Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Arindam Sinha and Suvra Ghosh, JJ. confirmed a decree of divorce passed in favour of the husband by the trial court on grounds of cruelty by the wife. The instant appeal, dismissed by the High Court, was preferred by the wife against the judgment of the trial court.

Backdrop and Factual Matrix

The husband filed for divorce against the wife on grounds of cruelty, alleging that she made false allegations against him of having illicit relations with other women as well as their own daughter. The trial court found that no cogent proof of illicit relationship was forthcoming from the wife which could prove the allegations made by her against the husband. Therefore, the trial court held it amounted to cruelty against the husband under Section 13(i)(i-a) of the Hindu Marriage Act, 1955; and granted a decree of divorce in favour of the husband.

Contentions ─ Wife

The wife argued that the allegation of cruelty was erroneously held to be proved against her. She submitted that the persons named were not produced as witness. Extreme financial hardship had prevented her from fully participating at the trial, but that by itself did not justify finding in the trial court’s judgment and decree that the allegation of cruelty was proved against her.

Contentions ─ Husband

The husband submitted that the suit was filed in year 2004. Dilatory tactics were adopted by the wife. He gave evidence and was cross-examined, which could not shake his evidence. Such unshaken testimony was corroborated by their daughter. The daughter was married and living happily in her matrimonial home. Grave and serious allegations against him were made regarding carrying on with several women, including, their daughter. This part of the evidence was also corroborated by the daughter. The daughter took to the witness box and corroborated unshaken testimony of the husband, and therefore the wife did not cross-examine her, nor turn up to give evidence and be cross-examined. In such circumstances, further corroboration was not required and the Court below correctly appreciated the evidence to find cruelty inflicted on him.

It was further submitted that he had allowed the wife to stay in his flat and is regularly paying her enhanced permanent alimony. Eighteen years of separation had happened and there should not now be reversal of the trial court’s judgment and decree. He relied on the Supreme Court decision in Adhyaatmam Bhaamini v. Jagdish Ambala Shah, (1997) 9 SCC 471.

Law, Analysis and Decision

The High Court analysed the facts and allegations in two parts. Firstly, the allegations were regarding the wife having taken up a 9 am to 9 pm job, after which she became very ill. The husband, in his evidence, stated that he put pressure on the wife to leave the job. On the other hand, the wife said that the husband forced her to work on a sales office to earn money to meet family expenses. On examining the record, it appeared to the High Court that the wife took up the job, after which she fell ill, and the husband caused her to leave the job. Therefore, the wife’s account on this point was disbelieved by the Court.

Secondly, the allegation against the wife was that in July-August 2003, she visited the husband’s office, informing the Committee of Housing about him maintaining illicit relationship with their daughter. As a consequence, members of the Committee came to their residence. The wife admitted that on one occasion, she went to her husband’s office, but only to meet him. She did not meet allegations regarding her approaching the Committee members.

The allegations of the husband against the wife, were corroborated by their daughter in her evidence-in-chief. Although some statements in her affidavit were hearsay. The Court opined that:

There are some statements in her affidavit-in-chief, which are hearsay. The parts of her affidavit that can be attributed to be her evidence is in corroboration of what her father said in the petition, his affidavit-in-chief and from the Box, in cross-examination.”    

 On a complete analysis, the High Court held that the wife made reckless allegations against the husband, amounting to cruelty. The Court was convinced that there is no scope of interference in the trial court’s judgment and decree. The appeal was fount without any merit and was therefore dismissed. [Radha Majumder v. Arun Kumar Majumder, 2021 SCC OnLine Cal 1398, decided on 23-03-2021]


Advocates who appeared in this case:

Mr. Pradip Kumar Roy

Ms. Shraboni Sarkar … for appellant wife

Mr. Debabrata Acharyya

Mr. Sital Samanta … for respondent-husband

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., while addressing the present matter expressed that:

 “…relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.”

In the instant matter, appellant sexually abused his own daughter/victim. There are two views that is:

Whether the victim was a real daughter or a step-daughter. But the fact remains that she is victim.

Trial Court had convicted the appellant for the offence of Section 376 (2)(i), 506 IPC and under Section 4 of POCSO. A further separate sentence was imposed for the offence under Section of the said Act. Appellant had also obtained nude photographs of the victim on his mobile handset, trial court convicted him for the offence punishable under Section 67-B of the Information Technology Act 2000. Adding to this, the trial court acquitted the appellant for the offence punishable under Section 323 IPC.

