Legal RoundUpSupreme Court Roundups

Unmissable Stories


Sedition Law under scanner| All pending cases to be kept in abeyance; Centre/States urged not to register fresh cases till Section 124A is reviewed

“…we expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the Governments.”

Read more…

_________________________________________________________________________________________

COVID-19| No individual can be forced to be vaccinated; holds Supreme Court. Restrictions on unvaccinated persons to be revised for now

“This judgment is not to be construed as impeding, in any manner, the lawful exercise of power by the executive to take suitable measures for prevention of infection and transmission of the virus in public interest, which may also take the form of restrictions on unvaccinated people in the future, if the situation so warrants.”

Read more…

_________________________________________________________________________________________

Rajiv Gandhi assassination: Supreme Court sets AG Perarivalan free after 32 years of incarceration

Perarivalan’s petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence and continued to remain pending for over a year since the reference by the Governor.

Read more…

_________________________________________________________________________________________

Navjot Singh Sidhu to undergo one-year rigorous imprisonment in 1988 road rage case

“A disproportionately light punishment humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the system pays no attention to the injured’s feelings.”

Read more…

_________________________________________________________________________________________

Aadhaar Card for Sex Workers| Supreme Court bats for sex workers’ right to dignity; directs UIDAI to issue Aadhaar Card without insisting on address proof

“…basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

Read more…

_________________________________________________________________________________________

‘Shivling’ in Gyanvapi Mosque a complex

‘Protect ‘Shivling’ but don’t stop Namaz’

Also read: SC transfers the matter to a senior and experienced District Judge

_________________________________________________________________________________________

Hindu widow’s pre-existing right to maintenance automatically ripens into full ownership when she is in settled legal possession of the property

“There remains no shadow of doubt that a Hindu woman’s right to maintenance was not and is not an empty formality or an illusory claim being conceded as a matter of grace and generosity. It is a tangible right against the property, which flows from the spiritual relationship between the husband and the wife.”

Read more…

_________________________________________________________________________________________

Right to residence under DV Act not restricted to actual residence; Domestic relationship not necessary to be subsisting at the time of filing of application

The expression ‘right to reside in the shared household’ would include not only actual residence but also constructive residence in the shared household.

Read more…

_________________________________________________________________________________________

No universal rule to fill vacancies on the basis of the law which existed on the date when they arose; Supreme Court overrules 1983’s YV Rangaiah ruling

Noticing that a number of decisions have followed the decision in Rangaiah but far more decisions have distinguished it, the Supreme Court decided to examine the issue afresh and came to the conclusion that the broad proposition formulated in Rangaiah did not reflect the correct constitutional position.

Read more…

_________________________________________________________________________________________

IGST on Ocean Freight for imports unconstitutional

“If Indian shipping lines continue to be taxed and not their competitors, namely, the foreign shipping lines, the margins arising out of taxation from GST would not create a level playing field and drive the Indian shipping lines out of business.”

Read more…

_________________________________________________________________________________________

Sheena Bora murder| Indrani Mukerjea gets bail after being in custody for 6.5 years

Indrani is charged of kidnapping her daughter with intention to murder and committing murder after entering into a criminal conspiracy.

Read more…

_________________________________________________________________________________________

Supreme Court grants interim bail to SP Leader Azam Khan; Directs him to seek regular bail within two weeks

Taking into consideration the delay in implication of Azam Khan and the nature of the allegations made therein, the Court was of the view that it will not be in the interest of justice to deprive him of his personal liberty, particularly when in respect of 87 criminal cases/FIRs, he has already been released on bail.

Read more…

_________________________________________________________________________________________

Case load on NGT low, No need to set up Benches in every State; High Court’s jurisdiction unaffected: Supreme Court upholds constitutionality of NGT Act

The seat of the NGT benches can be located as per exigencies and it is not necessary to locate them in every State.

Read more…

_________________________________________________________________________________________

Over 90, 000 Reassessment Notices issued after April 1, 2021 saved as Supreme Court directs them to be treated as notices under Section 148A of Income Tax Act

The bench of MR Shah* and BV Nagarathna, JJ has modified the order passed by the Allahabad High Court wherein it had quashed several reassessment notices issued by the Revenue, issued under section 148 of the Income Tax Act, 1961, on the ground that the same are bad in law in view of the amendment by the Finance Act, 2021 which has amended Income Tax Act by introducing  new provisions i.e. sections 147to151 w.e.f. 1st April, 2021.

Read more…


Most Read Story of the Month


Cheque issued as a security and not in discharge of legally recoverable debt; Is the contention sufficient to quash proceedings under N.I. Act at pre-trial stage? SC examines

“The quashing proceedings must not become an expedition into the merits of factual dispute, so as to conclusively vindicate either the complainant or the defence.”

Read more…


Explainers



More Stories


Insurance companies refusing claims on flimsy/technical grounds must stop! Don’t ask for documents that insured can’t produce

In a case where an Insurance Company had refused to settle an insurance claim on non-submission of the duplicate certified copy of certificate of registration of the stolen vehicle, the bench of MR Shah* and BV Nagarathna, JJ has held that while settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.

Read more…

_________________________________________________________________________________________

Change of venue does not result in change of the seat of arbitration

The Court held that holding otherwise would create a recipe for litigation and (what is worse) confusion which was not intended by the Act.

Read more…

_________________________________________________________________________________________

Land Acquisition| Compensation under 2013 Act cannot be claimed if award under 1894 Act couldn’t be passed due to pendency of proceedings or interim stay

“The intention of the Parliament while enacting Section 24(1) of the Act, 2013 cannot be to give benefit to a litigant, who has obtained a stay order and because of that the award could not be declared and thereafter the litigant may be awarded the compensation as per Act, 2013.”

Read more…

_________________________________________________________________________________________

Showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty

“A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion.”

Read more…

_________________________________________________________________________________________

Minority Status of Hindus in some States: SC directs Centre to have detailed deliberation with States and other stakeholders

The Court has directed the Central Government to undertake the necessary exercise and file a status report at least 3 days before the next date of hearing i.e. August 30, 2022.

Read more…

_________________________________________________________________________________________

Pawnee recording self as “beneficial owner” is a necessary condition to exercise right to sell pledged good; it does not amount to “actual sale”

“Every transfer or sale is not ‘actual sale’ for the purpose of Section 177 of the Contract Act. To equate ‘sale’ with ‘actual sale’ would negate the legislative intent.”

Read more…

_________________________________________________________________________________________

COVID-19 affecting education| No registration of Doctors without practical training. Foreign Institute MBBS students must first undergo training in India

“No doubt, the pandemic has thrown new challenges to the entire world including the students but granting provisional registration to complete internship to a student who has not undergone clinical training would be compromising with the health of the citizens of any country and the health infrastructure at large.”

Read more…

_________________________________________________________________________________________

Non-execution of Arbitration Award even after 30 years-long delay: SC slams Allahabad High Court; U.P. Government to consider constituting four Additional Commercial Courts

“If, the commercial disputes are not decided/ disposed of at the earliest, it may ultimately affect the economy of the country and may spoil the business relations between the parties.”

Read more…

_________________________________________________________________________________________

AIIMS to follow roster point-based reservation for preferential candidates

In a relief to students seeking admission in AIIMS Institutes, the bench of L. Nageswara Rao and AS Bopanna, JJ has directed that a roster point-based reservation for preferential candidates as followed by Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER) shall be implemented in all the AIIMS institutes.

Read more…

_________________________________________________________________________________________

SC to decide if a non-member director barred from approaching NCLT alleging oppression/mismanagement under Section 430 of Companies Act

The question of law before the Court was whether a non-member/non-shareholder director is barred from raising a dispute regarding oppression/mismanagement and the illegal appointments of directors before the Civil Court u/s 430 of the Companies Act, 2013?

Read more…

_________________________________________________________________________________________

Whether there should be any “Cooling off Period” for civil servants to contest elections post resignation/retirement? Best left to the Legislature concerned, says Supreme Court

“The allegations of bureaucrats deviating from strict norms of political neutrality with a view to obtaining party tickets to contest elections, is vague, devoid of particulars and unsupported by any materials which could justify intervention of this Court.”

Read more…

_________________________________________________________________________________________

The Election cannot brook any delay! SC directs Maharashtra Election Commission to conduct local elections on the basis of pre-amendment delimitation

The Bench comprising of A.M. Khanwilkar, Abhay S. Oka and C.T. Ravikumar, JJ., directed Maharashtra State Election Commission to expeditiously conduct elections of local bodies (around 2486), which were pending for over 2 years (in some cases) due to disputed constitutional validity of State Amendments seeking to introduce delimitation in the State.

