Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In an application seeking the appointment of the applicant as a fit and proper person to be guardian of the minor children and for grant of sole and permanent custody of the minor children, Krishnan Ramasamy, J. has directed the father/respondent to hand over interim custody of the children to the mother/applicant, till the disposal of the main original petition.

In this case, the applicant and respondent got married in the year 2009 and have 2 children. Thereafter, matrimonial disputes arose between the parties, and the wife was subjected to harassment and was thrown out of the matrimonial home in 2021 by the respondent, while he retained the custody of the children. Thereafter, the applicant filed various petitions and applications, seeking dissolution of marriage, custody of minor children and visitation rights etc.

The Court noted that this Court by various orders has granted the visitation rights to the applicant to ensure that the well-being of the children be unaffected by the estranged and strained relationship of the parents, however, the respondent has failed to comply with the said orders. Further, the respondent has even indulged in parental alienation and tutored the children to act and behave contrary to the wishes of the applicant and according to the respondent. He has even updated the children about the Court proceedings, which prompted the elder son to act against the mother and to resist to stay with her, and to demand from her to withdraw the case filed against his father.

The Court observed that without parental alienation, this could not be possible for a tender aged child to insist and demand his mother to withdraw the case and impose the condition that unless she withdraws the case, he would not come to his mother.

The Court further observed that the respondent is throwing the blame on the children stating that the children themselves are not interested in going and staying with the mother and that he cannot force them, and it is beyond his hands; also, in the Court orders there is no specific role mentioned directing the respondent to act in the matter of convincing and handing over the children to the applicant. This clearly proves the aspect of parental alienation on the part of the respondent. Further, his inability to advise and persuade the children, further evidents his inability and incapability to maintain and keep the custody of the children anymore.

Moreover, the Court viewed that “to turn a child against a parent is to turn a child against himself. Parental alienation is inhuman, and it is a menace to a child, who directly needs two hands to hold, both the mother and father till he/she walks throughout the life or at least till he/she attains majority” Further, it was observed that hatred is not an emotion that comes naturally to a child against his/her mother/father unless it is taught by the person whom the child believes. A parent indulging in parental alienation means he/she is polluting the tender mind of the innocent child by portraying the mother/father as a villain, which would have a considerable impact on him/her throughout his/her life.

The Court observed that “the welfare of the child is of paramount consideration but being with the parent who is not ready to teach and persuade his children to love their own mother, cannot be accepted. Further, it is not fair on the part of the respondent in not accommodating the children to spend time with their mother despite the Court orders.

Moreover, the Court observed that “children have a fundamental right and need for an unearthened and loving relationship with their parents and denying the said right would amount to child abuse” and the respondent, without justification, has been indulging in such child abuse. It was observed that when there is healthy co-parenting, the children will lead a happier childhood instead of becoming an emotionally broken adult who will in turn become non-understanding and unsympathetic citizens.

The Court further viewed that the welfare of a child is not to be measured only by money and physical comfort, as it includes material welfare; however, they are secondary matters, the primary considerations of matters are the stability and the security, the loving and understanding, care and guidance, warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.

Further, the Court observed that it appears prima facie that the respondent poisons the minors’ minds against the mother and acted against the welfare of the minors and for the healthy growth of the children, their custody was discontinued with the respondent as there is very high probability that if the children continue to stay with him, they will be influenced to such an extent that they will never want to return to their mother, it will cause mental and physical disorders including psychological pain, anger and depression, which would certainly cause harm to the welfare of the child.

The Court also observed that it is incumbent upon a parent, having the custody of the children, to encourage co-parenting despite having personal hatred towards the spouse and allow the children to move freely with their parent, as the quality of the relationship between the co-parents have a strong influence on the mental and emotional well-being of the children.

Moreover, the Court observed that “the concept of marriage is not for mere satisfying carnal pleasure, but it is mainly for the purpose of Pro generation, which leads to the extension of the families of the two individuals, who have been united over a sacred oath, taken by both”. Further, it was observed that the law can satisfy the ego, but it can never satisfy the requirements of the child, as the framers of the law were only conscious of the welfare of the child and not on the mental turmoil that would be faced by a child in such a calamitous situation.

The Court further viewed that in matters relating to custody of children, primarily, the Court will consider the welfare of the children and decide which parent is suitable to look after the child in a better manner by providing them all necessary facilities and comforts, however, what the Court cannot evaluate is, whether the child feels happy only with one parent, ultimately, the child is the silent sufferer, having lost the love and affection of another parent. Thus, taking into consideration the welfare of the child, the Court granted interim custody to the mother/ applicant.

[X v. X, Application No. 2011 of 2021, decided on 16.09.2022]

Madras High Court
Case BriefsHigh Courts

Madras High Court: The five-judge bench of P.N. Prakash, N. Anand Venkatesh, R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ. in a 3:2 majority decision, held that jurisdiction of the High Court on its original side over matters of child custody and guardianship is not ousted in view of the provisions of the Family Courts Act, 1984 (FCA)and the decision in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 continues to be a good law; while P.N. Prakash and N. Anand Venkatesh, JJ. disagreed with the majority opinion, and observed that the statutory jurisdiction under the Guardians and Wards Act, (GAWA)1890 is now exclusively vested with the Family Court and resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any court for redress.

The dissenting judges noted that the full bench in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 has not adverted to the actual conflict that was between Pamela Williams v Patrick Cyril Martin, 1969 SCC OnLine Mad 264 and Rajah of Vizianagaram v The Secretary of State for India (1936) 44 L.W. 904, and has not examined the provisions of the GAWA, nor have examined the object and purpose behind the Family Courts Act, 1984 (FC Act) or the scope and effect of Sections 7 and 8 of the FC Act. Further, there was absolutely no discussion about Clause 17 of the Letters Patent at all and the full bench has confined itself to the issue as to whether the High Court was a District Court under the FC Act, 1984, vis-à-vis, the definition of ‘District court’ contained in Section 2(4) of the Code of Civil procedure,1908 (CPC), further, it also overlooked the fact that resorting to Section 2(e) of the FC Act to telescope the definition of “District” into the Family Courts Act, 1984 was unnecessary, thus, the Court viewed that the decision in Mary Thomas requires reconsideration.

The Court noted that, one of the primary issues to be considered in this case is that whether the jurisdiction of the High Court under Clause 17 of the Letters Patent could be taken away by the FC Act, 1984, in respect of matters concerning guardianship, custody or access to a minor, and viewed that this line of argument is over-simplistic and it overlooks a vital distinction between two very different types of jurisdictions, viz., the statutory jurisdiction exercised by the High Court under the GAWA , and the jurisdiction of the High Court under Clause 17 of the Letters Patent.

Placing reliance on a decision in Navivahoo v. Turner, 1889 SCC OnLine PC 10 , the Court viewed that it has no application to a case concerning the exercise of inherent parens patriae jurisdiction by the High Court as according to the history of Clause 17, the jurisdiction of this Court as a parens patriae in respect of infants, mentally retarded persons in the State of Tamil Nadu is a facet of its inherent jurisdiction, inherited from the erstwhile Supreme Court of Madras. Further, it is evident from Section 9 of the GAWA, which states that a petition for appointment of a guardian for the person or property of minor shall be made to a “District Court” having jurisdiction in the place where the minor ordinarily resides. Moreover, Section 4(4) of GAWA, expressly defines the District Court as the meaning assigned to that expression in the Code of Civil Procedure,1882, and includes a High Court in the exercise of its ordinary original civil jurisdiction.  Thus, as per Section 4(4), it is clear that a High Court, while exercising jurisdiction in respect of a petition under the GAWA would be a District Court within the meaning of the Act, exercising its ordinary original civil jurisdiction for the City of Madras, and not under its inherent jurisdiction under Clause 17 of the Letters Patent.

The Court took note of the ruling in S.D. Joshi v High Court of Bombay (2011) 1 SCC 252 wherein the Court held that “the Family Courts are to exercise special jurisdiction which is limited to the subject-matters spelt out under Sections 7(1)(a) and (b) of the FC Act, and  is vested with all jurisdiction exercisable by any District Court or any subordinate civil court under the law”, and viewed that legislative intent envisaged the Family Court as a Court of exclusive jurisdiction in respect of certain matters concerning the family, including guardianship and custody of children It is like a Special Court constituted to hear certain types of cases following a specially devised procedure and whose orders are made subject to appeal under a special provision with a special period of limitation.

The Court noted that another primary question is whether the High Court is a “District Court” for the purpose of Sections 7 and 8 & 2(e) of the FC Act, 1984, read with Section 2(4) of the CPC, and further viewed that Section 7(1) of the FC Act, 1984, invests the Family Court with all the jurisdiction over a suit or proceeding in relation to the guardianship of the person, or the custody of, or access to, any minor which jurisdiction was being exercised by a District Court under any law for the time being in force. Thus, the guardianship and custody jurisdiction statutorily vested with the High Court under the GAWA, in its capacity as a District Court, can now be exercised only by the Family Court by virtue of Section 7 of the FC Act, 1984

The Court further observed that the High Court cannot exercise its statutory or inherent jurisdiction concurrently with the Family Court while deciding matters of custody and guardianship under the GAWA, as Section 7(1) read with Explanation (g) and Section 8(a) of the FC Act, 1984, leads to this inescapable conclusion that the jurisdiction exercised by any District Court in respect of matters of custody or guardianship under the GAWA , will be exercised by the Family Court and that no District Court  shall exercise such jurisdiction. Further, Explanation (g) to Section 7(1) of the FC Act, 1984, must be construed liberally to further the object of the legislation, that it would take within its fold, application for appointment of a guardian for the person and property of the minor as well.

Moreover, the inherent jurisdiction of the Madras High Court under Clause 17 of the Letters Patent, 1865, is not affected by the FC Act, 1984. However, resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any Court.

[S. Annapoorni v. K.Vijay, 2022 SCC OnLine Mad 4367, decided on 02.09.2022


Appearances

For Petitioner: Advocate B. Poongkhulali

For Respondent : Advocate A.R. Palanisaamy


Also Read:

Madras High Court’s 3:2 verdict upholds its original jurisdiction in child custody cases; holds Mary Thomas to be a good law

 

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case relating to the issue of concurrent jurisdiction of the High Court over matters of child custody and guardianship with the family Courts, the five-judge bench of P.N. Prakash, N. Anand Venkatesh, R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ. in a 3:2 majority decision, held that jurisdiction of the High Court on its original side over matters of child custody and guardianship is not ousted in view of the provisions of Explanation (g) to Section 7(1) read with Sections 8 and 20 of the Family Courts Act, 1984 (FCA)and the decision in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 continues to be a good law.

P.N. Prakash and N. Anand Venkatesh, JJ disagreed with the majority opinion of R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ and observed that the statutory jurisdiction under the Guardians and Wards Act, 1890 is now exclusively vested with the Family Court and resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any court for redress.

The Court observed that the jurisdiction vested upon this Court under Clause 17 of Letters Patent of 1865 would broadly fall within the Civil Jurisdiction, however, what has been vested is an inherent jurisdiction of the superior Court in the nature of ‘parens patriae’ (parent of the nation) jurisdiction to safeguard the interests of such category of persons, such as, infants, lunatics and idiots, who are incapable or not in a position to take care of themselves or to safeguard their own interests.

The Court further observed that, to view an inherent jurisdiction such as the ‘parens patriae’ jurisdiction as a residuary jurisdiction or a purely supervisory jurisdiction would be to discourage against the very nature of such jurisdiction. Further, while the power and jurisdiction available to this Court under Clause 17 are not only much broader and larger in its scope and extent, but also would encompass every situation that warrants the interference of the High Court as a superior Constitutional Court in order to safeguard the interests of infants; and the jurisdiction vested in the Family Court by statute on guardianship is only one facet of the jurisdiction which inheres in a superior Constitutional Court, like the High Court. Thus, the fields occupied by the High Court and the Family Court cannot be said to be one and the same in the matters of guardianship and custody and while the jurisdiction of the High Court is much larger, there may be very few areas of overlapping jurisdiction between them.

Placing reliance on the ruling in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 , wherein the the Court held that “Letters Patent jurisdiction has to be expressly excluded and in the absence of an express repeal, the Letters Patent may be impliedly taken away only where the special enactment is a self-contained code”, the Court viewed that the FCA,1984 is only a procedural legislation and not a self-contained code because the substantive laws continue to be the statutory provisions or the personal laws relating to marriage, maintenance etc. As such, in the absence of any express repeal, the Letters Patent cannot be taken away by a legislation.

Moreover, Article 225 of the Constitution of India expressly preserves the jurisdiction of the existing High Courts, the jurisdiction of the High Court under Clause 17 is thus constitutionally preserved and in the absence of a self-contained code that deals with guardianship, the powers of the High Court cannot be ousted. Further, in view of Article 372, Clause 17 will continue to be in force until repealed or amended by a competent legislature or by an appropriate self-contained code. Thus, it is now well established that the High Court as a superior Constitutional Court can deal with matters of guardianship and custody even in its exercise of writ jurisdiction.

The Court referred to the ruling in Benedict Denis Kinny v. Tulip Brian Miranda, 2019 SCC OnLine Bom 13043, and observed that the power of the Constitutional Courts in exercise of their inherent jurisdiction are inviolable as they cannot be taken away by legislation or even by a constitutional amendment if that would hamper the basic structure of the Constitution. Thus, to say that such a broad power of a constitutional court which can be taken away only by way of a constitutional amendment and not by a statute but can be limited by statute to be used only as a residuary power, is a contradiction of sorts.

Hence, the Court observed that “since the parens patriae jurisdiction of the High Court is an inherent power stated expressly in the Letters Patent and saved by Articles 225 and 372 of the Constitution, they continue to be part of the inherent powers of the superior constitutional courts and no statute much less a procedural Legislation, can place fetters on such a power”.

Further, the Court while interpreting Section 7 (1) read with Explanation (g) of the FMA, 1984 observed that the power to appoint a guardian for the property of the minor also along with the person of a minor would not be legally permissible.

It was also observed that the Parliament in its wisdom, has used the term ‘High Court’ not in one but in eight different provisions of FCA, thus, it has consciously chosen to not to use this term in Sections 7 and 8 of FCA, hence, the Court cannot read anything into a statutory provision which is plain and unambiguous .Further, reading the FCA as a whole starting from 59th Report of the Law Commission to statement of objects and reasons and provisions, it is clear that the Parliament never intended to deprive High Court of its powers in guardianship of the person or the custody of or access to any minor matters and its intention was only to create Special Courts and move these matters out of the realm of regular District Courts.

Moreover, the Court observed that the High Court does not need an appendix of either the Guardians and Wards Act,1890(GAWA) or any other statute in order to exercise its jurisdiction under Clause 17 of the Letters Patent, and if the petition has stated the provisions under the GAWA and invoked the jurisdiction of the High Court under Clause 17 it will not make the High Court a District Court for the purposes of its exercise of jurisdiction under Clause 17 of the Letter Patent,thus, the exercise of the ordinary original jurisdiction of the High Court within the meaning of Section 4(4) of the GWA when invoked along with the meaning of Clause 17 of the Letters Patent, cannot be said to be ousted by the FCA,1984.

The Court further viewed that Section 4(4) of GAWA talks about the 1882 CPC. Therefore, the definition of ‘District Court’ under GAWA is hardly a guide to conclude the reference on hand. It further noticed that under GAWA, the term ‘the Court’ has also been explained vide section 4(5) and that inter-alia talks about District Court having jurisdiction to entertain an application under GAWA for appointment of guardian. Thus, a conjoint reading of sections 4(4), 4(5) and section 3 of GAWA makes it clear that the power of the High Court is intact.

Moreover, Section 100-A of Code of Civil Procedure ,1908 (CPC) makes it clear that the Letters Patent of any High Court cannot be swept away by section 2(4) CPC and if anything contained in the Letters Patent has to be excluded it has to be done expressly.

The Court denied any reconsideration of the decision in Mary Thomas Vs. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 as the full bench in this case has appropriately dealt with the issue and the only fact that the said decision did not advert to, discuss or analyse the conflict between the decisions in Pamela Williams v Patrick Cyril Martin, 1969 SCC OnLine Mad 264 and in the Rajah of Vizianagaram v The Secretary of State for India (1936) 44 L.W. 904 alone, cannot be a reason to hold that this decision requires reconsideration as there was no apparent conflict between these two judgements. Further, these judgements have been rendered by two Division Benches at different points in time where the legal circumstances surrounding them were very different.

Further, the Court noted that the reconsideration of Mary Thomas has been sought on two grounds that the full bench did not consider Raja Soap Factory v. S.P. Shantharaj, (1965) 2 SCR 800,and Section 20 of FCA has overriding effect, and viewed that the Mysore High Court did not have original jurisdiction on the date of presentation of plaint in Raja Soap Factory. Moreover, Section 20 of FCA has no application as clause 17 of Letters Patent confers substantive power while section 20 is a procedural provision and there is nothing inconsistent.

[S. Annapoorni v. K.Vijay, 2022 SCC OnLine Mad 4367, decided on 02.09.2022]


Advocates who appeared in this case :

B. Poongkhulali, Advocate, for the Petitioner;

A.R. Palanisaamy, Advocate, for the Respondent.