In the present appeal, trial court’s judgment is challenged by the appellant.

Analysis, Law and Decision

Bench noted that the present matter was based on direct and corroborative evidence.

High Court considered the following:

Even though morally and legally Bench cannot think of a situation wherein the father has raped his minor daughter, but it is correct that Court is bound by rules of law. Even though such instances involving such a relationship are on rise, can Court take into account the evidence which is not admissible (as per existing provisions of law and on its interpretation) and convict the wrongdoer just for the purpose of sending a message in the society?

Bench stated that unfortunately, it cannot take such a view by bypassing the provisions of law.

Corroboration

Evidence given by way of corroboration cannot be said to be substantive evidence.

While elaborating on the concept of corroboration, High Court in light of the present context stated that when the trial court opined that the Section 164 statement can be utilized by way of corroboration, this Court fails to understand what the trial Court mean to say corroboration of which fact?

Trial Court failed to consider the difference and infact considered the Section 164 statement as substantive evidence itself. High Court stated that it is not permissible and hence the said observation was set aside.

Bench noted that there were image files of victim girls and video clips were pornographic. But there is a need to understand what is its evidentiary value, whether it is substantive evidence or whether it is a corroborative piece of evidence?

High Court for the above answered that the person who had seen the incident recorded or who is victim of events recorded can be the proper person and his evidence is substantive evidence. What is recorded and stored in the memory card when it is produced becomes corroborative piece of evidence.

Bench relied upon the following cases for the purpose of electronic evidence:

Bench laid down the finding that electronic evidence also needs to be proved just like any other evidence.

Further, the Court stated that it is not inclined to accept the FSL report at least for the purpose of inferring that it is the accused only who has taken those images or done recording. At the most, it can only be said that in the articles referred to in FSL report some pornographic images were found.

Bench stated that it was cautious of the relationship between the victim and accused. It was difficult to opine what compelled the victim not to state those facts which she stated before the police.

Present set of facts and circumstances warrants that there are certain materials suggesting sexual intercourse but the hands of the Court are tied due to the provisions of law.

Statement of the victim recorded under section 164 of CrPC has not been given the status of examination-in-chief in all circumstances (except in case of disability as provided in clause (b) to sub-section 5A to Section 164 of Cr.P.C.).

Supreme Court’s decision in Shivanna expressed the desire to consider the statement under Section 164 CrPC as examination in chief, amendment to that effect is not brought to Court’s notice.

Hence, with all pains, High Court had no alternative than setting aside the conviction of the appellant for the offence punishable under Section 376(2)(i) of IPC and under Section 506 of IPC, though conviction under Section 67-B of the Information and Technology Act was maintained.

Lastly, while parting with the decision, High Court opined that the authorities concerned of the State or Central Government will take some initiative in incorporating certain amendment under relevant laws as to give status to Section 164 statement as that of the examination-in-chief in all eventualities.

We hope that legislatures will also consider the practical realities of the life which the victim has to face. The trauma which victim has to undergo, after the incident does not stop there and when it comes to facing real-life issues, there may be occasion for the victim to forego all the trauma which she had undergone and to take U turn.

[Imran Shabbir Gauri v. State of Maharashtra, 2021 SCC OnLine Bom 511, decided on 31-03-2021]


Advocates before the Court:

Mr Aniket Vagal for the Appellant (Legal Aid). Mrs M. M. Deshmukh, APP for the State.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D Dhanuka and V.G. Bisht, JJ., addressed a concern wherein a daughter filed a petition seeking a declaration of her father’s marriage to be null and void on knowing that the lady concealed the fact of her being married and not divorced from her earlier marriage.

Factual Matrix 

Appellant is the married daughter of Late Navnitlal R. Shah with whom the respondent alleged to have got married after the demise of the appellant’s mother. Marriage between the appellant’s father and the respondent was solemnized before the Marriage Officer.

Appellant’s father was a successful businessman who owned various assets and properties.

Appellant alleged that the respondent was already married to someone and she concealed and suppressed the said fact deliberately from the appellant’s father and falsely portrayed herself as a divorcee but was not a divorcee at all.

The said fact of not being divorced came into light recently in front of the appellant.

Further, the appellant alleged that the respondent took undue advantage of the mental infirmities, ailments and unsoundness of mind of her father and exercised undue influence, coercion and duress with the intention of siphoning his entire properties. Respondent got executed various documents including his Will and several Gift Deeds of various valuable immovable properties and deprived the true legal heirs of their rights.