Read more…

_________________________________________________________________________________________

SC finds Kerala Govt’s failure to compensate 3700 Endosulfan victims for 5 years appalling; says “without health, the faculties of living have little meaning”

“The failure to redress the infringement of their fundamental rights becomes more egregious with each passing day.”

Read more…

_________________________________________________________________________________________

It isn’t the purpose of grace marks to allow reserved category candidate to switch over to general category

The Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., reversed the impugned order of the Rajasthan High Court whereby the High Court had directed  Income Tax Department to grant grace marks to the applicant and treat him as a person belonging to general category.

Read more…

_________________________________________________________________________________________

Person languishes in jail for 2 years despite being granted bail by Supreme Court; Supreme Court criticizes Trial Judge for misinterpreting bail order

“… 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].”

Read more…

_________________________________________________________________________________________

Male Head Constable enters Mahila Barrack at 00:15 hours; is punishment of removal from service too harsh? SC tells what makes the punishment disproportionate

“…merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind.”

Read more…

_________________________________________________________________________________________

Maternal uncle rapes his 14-year-old niece; will subsequent act of him marrying prosecutrix extinguish all criminal liabilities?

“This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix”.

Read more…

_________________________________________________________________________________________

Mere suppression of criminal antecedent regardless of whether there is a conviction or acquittal should not axiomatically lead to termination of service just by a stroke of pen

The Division Bench of Ajay Rastogi* and Sanjiv Khanna, JJ., reversed the impugned order of Delhi High Court whereby the High Court had upheld the dismissal order of appellant owing to suppression of information/false declaration in the verification form regarding criminal antecedent.

Read more…

_________________________________________________________________________________________

Double Insurance–Overlapping policies: Grant of actual loss from one insurer will forfeit right to claim from other insurer; SC rejects Levi’s’ insurance claim

“What is in issue in this present case has been characterized as “double insurance”, i.e., where an entity seeks to cover risks for the same or similar incidents through two different – overlapping policies.”

Read more…

_________________________________________________________________________________________

Kerala Revocation of Arbitration Clauses and Reopening of Awards Act, 1998 encroaches upon the judicial power of the State; held unconstitutional

The bench of L. Nageswara Rao* and BR Gavai, JJ has held that the Kerala Revocation of Arbitration Clauses and Reopening of Awards Act, 1998 encroaches upon the judicial power of the State and hence, is liable to be declared unconstitutional.

Read more…

_________________________________________________________________________________________

Dilapidated structure on Bhilwara’s Tiranga Hill cannot be conferred a status of a Mosque in absence of any proof; Jindal Saw to go ahead with mining

In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz.

Read more…

_________________________________________________________________________________________

“An opinion accompanied by inadequate reasoning would not satisfy the requirements of Section 432 (2), CrPC”, SC directs presiding officer to reconsider remission application

“Section 432 (2) of the CrPC would stand defeated if the opinion of the presiding judge becomes just another factor that may be taken into consideration by the government while deciding the application for remission.”

Read more…

_________________________________________________________________________________________

Great Indian Bustard and Lesser Florican Conservation: Supreme Court directs installation of bird divertors in  priority areas within three months

The petitioners were environmentalists who had approached the Court to seek directions for protecting the rare birds which are dwindling in number; particularly direction to prohibit use of overhead power lines which have become a hazard as the said species of birds are getting killed on collision with the power lines.

Read more…


Cases Reported in SCC


2022 SCC Vol. 3 Part 4

In Part 4 of 2022 SCC Volume 3, read some very pertinent Supreme Court decisions, involving aspects regarding reservation, accountability of social media platforms, service law and more.

2022 SCC Vol. 3 Part 5

Read four articles and nine significant decisions of Supreme Court in Part 5 of 2022 SCC Volume 3.

2022 SCC Vol. 4 Part 1

In 2022 SCC Volume 4 Part 1, read a very interesting case, wherein the grievance of the builder was that out of total of 1134 apartments constructed and sold by them, the owners of merely 51 apartments have joined together and invoked the jurisdiction of the National Consumer Commission and that such a miniscule percentage of consumers cannot seek to file the complaint in a representative capacity. To know what happened in this case, read the Supreme Court decision in Brigade Enterprises Ltd. v. Anil Kumar Virmani(2022) 4 SCC 138

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., observed that, the right to claim maintenance under the Domestic Violence Act and those under Section 125 CrPC are not mutually exclusive i.e. the aggrieved person can seek interim maintenance before the Magistrate while also seeking permanent maintenance under Section 125 CrPC.

In the present matter, the petitioner and respondent 2 were husband and wife and multifarious litigation was going on between them, one before the MM under the Protection of Women from Domestic Violence Act, 2005 and the other before the Family Court under Section 125 CrPC.

Instant petition was preferred against the orders passed by the ASJ, Saket Court in an application preferred by respondent 2 under Section 5 of the Limitation Act against the order of the MM condoning a delay of three years and ninety-nine days in filing an appeal against the order.

Analysis and Decision

High Court observed that the present case appeared to be a case where different avenues for relief caused enough confusion, which both, the Family Court as well as the ASJ, tried to sort out.

“The D.V. Act is, without doubt a piece of welfare legislation, to protect the interests of women in a domestic relationship and shared household, against not just physical abuse but also emotional and financial abuse.”

Hence, the ASJ was right in dealing with the condonation of application in that perspective and not choosing to dismiss the appeal on procedural technicalities.

Law of Limitation and DV Act, both have to be balanced out.

Further, the Bench expressed that,

“No doubt, inordinate delay would vest certain rights in the opposite party but when it comes to the question of maintenance and welfare of family members protected by the D.V. Act, there can be no vesting of such rights that would result in the divesting of rights assured by a special piece of legislation.”

In the present matter, respondent 2 did not resort to dilatory tactics to file an appeal in order to harass the petitioner, instead, she continued to pursue her right to maintenance before the Family Court under Section 125 CrPC.

High Court noted that the Courts always held that “sufficient cause” under Section 5 of the Limitation Act, 1963 was elastic enough to be applied by the Courts in a meaningful manner, which subserved justice.

Elaborating further, the Court stated that the facts, as brought as the explanation for the delay, and the intent of the party seeking condonation as evidenced by the circumstances, would guide the court in the exercise of its discretion to condone the delay in family matters.

Settled Law

Under Section 482 CrPC, this Court will not act as a Court of appeal and only if perversity or non-application of mind is disclosed in the impugned order or the impugned order results in a grave miscarriage of justice, that the court would interfere with it in the exercise of these powers. Though the present case does not disclose any such circumstance.

Hence, in view of the above, the pending application was dismissed. [Jagmohan Kashyap v. Govt. of NCT of Delhi, 2022 SCC OnLine Del 1609, decided on 27-5-2022]


Advocates before the Court:

For the Petitioner:

Ashish Upadhyay, Advocate

For the Respondents:

Meenakshi Chauhan, APP for R-1/State

S.S. Wani and Hasnain Khwaja, Advocates, for R-2

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah and BV Nagarathna*, JJ has answered three important questions pertaining to the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) and has expanded the scope of the Act by holding that,

  1. Even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex-parte or interim as well as a final order under the provisions of the D.V. Act.
  2. The expression ‘right to reside in the shared household’ would include not only actual residence but also constructive residence in the shared household.
  3. It is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting.

(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?

Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. Even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.

When the proviso is read in the context of the main provision which begins with the words ‘an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act’ would clearly indicate that the aggrieved person can by herself or through her advocate approach the Magistrate for seeking any of the reliefs under the D.V. Act. In such an event, the filing of a Domestic Incident Report does not arise. The use of the expression ‘shall’ in the proviso has to be read contextually i.e., the Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. If the intention of the Parliament had been that filing of the Report by the Protection Officer is a condition precedent for the Magistrate to act upon the complaint filed by an aggrieved person even when she files it by herself or through her advocate then it would have been so expressed. But a conjoint reading of Sub-Section (1) of Section 12 with the proviso does not indicate such an intention. Thus, the plenitude of power under Section 12 of the D.V. Act is accordingly interpreted and pre-requisite for issuing notice to the respondent on an application filed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament.

(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?

It is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.

Even in a case where the woman in a domestic relationship is residing elsewhere on account of a reasonable cause, she has the right to reside in a shared household. Also a woman who is, or has been, in a domestic relationship has the right to reside not only in the house of her husband, if it is located in another place which is also a shared household but also in the shared household which may be in a different location in which the family of her husband resides.