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: In a case filed by the petitioner-mother (‘petitioner 2') seeking acceptance on her pending passport application for her minor ward (‘petitioner 1') without any compulsion on her to mention the name of the father of the ward or his presence or signature in any form, Krishna S Dixit J., allowed the petition and directed the Regional Passport Officer to consider the subject application for passport without insisting upon the presence or consent of the father of the ward i.e., ex-spouse of petitioner as mere grant of passport does not, in anyway, threaten the rights of the respondent.

The present petition was filed in respect of a minor ward by the mother, who has been accorded exclusive custody of the ward by the Family Court. Counsel for petitioner submitted that once exclusive custody is granted by the Family Court, Regional Passport Officer is not justified in insisting upon the presence of father of the ward or for his consent and therefore, the passport must be granted sans such an insistence.

The Court noted that the Family Court has granted a Divorce Decree in the subject matrimonial cause whereby limited visitation rights have been accorded to the ex-husband of petitioner 2 i.e., father of the ward. Thus, on the apprehension of the respondent that absolute curtailment would occur, in case of visa-less travel, the Court noted that mere grant of passport would not per se result in curtailment of visitation rights as such.

Placing reliance on Master Kishan v. Union of India, in WP No. 32531 of 2017, decided on 15-02-2017, the Court directed Regional Passport Officer to consider the subject application for Passport sans insisting upon the presence or consent of the father of the ward i.e., ex-spouse of the petitioner 2.

The Court also clarified that petitioner 2 shall not travel without getting permission of Family Court.

[Divena Nayudu v. Government of India, WP No. 14716 of 2022, decided on 24-08-2022]


Advocates who appeared in this case :

Swamy MM, Advocate, for the Petitioner;

Sarojini Muthanna K, Advocate, for the Respondent.


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

Orissa High Court
Case BriefsHigh Courts

Orissa High Court: A Division Bench of SK Sahoo and M S Raman, JJ. disposed of the petition leaving the petitioner with liberty to seek appropriate remedy before appropriate forum in accordance with law.

The instant writ petition in the nature of Habeas Corpus was filed by the petitioner , who is the mother of a minor child, for the custody of the minor, which is currently with respondent 5, the father of the minor child.

Reliance was placed on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, wherein it was observed

“14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ Court has jurisdiction.

19. Habeas corpus proceedings do not justify or examine the legality of custody. Habeas corpus proceedings are a medium through which the custody of the child is addressed to the discretion of the Court.

The judgment also states that in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

It was also noted that in child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ Court which is summary in nature. What is important is the welfare of the child. In the writ Court, rights are determined only on the basis of affidavits. Where the Court is of the view that a detailed enquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Court. It is only in exceptional cases that the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.

The Court thus held “when the alternative efficacious remedy is available, we are not inclined to entertain the writ petition which is in the nature of habeas corpus.”

[Koushalya Das v. State of Odisha, 2022 SCC OnLine Ori 2008, decided on 07-06-2022]


Advocates who appeared in this case :

Mr PK Das, Advocate, for the petitioner;

Mr AK Sharma, Advocate, for the respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case relating to the custody of a 5-year-old who had lost both his parents to COVID-19 and the Gujarat High Court had handed over the custody to his maternal aunt and not his grand parents, the bench of MR Shah* and Anirudhha Bose, JJ has held that income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents.

While handing over the custody of the minor to the maternal aunt, the following factors had weighed in with the High Court:

  • The paternal grandparents are old age – 71 and 63 years respectively against which the maternal aunt is aged 46 years
  • The maternal aunt is having a bigger family;
  • The grandfather is a retired government servant – depending upon the pension against which the maternal aunt is a government employee and therefore she will be in a better position to take care of the minor.

However, what the High Court failed to consider was that the child had shown his inclination to stay with the paternal grandparents. Also, the custody remained with the grandfather pursuant to the interim order passed by the High Court. Nothing was observed by the High Court that during the interim custody period, the paternal grandparents did not take proper care of the minor.

The Supreme Court, hence, observed that the reasons/grounds for granting custody to the maternal aunt may be relevant but not germane.

“There cannot be any presumption that the maternal aunt being unmarried having an independent income; younger than the paternal grandparents and having a bigger family would take better care than the paternal grandparents. In our society still the paternal grandparents would always take better care of their grandson. One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson. It is said that the grandparents love the interest rather than the principle. Emotionally also the grandparents will always take care better care of their grandson. Grand Parents are more attached emotionally with grandchildren.”

The Court also considered the fact that the grandparents have also managed to get admission of the minor in a school in Ahmedabad.

Hence, the following factors weighed in with the Supreme Court while granting the custody to the grandparents:

  • The minor will get better education in Ahmedabad, which is a Metro City compared to the education in Dahod.
  • Being a retired person, the paternal grandparents would devote more time and take care of minor better than the maternal aunt who is serving in the government department.
  • Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents.
  • The High Court has not observed anything against the paternal grandparents that they have not taken proper care of the minor grandson while interim custody of the corpus was them and/or they acted detrimental to the interest of the minor.

Stating that it was a very difficult choice as it cannot be said that the maternal aunt may not take proper care of the minor son of her deceased sister, the Court said that on the facts and circumstances of the case, the High Court committed an error in not handing over and/or continuing the custody of the minor to the paternal grandparents. The Court observed that,

“if the balance is to be struck between the paternal grandparents and the maternal aunt, for the reasons stated above, the balance would certainly tilt in favour of the paternal grandparents.”

The Court, however, directed that

  • the maternal aunt shall have visitation right to meet the minor on regular basis preferably once in a month, subject to the convenience of the child.
  • during the vacation and/or holidays the grandparents may permit the minor to visit and stay with the maternal aunt, of course subject to wishes and convenience of the minor and it may not adversely affect the interest of the minor including his education and even the extra curriculum activities.
  • It is also expected to have video calling between the corpus and maternal aunt on regular basis.

[Swaminathan Kunchu Acharya v. State of Gujarat, 2022 SCC OnLine SC 733, decided on 09.06.2022]


*Judgment by: Justice MR Shah


Counsels

For grandparents: Advocate D.N. Ray

For Maternal Aunt: Advocate Rauf Rahim

Gujarat High Court
Case BriefsHigh Courts

Gujarat High Court: The Division Bench Vipul M. Pancholi and Rajendra M. Sareen, JJ., dismissed a petition filed by the father under Article 226 of the Constitution of India praying for custody of the minor.

 

Respondent 4&5 were maternal grandparents and  the marriage of the petitioner was solemnized in the year 2011 and out of the said wedlock, the minor corpus was born in the year 2013 and due to matrimonial dispute, wife left her matrimonial home and went to her parental home in  2015. After conciliation efforts wife had returned to her matrimonial home, however, thereafter also disputes had arisen between the husband and wife and his wife again left her matrimonial home in the year 2016 along with the minor son – corpus and started residing with her parents. Petitioner made many efforts to get custody of the minor son but in vain. In 2020, wife of the petitioner  expired due to COVID.

 

Petitioner remarried even during the subsistence of his first marriage and out of the said second marriage, he had two children. Wife of the petitioner was residing since 2016 at her parental home and at that time the minor was aged 3 and a half years and since then the minor is with the Respondent 4 and 5 (‘Maternal grand-parents’). Thus, the instant petition was filed as last resort for custody of the minor son.

 

The Court inquired from the minor  about his status and his daily routine.  He has stated that his maternal grand-parents are taking his care and he is getting love and affection from them and he has no complain against them. He has happily stated that he is happy with his maternal grand-parents. The Court also ascertained the wish of the minor that he wanted to go and reside with his maternal grand-parents.

The Court while dismissing the petition ordered that the custody of the minor  be continued with the respondent 4 and 5. Considering the overall facts of the case, the Court was of the view that, custody of the minor cannot be handed over to the petitioner herein who has remarried and has two children. It was made clear that in any way, the custody of the minor with the maternal grand-parents cannot be said to be illegal custody and it cannot be said that the minor is in illegal confinement.

[Sabirbhai Gafarbhai Multani v. State of Gujarat, 2022 SCC OnLine Guj 747, decided on 09-06-2022]


Mr Harsh A Vyas, Ms Dixa U Pandya : for the Applicant  1

MR HK Patel : APP for the Respondent 1

Vasimraja A Kureshi : for the Respondent 4&5


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a significant case, the 4-judges Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat, P.S. Narasimha and Sudhanshu Dhulia, JJ., issued directions to all the High Courts of the country to submit reports indicating status of cases where bail has been granted by the Supreme Court i.e. if any of such persons are deprived of the opportunity of being released on bail for some reason or the other.

“… where the custody of a person for 9 years was found to be sufficient to entitle him to be released on bail, is now turned into custody for 11 years. This is nothing but  reincarnation of Hussainara Khatoon[1] & Motil Ram[2].”

By an order dated 28-09-2020 the Supreme Court had directed to release the petitioner on interim bail after noting that the petitioner had been in custody since 12-05-2011 and had completed more than 9 years of actual imprisonment. The Court had order that the petitioner be produced before the Trial Court within three days and the Trial Court shall release him on interim bail on such terms and conditions as the Trial Court may deem appropriate.

Despite the aforestated order the petitioner was not bailed out and was kept in custody, on being apprised of this fact the Court had sought explanation from the Police and Jail officials concerned. The Superintendent, Central Prison, revealed that the order dated 28-09-2020 was received in the Prison on 06-10-2020. However, due to Covid-19 Pandemic restrictions, the movement of the prisoner was not immediately possible and the application reached before the Court on 29-10-2022 for consideration of bail when the Trial Court passed the following order: “How the petition is maintainable after expiry of time as per orders of Supreme Court. Hence, returned.”

Hence, despite the order of the Supreme Court the petitioner continued to be in custody.

On being apprised of the fact that the order was transmitted through electronic mode immediately but the physical copy was sent in due course, which was received in the Jail on 06-10-2020, the Court expressed,

“This case portrays very sorry state of affairs.”

Disappointed by the reasoning of the Trial Court the Court clarified that the reason why stipulation was inserted in the order that “the petitioner shall be produced before the Trial Court within three days and the Trial Court shall release him on interim bail” was to expedite the process. The reason was not to put any limitation of a specified period within which time alone the bail could be availed and not thereafter. The Court remarked,

“The order was construed by the concerned Trial Court as if, after the expiry of three days, the petitioner had no right to be released on bail. We are surprised that a Judicial Officer had read the order passed by this Court, in the manner as it gets disclosed from his order.”

Hence, the Court directed the High Court to call for an explanation from the Presiding Officer concerned of the Trial Court and deal with the matter on the administrative side. At the same time, the Court expressed concerns as to whether similar kind of situations have arisen or do arise despite the order passed by the Supreme Court. Pursuant to which the Court suggested for a corrective mechanism—especially where the proceedings are initiated through the Legal Services Authority—and passed the following general directions:

  1. All the High Courts were directed to provide details of all such orders which remain to be complied with and about the persons concerned who are still languishing in jail. The Court proposed for the High Court to maintain a register as to how many matters orders directing release of the persons on bail were issued and if out of such total number of matters, any person stood deprived of the opportunity of being released on bail for some reason or the other. The Register must indicate the reason including whether proper security etc. could be arranged by the concerned person or not. Such matters should then be listed before the concerned court in the succeeding month and the fact that the person has not yet been released on bail, be brought to the notice of the Court concerned under whose orders the relief of bail was afforded to the person(s).
  2. The High Courts were directed to provide the details within six weeks.

With regard to the instant case, the petitioner had been released on bail. As a concluding note, the Court stated,

“We must observe that these matters be taken with utmost seriousness by the High Court and by all the concerned.”

The matter is listed on 11-07-2022 for further hearing.

[Gopisetty Harikrishna v. State of A.P., 2022 SCC OnLine SC 654, order dated 09-05-2022]


[1] (1980) 1 SCC 81

[2] (1978) 4 SCC 47


Appearance by:

For Petitioner(s):  Senior Advocate Mahalakshmi Pavani, AOR Revathy Raghavan, Advocates Divya Singhvi, Neha syal and Jeyam

For Respondent(s): Senior Advocate S. Niranjan Reddy, AOR Mahfooz A. Nazki, Advocate Polanki Gowtham, Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy, Rajeswari Mukherjee, K.V.Girish Chowdary, Akhila Palem, Abhishek Sharma and Sahil Raveen


Kamini Sharma, Editorial Assistant has put this report together 

Chhattisgarh High Court
Case BriefsHigh Courts

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

The brief facts of this case are that on receiving information, a vehicle was intercepted and from the vehicle illicit liquor to the extent of 34.54 bulk litres was seized. Thus, the case was registered under Section 34(2) of the Chhattisgarh Excise Act, and the liquor as also the vehicle were seized by the police allegedly for transporting illicit liquor, as such proceeding under Section 47-A(3) of the Act was drawn for confiscation of the vehicle. Further, the Collector, who is authorised under Section 47-A(3) started a confiscation proceeding for the vehicle. During such a confiscation proceeding, an application was filed by the petitioner who is the owner of the vehicle to release the vehicle and interim custody of the vehicle were sought for, which was dismissed. Therefore, the instant petition.

Counsel for the petitioner submitted that the confiscation proceeding though having been commenced does not put any bar to release the vehicles into interim custody. He further submitted that till the confiscation proceeding is concluded, the vehicle should have been handed over to the applicant. It is submitted that no necessary useful purpose would be served by keeping the vehicle in the custody except the loss caused to it.

The Court observed that the confiscation proceeding under the Act is governed by Section 47-A(3) of the Act and Section 47-A(2) of the Act regulates the power and procedure to be adopted for confiscation.

The Court further observed that perusal of Section 47-A(2) would show that power has been given to the District Magistrate (Collector) upon production of the article and on having satisfied that offence covered under clause (a) or clause (b) of sub-section (1) of Section 34 has been committed and if liquor is more than 5 bulk litres he may order for confiscation of articles, intoxicants, implements, utensils including the conveyance so seized. The Court records that during pendency of the proceeding he may pass an order of interim nature for custody, disposal etc. of the confiscated intoxicants, articles, implements, conveyance as may appear to be necessary in the facts of this case. Section 47-B of the Act provides for appeal against the order of confiscation. Therefore, it necessarily leads that order of confiscation can only be challenged when it reaches its finality and the statute do not give any space to challenge any other order except the final one. It is a settled proposition of jurisprudence that every wrong will have a remedy. So if the order is found to be wrong then certainly the High Court would have all the power to correct the same.

The Court relied on judgment Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283 and observed that no reasons have been assigned for rejection in the impugned order and only it is stated that since vehicle was found in transporting illicit liquor as such it is not feasible to hand over the vehicle to the petitioner. So for all practical purposes vehicle is lying at the disposal of authorities or at police station. Thus, if it is kept in the police station it must be occupying space or is prone to cause natural decay and may lose its road worthiness when kept in a stationary position.

The Court thus held “vehicle be released in favour of petitioner by way of interim measure, if the confiscation proceedings have not been concluded till date of production of this order”[Shyam Bihari Yadav v. State of Chhattisgarh, WPCR No. 372 of 2022, decided on 26-04-2022]


Appearances:

For Petitioner: Shri T.K. Jha

For Respondent/State: Shri Ajay Kubrani


Arunima Bose, Editorial Assistant has reported this brief.

High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

7 Interesting Picks of the Week Gone by.


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

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…


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

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…


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

The petitioner/defendant filed written statement contending that the suit promissory note is a forged document and his signatures were forged. At the evidence stage, the petitioner filed an interim application under Section 45 of the Indian Evidence Act, 1872 to send a promissory note to the handwriting expert by receiving specimen writings in the four promissory notes which are annexed to the said application and to receive his specimen signatures in the open Court along with the vakalatnama and written statement for comparison. The respondent/plaintiff filed counter and opposed the said application.

Read full report here…


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

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…


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

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…


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

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

Read full report here…


Promotional activity for IPL not covered under ‘Business Auxillary Service’; Anil Kumble not liable to pay Service Tax

The Coram of P. Anjani Kumar (Technical Member) and P. Dinesha (Judicial Member) allowed appeals against the order of First Appellate Authority which upheld the demand for service tax by the adjudicating authority.

Read full report here…

Case BriefsHigh Courts

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

A petition was filed against an order of the Family Court by which the petitioner-applicant sought interim custody for his children, which came to be rejected by the Court’s Order.

Analysis, Law and Decision

High Court referred to the Supreme Court decision in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, wherein the Court considered in detail the scope of interference by this Court to hold and observed that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principles.

The Bench expressed that, the exercise of power under Article 227 of the Constitution of India should be with a view to keep the tribunals/Courts within the bounds of their authority, to ensure that law is followed by tribunals/Courts by exercising jurisdiction which is vested in them and/or when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

“Jurisdiction has to be very sparingly exercised.”

A petition under Article 227 of the Constitution of India cannot be given a shape of appeal in disguise.

In the present matter, the petitioner had alleged that the respondent had extramarital affair with two persons.

Petitioner had also produced an FIR copy filed by the brother of the respondent against Shrirang Dharmendra, with whom the respondent indulged in an extra-marital affair. Family Judge opined that there is nothing on record to show as to how it was unsafe for his children and as to how the life of his children is at stake with the respondent.

Further, so far as the allegations qua the character of the respondent is concerned, the Family Judge opined that same could not be believed only on the basis of the FIR, photographs and/or the chatting details.

