respondent the moment he came to know that she belonged to the scheduled caste. Therefore, there is no case for granting bail. it prima facie appears that the relationship between the appellant and the second respondent since the year 2018 is consensual.

The Court observed that the age of the second respondent is 27 years. She knew the consequences of having intercourse with the appellant. The appellant has produced a document which shows that both the appellant and the second respondent went to hospital for the purpose of terminating the pregnancy and at that time, they introduced themselves to be husband and wife. So, if all these aspects are taken into consideration, it is difficult to arrive at a conclusion at this stage that the appellant used to have sexual intercourse with the second respondent forcibly.

The Court thus held in the light of all these facts and circumstances, it is not diff icult to arrive at a conclusion that the appellant has been able to make out a case for grant of bail.

[Manoj Kumar M R v. State of Karnataka, Criminal Appeal No. 1933 of 2021, decided on 13-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Manish Pitale, JJ., held that whether a minor gave her consent for sex is immaterial.

Allegation in the present matter was with respect to the alleged sexual assault.

Being aggrieved by the Additional Sessions Judge Order rejecting the prayer of the appellant to release him on bail, the present appeal was filed.

Bench noted the facts and circumstances of the case and further stated that in light of the evidence collected by the Investigating Officer, the involvement of the appellant was disclosed in the alleged commission of offence.

Further, the Court dismissed the contention of the counsel appearing for the appellant that there was consensual sex as the same deserved no consideration since respondent 2 was admittedly minor on the date of alleged incident.

“…the victim was minor at the time of alleged incident and during that period she conceived and delivered a baby. Her consent for the sexual act was immaterial.”

Victim’s statement was recorded under Section 164(5) of the Code of Criminal Procedure and the said statement would show that she never consented to the appellant for sex and apart from the alleged offences under IPC and POCSO, provision of Special Act i.e. SC & ST Act are attracted.

Therefore, in view of the above discussion present appeal was dismissed. Trial Court was directed to expedite the trial. [ABC v. State of Maharashtra,  2021 SCC OnLine Bom 517, decided on 05-04-2021]


Advocates before the Court:

Mr Rahul Kadam a/w. Mr Maaz Syed for appellant.
Mr Rohan Surve appointed advocate for Respondent No. 2.
Mr. Deepak Thakre, PP a/w. Mrs M H Mhatre, APP for Respondent-State.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V, J., allowed pre-arrest bail to the applicant accused of raping a women whom he allegedly met on facebook.

Accused preferred a pre-arrest bail application for offence punishable under Section 376(1) of the Penal Code, 1860.

Petitioner and informant were in a relationship for 1.5 years and petitioner had promised to marry the informant.

When informant had reached Kozikhode for purchasing some clothes for their marriage, she was taken to a lodge, where both petitioner and informant stayed together and informant was subjected to penetrative sexual abuse.

Petitioner also took some pictures of the informant and threatened with the same to obtain a sum of Rs 40,000 and gold chain.

Decision

Bench noted that according to the de facto complainant, she was in a relationship with the petitioner.

Court relied on the Supreme Court case of Dr Dhruvaram Muralidhar Sonar v. State of Maharashtra [2019 (1) KHC 403] wherein it was held that there is a distinction between rape and consensual sex.

Bench stated in the present matter that the question to be considered is:

Whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust?

“…former is not rape but the latter will fall within the ambit of cheating and deception.”

Distinction between mere breach of a promise and not fulfilling a false promise

Further Court also observed that,

if 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, then such consent cannot be said to be given under a misconception of fact.

Thus, in view of the above, Court’s opinion was that the custodial interrogation of the petitioner was not necessitous for an effective investigation.

Hence, the present application was allowed with certain conditions. [Shanil v. State of Kerala, 2020 SCC OnLine Ker 2625 , decided on 06-07-2020]