Hence, the expression ‘right to reside in the shared household’ would include not only actual residence but also constructive residence in the shared household i.e., right to reside therein which cannot be excluded vis-à-vis an aggrieved person except in accordance with the procedure established by law. If a woman is sought to be evicted or excluded from the shared household she would be an aggrieved person in which event Sub-Section (2) of Section 17 would apply.

(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?

There should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.

The question raised about a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed must be interpreted in a broad and expansive way, so as to encompass not only a subsisting domestic relationship in presentia but also a past domestic relationship. Therefore, the Parliament has intentionally used the expression ‘domestic relationship’ to mean a relationship between two persons who not only live together in the shared household but also between two persons who ‘have at any point of time lived together’ in a shared household.

[Prabha Tyagi v. Kamlesh Devi, 2022 SCC OnLine SC 607, decided on 12.05.2022]


*Judgment by: Justice BV Nagarathna


Counsels

For appellant-aggrieved: Amicus Cureai Gaurav Agrawal

For Respondent: Advocate K.K. Srivastava

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., held that, if a husband files a divorce petition that cannot be taken as an act of cruelty.

The informant, who was the wife of the applicant contended that the applicant had demanded 10 tolas of gold and high-quality furniture, at the time of the marriage. Further, it was stated that the parents-in-law had opposed the marriage since the day of marriage and started harassing her. They even used to give pinching words regarding non-payment of dowry.

Adding to the above, it was stated that the mother-in-law used to give messages to the applicant stating that informant is ugly looking girl and thereupon applicant started mentally harassing her.

Due to some medical condition, the informant had to leave her service and once she came back to India, the father-in-law started saying that since she was now unable to ring money by taking up service, she should bring amount of Rs 50,00,000 from her parents, otherwise she should give divorce to the applicant. In 2021, she was assaulted and driven out of the house.

Applicant had approached the Additional Sessions Judge; however, the application of the husband had been rejected and it was stated that the divorce petition have been considered. Further, it was stated that if the divorce petition would not been filed there was every possibility of patch up. However, the husband went one step ahead by filing a divorce petition and the said amount to cruelty.

It was stated that the nature of the applicants was aggressive, and they had treated the informant with cruelty. Further, it was added that if the applicants were enlarged on bail, there was strong possibility of tampering the prosecution witnesses.

Analysis and Decision

High Court expressed that,

“Filing of divorce petition by the husband cannot be taken as an act of cruelty or a ground for rejecting the anticipatory bail.”

Further, the Court stated that, certain articles valuable as well as general articles of the informant were stated to be with the applicant. In fact, she could get it under the provisions of Domestic Violence Act, it need not be seized.

In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, it was observed that there should be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.

It also to be noted that Courts should not get carried away with the desire of a party to see the other behind bars. The said may be sometimes to settle the personal score and, therefore, the Courts should be on guard as to whether really the arrest is necessary. Only prima facie case against the person is also not a criterion to be looked into. 

“…not only the police officer but also the learned Sessions Judge or Additional Sessions Judge dealing with an application under Section 438 of the Code of Criminal Procedure should question ‘why arrest’, ‘is it really require’, ‘what purpose it will serve’, ‘what object it will achieve’.”

The above was stated in view of the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

In view of the above, the application was allowed. [Anmol Madhukar Divekar v. State of Maharashtra, 2022 SCC OnLine Bom 1056, decided on 6-5-2022]


Advocates before the Court:

Mr. M.L. Muthal, Advocate for the applicant

Mrs. V.N. Patil-Jadhav, APP for the respondent

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

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

The petitioners have challenged an order passed by Chief Judicial Magistrate, Srinagar whereby transfer application filed by the petitioners for transfer of a case under Section 12 of the Protection of Women from Domestic Violence Act from the Court of Judicial Magistrate 1st Class to any other Court of competent jurisdiction was declined.

Analysis, Law and Decision

High Court noted that the main grouse of the petitioners was that their application for modification or vacation of order passed by the trial Magistrate in ex-parte against the petitioners was not being considered on its merits expeditiously.

Further, it was also noted that there had been some exchange of harsh words between the petitioners’ counsel and the Magistrate, which had forced the petitioner to approach the Chief Judicial Magistrate seeking transfer of proceedings from the Court of trial Magistrate.

The Bench expressed that the Chief Judicial Magistrate had vide the impugned order rightly declined to transfer the proceedings from the Court of trial Magistrate, but, while doing so, the Chief Judicial Magistrate had made certain sweeping remarks against the advocates by stating that the advocates level unnecessary allegations against the Judicial Officers in order to facilitate their personal convenience.

“Merely because the Magistrate has failed to dispose of the application of the petitioners, is not a ground to transfer the case. It is also not a ground for transfer of a case if there is exchange of some hot words between the court and the Counsel.”

Hence, in view of the above, the decision of Chief Judicial Magistrate Srinagar to decline the transfer of the matter from the trial Magistrate, is legally correct and cannot be interfered with.

Therefore, the sweeping remarks made by the Chief Judicial Magistrate were uncalled for an unnecessary for the decision of the case.

High Court also remarked that,

Bench and Bar are two wheels of the chariot of justice. Both are equal and no one is superior to the other.

The members of the Bar, as such, deserve the utmost respect and dignity. There may be some rotten apples in profession, but to say that the advocates generally adopt these tactics is not the correct position.

Hence, the remarks of the Chief Judicial Magistrate, as such, deserve to be expunged. [Latief Ahmad v. Shafeeqa Bhat, 2022 SCC OnLine J&K 249, decided on 8-4-2022]


Advocates before the Court:

For the Petitioner: Hazim Quershi, Advocate

For the Respondents: None

Legal RoundUpWeekly Rewind

 Supreme Court Updates


Issue of accommodation in a Domestic Violence dispute between husband and wife shall not affect landlord’s right to get possession of his property

Are you a landlord seeking possession of your property but instead find yourself stuck in a domestic violence dispute between your tenants? If yes, then this ruling is in your favour.

In a case where a wife had challenged Trial Court’s order granting the possession of the suit property in favour of the landlord on the ground that her husband should provide her accommodation as per the Domestic Violence Act, 2005, the Supreme Court has held that in a domestic violence dispute between the husband and wife, the landlord, who otherwise is entitled to the decree of eviction should not be made to suffer. The dispute between the husband and wife under the Domestic Violence Act shall not preclude and/or affect the right of the landlord to get the possession if otherwise he is entitled to.

The Delhi High Court was of the view the issue of accommodation by husband under the Domestic Violence Act cannot be a subject matter of the dispute between the landlord and the tenant.

Upholding the said judgment, the Supreme Court held that if the wife has any grievance against the husband, may be in respect of the alternative accommodation, the same is required to be adjudicated in the proceedings under the Domestic Violence Act and/or any other remedy which may be available to her against the husband.

https://www.scconline.com/blog/post/2022/03/11/issue-of-accommodation-in-a-domestic-violence-dispute-between-husband-and-wife-shall-not-affect-landlords-right-to-get-possession-of-his-property-sc/

Permanent Injunction can’t be granted against true owner once the title dispute is settled

Reversing the concurrent findings of all the Court below in a case where the plaintiff was granted the relief of permanent injunction despite having lost the title, the Supreme Court has held that the plaintiff is not entitled to a relief of permanent injunction against the true owner once the dispute is settled and the plaintiff has lost the title.

The Court was deciding the case where the suit filed by the plaintiff for cancellation of the registered sale deed and declaration had been dismissed and the defendant was held to be the true and absolute owner of the suit land in question. Despite the fact that the plaintiff had lost the title, still the Courts below granted relief of permanent injunction against the defendant, the absolute owner of the land in question.

It is to be noted that the Supreme Court is usually slow in interfering with the concurrent findings of the Courts below. However, in the case at hand, the Supreme Court reversed the findings of three Courts i.e. the Trial Court-decree, First Appellate Court, and the High Court.

https://www.scconline.com/blog/post/2022/03/05/permanent-injunction-cant-be-granted-against-true-owner-once-the-title-dispute-is-settled-sc-reverses-three-concurrent-findings/

Promotion cannot be granted retrospectively to give benefit and seniority from the date of notional vacancy

In a case where the actual vacancy in Junior Administrative Grade – I (JAG-I) accrued in 2011, however, the respondents sought retrospective promotion from the date of notional vacancy in 2009, the Supreme Court has held that promotion cannot be granted retrospectively and extended to give benefit and seniority from the date of notional vacancy.

Out of the two respondents before the Court, one had taken voluntary retirement in the year 2011 and the other one was appointed to Junior Administrative Grade -I service on an ad hoc basis only on 27.12.2011 after being placed in the select list against a notional vacancy in 2009.