The Family Judge had further observed that since the beginning, the children were residing with the respondent only, however, only on bare averments qua character of the respondent, sans any corroborative evidence, it was not proper to hand over the custody of the children to the petitioner.

High Court opined that the Family Judge had committed no error and did not require interference at the hands of this Court. [Shehjada Hanifbhai Patel v. Bilkis, R/Special Civil Application No. 20048 of 2021, decided on 24-3-2022]


Advocates before the Court:

MR MTM HAKIM with MR VA MANSURI(2880) for the Petitioner(s) No. 1

NOTICE SERVED BY DS for the Respondent(s) No. 1

High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Interesting picks from this week’s legal stories from High Courts to District Courts


Alimony


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

A conjoint reading of Sections 24 and 25 of the Hindu Marriage Act, 1955 would reveal that both the sections in the Act of 1955 are enabling provisions and confer a right on the indigent spouse to claim maintenance either pendente lite or in the nature of permanent alimony and maintenance.

Read full report here…


 Karta


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

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…


Compassionate Appointment


Illegitimate child’s right to be considered for Compassionate appointment: Read what Chh HC says

Sanjay K. Agarwal, J., held that an illegitimate son would be entitled to consideration on compassionate ground and cannot be denied consideration on the ground that he is the illegitimate son of the deceased Government servant.

Read full report here…


Marriage Expenses


Can unmarried daughters claim expenses of marriage from their parents under the Hindu Adoptions and Maintenance Act, 1956? Chh HC addresses

While stating that, in Indian society, normally expenses are required to be incurred for pre-marriage and also at the time of marriagethe Division Bench of Goutam Bhaduri and Sanjay S. Agrawal, JJ., held that unmarried daughters have a right to claim expenses of marriage from their parents under the Hindu Adoptions & Maintenance Act, 1956.

Read full report here…


Maternity Leave


Can maternity leave benefits extend beyond the period when contractual period of an ad hoc employee comes to an end? Del HC analyses

In a claim of maternity benefit by a contractual employee, the Division Bench of Rajiv Shakdher and Talwant Singh, JJ., expressed that, The Maternity Benefit Act, 1961 Act is a social legislation that should be worked in a manner that progresses not only the best interest of the women-employee but also of the child, both at the pre-natal and post-natal stage.

Read full report here…


Strikes


Bar on Government servants to engage in strikes? Ker HC elaborates

While expressing that, it is the duty of the welfare Government to protect not only the citizens but to continue with, all the Government work as expected, the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., directed that Government servants should be prevented from engaging in a strike.

Read full report here…


Evidentiary Value of Newspaper Reports


Newspaper reports are of no evidentiary value and Courts would be transgressing their well-settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports

In a matter wherein, details were sought with regard to Supreme Court Collegium meeting held on 12-12-2018, Yashwant Varma, J., expressed that, newspaper reports are of no evidentiary value and Courts would be clearly transgressing their well-settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports.

Read full report here…


Anand Marriage Act


State directed to take steps to frame and notify Rules for Registration of Sikh Marriages

The Division Bench of Sanjaya Kumar Mishra, ACJ. and Ramesh Chandra Khulbe, J. took up a PIL filed by the petitioner commanding the respondent State to notify the Rules under Anand Marriage Act, 1909 and also to issue guidelines to register the marriage of people of Sikh Community under the Anand Marriage Act, 1909.

Read full report here…


Bribes


Every Advocate is a Court officer and part & parcel of the justice delivery system: Madras HC found a Govt. Advocate demanding bribes at the cost of justice

The Division Bench of K. Kalyanasundaram and R. Hemalatha, JJ., expressed that, the Government advocate being the representative of the Government has to act in an honest manner. If he/she goes around with the intention to make money at the cost of justice, only chaos will prevail.

Read full report here…


Insolvency


Logix Insolvent? NCLT initiates insolvency proceedings against Logix City Developers

The Coram of Bachu Venkat Balaram Das (Judicial Member) and Narender Kumar Bhola (Technical Member) initiates insolvency proceedings against Logix City Developers due to default in payment.

Read full report here…


Custody Parole


Merely because an accused is a Muslim, governed by personal laws, can be debarred from availing rights under Juvenile Justice (Care and Protection of Children) Act, 2000? Delhi Court answers

In a matter for grant of custody parole, Dharmender Rana, ASJ-02, held that, merely because the accused is Muslim and governed by personal laws, he cannot be debarred from availing rights conferred upon him by Juvenile Justice (Care and Protection of Children) Act, 2000.

Read full report here…

High Court Round UpLegal RoundUp

112 significant Reports from 22 High Courts


 

Allahabad High Court


 Right to Reputation


People using cyberspace to vent out anger and frustration by travestying key-figures holding highest office in country, is abhorrent and violates right to reputation

Sanjay Kumar Singh, J., expressed that,

“The internet and social media has become an important tool through which individuals can exercise their right to freedom of expression but the right to freedom of expression comes with its own set of special responsibilities and duties.”

Read full report here…

Corruption


Corruption is a termite in every system; a root cause of all problems but has to be put to account

While expressing that medical and legal fields are more a service than a profession especially the stream of oncology which deals with life and death, Krishan Pahal, J., held that “Corruption is a termite in every system.”

Read full report here…


Andhra Pradesh High Court


Bail


”…being an educated man and Software Engineer, he is not justified in making such irresponsible comments against the Judiciary and the High Court”, Bail denied

Cheekathi Manavendranath Roy J. dismissed the criminal petition and granted bail to the accused advocates and denied bail to accused software engineer.

Read full report here…

Reckless Driving


In the case of reckless driving, injured party will have to always prove that either side was negligent?

The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., while addressing a case of negligent driving, expressed that,

“…if the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable.”

Read full report here…

Evidence


Prosecution must stand on its own legs basing its findings on the evidence that has been led by it

Siddhartha Varma, J., held that it is the bounden duty of the enquiry officer to have seen whether the charges were proved on the basis of the evidence which was led by it.

Read full report here…


Bombay High Court


Nomination of a Councillor


Can a nominated Councillor be appointed as Leader of the House under Maharashtra Municipal Corporation Act, 1949? 

“The term ‘elected Councillor’ in Section 19-1A would necessarily have to be read as an exclusion and bar to any other Councillor i.e ‘nominated Councillor’ to become the Leader of the House.”

Read full report here…

Negligence


When a person suffers injury without any negligence on his part, but result of combined effect of negligence of two other persons: Is it a case of composite or contributory negligence?

Expressing that, Negligence does not always mean absolute carelessness, but want of such a degree of care as required in particular circumstances, Vinay Joshi, J., held that no absolute standard can be fixed as to what constitutes negligence differs from case to case.

Read full report here…

License


To operate in State of Maharashtra, Uber and other unlicensed aggregators to apply for license before 16th March 2022

The Division Bench of Dipankar Datta, CJ and Vinay Joshi, J., directed UBER and other transport aggregators who have not obtained a license as per Section 93(1) of the Motor Vehicles Act to apply for the license before 16th March 2022 otherwise they shall not be able to operate in the State of Maharashtra.

Read full report here…

State Quota


If an aspirant has not completed her 10th and 12th standard from State of Maharashtra, can she still be covered under State Quota of Maharashtra for M.B.B.S?

The Division Bench of S.V. Gangapurwala and S.G. Dige, JJ., addressed a matter wherein an aspirant of M.B.B.S Course approached the Court praying that the petitioner be considered in State Quota from NRI Quota.

Read full report here…

IBC


Can Additional Sessions Judge or Sessions Judge try offences under Insolvency and Bankruptcy Code, 2016?

Sandeep K. Shinde, J., held that Special Court which is to try offences under the Insolvency and Bankruptcy Code, 2016 is the Special Court established under Section 436(2) (b) of the Companies Act, 2013 which consisted of Metropolitan Magistrate or Judicial Magistrate First Class.

Read full report here…

Parent’s Property


When parents are alive, can a son claim his share in the property of his parents?

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., held that Asif i.e. son has no rights in his father’s flats.

Read full report here…

Film ‘83’


No stay on OTT Release of film ‘83’: Bom HC | Netflix and Star India already have antecedent rights, both digital and satellite for 10 years

While refusing to restrain Star India and Netflix from streaming the film ‘83’ on their respective broadcasting portals, R.I. Chagla, J., observed that, prospective owner of copyright in a future work may also assign to any person the copyright in the future work.

Read full report here…

Child in Conflict


When a Child in Conflict with Law is to be tried as an adult, an assessment under S. 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is required to be done?

M.G. Sewlikar, J., held that, in terms of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Juvenile Justice Board has to make assessment into heinous offences to determine whether CCL is to be tried as an adult.

Read full report here…

Currency Notes


Can Currency Notes in police custody pre-demonetisation, be replaced with current valid tender?

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., addressed a matter concerning currency notes pre-demonetisation and their replacement with current valid tender.

Read full report here…

Karta


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 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


Rape


Penetration even of the slightest degree is necessary to establish the offence of rape; Court modifies order after 8 years of imprisonment

“It is settled law penetration even of the slightest degree is necessary to establish the offence of rape.”

Read full report here…

Tax


No intention of any evasion of tax; Court directs refund of penalty and tax paid on protest

Md. Nizamuddin, J. decided on a petition which was filed challenging the impugned order of the appellate commissioner confirming the original order passed by the adjudicating authority under section 129 of the West Bengal Goods and Services Act, 2017 for detention of the goods in question on the grounds that the e-way bill relating to the consignment in question had expired one day before, i.e. in the midnight of September 8, 2019, and that the goods was detained in the morning of September 9, 2019 on the grounds that the e-way bill has expired which is even less than one day and extension could not be made and petitioner submits that delay of few hours even less than a day of expiry of the validity of the tenure of the e-way bill was not deliberate and willful and was due to break down of the vehicle in question and there was no intention of any evasion of tax on the part of the petitioner.

Read full report here…

Repealed Acts


Whether the orders passed under a repealed Act be executed? Court discusses

Rajasekhar Mantha, J. disposed of a petition observing that the Supreme Court is the only authority to clarify  whether the orders passed under a repealed Act can be executed or not

Read full report here…

Breach of Contract


Parties to agreement of sale consciously changing their relationship cannot seek relief on the basis of previously established relationship

The Division Bench of Soumen Sen and  Ajoy Kumar Mukherjee, JJ., dismissed an appeal concerned with a breach of contract. The appeal arose out of a judgment in a suit for recovery of possession and injunction. Trial Court had decreed the suit on contest and dismissed the counter claim filed by the defendant.

Read full report here…

Detention Order


Detention order quashed due to lack of opportunity of hearing in the matter of S. 129 of the West Bengal Goods and Service Tax Act, 2017

Md. Nizamuddin, J. disposed of a petition which was filed challenging the impugned order passed by the Deputy Commissioner of Revenue on the ground that the said impugned order was bad in law for the reasons that the petitioners being the owner of the goods in question, which had been detained without giving any opportunity of hearing to the petitioners under the relevant provision of Section 129 of the West Bengal Goods and Service Tax Act, 2017.

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


Compassionate Appointment


Illegitimate child’s right to be considered for Compassionate appointment

Sanjay K. Agarwal, J., held that an illegitimate son would be entitled to consideration on compassionate ground and cannot be denied consideration on the ground that he is the illegitimate son of the deceased Government servant.

Read full report here…

Rape


In view of changed definition of rape under S. 375 (b) of  IPC pari materia to S. 3(b) of POCSO Act, whether sexual intercourse is necessary to attract ingredients of offence of rape or penetrative sexual assault?

Addressing a case wherein a minor girl was subjected to sexual, Deepak Kumar Tiwari, J., held that,

In view of the changed definition of rape under Section 375 (b) of the IPC pari materia to Section 3(b) of the POCSO Act, sexual intercourse is not necessary to attract the ingredients of offence of rape or penetrative sexual assault.

Read full report here…


Delhi High Court


Dishonour of Cheque


To prove that cheque amount was larger than debt due, can defence of Issuer be looked at stage of issuing summons?

While addressing a matter revolving around Section 138 of the Negotiable Instruments Act, 1881, Subramonium Prasad, J., held that Courts should primarily proceed on the averments in the complaint, and the defence of the accused cannot be looked at the stage of issuing summons unless it can be shown on admitted documents which the Supreme Court described as “unimpeachable in nature and sterling in quality” to substantiate that there was no debt due and payable by the person who has issued the cheque or that the cheque amount is large than the debt due.

Read full report here…

If a cheque is not honoured by issuer and even after a legal notice he doesn’t pay, he is bound to face criminal trial

Rajnish Bhatnagar, J., dismissed a matter revolving around the dishonour of cheque under Section 138 of the Negotiable Instruments Act.

Read full report here…

Yes Bank Loan Fraud


Public money under garb of Term loan siphoned off, resulting in generation of ‘proceeds of crime’ as well as its layering and ultimate projection as untainted money: Del HC while denying bail to Gautam Thapar

While addressing a matter wherein bail of Gautam Thapar accused in Yes Bank Loan Fraud case, was sought, Manoj Kumar Ohri, J., expressed that it is well settled that, economic offences constitute a class apart and need to be visited with a different approach, given their severity and magnitude. Albeit these offences are likely to adversely impact the economic fabric of the country, bail shall not be denied to a person accused of an economic offence in a routine manner.

Read full report here…

Jurisdiction


Can partners in dispute of an LLP or any other business entity carrying out business in different parts of country, file suit in any place where business is carried out?

Amit Bansal, J., expressed that an LLP or any other business entity can carry out business in different parts of the country, but that would not mean that a suit with regard to disputes between the partners, could be filed in any place where the business of the firm/LLP is carried out.

Read full report here…

Ownership of YouTube Channel


Who ‘owns’ a YouTube channel?: Del HC passes interim directions in dispute over channel ‘Shabad Kirtan Gurbani – Divine Amrit Bani’

Asha Menon, J., considered a very interesting case where the dispute between the parties is regarding the ownership of a YouTube channel. The Court has found a prima facie case in favour of the plaintiff and issued certain directions.

Read full report here…

Bail


On pretext of removing evil spirit from body of a woman who was bipolar in nature, a man lured woman and committed sexual intercourse, but ADJ granted bail: Will HC cancel his bail? Del HC analyses

Mukta Gupta, J., cancelled the bail of an accused who lured a female on the pretext of removing an evil spirit from her body and further committing sexual intercourse with her.

Read full report here…

Theft


Daughter-in-law thrown out of matrimonial home and accused of removal of letters from possession of matrimonial home: Whether Del HC will find her guilty under S. 380 IPC or not?

Chandra Dhari Singh, J., noted that instant dispute has arisen out of matrimonial discord between two people which had also, led to the filing of more than 50 criminal and civil cases between not only the husband and the wife but also their family members. It was found that for the sole purpose of harassing the other party such cases were filed by persons with no just cause or reason and substantial ground for allegations.

Read full report here…

Right of Residence


Right of residence under DV Act is exclusive to and isolated from any right that may arise under S. 9 of Hindu Marriage Act, 1955

“The existence of the strained relationship between the Petitioner and the Respondent has been well established by the fact that there are more than about 60 criminal and civil cases pending between the parties.”

Read full report here…

Desertion and Cruelty


Wife leaves matrimonial home and never returns after several requests and legal notice under S. 9 of HMA, alleges husband of several cruelties without any evidence: Would it amount to desertion and cruelty by wife?

Noting the separation of 12 years between the husband and wife, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., found that the wife had subjected the husband to desertion and cruelty, hence decree of divorce be granted.

Read full report here…

Accusation of extra-marital relationship is a grave assault on character, status, reputation as well as health of spouse against whom such allegations are made: Would this come under ambit of cruelty?

While addressing a matter surrounding the issue of cruelty by wife, the Division Bench of Vipin Sanghi, ACJ and Dinesh Kumar Sharma, J., expressed that,

“It has repeatedly been held that accusations of unchastity or extra marital relationship is a grave assault on character, status, reputation as well as health of the spouse against whom such allegations were made.”

Read full report here…

Arbitration and Conciliation Act


Del HC dismisses appeal filed by Indiabulls Housing Finance in Zee Entertainment – Sony Pictures Scheme of Arrangement

Suresh Kumar Kait, J., addressed an appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996 against the interim order passed by Arbitrator was preferred.

Read full report here…

Mere use of the word ‘Arbitration’ in the heading of an Agreement would mean existence of an arbitration agreement?

Mukta Gupta, J., decided that mere use of word ‘Arbitration’ in the heading of an Agreement would not mean the existence of an arbitration agreement.

Read full report here…

Religious Structure


State obligated to remove unauthorized constructions from public land, but if it is a religious structure, can State still be obligated to do so?

Expressing that, the mere fact that certain encroachments represent religious structure cannot possibly detract State from its obligation, Yashwant Varma, J., held that, State remains duty-bound to remove all unauthorized constructions which may exist on public land.

Read full report here…

Extraordinary Writ Jurisdiction


Extraordinary writ jurisdiction is to be exercised only in rare cases or certain contingencies in the interest of justice, including exceptional cases

Chandra Dhari Singh, J., expressed that it is settled law that the power to issue writ has its own well-defined limitations imposed by the High Courts, one of which was the availability of alternative efficacious remedy.

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Power to Transfer Cases


Can Chairman of CAT on his own motion, without any notice, transfer any case pending before one Bench for disposal to another Bench?