Respondent even took away the custody of the jewellery “Stridhan” of the appellant’s mother.

Appellant sought the declaration of marriage between her father and respondent to be null and void and the status of the respondent as of today continue to be the wife of the said Mansoor Hatimbhai Chherwala under Section 7(1) Explanation (b) and (d) of the Family Courts Act.

Family Court Judge held that the appellant had deemingly relinquished. Given up her portion of the claim pertaining to the declaration of the marital status of respondent and thus the bar under Order II Rule 2 of the Code shall be applicable.

Present appeal was against the impugned order.

Analysis and Decision

Family Court to provide exclusive jurisdiction

High Court stated that Family Court is intended to provide an exclusive jurisdiction of the matters relating to matrimonial relief including nullity of marriage, judicial separation, divorce, restitution of conjugal rights or declaration as to the validity of a marriage or as to the matrimonial status of any person, the property of the spouses or of either of them, declaration as to the legitimacy of any person, guardianship of a person or the custody of any minor, maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure.

Bench also confirmed that the appellant had every locus to bring into question the validity of the marriage of her father with the respondent and also the respondent’s status.

Object of Order 2 Rule 2 of CPC

The object of Order 2 Rule 2 is to avoid a multiplicity of suits.

“…no one should be vexed twice for same cause of action.”

 Question to be considered:

Whether the appellant was entitled to claim relief of declaration in the previous suit(s) on the basis of the cause of action pleaded by her in the previous suits against the respondent in relation to the validity of the marriage of her father with the respondent?

Court noted that the Family Court lost sight of the fact that Original Suit No.1018 of 2015 was instituted in the year 2015 whereas the Notice of Motion No.1622 came to be filed in the year 2016 after the appellant discovered the fraud alleged to have been played by the respondent pursuant to documents dated 10th and 12th February 2016 secured by her through Right to Information Application.

Thus, there was disclosure and discovery of new facts constituting the new cause of action.

Family Court erred in holding that provisions of Order 2 Rule 2 were attracted without examining the cause of action in the earlier plaints filed by the appellant.

Family Court ought to have taken into consideration — Whether in light of Sections 7, 8 and 20 of the Act, this Court has jurisdiction to grant declaration as to the validity of the marriage between the appellant’s father and the respondent sought by the appellant?

Bench after referring to the decision Full Bench of Bombay High Court in Romila Jaidev Shroff v. Jaidev Rajnikant Shroff, 2000 (3) Mh.L.J. 468 and Supreme Court decision in Balram Yadav v. Fulmaniyua Yadav, (2016) 13 SCC 308, reached an irresistible and inescapable conclusion, that,

“…High Court exercises its ordinary original civil jurisdiction in relation to the matters under the Act, it would be a District Court as understood therein. Resultantly, it would be denuded of its jurisdiction.”

Further respectfully differing from the decision of the Gauhati High Court in Smiti Nitikona Banerjee v. Ram Prasad Banerjee, 2018 SCC OnLine Gau 1577, wherein it was held that as per Section 7(b) of the Family Courts Act:

“…a third party questioning the marriage of any other party would not be entitled to maintain proceedings before the Family Court.”

The above position of the Gauhati High Court was differed by this Court for the simple reason that the same was against not only the letter and spirit of Section 7 but also against the rationale behind the Object and Reasons of the Act.

Hence, the family Court’s conclusion and reasoning cannot be sustained in the above view and the said order is set aside to the extent that the petition was barred by provision of Order 2 Rule 2 of the Code.[Nayana M. Ramani v. Fizzah Navnitlal Shah,    2021 SCC OnLine Bom 385, decided on 17-03-2021]


Advocates before the Court:

Vineet B. Naik, Senior Counsel a/w. Sheroy M. Bodhanwalla i/b. M.S.Bodhanwalla and Co., Advocate for the Appellant.

Deepti Panda a/w. Kirtida Chandarana Nandini Chittal i/b. Mahernosh Humranwala, Advocate for the Respondent.

Case BriefsHigh Courts

Bombay High Court: R.D. Dhanuka, J., held that relinquishment of properties held by the legal heirs of a person whose properties were self-acquired properties would enure only for those persons in whose favour such deed of relinquishment was executed.

The First Appeal was filed under Section 96 of the Code of Civil Procedure, 1908.