The Court rejected the claim of both the respondents to hold that

  1. a voluntary retiree cannot seek promotion as a matter of right sans rules governing.
  2. a mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process.

https://www.scconline.com/blog/post/2022/03/09/retrospective-promotion/


High Court Updates


Bombay High Court 

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

As per Section 93(1) of the Motor Vehicles Act the transport aggregators are required to obtain license for their operation, but certain transport aggregators like UBER were plying in the State of Maharashtra without the same, hence the Bombay High court directed them to apply for the license by 16th March as per the provision concerned otherwise they shall not be able to operate in the State of Maharashtra.

https://www.scconline.com/blog/post/2022/03/09/to-operate-in-state-of-maharashtra-uber-and-other-unlicensed-aggregators-to-apply-for-license-before-16th-march-2022/

 Delhi High Court 

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?  

A dispute arose 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.

In the said matter, High Court observed that the daughter-in-law was accused of theft from the in-laws premises, but the Court ruled that Section 380 IPC will not be attracted since the ingredients of the said Section were not proved as even if she had picked up letter from the premises the wife had no dishonest intention.

https://www.scconline.com/blog/post/2022/03/10/daughter-in-law-thrown-out-of-matrimonial-home-and-accused-of-removal-of-letters-from-possession-of-matrimonial-home/


District Courts 


Saket Courts 

Wife, a banker, misusing her position to get details of in-laws’ bank accounts to show husband evading payment of maintenance: Is wife guilty of criminal breach of trust? Court analyses

Court expressed that,

Manner of bringing the information before Court of law may not be morally right but it cannot be said by this act of wife that, she caused or intended to cause any wrongful loss to or to cause wrongful gain to herself as merely by disclosing this information, no pecuniary benefit is stated to have been received by petitioner and if any maintenance or any other amount is granted by Court of law, that cannot be termed to be wrongful gain to the wife.

https://www.scconline.com/blog/post/2022/03/10/wife-a-banker-misuses-her-position-gets-details-of-bank-accounts-of-her-in-laws-in-order-to-show-conduct-of-son-who-was-transferring-money-to-bank-accounts-to-evade-liability-to-pay-maintenance/

Court of Special Judge under the Protection of Children from Sexual Offences Act, 2012, Fort Greater Mumbai 

Every common woman travelling in public transport have experienced incidents of inappropriate touch by male gender, but ignored: Is this the reason why such assaults go unreported? Read detailed decision on one such incident 

Expressing that essence of a woman’s modesty is her womanhood, Court, remarked that incidents of unwelcome, inappropriate touch by the male accused in the journey are very common sexual assault experience by every common woman travelling in public transport, but ignored by each one of them, thinking that there is no likelihood of coming across, the same assailant after the journey.

https://www.scconline.com/blog/post/2022/02/28/every-common-woman-travelling-in-public-transport-have-experienced-incidents-of-unwelcome-inappropriate-touch-by-male-gender/

Touching ‘bum’ of a minor girl will be sexual assault punished under S. 10 of POCSO Act? POCSO Court explains   

Expressing that, the sexual intention is the state of mind, may not necessarily to be proved by direct evidence, such intention is to be inferred from attending circumstances of the case, POCSO Court, held that touching bum of a girl cannot be said to be without sexual intention.

Bench also expressed that the “term private part is to be interpreted into the context what is meant by it in our society. Google might not be interpreting bums as private part as submitted by the Advocate for the accused, but it is not acceptable interpretation as far as we Indians are concerned.”

The accused committed the said act with full knowledge and intention to outrage her modesty and to assault her sexually.

https://www.scconline.com/blog/post/2022/03/02/touching-bum-of-a-minor-girl-will-be-sexual-assault/

Tis Hazari Courts 

Children less than 12 years of age are “asexual” and normally take time to recognize that disguised love, affection or warmth by perpetrator is sinful: Tis Hazari Courts, Delhi 

In a case wherein the Tis Hazari Courts found a 28-year-old man guilty of committing aggravated penetrative sexual on a minor aged 11 years old, Court observed that,

“The children often find it difficult to express themselves for variety of reasons, and when someone close to the family subjects them to sexual abuse, they are reluctant to discuss sexual abuses with their parents as they are unsure as to how their parents would react.

The children less than 12 years of age are “asexual” and they normally take time to recognize that the disguised love, affection or warmth by the perpetrator is wrongful or sinful, and on becoming aware of its implications, the next stage is that of putting up resistance and reporting the incident to the near and dear.”  

https://www.scconline.com/blog/post/2022/03/01/children-less-than-12-years-of-age-are-asexual-and-normally-take-time-to-recognize-that-disguised-love-affection-or-warmth-by-perpetrator-is-sinful/ 


Updates from the Tribunal


Securities Appellate Tribunal (SAT) 

Can SEBI proceed against a Chartered Accountant for lack of his due diligence? SAT analyses

SAT while addressing a matter of whether a Chartered Accountant could be held guilty by SEBI for lack of due diligence, it was held that,

Lack of due diligence can only lead to professional negligence which would amount to a misconduct which could be taken up only by ICAI.

https://www.scconline.com/blog/post/2022/03/09/can-sebi-proceed-against-a-chartered-accountant-for-lack-of-his-due-diligence/


Legislation Updates


 Foreigners (Amendment) Order, 2022 

The Central Government has made the Foreigners (Amendment) Order, 2022 to amend the Foreigners Order, 1948. The amendment introduces requirement of holding a valid passport while living in India.

https://www.scconline.com/blog/post/2022/03/10/requirement-of-holding-a-valid-passport-while-living-in-india-introduced-vide-foreigners-amendment-order-2022/

SEBI issues circular on automation of disclosure requirements under SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 

SEBI has issued a circular on Automation of disclosure requirements under SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 in order to streamline the capture and dissemination of the information related to “encumbrances” and thus bring in more transparency, in consultation with the stock exchanges and depositories. The provisions of this circular shall come into effect from July 01, 2022.

https://www.scconline.com/blog/post/2022/03/08/sebi-issues-circular-on-automation-of-disclosure-requirements-under-sebi-substantial-acquisition-of-shares-and-takeovers-regulations-2011/

Fertiliser (Inorganic, Organic or Mixed) (Control) Amendment Order, 2022 

The Central Government made Fertiliser (Inorganic, Organic or Mixed) (Control) Amendment Order, 2022 Order to amend the Fertiliser (Inorganic, Organic or Mixed) (Control) Order,1985. The amendment provides the cases where the samples were drawn from the dealers out of original sound bags (without any mark of tempering) and are found non-standard, then in such circumstances both dealer and manufacturer shall be made party for filling the case in the concerned court

https://www.scconline.com/blog/post/2022/03/09/dealer-and-manufacturer-to-be-made-party-for-filing-case-where-samples-were-drawn-from-dealers-out-of-original-sound-bags-and-found-to-be-non-standard/

SEBI issues revision to operational circular for increasing limit for investment through UPI mechanism to Rs. 5 lakh 

On August 10, 2021, SEBI has issued an Operational Circular no. SEBI/HO/DDHS/P/CIR/2021/613 which provided an option to investors to apply in public issues of debt securities with the facility to block funds through Unified Payments Interface (UPI) mechanism for application value upto Rs. 2 lakh

SEBI has now made revisions to the Operational circular in order to bring about uniformity in the requirements and for ease of investment for investors and therefore, increased the limit for investment through UPI mechanism to Rs. 5 lakh.

https://www.scconline.com/blog/post/2022/03/09/sebi-issues-revision-to-operational-circular-for-increasing-limit-for-investment-through-upi-mechanism-to-rs-5-lakh/

Employees’ State Insurance (Central) Amendment Rules, 2022 

The Central Government, after consultation with the Employees’ State Insurance Corporation, notified Employees’ State Insurance (Central) Amendment Rules, 2022 to amend the Employees’ State Insurance (Central) Rules, 1950. The amendment eases conditions for women to claim sickness benefits. It provides that in case of an insured woman who is in receipt of maternity benefit and due to reason of which a shorter contribution period is available to her in the contribution period in which the maternity benefit falls, she shall be qualified to claim sickness benefit in the corresponding benefit period if the contribution in respect of her was payable for not less than half the number of days available for working in such contribution period.”.

https://www.scconline.com/blog/post/2022/03/09/esic-eases-conditions-for-women-to-claim-sickness-benefits-vide-employees-state-insurance-central-amendment-rules-2022/

High Court Round UpHigh CourtsLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Here are our interesting picks from the stories reported this week:


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


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…


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? Del HC answers


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…


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: Del HC


“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…


Law on 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…


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


“…it has been a settled principle of criminal jurisprudence that when the act complained of is not an offence when committed; a free citizen cannot be brought to book merely because such act is criminalized in a subsequent legislation.”