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., held that the Chairman of Central Administrative Tribunal has been conferred the power to transfer a matter from one Bench to another, on his own motion, without any application from any party.

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Right to Speedy Trial


Incarcerated for 8 years for an offence punishable with minimum 10 years imprisonment: Violation of Right to Personal Liberty and Right to Speedy Trial

Subramonium Prasad, J., remarked that,

“…achievement of universal equality before the law requires the tenets of personal liberty to be applicable to all similarly circumstanced individuals and must not be restricted unless according to procedure established by law.”

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Arms License


If you are found in possession of live ammunition along with a valid arms licence, can an offence under S. 25 of Arms Act still be registered against you?

Deciding a matter of whether an NRI person in possession of two live ammunitions with a valid license can be registered under Section 25 of Arms Act or not, Asha Menon, J., held that, prima facie no malafide intent was found and the licence found was a valid arms licence.

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Right of Putative Father


Right of Putative Father to visit minor child upheld: Del HC

Upholding the rights of the putative fatherV. Kameswar Rao, J., expressed that while determining and granting such rights, more so when the child is of less than 3 years of age, surely his well-being/welfare is of paramount importance

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Issuance of Notice


Section 292BB of Income Tax Act deals with failure of service of notice or failure to issue notice?

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., addressed a matter wherein the decision of Income Tax Appellate Tribunal for the Assessment Year 2011-12 was challenged.

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RTI Act


Employees of a security establishment cannot be deprived of their fundamental and legal rights just because they work in an intelligence and security establishment

Expressing that, RTI Act is a tool that facilitates the employees and officers in airing their grievances systematicallythe Division Bench of Manmohan and Sudhir Kumar Jain, JJ., remarked that,

“…both service and RTI laws ‘act like a safety valve in the society’.”

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Maternity Leave


Can maternity leave benefits extend beyond the period when contractual period of an ad hoc employee comes to an end?

In a claim of maternity benefit by a contractual employee, the Division Bench of Rajiv Shakdher and Talwant Singh, JJ., expressed that, The Maternity Benefit Act, 1961 Act is a social legislation that should be worked in a manner that progresses not only the best interest of the women-employee but also of the child, both at the pre-natal and post-natal stage.

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Unmarried Daughters


Can unmarried daughters claim expenses of marriage from their parents under the Hindu Adoptions and Maintenance Act, 1956?

While stating that, in Indian society, normally expenses are required to be incurred for pre-marriage and also at the time of marriagethe Division Bench of Goutam Bhaduri and Sanjay S. Agrawal, JJ., held that unmarried daughters have a right to claim expenses of marriage from their parents under the Hindu Adoptions & Maintenance Act, 1956.

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SC Collegium December Meeting


 

Newspaper reports are of no evidentiary value and Courts would be transgressing their well settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports

In a matter wherein, details were sought with regard to Supreme Court Collegium meeting held on 12-12-2018, Yashwant Varma, J., expressed that, newspaper reports are of no evidentiary value and Courts would be clearly transgressing their well-settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports.

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Gujarat High Court


Reasoning in Judgment


Providing reasoning is to give it a value of precedent which can help in reduction of frivolous litigation; Court emphasises on recording reasons in judgments

“It is trite that in a delay application, sufficient cause is the paramount consideration and if sufficient cause is shown, the Court should generally condone the delay. However, if the sufficient cause is imbibed with the laxity on the part of the delayer despite due knowledge, then Court should restrain itself from encouraging such practice and condone the delay.”

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GSTR-6 Return


Court allows writ furnishing the GSTR – 6 return for recording and distributing the ISD credit

“Credit was a tax paid by the registered person on input transactions and such tax already paid to the credit of the Central Government was a vested right of the person. Such vested right cannot be defeated on account of any irregularity in the system evolved by the Government.”

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NDPS


No Conscious possession; Court upholds acquittal under NDPS Act

The Division Bench of S.H. Vora and Sandeep N. Bhatt, JJ., dismissed an application for special leave to appeal which was filed feeling aggrieved and dissatisfied with the judgment and order in NDPS Case whereby the trial Court acquitted the respondent 2 herein-original accused 2 of the offences punishable under Sections 8(c), 20(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

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Detention Order


Simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order; Detention order quashed

Rajendra M. Sareen, J. allowed a petition which was directed against the detention order passed by respondent–detaining authority in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (“the Act”) by detaining the petitioner-detenue as defined under section 2(b) of the Act.

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Gauhati High Court


Sexual offences against minor cannot be compromised by parents; HC rejects application to enforce compromise

Arun Dev Choudhury, J., held that sexual offences against minor cannot be compromised by parents.

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Himachal Pradesh High Court


Rape


Minor girl students raped and subjected to penetrative sexual assault by their teacher: Sanctity of Teacher-Student relationship polluted

Polluting the sanctity of the relationship of the teacher and students, a teacher committed rape and penetrative sexual assault with minor students, the Division Bench of Sabina and Satyen Vaidya, JJ., noting the harrowing incidents expressed that the said is a sad reflection of the present-day society where a most platonic relationship was exploited.

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Jharkhand High Court


Execution of a Will


Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree: Can it result in complete disposition in favour of one heir or exclusion of any other heir?

Expressing that the due execution of a Will is to be proved as per the provisions of law as laid down in Evidence Act as well as that if Indian Succession Act,  Gautam Kumar Choudhary, J., remarked that, a probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any.

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Karnataka High Court


Domestic Violence Act


Whether the maintenance awarded under the Domestic Violence Act can be sought to be enhanced under the CrPC?

“The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C.”

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Criminal Proceedings


SC-ST Act is prospective or retrospective? Kar HC quashes criminal proceedings for offences committed in the year 1975

Krishna S Dixit J. quashes the criminal proceedings as the SC-ST act is not retrospective in nature.

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Hijab Ban


16 pointer report on why wearing of Hijab is not a part of essential religious practice in Islam

“Dismayed as to how all of a sudden that too in the middle of an academic term the issue of hijab is generated and blown out of proportion, Court remarked that some ‘unseen hands’ are at work to engineer social unrest and disharmony in the way ‘hijab imbroglio’ unfolded.”

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The uniform can exclude any other apparel like bhagwa or blue shawl that may have the visible religious overtones

“The Holy Quran does not mandate wearing of hijab or headgear for Muslim women rather it was traditionally worn as a measure of social security” 

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POCSO


Whether victim under POCSO Act can be permitted to be cross-examined once she turns hostile?

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

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Marital Rape


“Wanton lust, vicious appetite, depravity of senses, loathsome beast of passion, unbridled unleashing of carnal desire of demonish perversion” Kar HC discusses protection provided to husband by the institution of marriage

A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”

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Kerala High Court


Cruelty


At odd hours, if wife continues making discreet phone calls with another man even after a warning by husband, would it constitute matrimonial cruelty?

The Division Bench of A. Muhamed Mustaque and Dr Justice Kauser Edappagath, JJ., held that, despite a warning by the husband, if the wife continues to make discreet calls with another man that too at odd hours, it would amount to matrimonial cruelty.

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Medical Negligence


Do District and State Consumer Disputes Redressal Commissions do not have jurisdiction to take cognizance of medical negligence complaints?

Nagaresh, J., decided whether medical service would fall within the ambit of Section 2(42) of the Consumer Protection Act, 2019 unless of course the service is free of charge or is under a contract of personal service.

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Breach


Compensation payable under Ss. 73, 74 and 75 are only for loss or damage caused by breach or inclusive of mere act of breach as well?

The Division Bench of P.B. Suresh Kumar and C.S. Sudha, JJ., expressed that,

“…compensation payable under Sections 73, 74 as also under Section 75 is only for loss or damage caused by the breach and not account of the mere act of breach. If in any case the breach has not resulted in or caused any loss or damage to a party, person concerned cannot claim compensation.”

The words ‘loss or damage’ in the Sections 73 and 74 would necessarily indicate that the party who complains of breach must have really suffered some loss or damage apart from being faced with the mere act of breach of contract. That is because every breach of every contract need not necessarily result in actual loss or damage.

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Internal Complaints Committee


In the film industry, would production units have to constitute Internal Complaints Committee to deal with harassment against women?

While expressing that, any organisations, establishments, private institutions are employing workers whether for wages or not in contemplation of the provisions of the Act, 2013 coming under the definition of employer, employee and workplace, they are duty bound to constitute an Internal Complaints Committee,  the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., held that, a production unit of each film industry is an establishment employing Actor Artists and other workers and therefore, such production units have to maintain an Internal Complaints Committee if they are engaging more than 10 workers

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Moral Policing


Man taking a lady from another community in his car, attacked by violent mob: Act of mob moral policing?

Calling it to be ‘moral policing’ K. Haripal, J., addressed a matter wherein a man had taken a lady from another community in his car due to which a mob attacked him with deadly weapons.

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Pre-arrest Bail


Trespassed in house, committed rape, misappropriated money, threatened: Kerala HC denied pre-arrest bail in view of such allegations

Shircy V. J., dismissed a bail application wherein a man committed rape with a woman and misappropriated her money after putting her under threat.

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Strikes


Bar on Government servants to engage in strikes?

While expressing that, it is the duty of the welfare Government to protect not only the citizens, but to continue with, all the Government work as expected, the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., directed that Government servants should be prevented from engaging in a strike.

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Madras High Court


Central Information Commission


High Court cannot act as a post office to collect and exchange information

While stating that Central Information Commission has only made recommendations, which cannot by any stretch of imagination be taken as a statute so as to give effect, the Division Bench of Munishwar Nath Bhandari, CJ and D. Bharatha Chakravarthy, J., dismissed the petition.

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Promotion


Can an employee claim promotion as a matter of right?

S.M. Subramaniam, J., expressed that employees cannot seek any direction to fill up the post or claim a promotional post.

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Bribe


Every Advocate is a Court officer and part & parcel of justice delivery system: Madras HC found a Govt. Advocate demanding bribes at the cost of justice

The Division Bench of K. Kalyanasundaram and R. Hemalatha, JJ., expressed that, the Government advocate being the representative of the Government has to act in an honest manner. If he/she goes around with the intention to make money at the cost of justice, only chaos will prevail.

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Manipur High Court


Appointment/Promotion of High School Teachers


All resolutions passed at the emergency meeting will be subject to confirmation or revision at the next ordinary meeting; Court allows petition

“Rule 14 (b) of the Rules of 1975 provides that all resolutions passed at the emergency meeting will be subject to confirmation or revision at the next ordinary meeting, none of the respondents, either the State or the respondent 3 to 10 has brought on record that the resolution passed in the emergency meeting held on 21-02-2015 was confirmed or revised in the next ordinary meeting.”

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Madhya Pradesh High Court


Writ of Mandamus


A writ for mandamus cannot lie to direct the State to enact a law; Petition dismissed

The Division Bench of Ravi Malimath, CJ. and Dinesh Kumar Paliwal, J.dismissed a petition which was filed in public interest praying for a writ of mandamus to incorporate certain provisions in the law, namely, Section 14-A of the Madhya Pradesh Municipal Corporation Act, 1956 and Section 32-A of the Madhya Pradesh Municipalities Act, 1961.

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Election Dispute


Registrar exercising power of the election tribunal cannot pass interim directions of any nature; Court allows appeal

“…Registrar who was trying the election dispute was exercising the power of the election tribunal. Therefore, he could not have passed orders even though it was in the interest of society.”

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Custody


Technical objections cannot come in way of custody; Court allows 16-year-old to choose to live with father

The Division Bench of Subodh Abhyankar and Satyendra Kumar Singh, JJ., dismissed an appeal which was filed being aggrieved of the order passed by Single Judge wherein he quashed the earlier impugned order passed by the Sub-Divisional Magistrate whereby custody of the children of the appellant was given to her husband (respondent 4). The Single Judge had only partly granted relief by not giving any express direction restoring the custody of the children in favour of the appellant.

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Appointment Order


Cancellation of candidature on the ground of typographical error arbitrary and grossly disproportionate; Court allows petition

Pranay Verma, J., allowed a petition which was filed praying for a direction to consider petitioner’s candidature for the post of Office Assistant (Multi purpose) and to issue appointment order in her favour in light of offer letter.

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Meghalaya High Court


Family Pension


Court decides on eligibility of family pension under Rule 48 of Meghalaya Civil Services Pension Rules of 1983

“Rule 48, provides that an unmarried/widowed/divorced daughter, would be entitled to family pension and that a person would be entitled for family pension, only after other eligible family members in the first category have ceased to be eligible to receive it.”

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Companies Act


If an advertisement for petition filed under S. 433 of Companies Act, 1956 is not published, will entire matter be transferred to NCLT?

Sanjib Banerjee, CJ, addressed a petition wherein a creditor’s winding-up petition was instituted under Section 433 of the Companies Act, 1956 and the same was not yet advertised.

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Testimony


Court affirms trial court’s conviction on the basis of victim’s testimony in POCSO matter

The Division Bench of  Sanjib Banerjee and W. Diengdoh, JJ., while hearing an appeal which challenged the judgment of conviction of December 21, 2018, which convicted the appellant under Section 3(a) R/W Section 4 of the Protection of Children from Sexual Offences Act, 2012, upheld the same and stated that there was no good reason to interfere with the judgement of the trial court.

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Compromise Deed


Lower Courts to deal with entire process expeditiously after receipt of the application under S. 151 read with Or. 20 R. 6-A CPC

H.S. Thangkhiew, J. while hearing a revision application allowed the same and directed the lower court to deal with the entire process expeditiously immediately on receipt of the application under Section 151 read with Order 20 Rule 6-A CPC.

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Inherent Power


fraus et jus nunquam cohabitant; Ori HC analyses how does prohibition under S. 362 CrPC operate viz-a- viz the inherent power of the High Court

It is the oft-repeated and a salutary principle of law that fraud and justice never dwell together (fraus et jus nunquam cohabitant)

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Rape


If a man rubs his organ on vagina over victim’s underpants, would that amount to rape?

The Division Bench of Sanjib Banerjee, CJ and W. Diengdoh, J., addressed that, if the victim’s underwear was not taken down and the man merely rubbed himself on the victim’s crotch while she still wore her underpants, would that amount to commission of rape.

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POCSO


FIR and proceedings in Special POCSO Case quashed; Minor ‘victim’ gave birth to child while living with accused as his wife

Diengdoh, J. allowed a petition which was filed praying to quash the criminal proceedings pending in the Court of the Special Judge (POCSO) under Section 5(j)(ii)/6 POCSO Act, 2012.

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Punjab and Haryana High Court


Live-in Relationship


In ever-evolving society, evolving law with it, time to shift perspective from didactics of orthodox society, shackled with strong strings of morality to one that values an individual’s life

While dealing with a matter regarding protection to live-in relationship, Anoop Chitkara, J., held that, every person in the territory of India has an inherent and indefeasible fundamental right to life flowing from Article 21 of the Constitution of India and the State is duty-bound to protect life.

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Laws governing ‘Live-in-relationships’ is need of the hour; Court directs State to file response on the social predicament

‘Live-in-relationships’ has always been a debatable issue because of the absence of any law on the said practice. The Legislation has not yet consolidated any Act in this regard; on the other hand the Judiciary, through several decisions has made a clear stand to protect the various rights of such couples. Supreme Court in Lata Singh v. State of U.P., (2006) 5 SCC 475S. Khushbhoo v. Kanniammal(2010) 5 SCC 600, and Indra Sarma v. V.K.V. Sarma(2013) 15 SCC 755, has upheld the status of live-in-relationships and issued certain direction to protect life and liberty of the individuals.

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MBBS Course


Whether Court can issue directions for filling up the vacant seat for the MBBS Course?

S. Thangkhiew, J. allowed a petition in which he had to consider whether this Court can direct the respondents to consider the petitioner for filling up the vacant seat for the MBBS Course.

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Recission of Contract


Application for rescission of contract ‘mandatory’ to avail the relief, as S. 28, Specific Relief Act, 1963 doesn’t confer indefeasible right

Sudhir Mittal, J. dismissed the revision petition filed by the petitioners (in this case the judgment-debtors) against the action of the Executing Court for refusing to recall the impugned order. According to the petitioners, the execution order was passed, ex parte hence, the fundamental principle of natural justice was violated.

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Carnal Intercourse


Use of phrase “carnal intercourse” considered as a conscious act of the legislature reflecting the clear intent to engraft an offence under S. 377 IPC, conviction upheld

Vinod S. Bhardwaj, J. contemplated the revision petition filed by the accused/ children in conflict with the law, challenging the dismissal of appeal by Additional District and Sessions Judge along with the order of conviction and sentence passed by the Juvenile Justice Board, for the commission of offence punishable under Section 377 of Penal Code, 1860 and Section 10 Protection of Children from Sexual Offences Act, 2012.

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Cooling Off Period


Cooling off period under S. 13-B (2) HMA directory and not mandatory, court must waive off statutory period where marriage is irreconcilable

Rajbir Sehrawat, J., allowed the instant revision petition, filed against the order of Family Court, where the joint application for waving off the statutory period of 6 months for cooling off, had been dismissed.

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CBSE


Schools succeeded in hoodwinking CBSE, however, no fault can be attributed to the students; direction for issuance of class 12th result

Sudhir Mittal, J. allowed the writ petitions filed against the action of the Central Board of Secondary Education (CBSE) declaring petitioners ineligible for evaluation of class 12th and to issue the final result.