Respondents (original plaintiffs) case was that the suit properties were the self-acquired properties of Late Shripad Pandit who was the grandfather of the respondents. The said properties were purchased in the name of Late Smt. Usha was the wife of Shripad Pandit and the grandmother of the respondents.

Appellants (original defendants) are the uncles of the respondents (original plaintiffs). Father of the respondents expired and after his death, the mother of the respondents who were defendant 4 got re-married.

Respondents stated that the deceased Usha Pandit and Shripad Pandit had four sons and four daughters. After their demise, each son and daughter had 1/8th share therein. Sisters of appellant1 to 3 relinquished their undivided share in the suit property by a registered release deed and thus had no right, title and interest of any nature in the suit property.

Trial Judge declared that the appellants and respondents 1 to 3 were having 1/4th share each in units/apartments reserved for their joint family. It was further held that respondents 1 to 3 (original plaintiffs) are entitled for partition, separate possession of their 1/4th share in the suit property. Court restrained the appellants permanently from creating third party interest to the extent of 1/4th share of respondents 1 to 3 in the suit property and directed that partition of 1/4th share of respondents 1 to 3 effected by appointing Court Commissioner and separate possession of their share be given to them.

In view of being affected with the trial court judgment, appellants filed the present appeal.

Analysis and Decision

A perusal of the judgment and decree passed by the Trial Court indicates that the trial Court though had rendered a finding that the suit properties were inherited by the parties had rendered perverse finding that the suit properties were co-parcenary properties and release deed executed by the sisters of the appellants were for the benefit of all the members of the family and not only the appellants.

Trial Judge strongly placed reliance on the judgment of the Andhra Pradesh High Court in the case of M. Krishna Rao v. M. L. Narasikha Rao, 2003 SCC OnLine AP 526 & L. Sundaram and Ravichandran v. Lakshmanana (died)2003 (1) Mh. LJ. 195, held that relinquishment of the right and interest by the daughters of Shri Shripad Pandit and Usha was in favour of the entire family and not in favour of the appellants only.

Co-Parcenary & Not Self Acquired | Erroneous

Trial Judge erroneously proceeded on the premise that the Deed of Release by four daughters of Shripad Pandit in favour of the appellants were co-parcenary properties and not his self-acquired properties.

Bench relied on the decision of the Supreme Court in Kishore Tulshiram Mantrim v. Dilip Jank Mantri,  Second Appeal No. 374 of 2018 decided on 14-8-2018 and opined that the suit properties were self-acquired properties of the deceased Shripad Pandit, all the legal heirs of the said deceased were entitled to equal share including the four daughters of the said deceased who were sisters of the appellants. The daughters of the said deceased thus were free to relinquish their undivided share in the suit property in favour of the other legal heirs of the said deceased exclusively.

Relinquishment of properties inherited by the legal heirs of the person whose properties were self-acquired properties would not enure for the benefit of all the legal heirs of the said deceased but would enure only for those persons in whose favour such deed of relinquishment/release was executed.

 In the present matter, Trial Judge erroneously applied the principles applicable to the relinquishment of undivided share by a coparcener in favour of another coparcener to the properties inherited by the legal heirs of a deceased whose properties were self-acquired.

A perusal of the release deed which was produced on record in evidence executed by the four daughters of the said deceased i.e. Pushpalata, Bharti, Hemlata and Varsha clearly show that they had released all their undivided share right, title and interest in the suit property in favour of the appellant exclusively. Hence respondents 1 to 3 would be entitled to only 1/8th share in the suit property and not 1/4th share. [Shashikant Shripad Pandit v. Kaustubh Subhash Pandit, 2020 SCC OnLine Bom 309, decided on 25-02-2020]


Advocates before the Court:

Girish R. Agrawal for the appellants.

Jaydeep Deo for the respondents 1 to 3

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Sureshwar Thakur and Chander Bhusan Barowalia JJ., while allowing the present petition said, “Marriage neither alters the relationship between the married daughters with her parents nor creates severance of a relationship. A son remains a son and his marriage does not alter or severe his relation with his parents, likewise, a daughter is always a daughter to her parents, her marriage also does not alter or severe her relation with her parents. If the State even draws a thin line of distinction based on gender, then that line has to withstand the test of Article 15 of the Constitution of India, which prohibits discrimination on the basis of religion, race, caste, sex or place of birth.”