Read full report, here…


Wife, a banker, misusing her position to get details of in-laws’ bank accounts to show husband evading payment of maintenance: Is wife guilty of criminal breach of trust? Court analyses


Manner of bringing the information before Court of law may not be morally right but it cannot be said by this act of petitioner that, petitioner caused or intended to cause any wrongful loss to petitioners or to cause wrongful gain to herself as merely by disclosing this information, no pecuniary benefit is stated to have been received by petitioner and if any maintenance or any other amount is granted by Court of law, that cannot be termed to be wrongful gain to petitioner.

Read full report, here…


Spanking on back of a woman without her consent, by a man would constitute an offence under Stalking as defined under S. 354D (1)(i) IPC? Court explains


Mere presence is not ground for common intention for proving the prior meeting of minds.

Read full report, here…


7 entities indulged in anti-competitive agreement for supply of signages for branches/offices/ATMs of SBI: E-mails exchanged between parties formed basis for manipulation of bidding process

Noting that in respect of cases concerning cartels that are hidden or secret, there is little or no documentary evidence and may be quite fragmentary, Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members)  imposed penalties on 7 entities and signages for bid-rigging activities and cartelization with respect to the supply of signage for branches, offices and ATMs of State Bank of India.

Read full report, here…


Can SEBI proceed against a Chartered Accountant for lack of his due diligence? SAT analyses

“Lack of due diligence can only lead to professional negligence which would amount to a misconduct which could be taken up only by ICAI.”

Read full report, here…

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., addressed a matter wherein the right of residence was claimed by the wife.

In the present matter, marriage between respondent 1 and the son of the petitioners was solemnized according to Hindu rites and rituals and petitioner 1 (since deceased) and petitioner 2 are mother-in-law and father-in-law of the respondent.

Petitioner 1 has been represented by her legal representatives as petitioner 2(a), (b) and (c).

Between the respondent and her in-laws was cordial in the beginning and eventually it started to deteriorate with time. Further, the respondent left her matrimonial home and consequently more than 50 cases, both civil and criminal were filed by the parties.

In one of the cases, the respondent claimed the right of residence.

Aggrieved by the order of Metropolitan Magistrate that had entitled the right to residence, petitioner filed the criminal appeal.

Appellate Court considered the facts and circumstances and upheld the order of Metropolitan Magistrate observing that the respondent had been living in the said premises since her marriage and her husband was the 50% shareholder to the house which gave her the right to continue to live there.

In the present petition, order of the Appellate Court has been impugned.

Analysis, Law and Decision

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.

High Court found that the decision of Metropolitan Magistrate was in consonance with the findings of the Supreme Court in SR Batra v. Tarun Batra, (2007) 3 SCC 169,  as well as the fact that the respondent had an emotional attachment to the house given that she had lived there for over 20 years of her married life and even the Appellate Court was right in upholding the same while passing the impugned Order.

Therefore, the Appellate Court rightly appreciated that the respondent has the right to live at her husband’s co-owned property.

In view of the above, the petition was dismissed.[Om Prakash Gupta v. Anjani Gupta, 2022 SCC OnLine Del 701, decided on 8-3-2022]


Advocates before the Court:

For the Petitioners: Anurag Jain, Advocate

For the Respondents: Arvind Varma, Sr. Advocate with Abhishek Chhabra, Advocate for R-1 along with R-1 in person

Raghuvinder Varma, APP for R-2/State

Saket Court
Case BriefsDistrict Court

Saket Courts, New Delhi: Sonu Agnihotri, Additional Sessions Judge – 03, addressed a matter, wherein a wife using improper means procured the information of bank accounts of father-in-law and mother-in-law but it was noted that her intention was not dishonest.

A criminal revision under Section 397/399 of the Code of Criminal Procedure was preferred by the accused against the impugned order passed by the Metropolitan Magistrate whereby the order of framing of charge under Section 72A of the IT Act and Section 409 of Penal Code, 1860 was passed against the accused.

Complainants were the father-in-law and mother-in-law of the petitioner and due to issues between their son and daughter-in-law, the son left the company of his wife and started living at his matrimonial home.

Petitioner had filed a complaint under Section 12 of the PWDV Act against the son of the complainant wherein she sought maintenance from her husband.

It was stated that 12 Court proceedings have been pending between the petitioner and son of the complainants with regard to matrimonial disputes.

Vide the impugned order, the charge had been ordered to be framed against the petitioner under Section 72A of the IT Act and Section 409 of Penal Code, 1860

Analysis, Law and Decision

Section 72 A of the Information Technology Act provides as:

Punishment for disclosure of information in breach of lawful contract. -Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

Section 409 IPC:

Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

Further, Section 405 IPC defines Criminal Breach of Trust.

Whether Section 72 of the IT Act will be attracted in the present case?

Petitioner was the daughter-in-law of the complainants who was working with ICICI Bank and as per the case of prosecution, petitioner while misusing her position accessed bank accounts and FDR details of complainants with ICICI Bank and used the said details in an application filed before MM in a complaint filed by her under provisions of Domestic Violence Act.

Complainants further alleged that the petitioner in connivance with ICICI Bank jeopardized the safety and security of property and person of the complainants who were senior citizens.

Though the allegations were against both the petitioner and ICICI Bank, surprisingly, the charge-sheet was silent about any investigation made qua role of higher officials of ICICI Bank.

In Court’s opinion, without proceeding against ICICI Bank was obligated to maintain secrecy regarding the financial information of the complainants, the petitioner could not have solely proceeded.

It was noted that the petitioner used her ID to access the financial information of the complainants.

High Court expressed that,

Manner of bringing the information before Court of law may not be morally right but it cannot be said by this act of petitioner that, petitioner caused or intended to cause any wrongful loss to petitioners or to cause wrongful gain to herself as merely by disclosing this information, no pecuniary benefit is stated to have been received by petitioner and if any maintenance or any other amount is granted by Court of law, that cannot be termed to be wrongful gain to petitioner.

 In view of the above observation, the petitioner’s act did not fall within the definition of wrongful gain or wrongful loss as defined under Section 23 of the Penal Code, 1860.

The second limb of ingredients of an offence under Section 72 A of the IT Act was that the petitioner was in breach of lawful contract divulged financial information of complainants to any other person.

Bench stated that, breach of lawful contract if any was made by ICICI Bank and not by the petitioner directly. So, the act of the petitioner does not satisfy the ingredients of the offence under Section 72A of the IT Act.

With respect to framing of charge under Section 409 IPC is concerned, the commission of a criminal breach of trust by the banker is a must.

As per Section 405 IPC, it requires entrustment of property or with any dominion over property coupled with dishonest misappropriation or conversion to one’s use that property or disposal of the property in violation of the direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, expressed or implied which the person has made touching discharge of such trust or willfully suffers any other person so to do.

In the instant case, the petitioner was not directly entrusted with property which was bank accounts and FDR information pertaining to complainants. Hence no dishonest misappropriation or conversion to petitioner’s use of the information pertaining to complainants bank accounts by use of same in judicial proceedings, as by bringing the said information before the Court she wanted to bring before the conduct of complainants’ son

There can not be said to be any dishonest use or disposal of information pertaining to bank accounts of complainants and their FDRs.

Therefore, in view of the above discussion, it was noted that the trial court failed to meet the parameters of the law and required the impugned order to be set aside. [Chavi Anurag Goyal v. State, Criminal Revision No. 19 of 2021, decided on 24-2-2022]

District CourtHigh Court Round UpLegal RoundUp

Here are our interesting Picks from the stories reported this week:

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: All HC

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 more, here…


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? Bom HC answers

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 more, 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 more, here…


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 more, here…


Every common woman travelling in public transport have experienced incidents of inappropriate touch by male gender, but ignored: Is this the reason why such assaults go unreported? Read detailed decision on one such incident

Expressing that essence of a woman’s modesty is her womanhood, H.H. The Special Judge A.D.DEO, remarked that incidents of unwelcome, inappropriate touch by the male accused in the journey are very common sexual assault experience by every common woman travelling in public transport, but ignored by each one of them, thinking that there is no likelihood of coming across, the same assailant after the journey.

Read more, here…


Children less than 12 years of age are “asexual” and normally take time to recognize that disguised love, affection or warmth by perpetrator is sinful: Tis Hazari Courts, Delhi

Dharmesh Sharma, Principal District & Sessions Judge, found a 28-year-old man guilty of committing aggravated penetrative sexual assault on a minor aged 11 years old.