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Fundamental Rights vis a vis Judicial Review


Answer to the question on ‘fundamental rights vis-a-vis judicial review’ considered as ‘National Confusion’ as different interpretation possible

Rajbir Sehrawat. J., contemplated and answered the interesting question asked in the recruitment test on which the dispute of the petitioner revolves around. Thorough interpretation of judgments starting from Sankari Prasad to I.R. Coelho was analysed by the Court to formulate the correct answer asked in the recruitment test.

73. Which of the following schedule of the Constitution is immune from judicial review on the grounds of violation of fundamental rights?

  1. A) Seventh Schedule B) Ninth Schedule C) Tenth Schedule D) None of the above”

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Material Fact


Suppression of a ‘material fact’ of non-disclosure of pendency of bail application considered, subservient to the right of liberty granted to the petitioners; Guidelines issued

Three petitions are clubbed together where the petitioners intended to withdraw their bail applications as bail was already granted by the different trial courts. The main issue before Jasgurpreet Singh Puri, J. was effect of filing bail applications and passing of bail orders by the trial courts during the pendency of bail application before High Court by the same accused without disclosing such pendency and what safeguards should be adopted by the trial courts in this regard.

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Compensation


Entitlement to compensation on general principles for inordinate delay in receiving monies due; Interest on refund of excise duty granted

The Division Bench of Ajay Tewari and Pankaj Jain, JJ., contemplated the appeal where the interest on refund of excise duty was rejected by the authorities. The main question before the Court was whether the assessee was entitled to interest.

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Departmental Punishment


Departmental punishment of government servant is not a necessary and automatic consequence of conviction on a criminal charge

Jaishree Thakur, J. set aside and quashed the dismissal of the petitioner and remanded back the matter to the punishing authority for reconsideration. The Court directed that punishing authority to apply its mind and to form an opinion as to whether the conviction of the petitioner deserves the penalty of dismissal, removal or reduction in rank or any other lesser penalty.

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Patna High Court


Economic Offence


Entire community is aggrieved if economic offenders, who ruin economy of the State are not brought to book

Expressing that the entire community is aggrieved if the economic offenders, who ruin the economy of the State are not brought to bookAnjani Kumar Sharan, J., held that economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community.

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Rajasthan High Court


Whenever there is a conflict between substantial justice and hyper-technicality then substantial justice should be preferred to avoid defeat for the ends of justice: Raj HC observes in a case where candidature was rejected on a hyper-technical approach

A Division Bench of Anoop Kumar Dhand and Pankaj Bharadwaj, JJ., disposed of the petition and directed the Department to appoint the respondent.

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Cause Title


“..use of salutation and titles is prohibited in terms of Arts. 14 18 and 363A of the Constitution of India in public documents and public offices”; Raj HC observes in a case where hereditary title was mentioned in a cause title

“…any title awarded to the citizen of India by a Foreign State cannot be accepted nor used and no such title, other than the military or academic distinctions, can be conferred other than by the State. In terms of Article 363A of the Constitution of India, the heredity titles of nobility being in conflict with the principles of equality and contrary to Article 14 of the Constitution of India cannot be used as prefixes or suffixes.”

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Provisional Attachment


Order of provisional attachment cannot survive beyond a period of one year in terms of S. 83 (2) CGST Act; Provisional attachment order stayed

“Section 83 of the CGST Act pertains to provisional attachment to protect the revenue in certain cases. In sub-section (1) of Section 83 the commissioner is empowered to order provisional attachment of the property of the assessee including bank account where proceedings under Chapters XII, XIV and XV are pending and the commissioner is of the opinion that for the purpose of protecting the interest of government revenue it is necessary so to do.”

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Public Interest Litigation


“Citizen approaching Court in a public interest jurisdiction holds greater duty to make full research” PIL dismissed due to lack of necessary evidence presented

A Division Bench of Akil Kureshi, CJ and Rekha Borana, J. dismissed the petition and kept it open for the petitioners to file a fresh public interest petition.

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Private Entity


In absence of any factual foundation to show whether a particular entity is State or not, writ jurisdiction not maintainable

Mahendar Kumar Goyal J. dismissed the petition being not maintainable against a private entity. 

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Interim Maintenance


Raj HC dealt with whether husband can be absolved from his duty to pay interim maintenance if there is delay of 30+ years in filing application

“…an order under Section 125 of CrPC is in the nature of interim maintenance and husband, who admittedly earns Rs 40, 000/- per month cannot be absolved of his obligation to pay interim maintenance, merely because the respondent – wife has chosen to file the application after 36 years of marriage.”

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Transfer Petition


Transfer petition for trial of Salman Khan’s deer hunting case allowed; High Court to take charge

Pushpendra Singh Bhati, J., allowed a transfer petition in the infamous deer hunting case of actor Salman Khan.

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Bail


Economic offender should not be dealt as general offender because economic offenders run parallel economy; bail rejected

Narendra Singh Dhaddha rejected bail and dismissed the petition being devoid of merits.

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Sikkim High Court


Compromise


Handing out punishment is not the sole form of delivering justice; Court allows compromise

Bhaskar Raj Pradhan, J. allowed the compromise to bury the difference between parties and gives them their lives as good citizens.

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Tripura High Court


Disposal of Garbage


Court directs AMC to set up proper slaughterhouses and ensure garbage disposal in scientific manner

Court issued directions to the Corporation to prepare a long-term plan for not only setting up the abattoir/slaughter house but also for ensuring disposal of garbage in an appropriate scientific manner, rendering all authorities including the local police authorities for enforcing/assisting in carrying out its duties, considering application for licenses and disposing of at an early date so that people are not deprived of essential needs, maintaining hygienic conditions and carrying out inspection of all the license premises.

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Divorce


Unable to approve this kind of matrimonial conduct or filing a suit for divorce on such coloured narrative; Court dismisses appeal in matter of divorce

The Division Bench of S. Talapatra and S.G. Chattopadhyay, JJ. dismissed an appeal which was filed under Section 28 of the Hindu Marriage Act, 1955 from the judgment by the Additional District Judge declining to grant the divorce and consequently dismissing the suit. It was observed that case did not reflect any such situation which can demand the dissolution of marriage between the petitioner [the appellant and the respondent].

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Uttaranchal High Court


Personal Rights


Irrespective of the personal rights of a person or a community, it can under no set of circumstances, override the rights or need of the defence of the country; Petition dismissed

Sharad Kumar Sharma, J. dismissed a writ petition which involved the issue pertaining to regulating the frontier borders of the country, adjoining to the ‘Line of Actual Control’, which adjoins and shares the boundary lines of our neighbouring country, China, which is approximately about 20 to 25 Kms. only away from the land, in dispute, which is proposed to be acquired for the purposes of meeting out the defence need of the ITBPF, i.e. ITBP.

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Judgment of Acquittal


There have to be very substantial and compelling reasons for setting aside a judgment of acquittal; petition dismissed

The Division Bench of S.K. Mishra and A.K. Verma, JJ., dismissed the appeal for acquittal considering it to be devoid of substantial and compelling reasons.

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Hate Speech


Right to freedom, as granted under the Constitution is not an absolute right; Court rejects bail in Hate Speech matter

Ravindra Maithani, J., rejected a bail application which was filed by the applicant who was in judicial custody under Sections 153A, 298 Penal code, 1860.

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Public Service Commission


Public Service Commission directed to declare result of candidate who submitted late fees

The Division Bench of Sanjaya Kumar Mishra, CJ. and Ramesh Chandra Khulbe, J. allowed a petition which was filed by an aspirant seeking a direction to respondents to allow the petitioner to appear for the mains examination of the Assistant Conservator of Forest.

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Registration of Sikh Marriages


State directed to take steps to frame and notify Rules for Registration of Sikh Marriages

The Division Bench of Sanjaya Kumar Mishra, ACJ. and Ramesh Chandra Khulbe, J. took up a PIL filed by the petitioner commanding the respondent State to notify the Rules under Anand Marriage Act, 1909 and also to issue guidelines to register the marriage of people of Sikh Community under the Anand Marriage Act, 1909.

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Bail


Society has a vital interest in grant or refusal of bail because criminal offence is the offence against the society; Bail applications rejected in fraud case under Epidemic Diseases Act

Alok Kumar Verma, J. rejected three bail applications of the applicants who were in custody for the offence under Sections 188, 269, 270, 420, 467, 468, 471, 120B of IPC, Section 3 of the Epidemic Diseases Act, 1897 and Section 53 of the Disaster Management Act, 2005.

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Weekly Roundups from March


Stories of sexual assault of a minor, woman travelling in public transport experiencing inappropriate touch and how children below 12 years of age are ‘asexual’ | Read 7 Legal Stories of the week

9 Legal Stories of the Week | Unlicensed transport aggregators to Spanking back of a woman without her consent, read more such stories in this weekly roundup

From Hijab Ban to Bloomberg Privacy Case and more | 7 Legal Stories of the Week

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Subodh Abhyankar and Satyendra Kumar Singh, JJ., dismissed an appeal which was filed being aggrieved ofthe order passed by Single Judge wherein he quashed the earlier impugned order passed by the Sub-Divisional Magistrate whereby custody of the children of the appellant was given to her husband (respondent 4). The Single Judge had only partly granted relief by not giving any express direction restoring the custody of the children in favour of the appellant.

Counsel appearing for the appellant had submitted that despite the petition being allowed and the impugned order being quashed, the appellant/petitioner had got no relief as custody of her both the sons have not been given to her, despite the fact that their custody was illegally obtained by the respondent 4 in the first place.

Counsel appearing for the respondent 4, on the other hand had opposed the prayer and it was submitted that no interference was called for as the aforesaid order had been passed by the Single Judge after having an interaction with the respondent 5 and 6, who had expressed their willingness to reside with their father the respondent 4 only.

The Court was of the view that it was true that both respondent 5 and 6 are minor, however, the age of 16 years is not such an age where a child, given a choice, is not able to make up his or her mind as to his or her inclination to reside with either of the parents. In the present case, this choice has been exercised in favour of the father and thus, despite agreeing with the contentions of the appellant/petitioner regarding the legality of the impugned order, the Writ Court has not found it to be appropriate to hand over the custody of the children to the appellant/petitioner/wife.

The Court observed that in the present case, it was nobody’s case that respondent 4 was in any manner incompetent or was having such vices which may prejudice the interest of the children in his company. Thus, the appeal was dismissed.[Jaya Chakravarti v. State of Madhya Pradesh, 2022 SCC OnLine MP 450, decided on 02-03-2022]


Shri Prateek Maheshwari, Counsel for the appellant.

Smt Archana Kher, Deputy Advocate General for the respondent 1 to 3/State.

Shri A. K. Saxena, Counsel for the respondent 4 to 6


Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Dr Justice Kauser Edappagath, JJ., held that, despite a warning by the husband, if the wife continues to make discreet calls with another man that too at odd hours, it would amount to matrimonial cruelty.

Background

Husband had instituted a petition for dissolution of marriage on the ground of adultery and cruelty, but the same was dismissed. A matrimonial appeal was filed challenging the said decision.

Wife had instituted a petition for return of gold ornaments and money, the same was allowed in part. Further another petition was instituted by the husband for appointing him as the guardian of a minor child, but the same was dismissed and a matrimonial appeal was filed challenging the same.

The above appeals were interconnected, hence this Court dealt with them together for their disposal.

Factual Matrix

In the present matter, both husband and wife accuse each other of the development of marital discord between them soon after the marriage.

Husband’s case was that, right from the inception of marriage, the wife perpetrated various iniquitous acts, ranging from mental agony by constantly using filthy language, abdicating all shared household duties, threatening to commit suicide, refusing to have sex, picking up quarrels constantly demanding to take her back to her parental home, ridiculing in front of others, abusing his mother, etc. making his life a living hell.

The wife did not stop the matrimonial cruelty and even dragged the husband’s mother and sister to matrimonial controversy launching a false and frivolous criminal prosecution against them.

The husband also stated that the wife had been maintaining an illicit relationship with the second respondent prior to her marriage and even thereafter.

Lower Court evaluated the evidence and found that the husband failed to prove that the wife was maintaining illicit relationship with the second respond and in so far as the ground of cruelty was concerned, the lower Court found that petitions for dissolution of marriage were settled, and parties had reunited. It was also held that inasmuch as the husband did not have a case in the present petition that the wife had caused physical or mental torture after the resumption of cohabitation, the divorce on the ground of cruelty cannot be granted.

In the case where divorce is sought on the ground of adultery, the proof required to establish adultery need not necessarily be proof beyond a shadow of doubt. Proof by preponderance of probabilities would be sufficient. Direct proof of adultery can rarely be given.

The circumstantial evidence is all that can normally be expected in proof of the charge of adultery.

In Court’s opinion, the allegation of adultery was not proved by the husband.

With regard to cruelty, the Court stated that,

Normally matrimonial cruelty takes place within the four walls of the matrimonial home and, therefore, independent witness may not be available. Hence, Court can even act upon the sole testimony of the spouse if it is found convincing and reliable. 

In the evidence of the husband, it came out that the wife caused innumerable mental stress and pain by consistently sharing abusive words and filthy language towards him and also by threatening to commit suicide on many occasions. The husband specifically deposed that right from the inception of marriage, there has been unusual conduct and abusive humiliating treatment on the part of the wife.

In view of the above, it could be inferred that the husband had every reason to apprehend that it was not safe for him to continue the marital relationship with his wife.

Condonation of Cruelty

Lower Court stated that, even assuming that the allegation of cruelty stood proved, there was clear condonation on the part of the accused.

Section 23(1) of the Hindu Marriage Act casts an obligation on the Court to consider the question of condonation which had to be discharged even in undefended cases.

“Condonation of matrimonial offence deprives the condoning spouse of the right of seeking relief on the offending conduct.”

However, condonation cannot be taken to be absolute and unconditional forgiveness.

Bench elaborated that, in case the matrimonial offence is repeated even after an act of condonation on the part of the spouse, it gets revived on the commission of subsequent act resulting in matrimonial disharmony.

It was noted that the husband and wife had entered into a compromise but later both of them accused each other of breaching the same.

High Court with respect to the above, added that mere compromise would not amount to condonation of cruelty unless and until the matrimonial life was restored and there was no evidence to indicate resumption of conjugal life after the compromise.

Whether making phone calls to the second respondents including odd hours as well would constitute mental cruelty?

Husband had deposed that he overheard the intimate conversation between the wife and the second respondent and on questioning, she told him that the second respondent was having more right over her body and mind than him.

Another pertinent fact was that the wife deposed that she used to call the second respondent only on certain days, though the documentary evidence proved otherwise.

Making discreet phone calls frequently by the wife with another man disregarding the warning of the husband, that too at odd hours, amounts to matrimonial cruelty.

Initiation of false complaint by wife against husband, mother-in-law and sister-in-law

High Court expressed that making false complaints and initiating false criminal prosecution by one spouse against other constitutes mental cruelty.

In K. Srinivas v. K. Sunitha, (2014) 16 SCC 34, Supreme Court held that filing false complaint against husband and his family members under S.498A and S.307 of Indian Penal Code will amount to matrimonial cruelty defined under S.13(1)(ia) of Hindu Marriage Act.

In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, it was held that making false complaints before the police and authorities causing innumerable mental stress and making false and defamatory allegations will amount to mental cruelty.

High Court opined that the initiation of criminal prosecution was false.

Mental Cruelty was clearly constituted, the Court remarked on noting that the wife kept making continuous telephonic interaction with the second respondent ignoring the warning given by the husband and false initiation of criminal prosecution by the wife against husband and his parents after the reunion and the said are sufficient to revive the past acts of proved cruelty.

Both husband and wife had been living separately since 2012, hence a case for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act was made out.

Another petition with regard to the return of gold ornaments allegedly encrusted by the husband was filed by the wife and as per the husband’s pleadings, he was the entrusted trustee in so far as the said ornaments and money entrusted to him were concerned and the gold ornaments and money were a trust property in the hands of the husband. Hence, he was bound to account to the wife at any time when she demands.

The court below on evaluation of evidence found that the entrustment of 20 sovereigns of gold ornaments as well as `1,00,000/- by the wife to the husband stood clearly proved, hence this Court did not take a different view and confirmed the earlier Court’s decision.

Custody of Child

The Bench reiterated the settled position, that the welfare of the child is of paramount consideration in matters relating to the guardianship and custody of the child.

High Court stated that nowhere it was mentioned that the child was neglected or not taken care of by the mother, in fact, the evidence on record would show that the child had been given proper care and education by the mother.

Husband had already failed to prove the alleged adulterous act by the wife and Court below had found that considering the welfare of the child, the mother had to be appointed as the guardian.

Lastly, the Court added that the husband was free to move the Family Court to modify or vary the visitation right granted including seeking contact rights.

In view of the above discussion, the marriage between the husband and wife was dissolved.[XXX v. XXXXX, 2021 SCC OnLine Ker 3229, decided on 6-8-2021]


Advocates before the Court:

For the Petitioner:

T.M. Raman Kartha and Syama Mohan, Advocates

For the Respondents:

Anjana, R. Priya, M.B. Sandeep and B. Surjith, Advocates

High Court Round UpLegal RoundUp

82 reports on High Court Judgments to read from February 2022.