 Facts

Facts of the case are briefly enumerated herein;

  1. That on 08-05-2019, Thakur Dass, father of the petitioner, who was a class IV employee in the office of District Ayurvedic Office, Kullu, died in harness.
  2. That the petitioner, her sister and mother are the survivors of Thakur Dass and there is no male member in their family.
  3. That as per the petitioner, she, her mother and sister, were dependant on late Shri Thakur Dass, and her mother and sister are unwilling to opt employment.
  4. That the petitioner, who is M.A. (Hindi) and has diploma in Computers, applied through an application for compassionate appointment, duly supported with the affidavits of her mother and sister purveying their ‘No Objection’.
  5. That the annual family income of the petitioner’s family is Rs 63000 falling well within the prescribed limit of Rs 225000, for a family of four members.
  6. That the cause of action arose on 22-06-2020 when the application of the petitioner was rejected on the premise that “there is no provision in the Policy for grant of employment assistance to the married daughter of the deceased Government employee.”
  7. That the petitioner has approached the present forum so as to declare the said policy as unconstitutional on the ground of being gender discriminatory, unjust and in contravention with the principles of equality.

Contentions

Counsel for the petitioner, Maan Singh, argues that the aforementioned clause of the policy has no rationale with the object sought to be achieved (of providing compassionate appointment). Moreover, just as a son of an employee who dies in harness, remains son throughout, likewise, a daughter remains daughter irrespective of any contingency or change in marital status. It was argued, “A married daughter cannot be discriminated merely because she is married, whereas no such rigor is applicable to a married son. Marriage alone cannot constitute a ground for discrimination and constitutionally State cannot be allowed to use this assumption of marriage, being a rationale for hostile discrimination denying benefits to a married daughter, especially in the wake of the fact that equal benefits are being extended to a son, whether married or unmarried.”

Counsel for the respondents, Hemant Vaid, J.S. Guleria and Hemanshu Mishra, argued that the petitioner is ineligible for appointment on compassionate grounds as the policy is only applicable to the dependents of the deceased Government employee and the marriage of the petitioner, in this case, disentitles her to be counted as a dependent of the deceased government employee. As per the respondents, elements of the policy of compassionate appointment are not only based on financial circumstances, but also on social circumstances such as in the present case.

 Observations

In addition to its decision, the Court cited the following cases;

In a judgment by Uttranchal High Court; Udham Singh Nagar District cooperative Bank Ltd. v. Anjula Singh, it was said, “Non-inclusion of a ‘married daughter’ in the definition of a ‘family’, under rule 2(c) of the 1974 Rules and the note below Regulation 104 of the 1975 Regulations, thereby denying her the opportunity of being considered for compassionate appointment, even though she was dependent on the Government servant at the time of his death, is discriminatory and is in violation of Articles 14, 15 and 16 in Part III of the Constitution of India.”

High Court of Madras in, N.Uma v. The Director of Elementary School Education, observed, “(…) artificial classification between married son and married daughter only on the basis of sex would tantamount to gender discrimination. If a married son is considered to be a part of the family, this Court is at a loss to understand as to why a married daughter should not be included in the definition of family.”

Vimla Srivastava and others 2016(1) ADJ 21 (DB), “Marriage does not have and should not have a proximate nexus with identity. The identity of a woman as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasis that it is not open to the State, if it has to act in conformity with the fundamental principle of equality which is embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters, by depriving them of the benefit of a horizontal reservation, which is made available to a son irrespective of his marital status.”

Reflecting upon the object of having the policy for compassionate appointment and the duty of the State to ensure welfare for all, the Court under Para 21 of the judgment said,  “The object of compassionate appointment is not only social welfare, but also to support the family of the deceased government servant, so, the State, being a welfare State, should extend its hands to lift a family from penury and not to turn its back to married daughters, rather pushing them to penury. In case the State deprives compassionate appointment to a married daughter, who, after the death of the deceased employee, has to look after surviving family members, only for the reason that she is married, then the whole object of the policy is vitiated.”