Read more, here…


Touching ‘bum’ of a minor girl will be sexual assault punished under S. 10 of POCSO Act? POCSO Court explains

Expressing that, the sexual intention is the state of mind, may not necessarily to be proved by direct evidence, such intention is to be inferred from attending circumstances of the case, M.A. Baraliya, Designated Judge under POCSO Act, 2012, held that touching bum of a girl cannot be said to be without sexual intention.

Read more, here…

High Court Round UpLegal RoundUp

82 Judgments from the High Courts of the Country, you wouldn’t want to miss. Here’s a short recap from the month of January 2022.


Allahabad High Court


Strikes by Advocates

To condole demise of any member or anyone else, can Members of Bar obstruct functioning of Courts? All HC decides

J.J. Munir, J., expressed that,

The Members of the Bar are free to hold a meeting to condole the demise of any member or anyone else, but they do not have the right to obstruct the functioning of Courts.

Read full report here…

Motor Accident Claim 

Taking Rs 15,000 as notional income of a family member who is non-earning, in a motor accident claim: Is it reasonable? All HC decides

The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., enhances quantum of award of a non-earning member in a motor accident claim, while referring to the Supreme Court decision in Kurvan Ansari v. Shyam Kishore Murmu, 2021 SCC OnLine SC 1060.

Read full report here…

Settlement

Settlement terms decided by Mediation and Conciliation Centre, can be the reason for quashing of an FIR under S. 482 CrPC: All HC

Rajeev Singh, J., reiterated that under Section 482 of the Criminal Procedure Code, an FIR i.e. First Information Report can be quashed in view of the settlement terms.

Read full report here…

Maintenance

Can wife claim maintenance under S. 125 CrPC where appeal is pending against divorce granted under S. 13 HMA? All HC decides

When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled marriage can claim maintenance under Section 25 of Hindu Marriage Act.

Read full report here…

Caste System

“…we boast ourselves as an educated society, but we live our lives with double standards”: Allahabad HC condemns prevailing caste system even after 75 years of independence

While expressing that “Caste system in our society is deeply rooted, we boast ourselves as educated society, but we live our lives with double standards” Rahul Chaturvedi, J., granted bail to an accused of cold-blooded murder in an alleged honour killing case. 

Read full report here…


Andhra Pradesh High Court


 LGBTQ+ community’s right to reservation; Can a transgender claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? HC answers

In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denied to issue direction to the State in favour of the petitioner

Read full report here…


Bombay High Court


Feeding of Dogs

Feeding of Dogs inside complex v. Feeding of Dogs outside complex: Bom HC appoints amicus curiae to assist Court in resolving dispute

The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., addressed a matter in which a dispute revolved with regard to the feeding of dogs in the society complex.

Read full report here…

Elections for Sarpanch

Candidate contesting elections for Sarpanch post making “self-declaration” that he/she has “toilet” at their residence, is sufficient compliance under Maharashtra Village Panchayat Act? Bom HC examines

G.S. Kulkarni, J., considered the question,

Whether a “self-declaration” made by a candidate contesting elections to the post of Sarpanch, that he/she has a “toilet” in a house where he/she resides was sufficient compliance, to be not disqualified under Section 14(1) (j-5) of the Maharashtra Village Panchayat Act, 1959?

Read full report here…

Domestic Violence Act

Whether right to claim monetary reliefs, protection order and compensation under the D.V. Act, extinguish on death of “aggrieved person”? Bom HC explains

Sandeep K. Shinde, J., examines whether an application under Section 12 of the Domestic Violence Act on behalf of relatives of deceased seeking monetary relief, possession of ‘stridhan’ and compensation was maintainable or not.

Read full report here…

Employees Compensation Act

Can ‘minor’ who succumbed to an accident during course of employment be compensated under Employees Compensation Act or Insurance Company will be absolved of its liability? Bom HC explains

Workmen’s Compensation Act, 1923 does not prohibit payment of compensation to a minor.

Read full report here…

False Promise of Marriage

False promise of marriage to satisfy lust, leading to offence of cheating and rape?: Bom HC refuses to quash FIR for offences under Ss. 376, 417 IPC

The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ.,  refused to exercise jurisdiction under Section 482 CrPC for quashing an FIR in offences of cheating and rape in the matter wherein the applicant/accused committed sexual intercourse with the girl against her will in the pretext of the false promise of marriage.

Read full report here…

Law on Section 498-A IPC

Can an alleged girlfriend be arrayed as an accused in a crime registered under S. 498-A IPC? Bom HC reiterates SC’s observation

The Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., reiterated that an alleged girlfriend cannot be arrayed as accused in an offence registered under Section 498-A of Penal Code, 1860.

Read full report here…

Maintenance to Senior Citizen

Son ousted benighted widowed mother, deprived her right to “live a normal life” apart from maintaining and supporting her livelihood: Bom HC

G.S. Kulkarni, J., while addressing another unfortunate case concerning a mother who was ousted from the tenement she owned by her own son. In view of the said, Court expressed that,

This appears to be another clear case where the petitioner(son) has no other intention but to enjoy the tenement exclusively, ousting the roof over his mother’s head, taking advantage of her incapacity at such an old age.

Read full report here…

Property

Can a girl be treated as property and given in donation? Bom HC addresses in light of “Daanpatra” executed by father of a daughter

“When the girl as per her own statement is minor, then why the father who is in all respect guardian of the girl should give the girl as Daan? A girl is not a property which can be given in donation.”

Read full report here…


 Calcutta High Court


 Compassionate Appointment

Daughter-in-law who obtains compassionate appointment by stating that she will take responsibility of her mother-in-law is bound by that undertaking: Cal HC

80-year-old widow approaches Court to seek direction towards her daughter-in-law to provide for her maintenance as she had taken compassionate appointment on the death of her son, Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., held that the daughter-in-law is bound by the undertaking by which she had obtained a compassionate appointment.

Read full report here…


 Delhi High Court


Termination of Pregnancy

Foetus with severe cardiac anomaly, but pregnancy beyond 24 weeks: Can a mother be permitted for termination of pregnancy? Del HC explains in light of ‘mental health’ of mother

“…entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child’s life.”

Read full report here…

Arbitration

Future Retail seeking to terminate arbitration proceedings with Amazon: Read Delhi HC’s decision on 4 significant points

Amit Bansal, J., noted that,

“…there is only a very small window for interference with orders passed by the Arbitral Tribunal while exercising jurisdiction under Article 227. The said window becomes even narrower where the orders passed by the Arbitral Tribunal are procedural in nature.”

Read full report here…

‘Stay’ on proceedings before Singapore Tribunal; Prima Facie case in favour of Future Group

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., stayed the arbitration proceeding in Amazon v. Future Group before the Singapore Tribunal.

Read full report here…

Arrest and Incarcerations

‘Arrest, incarceration destroys a person and affects innocent relatives’: Del HC sentences police officer to 1-day SI for contempt of court, breach of directions in Arnesh Kumar case

Najmi Waziri, J., observed that “Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.”

Read full report here…

Divorce

“Overseas wife”, 11 years old marriage, husband visited wife for few days on yearly visits from Canada: A moribund marriage or not? Del HC decides

While addressing a matter of divorce proceedings, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

“…every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one.”

Read full report here…

Bail

Delhi HC explains when a Court can seize liberty of an accused undertrial

Subramonium Prasad, J., while explaining the facets of cancellation of bail and rejection of an application for bail, made an observation that,

Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances.

Read full report here…

Can gravity of offence be the sole ground to deny bail? Del HC decides in a multi-person scam involving Rs 200 Crores

Subramonium Prasad, J., addressed whether the magnitude of offence can be the only criterion for granting bail and further explained the object of bail.

Read full report here… 

Compromise

Will Delhi HC allow waiving off alleged offence of rape in view of compromise and subsequent marriage between complainant and accused? Read to know

Stating that, Rape is an act against society, Rajnish Bhatnagar, J., held that simply entering into a compromise allegation of rape will not lose its gravity.

Read full report here…

Desertion

Wife refused to join company of husband on ground of ‘auspicious time’. Would this amount to ‘desertion’ by wife? Chh HC elucidates

The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., held that the wife refusing to join the company of her husband in view of waiting for auspicious time, would amount to desertion. 

Read full report here…

Disinvestment

Dr Subramanian Swamy’s plea that Air India’s Disinvestment is arbitrary, illegal, corrupt: 5-pointer report of Del HC decision

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., dismisses Dr Subramanian Swamy’s plea stating that any delay in the process of disinvestment of Air India would cause loss to public exchequer, besides creating uncertainty amongst the existing employees.