Allahabad High Court


 Bail

 22-year-old woman, burnt and buried due to demand of dowry: All HC denies bail to accused husband

Noting the brutality with wife a 22-year-old lady and mother of a one year’s infant child in causing her death, beating her cruelly by “her husband” Vikas Kunvar Srivastav, J. held that the said act was not only grave in nature but heinous also.

Read report, here…

Law on S. 311 CrPC

Power to the Court to summon a material witness or to examine a person present in Court or to recall a witness already examined: All HC discusses

Sanjay Kumar Pachori, J., while addressing a matter with regard to recalling of the witnesses expressed that, Section 311 of the Code confers a wide discretion on the Court to act as the exigencies of justice require.

Read report, here…

Law on Recovery of Maintenance

Limitation of 1 year for recovery of maintenance under S. 125(3) of CrPC and the law on enforcement to claim order of maintenance under S. 128 CrPC: All HC explains

Dr Yogendra Kumar Srivastava, J., while addressing a matter regarding recovery of maintenance amount, expressed that,

“Sentencing to jail can only be seen as a means of recovering the amount of arrears and not a mode of discharging liability.”

Read report, here…


Andhra Pradesh High Court


If the de facto complainant feels insulted as he was beaten in front of public and if he takes a hasty decision to commit suicide; will the accused be held responsible in the eyes of law?

Cheekati Manavendranath Roy J. partly allowed the petition by quashing FIR for the offence punishable under Sections 306 r/w 116 IPC.

Read report, here…

Bail

AP HC considered alleged attempt to threatening witness as a vague allegation; Cancellation of bail sought was rejected

“…nothing was brought to the notice of the police or the investigating agency stating that the accused are interfering with course of investigation by way of threatening the witnesses through their men.”

Read report, here…


Bombay High Court


 Law on Voluntarily Causing Grievous Hurt

In a land dispute, a person subjected to grievous injury with the use of ‘Khurpi’: Will he be punished under S. 326 or 325 Penal Code, 1860? Bom HC explains

The Division Bench of S.S. Shinde and N.R. Borkar, JJ., upheld the decision of the Trial Court in a case of causing grievous injury voluntarily.

Read report, here…

Bail

Constant quarrels between husband and wife: Bom HC observes while granting bail to husband accused of dowry and cruelty

Sarang V. Kotwal, J., on noting that the husband and wife cannot live together and there were constant quarrels between them, granted bail to the husband who was accused under the provisions of Dowry Prohibition Act and Penal Code, 1860. 

Read report, here…

Provocation by Wife

Wife subjected husband to humiliation by publicly calling him impotent and abusing him resulting in assault by husband: Husband will be convicted for murder or culpable homicide? Bom HC analyses

The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., modified the conviction of a husband who in provocation by wife on being subjected to abuses assaulted wife.

Read report, here…

Abetment to Suicide

Employer setting big targets, not granting leave and not accepting resignation would be acts in normal course of business: Bom HC grants anticipatory bail to employer accused of abetting suicide committed by employee

 Sarang V. Kotwal, J., addressed a matter wherein an employer was accused of abetting the suicide of an employee.

Read report, here…

Law on Custody

9-year-old child prefers to stay with mother’s father and his family members and shows animosity towards father: Whether father will get custody of child or not? Bom HC decides 

Addressing a matter wherein a child’s mother was diagnosed with cancer due to which she started living at her parental home with the child, and after the passing of the mother, a custody battle arose between the father of the child and the father and brother of wifeDivision Bench of S.S. Shinde and N.J. Jamdar, JJ., noted animosity of the child towards his father, to which the Court expressed that, the same must have occurred due to ‘parental alienation syndrome’.

Read more, here…

Appeal

Appellate court can reverse the finding and sentence of the trial court ordering re-trial

The Division Bench of S.S. Shinde and Milind N. Jadhav, JJ. allowed an appeal against conviction of the Appellant by the Trial Court. The appellant was convicted of the offence punishable under Section 302 of the Penal Code, 1860, (“IPC”) read with Section 34 IPC. He was sentenced to suffer life imprisonment and to pay a fine of Rs. 15,000.

Read report, here… 

Transparency in Functioning

Disqualification of Sarpanch in suspicion of benefitting her close relations by allotting work under Panchayat’s order, without establishment of direct or indirect involvement as per S. 14(1)(g) of Maharashtra Village Panchayats Act: Is it correct? Bom HC analyses

Quoting a phrase from a story of a Roman Ruler Julius Caesar that, “Caesar’s wife should be above suspicion”, Bharati H. Dangre, J., remarked that,

“…those who are vested with the powers are to be made more accountable and transparent in their functioning and subjected to social audit with a view to minimize their discretionary decisions.”

Read report, here…

COVID-19 

Cinema Halls, Theaters, Malls, Restaurants, etc. permitted to carry on business with 50% capacity but banquet halls/Mangal Karyalaya & lawns not permitted with same capacity: Bom HC issues notice

The Division Bench of Sunil B. Shukre and Anil L. Pansare, JJ., addressed a petition wherein a grievance was filed stating that an unreasonable classification resulting in impermissible discrimination had been made by the respondents as Cinema Halls, Theaters, Malls, Restaurants and also other establishments have been permitted to carry on their business or operations with 50% capacity of the customers or attendees, provided customers or attendees are armed with two doses of vaccination, and whereas, Mangal Karyalaya/ Banquet Halls and Lawns where marriage functions are held and solemnised are not being permitted to carry on their business and operations with the same capacity of persons who have taken both the doses of vaccination. 

Read report, here… 

Consumer Protection

Consumer Protection Act requires State Government to constitute a State Consumer Disputes Redressal Commission and create circumstances to its effective functioning: Bom HC at Goa directs State of Goa to ensure filling up of vacant positions expeditiously

Stating that the State Administration comprises several IAS Officers, the least expected out of them is to find the solution to problems, so that State Consumer Disputes Redressal Commission functions effectively, The Division Bench of M.S. Sonak and R.N. Laddha, JJ., directed the State of Goa to ensure that the post of President and 3 other members of the Commission which are vacant be filled expeditiously.

Read report, here…

Dead Person

Notice to a dead person under S. 148 of Income Tax Act cannot be issued: Bom HC

The Division Bench of K.R. Shriram and N.J. Jamdar, JJ., reiterated that notice under Section 148 of the Income Tax Act, 1961 to a dead person cannot be issued.

Read report, here…

Legal Profession

“Notaries operating from public taxis around vicinity of Court”: Dignity of the profession needs to be maintained and the legal profession cannot be allowed to function from the streets | Bom HC

The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., requested the Department of Legal Affairs to give due consideration to this Court’s Order and the Report dated 9-12-2021 submitted by Nausher Kohli, Advocate whilst enacting the Draft Bill.

Read report, here…

Murder or Culpable Homicide?

Husband killed wife brutally in a heat of passion leaving husband with a wounded pride: Bom HC decides whether the said offence will come under “Murder” or “Culpable Homicide not amounting to Murder

Stating that, in the moment of anger spouses almost forgot about the two children who were hardly three years old at the time of incident, the Division Bench of Sadhana S. Jadhav and Prithiviraj K. Chavan, JJ., found that the case of a husband killing wife with a knife was a case of culpable homicide not amounting to murder.

Read report, here…

Arbitration

Bombay HC rejects argument that a dispute cannot be referred for arbitration on account of fraud: Read why

B.P. Colabawalla, J., addressed an arbitration application filed under Section 11 of the Arbitration and Conciliation Act, 1996

Read report, here…

Gangubai Kathiawadi

Can after certification granted by Board, public exhibition of a film be prohibited? Bom HC answers 

In respect to petitions with regard to the release of movie Gangubai Kathiawadi, Division Bench of Dipankar Datta, CJ and M.S Karnik, J., while expressing that “Once the film is granted a certificate by the competent statutory authority, i.e. the Board, the producer or distributor of the film has every right to exhibit the film in a hall unless, of course, the said certificate is modified/nullified by a superior authority/Court”, held that, there cannot be any kind of obstruction for the exhibition of a film, which is certified, unless the said certificate is challenged and Court stays its operation.

Read report, here…

Divorce 

If husband and wife get their marriage registered under Special Marriage Act & under Parsi Marriage and Divorce Act, 1936 as well, would this require them to get nullity of marriage under both Acts or one? Court decides

G.S. Kulkarni, J., expressed that, there is no provision under legislations, that if a marriage between the same couple is annulled under a competent law as enacted by the Parliament, it can as well be of a legal effect in the corresponding enactment.

Read report, here…


Calcutta High Court


Bail

S. 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act: Cal HC

The Division Bench of Bibhas Ranjan De and Debangsu Basak, JJ., while addressing a bail application in a case under NDPS Act, remarked that,

Section 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act.

Read report, here…

Sexual Assault

14-yr old girl subjected to penetrative sexual assault by man who called her grand daughter: Is girl’s complaint vital to form basis of conviction? Cal HC explains

The Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., in a penetrative sexual assault case of a 14-year-old girl, expressed that,

“Crime against woman is increasing as a whole. Such type of crime is a direct insult to the human dignity of the society and therefore imposition of any inadequate sentence not only results in injustice to the victim and the society in general but also stimulates criminal activities.”

Read report, here…

Trademark

Disparagement or mere puffery? Court decides in matter of offending/misleading advertisements [Dabur India v. Baidyanath Ayurved]

Saraf, J. decided on a petition which was filed seeking remedy against impugned advertisements disparaging the goodwill and reputation of the petitioner and its product.

Read report, here…


Chhattisgarh High Court


 Jurisdiction

 Limited jurisdiction has been given to the High Court confined to the substantial question of law only

Anoop Kumar Dhand J. dismissed the appeal as it does not fulfill the requirement mandated under Section 30 of Workmen’s Compensation Act, 1923.

Read report, here…

If the party is able to make out an exceptional case and the court finds irretrievable injustice would occur if writ jurisdiction is not invoked, High Courts do have the power to entertain the writ petition

Sam Koshy J. partly allowed the petition and partly disposed of the petition expressing no opinion on the termination notice issued against the petitioner.

Read report, here…

Child Custody

Due to father’s field job, mother granted custody of child: Did Chh HC also grant contact and visitation right to father? Read

In a child custody battle, the Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., reiterated the position of law in the Supreme Court’s decision of Yashita Sahu v. State of Rajasthan(2020) 3 SCC 67, wherein it was held that the court cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each, further this Court granted visitation and contact right to the father.

Read report, here…

Desertion 

If husband brings home concubine due to which wife leaves house, would that lead to desertion by wife? Chh HC explains

The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., expressed that,

“If the husband keeps another lady; gives shelter to her; and proceeds to have child with the said lady and for that reason if the first wife has to leave the matrimonial home because of physical and mental torture meted out to her it cannot be presumed as a desertion on the part of wife.”

Read report, here…


Delhi High Court


Trademark Dispute

Baazi v. WinZo | Trademark is used by a manufacturer or service provider to distinguish products from those of competitors: Here’s how Winzo appeared dishonest and unfair in adopting Baazi

“When people are satisfied with the products supplied by a manufacturer or service provider, they buy them on the basis of the trade mark and over time it becomes popular and well known. Thus, the use of a similar or identical trademark by a competitor in the same product would lead unwary customers to believe that it originates from the same source.”

Read report, here…

Deadly Weapons

Whether a ‘blade’ would be covered under S. 397 IPC as a deadly weapon? Del HC explains in view of settled position of law

Mukta Gupta, J., explained under what circumstances would Section 397 of penal Code, 1860 would be attracted.

Read report, here…

Law on Bail

Investigation complete, charge sheet filed, accused in jail since 6 months: Read whether Del HC grants bail

Dhari Singh, J., granted bail while referring to a catena of Supreme Court decisions with regard to the law on bail.

Read report, here…

4 years as undertrial, 2 witnesses examined out of 14, no probability of trial to be concluded in near future: Whether Del HC will grant bail to accused under S. 37(b)(ii) of NDPS Act? Read

Chandra Dhari Singh, J., granted bail to an accused on being satisfied with “reasonable grounds” as per Section 37 (b)(ii) of the NDPS Act, 1985.

Read report, here…

Judicial Separation 

Can judicial separation be granted instead of divorce for which party has approached the Court? Read what Del HC says

Expressing that the Family Court’s decision was based on optimism and hope rather than the actual factual matrix of the case, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., while addressing a matter wherein matrimonial dispute occurred between the parties, observed that,

“..a decree of judicial separation can be rescinded by the same court; but a decree of divorce can be reversed only by a judicial order: either in review or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.” 

Read report, here…

Money Laundering

Money laundering offence under PMLA is, layered and multi-fold and includes stages preceding and succeeding offence of laundering money: Del HC

While expressing the object of PMLA Act Chandra Dhari Singh, J., expressed that, offence of money laundering is threefold including the stages of placement, whereby the criminals place the proceeds of crime to the general and genuine financial system, layering, whereby such proceeds of crime are spread into various transactions within the financial system and finally, integration, where the criminals avail the benefits of crime as untainted money.

Read report, here…

Uphaar Case

Manner in which judicial records tampered revealed well-planned & methodical attempt to subvert justice system: Suspending sentence of Ansal brothers would amount eroding faith of public? Read Del HC’s decision

Stating that the manner in which Court records tampered was insidious and revealed a well-planned and methodical attempt to subvert the justice system in order to escape conviction in the Main Uphaar CaseSubramonium Prasad, J., held that since the matter relates to tampering of judicial record, the same has to be decided expeditiously in order to ensure faith of the public in the judicial system.

Read report, here…

Law on Review

Can review be sought wherein Court has to delve into materials, apply its mind afresh after re-evaluating materials? Del HC throws light

Expressing that, Minor mistakes of inconsequential importance are insufficient to seek a review, Asha Menon, J., elaborated that, while seeking review of orders passed in a Civil Suit, the grounds mentioned in Order XLVII Rule 1 of the CPC have to be satisfied, which would not equate the hearing with the original hearing of the case or a hearing in an appeal 

Read report, here… 

Eviction

Group of leading artistes asked to vacate Government allotted premises under Discretionary Quota: Right to continue in public premises infinitely? Detailed report

Expressing that a state of indecision could not have given rise to a legitimate expectation, Yashwant Varma, J., held that, while the petitioners undisputedly were illustrious and pre-eminent exponents in their respective fields of the classical arts, the Court was not shown any material which may justify the continued retention of public premises in Delhi or that they would be unable to propagate the classical arts in any other State or city of the nation.

Read report, here… 

Shared Household

Where the residence is a shared household, would it create any embargo upon owner to claim eviction against his daughter-in-law? Read what Del HC says

Yogesh Khanna, J., held that right of residence under Section 19 of the Domestic Violence Act is not an indefeasible right of residence in a shared household, especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law.

Read report, here…

Section 138 NI Act

Vicarious Liability of Directors of Company for offences committed under S. 138 NI Act: Person claiming to not being able to manage business due to his age, could this be accepted as defence? Del HC answers

Subramonium Prasad, J., addressed a matter pertaining to vicarious liability of directors of the company alleged for offences under Section 138 NI Act.

Read report, here…

Passport

Adoptive Father of a minor girl seeks issuance of her passport with details of adoptive parents so that she could write her TOEFL examination: Here’s what Del HC directed

Kameswar Rao, J., addressed a matter wherein a minor child was not able to apply for a passport either in the name of her biological parents or in the name of her adoptive parents, was unable to pursue her academics in the USA.

Read report, here…

Other

Power under Article 227 of Constitution of India cannot be exercised to upset conclusions, howsoever erroneous they may be, unless there was something grossly wrong or unjust: Del HC

Asha Menon, J., while expressing the scope of power under Article 227 of the Constitution of India dismissed the present petition. 

Read report, here…


Gujarat High Court


Will

Opportunity of being heard needs to be granted; Court decided in matter of the Will of Guru Ranchhoddas

A.P. Thaker, J. decided over a petition wherein the case of the petitioner was that the properties in question were originaly private properties of Guru Keshavdas, and after the death of Guru Keshavdas, Guru Karsandas became the Mahant and succeeded the properties under his Will. On the death of Guru Karsandas his chela Guru Atmaram became Mahant and succeeded to the properties of Guru Karsandas under his Will dated 08.12.1941. Thereafter, Guru Atmaram died leaving his Will dated 06-05-1947, appointing Guru Ranchhodas as Chela.

Read report, here…


Himachal Pradesh High Court


Couples have to make their choice at the threshold between career prospects and family life; HP HC observes in a case where a mother seeks job transfer to be with her daughter

“…mandamus is a public remedy and this remedy lies, when a public authority fails to perform the duty entrusted to it by law.”

Read report, here…


Jammu and Kashmir and Ladakh High Court


Inherent Power

Instead of filing an appeal before the Sessions Court petitioner rushed to this Court invoking its inherent power. Can High Court exercise its inherent power? Read J&K and Ladakh HC’s decision

Mohd. Akram Chowdhury, J., reiterated the settled position of law that if an alternate efficacious remedy is available under the statute, the inherent power of this Court cannot be invoked.

Read report, here…


Jharkhand High Court


Lokayukta 

Does Lokayukta have power to pass directions upon disciplinary authority to take action against erring officials? Jharkhand HC elaborates in light of Jharkhand Lokayukta Act, 2001

Sujit Narayan Prasad, J., addresses a very pertinent question of whether the Jharkhand Lokayukta Act, 2001 provides power for issuance of direction upon the disciplinary authority to take action against erring officials or can it’s order be limited to a recommendation.