 Decision

While allowing the present petition and issuing necessary directions to the respondent authorities, the Court held, “After incisive deliberations, it emerges that core purpose of compassionate appointment is to save a family from financial vacuum, created after the death of the deceased employee. This financial vacuum could be filled up by providing compassionate appointment to the petitioner, who is to look after the survivors of her deceased father and she cannot be deprived compassionate appointment merely on the ground that she is a married daughter, more particularly when there is no male child in the family and the petitioner is having ‘No Objection Certificates’ from her mother and younger sister, the only members in the family.”[Mamta Devi v. State of Himachal Pradesh, 2020 SCC OnLine HP 2125, decided on 28-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and Surendra P. Talwade, JJ., while addressing petition wherein the mother has complained of facing harassment through her daughter, held that,

if children cannot take care of their parent/s and allow them to live in peace, they atleast ought not to make their life a living hell.

Petitioner is an ex-government employee and respondent 1 is one of the 5 daughters of the petitioner.

Petitioner states that she is mentally as well as physically tortured by her daughter and has been residing with the petitioner forcefully with her 19 year old son.

An application was also filed under Section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 by the petitioner before respondent 2 seeking eviction of respondent 1 from the flat.

Respondent 1 had also threatened her father on one instance wherein she  said that “if you force me to leave the house then I will lodge a police complaint against you that you are molesting me.”

Thereafter, respondent 1 kept on administering threats to her father, who was unable to do anything since he felt totally helpless. Not only the Petitioner and her husband were harassed by Sarita, but even her son (who was a minor) started dictating terms to the Petitioner and her husband, who did not retaliate under the fear that Sarita will malign their image in society.

After the demise of petitioner’s husband, respondent 1 intensified her harassment towards the petitioner. Respondent 1 had also destructed the petitioner’s cell phone so that nobody could directly contact her.

Petitioner once got a chance to talk to one of her daughter(Vaishali) who flew from Singapore to meet her and at that time petitioner gathered some courage and narrated the misdeeds that respondent 1 used to conduct on petitioner by beating her up, making her remain without clothes and used to give her food only once a day.

Later, Vaishali and petitioner filed a complaint against the respondent 1 and also got published an article about the misconduct of respondent 1.

After undergoing several tests, it was confirmed that the Petitioner had comminuted fracture and that her nerves were severely damaged around her shoulder and neck area, one nerve in the left arm was totally damaged, for which the Petitioner had to undergo various surgeries. She lived with a fractured shoulder and broken nerves for almost five months under house arrest by the Respondent 1, without even plaster or support, leave aside proper medication.

Bench on talking with petitioner gathered an impression that she seriously apprehends physical and mental harassment and consequently threat to her life at the hands of respondent 1, if she goes to reside in her own Flat without respondent 1 being evicted from the same.

Court made it extremely clear that,

if children cannot take care of their parent/s and allow them to live in peace, they atleast ought not to make their life a living hell.

Bench assured the petitioner that is she lives in her own flat and face any harassment from respondent 1 or her son, she will be provided all assistance, both by the Court and police authorities.

Installation of CCTV cameras inside the flat has been directed.

Respondent 1 and her son, both have been sternly warned . Senior Inspector of local police station under who jurisdiction the flat come has been directed to give all assistance to the petitioner.

Respondent 1 and her son will not obstruct entry of any of the relatives whom petitioner wants to meet. Also respondent 1 and her son are not allowed to invite or bring any of their guests to the flat without prior permission of petitioner through her advocate. [Rajani B. Somkuwar v. Sarita Somkuwar, 2020 SCC OnLine Bom 696 , decided on 05-06-2020]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Dama Seshadri Naidu, J. while hearing a civil writ petition ruled that a daughter is an ostensible agent of her mother and as such application filed by daughter on behalf of her mother is maintainable.

Petitioners, a mother-daughter duo, were partners in the business of husband/father which was an assessee under the Kerala Value Added Tax Act. Respondent initiated proceedings to recover arrears of tax and as a part of those proceedings it attached the husband’s share in his ancestral property. Petitioner wife who had strained marital relationship with her husband filed an execution petition for return of her property and movables from him, which was allowed by the Family Court. On obtaining sale certificate for her property, she noted that the said property had already been attached by the respondent tax authority. So she filed an application before tax authorities through her daughter to take advantage of the amnesty scheme floated by Department for the defaulting dealers but her request was rejected. Assailing the said order of rejection, petitioner filed the instant petition.

Petitioner submitted that the amnesty scheme allowed any aggrieved person to apply under it and the petitioners were aggrieved persons as they had an interest in the assessee’s estate. The husband had acted vindictively and deliberately not taken benefit of the amnesty scheme as he did not want his wife and daughter to receive the property.