Read full report here…

Matrimonial Expenses

‘Unmarried daughter, even if earning, can’t be assumed to have sufficient resources to meet matrimonial expenses’: Del HC orders father to pay marriage expenses of daughters

 Father’s duty to maintain his unmarried daughters, including his duty to provide for their marriage is clearly recognized by the law.

Read full report here…

Sexual Assault

 Del HC upholds conviction for rape and penetrative sexual assault where ‘wife’ was below 18 yrs of age

Mukta Gupta, J., decided an appeal challenging the impugned decision whereby the appellant had been convicted for the impugned decision whereby he had been convicted for offences punishable under Section 376 of Penal Code, 1860 read with Section 4 of the POCSO Act and the order on sentence dated 15-1-2020 whereby the appellant had been directed to undergo rigorous imprisonment for a period of 10 years and a fine of Rs 10,000, in default whereof to undergo simple imprisonment for a period of six months. 

Read full report here…

False invocation of Ss. 354A, 506 IPC merely trivalises offence of sexual harassment casting doubt on veracity of allegations by victim who has in reality faced sexual harassment: Del HC

Subramonium Prasad, J., expressed its anguish at how provisions such as Sections 354A/506 of Penal Code, 1860 are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual.

Read full report here…

Trademark

Why is ‘Rooh Afza’ seeking injunction against ‘Dil Afza’? Here’s how Del HC stressed upon ‘deep emotion’ while deciding

Buying a bottle of sharbat may involve emotions, but not deep to the extent hoped for by the learned counsel for the plaintiffs. In any case, those who appreciate this deep emotion would be the first to be able to distinguish between ‘Rooh’ and ‘Dil’.

Read full report here…

Del HC restrains Courtyard Holidays World Private Limited from using registered trademark “COURTYARD”: Read a detailed report on trademark infringement case

Asha Menon, J., in a trademark infringement case, restrained the ‘Courtyard Holidays World Private Limited’ from using the impugned marks “COURTYARD”, “COURTYARD HOLIDAYS”, “COURTYARD HOLIDAYS WORLD”, and/or any other mark/logo or label and/or domain name which is identical or similar to the Plaintiff’s registered trademarks “COURTYARD”.

Read full report here…

Conviction

Son-in-law inflicts injury with axe on mother-in-law and wife, Challenges conviction under S. 307 IPC: Del HC revisits law while refusing to interfere

It is trite law that for conviction for an offence punishable under Section 307 IPC, it is not necessary that the victim should suffer an injury and, in a case, where the offence is committed with an intention to commit the murder of the victim, Section 307 IPC would be attracted as in the case of firing when no resultant injury is suffered by the victim.

Read full report here…

Faceless Assessment Scheme

Provision of Personal Hearing would defeat the purpose of Faceless Assessment Scheme? Del HC decides

The Division Bench of Manmohan and Navin Chawla, JJ., while focusing on the principles of natural justice and right to personal hearing observed that,

“Faceless Assessment Scheme does not mean no personal hearing.”

“An assessee has a vested right to personal hearing and the same has to be given, if an assessee asks for it.”

Read full report here…

Judicial Overreach

Photograph of summons sent through WhatsApp as an addition to ordinary process would amount to Judicial Overreach? Del HC decides

Amit Bansal, J., expressed that

Just because the photograph of the summons were sent by the plaintiff to the defendant through WhatsApp cannot amount to overreaching the judicial system or running a parallel system with the judicial system.

Read full report here…

Insurance Claim

Whether insurance company is liable to pay claim even if vehicle stolen and unauthorisedly driven? Del HC decides

…if the proposition of the insurance company was accepted, it would militate against the very concept of a beneficial legislation for the victims of an accident. If such a finding were to be returned then the effect would be that even though a vehicle is insured but is stolen, not only would the insurance company be entitled to avoid its liability but the owner of the vehicle who has insured his vehicle against theft and accident would be saddled with a liability for no fault of his.”

Read full report here…

Law on Rejection of Plaint

Contents of plaint or Examining sufficiency of plaint? Del HC explains the bounden duty of Court

Prateek Jalan, J., expressed that,

For the purposes of an order under Order VII Rule 11 of the CPC, the Court must come to the conclusion that the plaint is required to be rejected.

Read full report here…

Victims’ Rights | Fair Trial

Fair trial is the hallmark of criminal procedure, it entails not only rights of victims but also interest of accused: Delhi HC

“It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.” 

Read full report here…

Maintenance

Court under maintenance proceedings under S. 125 of CrPC, can usurp jurisdiction of Civil Courts? Del HC decides

Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,

“…there is no straight jacket formula for judging the validity of the marriage between the parties.”

Read full report here…

Misconduct

Customer produced to prove the guilt of misconduct by Conductor of DTC Bus: Is it correct? Del HC answers while reiterating established position of law

Prathiba M. Singh, J., while examining a case which was dismissed 30 years ago with regard to a workman’s misconduct, reiterated the well-established law that, customers’ need not be produced in such proceedings in order to prove the misconduct of the workman.

Read full report here…


 Gujarat High Court


Conjugal Rights

Can a wife be forced to cohabit and establish conjugal rights? Or can a decree do so? Guj HC answers

A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.

Read full report here…

POCSO

Court goes beyond the relief sought, helps POCSO victim to become self-sufficient

The Division Bench of Sonia Gokani and N.V. Anjaria, JJ. went beyond the case to help a POCSO victim to continue her further studies from her parental home. Order was issued against a Criminal Misc. Application filed by the desirous victim pleading the Court to allow her to handover the custody of her minor daughter and join her parents. The applicant was called before the Court with her child before passing of the order.

Read full report here…

Senior Citizen Act

Senior Citizen Act cannot rescind Domestic Violence Act

“The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislation have to be harmoniously construed.”

Read full report here…


Himachal Pradesh High Court


Internet Services

Petition filed highlighting the plight of residents of the State regarding internet services in view of virtual classes/courtrooms etc.; Elaborate suggestions laid down

A Division Bench of Tarlok Singh Chauhan and Chander Singh Barowalia JJ.  directed the respondents to comply with the directions given and report compliance on the next date of hearing.

Read full report here… 

Compassionate Appointment

Compassionate appointment is not a matter of right but subject to policy changes; appointment rightly rejected to son as mother is already employed with PWD

Read full report here…

Order 18 Rule 17-A CPC

Power under Or. 18 R. 17 CPC cannot be invoked to fill up omission in the evidence already led by a witness

“…basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court.”

Read full report here…


Jammu and Kashmir High Court


Dowry Death

Dowry Prohibition Act vis-a-vis J&K Dowry Restraint Act; HC blurs the line between the two

In a case alleging dowry death, Rajnesh Oswal, J., clarified the scope and applicability of Jammu and Kashmir Dowry Restraint Act 1960. Observing that the Trial Court had conducted mini trial at the stage of framing of charge, the Bench expressed,

“The trial court was considering issue with regard to framing of charge under section 304-B RPC but the trial court got swayed by the definition of dowry as defined under the Act of 1960 forgetting the legislative intent behind making the amendment, more when the definition was elastic even for the purpose of Act of 1960 by the use of expression “In this Act unless the context otherwise requires”.

Read full report here…


Jharkhand High Court


 Maintenance

What is the effective date of grant of maintenance? Is it the date of judgment or the date of filing of maintenance application?

Anubha Rawat Choudhary, J., held that right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

Read full report here…

Civil Services

Mistakenly entered wrong digit of Roll No. in OMR sheet? Can one seek to add obtained scores when the sheet is rejected by Scanning Machine? HC answers

 S.N. Pathak, J., rejected the petition filed by a civil services candidate, who was declared unsuccessful in prelims examination due to darkening wrong last digit of roll number in OMR sheet. The Bench stated,

“May be the petitioner has not intentionally darkened digit 6 instead of 8, but sympathy has no place in the eyes of law. The law will prevail in view of the terms and conditions as mentioned in the Advertisement, Admit Card and that of the Rules framed by the JPSC.”

Read full report here…


Kerala High Court


 CLAT PG-2021

Is confining Selection process of NTPC to CLAT PG-2021 candidates only prima facie discriminatory? HC to decide

V.G. Arun, J., held that the practice of confining selection process to CLAT PG-2021 candidates only for the post of Assistant Law Officer at NTPC was prima facie discriminatory. However, without expressing anything further on the matter the Bench had adjourned the matter for further hearing with the direction to the Central Government and NTPC to file a detailed counter affidavit in that regard.

Read full report here…

Guardian of Property

Guardian of Property v/s Guardian of Person of the minor; HC clarifies jurisdiction of District Court

The Division Bench of A. Muhamed Mustaque and Sophy Thomas held that the District Court cannot entertain petition to appoint guardian of the person of the minor child, however power to appoint guardian of the property of the minor is well within the jurisdiction of the District Court. The Bench clarified, the fact that a court cannot appoint a guardian of the person, is no bar for appointing a guardian of the property.