Read report, here…


Kerala High Court


Cruelty

Is not taking treatment for mental illness to bring out a peaceful family atmosphere a form of cruelty and thus, a ground for divorce? HC answers

In an interesting case the Division Bench of A.Muhamed Mustaque and C.R. Sophy Thomas, JJ., held that not taking treatment for mental illness in order to bring out a peaceful and harmonious family atmosphere can also be counted as cruelty to the persons at the receiving end.

Read report, here…

If Court finds that marriage failed due to incompatibility, but one of the parties withholds consent for mutual separation, would that be ‘Cruelty’? Kerala HC elaborates

Expressing that, “If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce”, the Division bench of A. Muhamed Mustaque and Sophy Thomas, JJ., held that, Court cannot leave the life of a spouse to the mercy of the opposite spouse.

Read report, here…

Constitutional & Statutory Obligation

Whether State empowered to reject medical reimbursement for treatment being from unrecognized department of recognized hospital? HC decides

Murali Purushothaman, J., held that there is a Constitutional as well a statutory obligation on the part of the State to bear the expenses for treatment of the government servant and his family.

Read report, here…

Reservation

“Marrying a Christian man would not wipe off the benefit of reservation granted to a scheduled caste persons”, HC reiterates caste of a person is to be decided on the basis of birth

Raja Vijayaraghavan V, J., held that marrying a Christian man would not wipe off the benefit of a reservation granted to scheduled caste persons.

Read report, here…

Corporal Punishment

Teacher administering moderate and reasonable force to enforce discipline in classroom, can be exposed to criminal prosecution? Kerala HC answers 

While explaining that inflicting corporal punishment on a Child by a parent or teacher is forbidden, Dr Kauser Edappagath, J., observed that,

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher.”

Read report, here…

Registration of Marriage

If a foreign embassy doesn’t issue ‘Single Status Certificate’ or NOC of an OCI card holder, can Declarations and Certificates be accepted for registration of marriage in India? Ker HC answers

While addressing a matter wherein an Indian Citizen intended to soleminse and register his marriage with a British Citizen, an OCI card holder, N. Nagaresh, J., held that f a foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage.

Read report, here…

Tobacco at residence

If a person keeps tobacco at residence, would that amount to being an offence? Ker HC answers

While addressing a matter for an offence alleged under Cigarettes and Other Tobacco Products Act, Juvenile Justice Act and Kerala Police Act, Dr Kauser Edappagath, J., expressed that mere keeping tobacco at residence would not amount to being an offence.

Read report, here…

Admin of WhatsApp Group

Can an Admin of a messaging service group be held criminally liable for the offensive content posted by member of a group? Kerala HC addresses

While addressing the question of whether the creator or administrator of a WhatsApp group is criminally liable for offensive content posted by a group member, Dr Kauser Edappagath, J., held that a person can be criminally liable for the acts of another if they are party to the offence.

Read report, here…


Karnataka High Court


 Hijab Case

When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order

While expressing that, “Endless agitations and closure of educational institutions indefinitely are not happy things to happen”, the Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

Read report, here…

Sentence

Conviction sentence not to affect career and not be treated as a remark for employment; Kar HC confined the sentence to fine only in accordance with Ss. 279 and 337 IPC

Sreenivas Harish Kumar, J., disposed of the petition and modified the judgment of the appellate court.

Read report, here…

GST Exemption 

Whether GST exemption can be claimed for leasing out residential premises as hostel to students and working professionals? Kar HC answers 

The Division Bench of Alok Aradhe and M.I. Arun, JJ., addressed whether GST exemption can be claimed for leasing of residential premises as a hostel to students and working professionals.

Read report, here…


Madras High Court


Negotiable Instruments Act

Whether proceedings under Ss. 138 and 141 of NI Act can be initiated against corporate debtor during moratorium period? Madras HC answers

Sathish Kumar, J., while addressing a matter with regard to the dishonour of cheques under Section 138 of Negotiable Instruments Act, 1881, held that the moratorium provision contained in Section 14 of the Insolvency and Bankruptcy Code, would apply only to corporate debtor, but the natural persons mentioned in Section 141 of Negotiable Instruments Act continue to be statutorily liable under Chapter XVII of the Negotiable Instrument Act.

Read report, here…

Religious Practice

“One of the basic tenets to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular, to also to every other religious practice”: Madras HC

“Fundamental Rights and Duties are sacrosanct and binding on the Courts which adjudicate issues relating to the religion.”

Read report, here…


Madhya Pradesh High Court


 MBBS Seat

CBI’s self-contained note cannot form basis for rejecting application for increase of MBBS Seat; HC directs NMC to consider the application afresh 

The Division Bench of Sujoy Paul and Arun Kumar Sharma, JJ., quashed the National Medical Commission’s decision rejecting L.N. Medical College & Research Centre’s application for increase of MBBS seats.

Read report, here…

Writ of Mandamus

Provision for redressal of grievance in matter of radiation by mobile tower exists; Permission for installation can’t be revoked

Nandita Dubey, J. heard a petition which was filed seeking issuance of the writ of mandamus to the respondents to take appropriate effective steps against the Reliance Telecom Services not to permit them for installation of the mobile tower in the premises of Jai Hind School, V.V. Giri Ward, Pipariya.

Read report, here…

Departmental Inquiry

Desirable to stay the departmental proceedings till conclusion of the criminal case; Court prohibits Department to continue inquiry

Atul Sreedharan, J. decided on a petition which was filed by the petitioner who was aggrieved by the departmental proceedings against him on the identical charges by the CBI in the criminal case. 

Read report, here…

Land Acquisition

What would be an appropriate factor by which market value of land was to be multiplied to assess the compensation in the case where the land was situated in the rural area? [NH- 148N land acquisition] 

The Division Bench of Vivek Rusia and Rajendra Kumar Verma, JJ. took up a bunch of petitions which had similar facts that the petitioners were owners of agricultural land that came under the acquisition for construction of 12 lanes Delhi-Mumbai Expressway i.e. NH-148N under the provisions of the National Highways Act, 1956 (‘the NH Act of 1956’). 

Read report, here…

Acquittal

Unless the acquittal in criminal trial is honourable/clean, the employer has enough discretion to find a candidate to be unfit for employment

The Division Bench of Sheel Nagu and Sunita Yadav, JJ. while hearing a petition under Article 227 against order the Central Administrative Tribunal, Jabalpur Bench., dismissed the petition.

Read report, here…


Meghalaya High Court


Meghalaya Civil Service and the Meghalaya Police Service

There is no question of apples and orange being put in the same basket: Court calls State’s action foolish and justification of such act real tragedy

Sanjib Banerjee, CJ. while deciding in the matter between groups of persons in the Meghalaya Civil Service and the Meghalaya Police Service, pertaining to seniority between or among them, disposed the writ petition in favour of petitioners.

Read report, here…

Rape Case | Confession

Unequivocal confession leads to dismissal of appeal in a Rape case with minor

The Division bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. dismissed the appeal which was filed on behalf of the convict with counsel engaged by the Legal Services Authority.

Read report, here…

Police Service 

“It is elementary that when the law requires a certain thing to be done in a particular manner, it has to be done in such manner or not at all”; Court upholds the dismissal of police official for passing information to outlaws 

“….the appellant had links with the banned outfit and had passed on information about police movements and operations to the outlawed organisation” 

Read report, here…


Orissa High Court


Ever-growing stock of seized vehicles

PIL filed about the ever-growing stock of seized vehicles and other properties in the various police stations in the State of Odisha; Directions issued

Muralidhar, CJ. issued directions regarding the ever-growing stock of seized vehicles and other properties in the various police stations in the State of Odisha

Read report, here…


Punjab and Haryana High Court


 Drug Menace

“Drug menace has become deep rooted and is taking its toll like a slow poison for the young generation”; HC expresses anguish over callously casual approach of officers

In a case exposing callous attitude of authorities while dealing with drug menace in the State of Punjab, Meenakshi I. Mehta, J., observed that in some paras of the Statu sreports/Reply, the police officers concerned had mentioned the tablets, allegedly recovered as ‘CLAVIDOL-100 SR’ whereas in certain other paras the same had been described as ‘CLOVIDOL-100 SR’. Criticizing the lackadaisical attitude of officers, the Bench remarked…

Read report, here…

State of Punjab which was known as one of the prosperous States is now at the brink of drug-trafficking

Expressing that, State of Punjab which was known as one of the prosperous States is now at the brink of drug-trafficking, Harnaresh Singh Gill, J., held that in order to curb the menace of drug trafficking the accused person are to be dealt with stringently even at the stage of granting her/him bail in NDPS Act cases involving commercial quantity.

Read report, here…


Patna High Court


Mental Health 

Mental health of a person and/or treatment of those who are in need, more so during the time of Covid-19, is the least priority of the State Government

The Division Bench of Sanjay Karol, CJ and S. Kumar, J., directed the Chief Secretary, Government of Bihar to take all steps ensuring the establishment of State Mental Health Authority as per Section 45 of the Mental Health Care Act, 2017.

Read report, here…


Rajasthan High Court


 Compensation | Motor Vehicle

Money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity in approach; Court observes in a MV accident case demanding higher compensation 

Birendra Kumar J. allowed the appeal and enhanced the award considering the settled guidelines in the subsequent judgments to reach at “just compensation”.

Read report, here…

Customs Act 

DRI officer is not Competent Authority to issue show cause notice and adjudicate the same as “proper officer”; Show cause notice set aside 

A Division Bench of Akil Kumar, CJ and Sameer Kureshi, J. allowed the writ petition and set aside the proceedings issued by show cause notice and subsequent demands confirmed by OIO. 

Read report, here…

Rajasthan Public Service Commission

It would be open for RPSC to conduct written main examination on the rescheduled date, Single Judge bench order stayed

A Division Bench of Akil Kureshi CJ and Sudesh Bansal J. stayed the impugned judgment and left it open for RPSC to conduct a written main examination on the rescheduled date.

Read report, here…

Compassionate Appointment

“…on the ground of delay itself, the heir of the deceased employee shall not be entitled to appointment on compassionate ground.”; Raj HC observes in a case where delay is of almost 13 years 

A Division Bench of Manindra Mohan Srivastava and Anoop Kumar Dhand, JJ. dismissed the petition on the ground that the writ petition filed by the petitioners is without any substance. 

Read report, here…

Transfer

Accepting requests for inter-district transfer can lead to chain reaction and at times considerable administrative difficulties; Raj HC observes while dealing a case related to inter-district transfer

A Division bench of Akil Kureshi CJ and Madan Gopal Vyas J. dismissed the petition stating that nothing would come in the way of the petitioner in seeking inter-district transfer if the Government rules and regulations recognize any such policy.

Read report, here…


 Tripura High Court


 Qualifying Examination

No grievance for non-selection; Court finds criteria fixed by ONGC clear and categorical

Indrajit Mahanty, CJ. dismissed a petition which was filed by the petitioner who was appointed as Junior Security Supervisor at (A-1 Level) in the category of Scheduled Tribe and had appeared for the computer-based test and physical standard test conducted by the ONGC. It was alleged that in the selection process the petitioner was awarded 72 marks but was not selected whereas the candidate (respondent 3) who got only 66.10 marks was wrongly and illegally selected by the respondent 2.

Read report, here…

Conjugal Rights

Whether maintenance granted to the wife under S. 125 CrPC can be cancelled in view of husband’s obtaining a decree for restitution of conjugal rights and wife’s refusal for the same?

S.G. Chattopadhyay, J., decided on a petition which was filed by the petitioner challenging order passed by the Additional Judge, Family Court which stated that the petitioner was not entitled to any maintenance allowance under section 125 Cr.P.C from her husband in view of her refusal to restore conjugal relationship with her husband pursuant to the judgment and decree passed by the District Judge for restitution of conjugal rights.

Read report, here…

Bail

Tests provided under S.37(1)(ii) of the NDPS Act should qualify in order to seek bail; Court rejects application 

S.G. Chattopadhyay, J., rejected a bail application which was filed for releasing the accused on bail who had been undergoing imprisonment since 16-09-2021 under NDPS Act, 1985. Successive applications of the accused for pre-arrest bail were rejected.

Read report, here…

Die-in-Harness Scheme

Exclusion of married daughters from the die-in-harness scheme of the State Government discriminatory? Court discusses

The Division Bench of Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J. decided over a bunch of petitions which had a similar question pertaining to exclusion of married daughters from the die-in-harness scheme of the State Government. 

Read report, here…

Migratory Birds

More than 1000 ‘Rare’ Birds dead, no carcasses found; Court directs committee inspection 

The Division Bench of S.G. Chattopadhyay and Indrajit Mahanty, JJ., took up a PIL which was filed on the basis of press reports that in the Sukhsagar water body of Udaipur, Khilpara, large number of migratory birds of more than 1000 in numbers were found dead. Notices were issued and following the directions of this Court a report had come to be filed by the State wherein the State had taken note of the fact that many migratory birds come and find sanctuary in water bodies in the State of Tripura and they come all the way from Spain, Portugal, South East France, Italy and North Western Africa and have all been listed as “Rare” birds by the European Union, but it seems that the same has been detailed as localized by the State.

Read report, here…


Uttaranchal High Court


Right to Information

Husband seeking personal information such as salary of wife under Right to Information Act, 2005; Whether acceptable or not?

“….The only exception as to the information given under the Act under Section 8 of the RTI Act, is an exemption from disclosure of information.”

Read report, here…

Termination of Pregnancy

Compelling to continue pregnancy, infringement under Art. 21; Rape victim allowed to terminate Intrauterine Fetus of 28 weeks 5 days

Alok Kumar Verma, J., decided on a petition which was filed by the father of the minor petitioner to issue a writ in the nature of mandamus commanding and directing the respondent to ensure immediate medical termination of petitioner’s pregnancy after taking all precautions as required to be taken medically and legally.

Read report, here… 

Bail

Denial of bail on sole ground of apprehension that he may commit crime again, overturned by the Court

R.C. Khulbe, J. granted bail in a criminal revision petition moved against the order of Juvenile Justice Board (JJB), Dehradun as well as a judgment by Addl. Sessions Judge (POCSO)/FTC, Dehradun against the petitioner.

Read report, here…



8 Legal Stories of the Week: From High Courts to District Courts

7 Legal Stories of the Week: From High Courts to District Courts

11 Legal Stories of the Week: From Hijab ban to a Sexual Harassment complaint from an employee in ScoopWhoop & more

8 Legal Stories of the Week: From the release of movie Gangubai Kathiawadi to WhatsApp Admin’s liability if a member of group shares objectionable content on group and many more such stories

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: In a child custody battle, the Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., reiterated the position of law in the Supreme Court’s decision of Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, wherein it was held that the court cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each, further this Court granted visitation and contact right to the father.

A father of the child had filed an instant appeal against the decision of the Family Court whereby the child’s custody had been ordered to be kept with the mother/respondent.

Factual Matrix

It was stated that at the time of the birth, the child was suffering from a certain ailment, and he had a lump on spinal cord, as such he was not able to discharge his functions including urine, etc., therefore, the child was being treated continuously.

Due to the transferrable jobs, the husband and wife were at different locations, after which the husband started alleging the wife that she was not treating the child properly. Husband filed an application for custody of the child which was decided by the impugned order whereby the father was denied the custody and hence the present appeal was filed.

Analysis, Law and Decision

High Court expressed that, in cases of custody of child, the society values are riddled with contradiction. Though the Courts have never missed the finer points of the paramount issue of welfare of the child.

As per the existing factors, the father’s job involved field work, whereas the mother’s job was of teaching and in order to take care of the child she could take him along to the school, hence the father though was a well-wisher and wanted to take care of the child, but the degree of care as was being extended by the mother were higher to hold the sway to have the custody of the child, especially considering the nature of ailment with which the child was suffering from birth.

“…when the father is working at field moving from one place to other, how it is expected that the father would be able to give the company to extend the physical support to the child?”

Hence, Family court’s decision of giving the custody of child to the mother was the correct decision.

The court observed that the “contact rights” is also important for the development of the child especially in cases where both parents live in different places the concept of contact rights in the modern age would be contact by telephone, e-mail or in fact we feel the best system of contact, if available between the parties should be video calling.

Order of the Court:

  • The appellant/ father would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday and Sunday and 5- 10 minutes on other days.
  • Both the appellant/ husband and the respondent/ mother in order to facilitate the video conferencing in between shall procure smart phones which would facilitate the inter-se video calling.
  • During long holidays/ vacation covering more than 2 weeks the child will be allowed to be in company of the father for a period of 7 days and the mother can also accompany them.
  • The period shall be fixed by the father after due intimation to the mother and she will permit the child to go with the father for the aforesaid period and the mother may also accompany them.
  • Every month preferably on 2nd Saturday and Sunday the mother shall allow the child to visit his father or father may take the child in his company and the mother may also accompany and leave him back in the evening of such day.
  • During festivals like Dusshera, Diwali, Holi, the father may join the company of the child at the place of the mother and spend the festival days with the child along with the mother.