Respondents submitted that it was the wife had filed matrimonial proceedings and secured a sale certificate. Therefore, her daughter could not be included within the term ‘aggrieved person’ and as such application filed by daughter before tax authorities was not maintainable.

The Court observed that petitioner duo had a common cause: driven out, both had to fend for themselves. The daughter was a dependent – the mother had fought not only to secure her interest but also to secure her daughter’s interest. Therefore, the daughter was ostensible agent of her mother, who has already secured a sale certificate. Separately, as a dependent, she also had a stake in her father’s estate. In view of the above, the petition was allowed with a direction to the tax authority to consider daughter’s application afresh. [Naseera A.P. v. State of Tax Officer,2018 SCC OnLine Ker 4924, decided on 07-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Rajiv Sahai Endlaw, J. rejected a petition filed a father against the order of Principal Judge (Family Courts) whereby he was directed to pay monthly maintenance to his daughter.

The petitioner was directed to pay a sum of Rs 11,000 as litigation expenses and Rs 10,000 as interim maintenance to his daughter every month. Aggrieved thereby, he preferred the present petition. The Court referred to Manish Aggarwal v. Seema Aggarwal2012 SCC OnLine Del 4816 wherein it was held that Section 24 to 27 of the Hindu Marriage Act, 1955 was appealable under Section 19(6) of the Family Courts Act, 1984.

It was held by the High Court that the reasons which prevailed in Manish Aggarwal for holding interim maintenance under Section 24 HMA to be appealable under Section 19(1) of the Family Courts Act equally apply to grant of interim maintenance under Section 20 of Hindu Adoption and Maintenance Act, 1956. Furthermore, once the legislature has prescribed a remedy of appeal, the principle that Writ Court should abstain from exercising jurisdiction when an alternative remedy is available comes into play. In light of the above, the petition was rejected. [Jayanti Prasad Gautam v. Pragya Gautam,2018 SCC OnLine Del 11535, decided on 19-09-2018]

Case BriefsHigh Courts

Meghalaya High Court: A Single Judge Bench comprising of Mohammad Yaqoob Mir, CJ., dismissed a petition claiming the family pension.

Facts of the case were that petitioner’s father was a constable and after his superannuation, he got retired in 1991. In the year 2009, the petitioner’s father expired. After he got expired his wife represented for grant of family pension which in the beginning was not granted and eventually an order withdrawing family pension was passed by AG’s Office to the Superintendent of Police. Since in 2017 wife also expired her daughter i.e. petitioner claimed family pension which was not considered. Hence, this petition was filed before the High Court.

Petitioner submitted that this petition was maintainable by virtue of amended Rule 48 of the Meghalaya Civil Services (Pension) Rules issued by Finance (Pension Cell) Department, Government of Meghalaya. According to the aforementioned rule family for the purpose of pension constitute a daughter which includes widow daughter, till the date of marriage or remarriage or till the date, she starts earning or till she turns 25 years old.

Issue before the Court was whether petitioner (daughter) can claim family pension after the death of the wife (petitioner’s mother) was found to be weakened by the fact that petitioner was otherwise not eligible to such family pension.

The High Court found that petitioner was married and above 25 years of age and by virtue of Rule 48 a married women cannot claim the family pension. Therefore, the petition was dismissed. [Prettilla M. Sangma v. State of Meghalaya,2018 SCC OnLine Megh 175, Order dated 27-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of S. Muralidhar and Vinod Goel, JJ. dismissed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 6 read with Section 5(m) and (n) of the Protection of Children from Sexual Offences Act, 2012.

The appellant was accused of committing the offence of penetrative sexual assault on her 5 years old daughter. The appellant was convicted by the trial court primarily on the testimony of the victim-daughter. Learned counsel for the appellant submitted that the victim seemed too intelligent for her age and that she was tutored by her mother, wife of the appellant.

The High Court rejected the submissions of the appellant and observed that the victim child was clear about what she underwent. Her responses during cross-examination reinforced that. She categorically stated that the appellant committed sexual assault upon her. Further, the child victim had suffered a trauma which was hard to forget, and it was unimaginable that she would falsely accuse her father. Thus, the Court held that there was no cause to interfere with the judgment impugned. The appeal was dismissed while directing Delhi State Legal Services Authority to ensure that the victim received appropriate compensation in accordance with the Victims’ Compensation Scheme for Delhi formulated under Section 357A CrPC. [Ram Dass v. State,2018 SCC OnLine Del 10291, dated 02-08-2018]