In view of the above, appeal was disposed of.[Lalit Kumar Jatwar v. Sushma Jatwar, 2022 SCC OnLine Chh 332, decided on 3-2-2022]


Advocates before the Court:

For Appellant: Shri Manoj Paranjpe, Advocate

For Respondents: Shri A.D. Kuldeep, Advocate

Case BriefsHigh Courts

Delhi High Court: Stating that the manner in which Court records tampered was insidious and revealed a well-planned and methodical attempt to subvert the justice system in order to escape conviction in the Main Uphaar Case, Subramonium Prasad, J., held that since the matter relates to tampering of judicial record, the same has to be decided expeditiously in order to ensure faith of the public in the judicial system.

Petitioners challenged the decision of Additional Sessions Judge, Patiala House Courts, which rejected the applications of the petitioners under Section 389(2) of CrPC for suspension of sentence during the pendency of the appeal.

Factual Background

Uphaar Cinema Tragedy

The genesis of the entire proceedings stemmed from the devastating fire that occurred in Uphaar Cinema which resulted in the death of 59 people due to asphyxia and caused injuries to more than 100 people.

After the police investigation, the same was transferred to the CBI. The charge sheet was filed against 16 persons, including the petitioners. Due to delay in trial, the petition was filed by the Association of Victims of Uphaar Tragedy (AVUT) before this Court for expeditious trial.

This Court had directed the trial court to complete the examination of prosecution witnesses on a day-to-day basis. Adding to this, Court also directed that no adjournments would be granted for non-availability of a defence counsel resulting in deferring of the cross-examination of a prosecution witness and in that event, it would be open to the Trial Court to take recourse to various options in terms of Section 309 Cr.P.C, including closure of cross-examination or cancellation of bail of the accused persons.

Special Public Prosecutor brought to the notice of the Court that certain important documents that were seized by the investigating agencies during the course of investigation, which were part of the charge-sheet and judicial record, were missing/mutilated and had been tampered with. Hence, the Court granted permission to prosecution for leading secondary evidence to prove that certain documents were found to be missing/mutilated.

Tampering of Documents

Additional Sessions Judge directed for an inquiry against Dinesh Chandra Sharma, the Court Ahlmad. It is pertinent to mention here that Dinesh Chandra Sharma took charge as the Court Ahlmad in the Court in which trial of the main Uphaar case was being concluded. Pursuant to the inquiry, it was found that Dinesh Chandra Sharma was prima facie guilty of misconduct as well as for the loss and tampering with the documents which formed a part of the judicial record.

Later an application was filed before the Sessions Court for cancellation of bail granted to the accused in the Main Uphaar case. The Sessions Court dismissed the application on the ground that the trial in the main Uphaar case was at its fag end.

The above order was challenged along with the application of filing of FIR against petitioners and other co-accused for tampering with the Court records. Hence, Delhi Police was directed to register a case against persons who were responsible for the disappearance/mutilation and tampering of documents.

Hence an FIR was registered for the offences under Sections 109,193,201, 218, 409 and 120B of the Penal Code, 1860.

In the instant matter, initially, the FIR was registered only against the Court Ahlmad. Subsequently, charge sheets were filed, and petitioners were arrayed as accused. Trial Court relied upon various circumstances to come to the conclusion that there was motive on the part of the accused to destroy the documents which had been entrusted to Dinesh Chandra Sharma who was the Court Ahlmad.

Petitioners vide an order dated 8-11-2021 were convicted for offences under Sections 120B and 409 IPC read with Section 201 IPC and sentenced to undergo imprisonment for seven years with a fine of Rupees 1 Crore only; for offence punishable under Section 409 IPC read with Section 120B IPC, the petitioners were sentenced to imprisonment for a period of 3 years with a fine of Rs 1 crore only and for an offence punishable under Section 201 IPC read with Section 120B IPC, the Petitioners were sentenced to undergo simple imprisonment for three years with a fine of Rs 25 lakhs.

Additional Sessions Judge dismissed the application of petitioners under Section 389(2) of CrPC for suspension of sentence, hence the said decision has been challenged in the present case.

What does the matter pertain to?

Tampering with Court records which obstructs the free flow of justice and has the effect of striking to the core of the rule of law.

Analysis, Law and Decision

Existence of Conspiracy

As per the material on record, the accused P.P. Batra who was a stenographer at Ansal Properties and Infrastructure Ltd. (APIL) as well as the pairvi for the petitioners was in regular touch with Dinesh Chandra Sharma, the Court Ahlmad, till the time it was discovered that documents had been tampered with.

It is well settled that conspiracy is a distinct offence and all conspirators are liable for the acts of each other for the crime or crimes which have been committed as a result of the conspiracy.

It is equally well settled that the offence of criminal conspiracy consists of a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means and the performance of an act in tune thereof [State of H.P. v. Krishan Lal Pardhan, (1987) 2 SCC 17].

High Court opined that the Trial Court’s conclusion was based on analysis of the material on record to establish that there indeed was a conspiracy in place and the petitioners were involved in the same.

Bench added that the tampered documents were handpicked in order to shield the petitioners from conviction by ensuring that their control over Uphaar Cinema did not come to light.

Documents pertaining to Bhikaji Cama Place Fire Station and the headquarters, Delhi Fire Service would have exhibited and brought home the point that the accused H.S. Panwar had given bogus NOCs to Uphaar Cinema without conducting the physical inspection of the cinema and despite the cinema not having followed the mandate of the law laid down regarding the fire safety in Delhi.

Hence, prima facie it was established that there was an agreement to hatch a conspiracy that had the potential of leading to the exoneration of petitioners.

It is also settled law that one who commits an overt act with the knowledge of the conspiracy is guilty, along with one who tacitly consents to the object of conspiracy and goes along with other conspirators.

Therefore, the trial court had correctly concluded with regard to observations about conspiracy.

Parameters of Section 389 CrPC vis-à-vis Section 439 CrPC

While granting the suspension of sentence, the scope of Section 389 CrPC has to be kept in mind.

It is well settled now that there is a difference between the factors that have to be taken into consideration for grant of bail under Section 439 Cr.P.C prior to conviction and grant of suspension of sentence under Section 389 Cr.P.C which is post-conviction for the simple reason that presumption of innocence is no longer applicable to the person who stands convicted for an offence.

In the present matter, the petitioners were convicted for the offence of tampering with the Court records which was an extremely serious offence and could shake the confidence of the public in the entire judicial system.

The Bench added that there was no presumption of innocence that was in favour of the petitioners.

High Court opined that there was no patent infirmity in the order of the trial court.

Public Confidence in the Judicial System

High Court expressed that one of the most important factors while considering an application under Section 389 CrPC is to decipher the effect that such a decision may be on public confidence in the judicial system.

In the Supreme Court’s decision of Mohan Singh v. Amar Singh, (1998) 6 SCC 686, the Court held that tampering with the record of judicial proceedings and filing of a false affidavit in a court of law has the tendency of causing obstruction in the due course of justice. It undermines and obstructs free flow of the unsoiled stream of justice and aims at striking a blow at the rule of law. The stream of justice has to be kept clear and pure, and no one can be permitted to take liberties with it by soiling its purity.

Bench found the petitioners in the present matter to be guilty of tampering with the evidence that was in custody of the Court. In case, the said tampering would not have been brought o Court’s notice, it would have interfered with the administration of justice.

“…suspending the sentence of the Petitioners would, therefore, amount to eroding the faith of the public in the judicial system as it would entail allowing convicts, whose finding of guilt has already been established, to take advantage of the passage of time as well as the judiciary as an institution.”

While dismissing the petition, High Court observed that the petitioners herein inhabit the stigma of desecrating the temple of justice and a quietus needs to be put to the same.

Bench requested Appellate Court to expedite and complete the hearings within a period of one month. [Sushil Ansal v. State of NCT of Delhi, 2022 SCC OnLine Del 482, decided on 16-2-2022]


Advocates before the Court:

For the Petitioner (Sushil Ansal) : Mr. Arvind Nigam, Senior Advocate with Mr. Tanveer Ahmed Mir, Mr. Dhruv Gupta, Mr. Vaibhav Suri, Mr. Shivaz Berry and Mr. Siddharth Kashyap, Advocates.

For the Respondent: Dayan Krishnan, Sr. Advocate with Mr. Amit Chadha, APP, Ms. Manvi Priya, SPP, Mr. A.T. Ansari, Mr. Sanjeevi Seshadri and Mr. Sukrit Seth, Advocates with IO/SI Nikhil Chaudhary, PS EOW.
Mr. Vikas Pahwa, Sr. Advocate with Ms. Raavi Sharma, Advocate for the Complainant.

For Gopal Ansal: Dr. Abhishek Manu Singhvi, Sr. Advocate with Mr. N. Hariharan, Sr. Advocate with Mr. Pramod K. Dubey, Sr. Advocate with Mr. Amit Bhandari, Mr. Vikas Aggarwal, Mr. Nishaank Mattoo, Mr. Avishkar Singhvi, Mr. Siddharth Singh Yadav, Mr. Vikalp Sharma, Advocates

High Court Round UpLegal RoundUp

“One of the basic tenets to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular, to also to every other religious practice.”[Paulraj v. District Collector, WP (MD) No. 1276 of 2020]


Here are some of the interesting Legal Stories from the Second Week of February 2022.


Bombay High Court


Law on Custody | 9-year-old child prefers to stay with mother’s father and his family members and shows animosity towards father: Whether father will get custody of child or not? Bom HC decides 

“At an impressionable age such articulation about the opposite party, in a custody battle, often affects the capacity to exercise an intelligible preference. It is quite possible that when a child spends time with a non-custodial parent, he may be disabused of such perception.”

Read full report here…

Employer setting big targets, not granting leave and not accepting resignation would be acts in normal course of business: Bom HC grants anticipatory bail to employer accused of abetting suicide committed by employee 

High Court remarked that the acts as mentioned like not providing a driver for vehicle, deceased being asked to stand for a meeting daily, etc. were not things that could be covered under the meaning of Sections 107 read with 306 IPC.

Read full report here…


Calcutta High Court


 14-yr old girl subjected to penetrative sexual assault by man who called her grand daughter: Is girl’s complaint vital to form basis of conviction? Cal HC explains

“In a case relating to sexual assault and rape, the evidence of the victim girl is very much vital and if found reliable can form the basis of conviction of the accused without seeking for further corroboration.”

Read full report here…


Kerala High Court


“Marrying a Christian man would not wipe off the benefit of reservation granted to a scheduled caste persons”, HC reiterates caste of a person is to be decided on the basis of birth

Kerala High Court held that marrying a Christian man would not wipe off the benefit of a reservation granted to scheduled caste persons.

Read full report here…


Madras High Court


“One of the basic tenets to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular, to also to every other religious practice”: Madras HC

“Fundamental Rights and Duties are sacrosanct and binding on the Courts which adjudicate issues relating to the religion.”

Read full report here…


Tripura High Court


Exclusion of married daughters from the die-in-harness scheme of the State Government discriminatory? Court discusses

“Marriage does not break the bond between a daughter and her parents as it does not do between a son and his parents. A crisis in the family of her parents equally worries a married daughter. As such, there is no rationale behind exclusion of a married daughter from the scheme.”

Read full report here…


District Court


Tis Hazari Court


Can an unemployed husband escape from his responsibility to maintain wife? Tis Hazari Court answers

“It is trite to state that it is the moral and legal obligation of the appellant (husband) to maintain his wife and provide her same comforts commensurate to his status and standard of living.”

Read full report here…

Case BriefsHigh Courts

Bombay High Court: Addressing a matter wherein a child’s mother was diagnosed with cancer due to which she started living at her parental home with the child, and after the passing of the mother, a custody battle arose between the father of the child and the father and brother of wife, Division Bench of S.S. Shinde and N.J. Jamdar, JJ., noted animosity of the child towards his father, to which the Court expressed that, the same must have occurred due to ‘parental alienation syndrome’.

A petition under Article 226 of the Constitution of India was instituted for writ of habeas corpus to produce Master ‘J’, petitioner’s son who was alleged to be in the illegal custody of respondents 1 and 2, the father and brother, respectively of late Neeta, the wife of the petitioner and for direction to the respondents to hand over the custody of Master ‘J’ to the petitioner.

Analysis and Discussion

In the present matter, when Neeta, the mother of Master ‘J’ was diagnosed with cancer, at that time Master ‘J’ was just 5 years old. Neeta, as the record indicated, stayed at her parental home while she was undergoing treatment. It was quite natural that Master ‘J’ continued to be with Neeta and respondent 1.

Question

Whether respondent 1 and his family members came to have the custody of Master ‘J’ lawfully or otherwise, pales in significance.

High Court stated that, the petitioner being the father of Master ‘J’ was the natural guardian under Section 6 of the Act, 1956. There was no qualm over the natural relationship between the petitioner and Master ‘J’ and the juridical status of the petitioner.

The Bench referred to the decision of Supreme Court in Tejasvini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 wherein the child, barely three months old, came to stay with the appellants, who were the sisters and brother-in-law of the wife of the respondent as the child’s mother was diagnosed with cancer and at the same time the respondent-husband was diagnosed with Tuberculosis Meningitis and Pulmonary Tuberculosis and was required to be hospitalised. The child’s mother passed away. When the respondent-father sought custody of his infant daughter, the appellants refused to hand over the custody.

Further, the Court added that, the facts in the case of Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 have a striking resemblance to the facts of the case at hand, except the fact that the child therein was one and a half year old and Master ‘J; is nine and a half year old and in a position to indicate his preference

A fortiori, the principle applies with greater force where a natural guardian seeks the custody of a child from the relations of one of the parents. The remit of writ of habeas corpus is thus not restricted only to the cases where the custody of the child can be said to be unlawful or illegal.

Elaborating further, the Court expressed that in the case where the custody of a child is sought from the person who is not a parent/lawful guardian, the question of interest and welfare of the child is required to be delved into as the Court exercises a parens patriae jurisdiction.

Returning to the facts of the present matter, High Court noted that the unfortunate circumstances, in which Neeta and Master ‘J’ found themselves, forced them to stay with respondent 1. It was but natural that Master ‘J’ developed great liking and affection to respondent.1 and his family members, on account of the long stay and the love and affection which respondent 1 and his family members must have bestowed upon him.

With regard to jurisdiction, Court added that in child custody matters the ordinary remedy is before the Family/Civil Court. However, in exceptional circumstances, the writ Court can exercise extraordinary jurisdiction despite the existence of such an ordinary remedy.

Welfare of Master ‘J’

Stating that the expression welfare of the child is of wide connotation, Court expressed that it is not restricted to physical comfort and well-being It subsumes in its fold, inter alia, emotional, intellectual and overall holistic development of the child.

Court is called upon to deal with a human problem with a humane touch.

During the course of interaction with Master ‘J’ in Court Chambers, Bench found that the child was extremely comfortable in the company of respondent 1 and his family member and he showed a strong reluctance to speak with the petitioner. In fact, he showed a strong desire to stay with respondent 1 and his family members.

Though due weight to the child’s preference has to be attached, yet only his preference alone cannot be a decisive factor.

Further, Master ‘J’ had developed a strong bond of affection and love towards respondent 1 and his family members. The animosity towards the petitioner, thus seemed to be a learned trait. It is not impossible to unlearn, provided a conducive environment is created.

Another significant point noted by the High Court was that the petitioner and respondent 1 and his family members were at loggerheads over the custody of Master ‘J’ must have contributed to the further alienation of Master ‘J’.

Parental Alienation

The passage of time and the negative estimation of respondent 1 and his family members about the petitioner might also have played a significant role. This is recognised as a ‘parental alienation syndrome’.

High Court remarked that, the reluctance to join the company of, or animosity towards, the father does not seem to be based on the experience which Master ‘J’ have had, when the petitioner, Neeta and Master ‘J’ were residing together.

“At an impressionable age such articulation about the opposite party, in a custody battle, often affects the capacity to exercise an intelligible preference. It is quite possible that when a child spends time with a non-custodial parent, he may be disabused of such perception.”

Supreme Court in the case of Vivek Singh v. Romani Singh, (2017) 3 SCC 231, where the Supreme Court adverted to the parental alienation syndrome.

High Court coming back to the facts of the present case, stated that the Court cannot lose sight of the fact that Master ‘J’ lost his mother at a young age and he requires parental love, care, affection and protection for overall development.

Hence, it would not be appropriate to deprive Master ‘J’ of parental love, care and affection.

“…to ensure that Master ‘J’ is not suddenly uprooted from the family of respondent no.1 and the environment he is accustomed to, and the level of confidence and trust between the petitioner and Master ‘J’ is gradually built, we deem it appropriate to initially direct physical access to, and overnight stay with, the petitioner and also reasonable time to enable Master ‘J’ to acclimatize with the petitioner and the new environment.” 

In view of the above discussion, the petition was allowed. [Rakesh Tulsidas Rathod v. Jayraj Vishram Vapikar, WP No. 579 of 2021, decided on 1-2-2022]


Advocates before the Court:

Mr. Subhash Jha, i/b Law Global, for the Petitioner.

Mr. Tejash Dande, a/w Mr. Bharat Gadhavi, Mr. Vishal Navale,

Mr. Ankit Aghade, Ms. Tushna Shah, i/b Tejash Dande

& Asso., for Respondent nos.1 and 2.

Ms. Mallika Ingale, Appointed as Amicus Curie.

Mrs. S. D. Shinde, APP for the State/Respondent no.3.