Read full report here…

Maintenance

Right to maintenance of child born out of inter-faith marriage: Is father under obligation to maintain his children even when there’s no statutory stipulation? HC answers 

In a significant case regarding Right to maintenance of child born out of inter-faith marriage, the Division Bench of Dr. Kausar Edappagath and A. Muhamed Mustaque JJ., held that the child being non sui juris, the State and the Courts as Parens Patriae are bound to protect it irrespective of law being silent in this regard. The Bench expressed,

“We see no reason to deny the children born to an inter-faith couple legal right to claim maintenance from their father for the reason that there is no specific statutory provision mandating such a father to maintain his children.” 

Read full report here…


Karnataka High Court


 Sale Deed

Will an ex post facto approval validate a sale deed where prior approval by State Government was a statutory prerequisite? HC answers

Read full report here…

Bail

Bail order not containing cogent reasons liable to be set aside for non-application of mind

The Court observed that The reasons assigned by the Trial Court is nothing but perverse and though elaborately discussed in the order, but the very approach in exercising the discretion under Section 439 of Cr.P.C. it is nothing but capricious order

Read full report here…

Social Classification

Persons with disability are a homogenous class irrespective of social classification; such classification can’t be impeached by linking it with Art. 16 or Art 15

“Persons claiming social reservation fall in one compartment and persons with disabilities who are included in the quota fall on a different distinct compartment so there arises no question of violation of Article 14 of the Constitution.”

Read full report here…

Motor Accident

“If relief is not moulded by awarding higher compensation, we will be failing in our duty”; Kar HC discussed compensation vis a vis permanent sexual disability in motor accident cases 

The Court observed that the Motor Vehicles Act, 1988, is a benevolent legislation and the duty is cast upon the Tribunal to award just and fair compensation to the victim of a Motor Vehicle Accident and thus taking into consideration the inflation and constantly depreciating purchasing power of the rupee, the court deemed deem it appropriate to enhance the compensation.

Read full report here…


 Madras High Court


 Right to Relax

Right to Relax in danger? Would installing CCTVs in spas and massage parlours infringe bodily autonomy of a person? Madras HC pens down its view

“Suspicion that immoral activities are taking place in massage centres cannot be reason enough to intrude into an individual’s right to relax for it intrinsically is part and parcel of his fundamental right to privacy.”

Read full report here…

License

Clubs allowing members to bring liquor purchased from outside, and drink without FL-2 license. Is it permissible? Madras HC examines, Issues directions 

“Any Association, Club or otherwise cannot go beyond the scope of its bye laws and the Competent Authorities under the Societies Registration Act are also empowered to initiate action for violation of the bye-laws.”

Read full report here 

Compensation

Rat-bite in hospital, compensation claimed: Madras HC relies on newspaper report since no rejoinder was given by Hospital

“….while examining a particular fact in the Writ Petition, strict rules of evidence do not apply but existence of a fact can be taken judicial note by surrounding circumstances…”

Read full report here…

Outrage the religious beliefs

Expressing opinion with regard to temple restoration, would amount to attract an offence under S. 295-A IPC? Report on Madras HC decision 

G.R. Swaminathan, J., quashed an FIR stating that S. 295-A IPC is attracted only if there is deliberate and malicious intent to outrage the religious beliefs of a particular class.

Read the full report here…

‘On Judgement Day, God shall admonish petitioner for committing un-Christian act’: Read whether Madras HC holds Catholic Priest prima facie accountable under S. 295A IPC for using ‘Bharat Mata’ and ‘Bhuma Devi’ in offensive manner

To uphold the sanctity of the Constitution and maintain public order, the strong arm of law will have to come down heavily on those who seek to disrupt communal peace and amity. 

Read full report here…

State Revenues

Cases involving large scale revenue unresolved for several years, leading to looting of nation’s properties: Read what Madras HC observes

There is a Grouping Section, which is functioning in the High Court. The said Section must be utilised for collecting large scale revenue involved cases now pending before the High Court for many years and the Registry must place all those cases before the Hon’ble the Chief Justice for speedy disposal.

Read full report here…

Conjugal Rights

Whether denial of conjugal rights to a prisoner amounts to violation of Art. 21 of the Constitution of India?  Madras HC answers in light of “extraordinary circumstances”

Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,

The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.

Read full report here…


 Madhya Pradesh High Court


 Arbitration

Dismissal of application under S. 34 of Arbitration and Conciliation Act of 1996 on ground of limitation will come within the purview of refusing to set aside an arbitration award 

Vishal Dhagat, J. expressed that, dismissal of application under Section 34 of Act of 1996 on ground of limitation will come within the purview of refusing to set aside an arbitration award, therefore, appeal under Section 37 will be maintainable if application under Section 34 is dismissed on ground of limitation. 

Read full report here…

Does Arbitral Tribunal have exclusive jurisdiction to settle disputes relating to “works contract” in State of Madhya Pradesh under the scheme of M.P Madhyastham Adhikaran Adhiniyam, 1983? MP HC explains

Bench expressed,

“…the Act of 1983 provides that whether the parties to a “works contract” incorporate an arbitration agreement or not, any dispute relating to “works contract” shall fall within the exclusive jurisdiction of the Tribunal.”

Read full report here…

Courts should emphasize on bridging the gap between the time period of reservation and delivery of the judgment

“It is the need of the hour to emphasize over the need to pronounce judgment expeditiously and curtailing the time gap between reserving of a case and pronouncing of judgment to the bare minimum, it is vivid that the Tribunal heard and reserved the original application preferred on 20.02.2019 whereafter the impugned judgment was pronounced by the Tribunal on 17.01.2020 i.e. after nearly 11 months, which is a very long period of time”

Read full report here…

State saddled with costs for colourable exercise of power reflecting favours; petition allowed

The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ. allowed petition filed under Article 226 of the Constitution filed by Smt Rampyari Patel and quashed impugned order dated 06-07-2021 passed by State Government.

Read full report here…

Disciplinary Proceedings

Delinquent employee in disciplinary proceedings has statutory right to engage a Defence Assistant

The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ. allowed the petition filed under Art 226 by an employee facing disciplinary proceedings.

Read full report here…

 Strike

It is duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike; Court dismisses appeal

Sujoy Paul, J. dealt and dismissed a petition while highlighting the increasing issues of strikes and boycotts by the lawyers.

Read full report here…

Reservation

Difficult Areas vis-a-vis Difficult Services, Issues of reservation and incentive marks; HC puts an end to the battle between Doctors and State

 “If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of ‘in-service candidates’ and will create a class within the class without there being any rationale and justification for the same.”

Read full report here…

 Kazi

 Can a Kazi adjudicate disputes like a Court and pass an order like a decree? MP HC answers

“If a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible, but he cannot adjudicate the dispute like a court and pass an order like a decree.”

Read full report here…


Orissa High Court


Investigating Agency

Court can neither be a mute spectator to the whims and fancies of the investigating agency nor be a party to it; Ori HC observes in a case where final form was submitted after 15 years

The Court held that the inaction of the investigating agency to conclude the investigation for as long as 15 years, that too, without offering even a semblance of explanation is a direct affront to the cherished principle of right to speedy trial ingrained in the provisions of Article 21 of the Constitution of India.

Read full report here…

Public Interest

Retaining an employee in service if he lacks in the standard of efficiency required to discharge the duties of the post he presently holds is not in public interest

“The Court observed that the object of compulsory retirement is to weed out the dishonest, the corrupt and the deadwood. It is true that if an honest Judicial Officer is compulsorily retired it might lower the morale of his colleagues and other members in the service.”

Read full report here…


Punjab and Haryana High Court


 Live-in-relationship

Merely living together for few days is not live-in-relationship; HC imposes cost of Rs 25000 on runaway couple

In a case where a young couple who had started living in a hotel two days ago had approached the Court for protection, Manoj Bajaj, J., imposed a cost of Rs. 25000. The Bench expressed,

“Merely because the two adults are living together for few days, their claim of live-in-relationship based upon bald averment may not be enough to hold that they are truly in live-in-relationship.”

Read full report here…

Bail

Long custody is an essential factor for granting bail under UAPA; HC grants bail to woman lodged in jail along with her infant in connection with a Facebook post

Anupinder Singh Grewal, J., granted bail to the woman who was in custody along with her barely two years old infant in connection with alleged offence committed under UAPA. The main allegation against the petitioner was with regard to a Facebook post supporting banned organization ‘Sikhs for Justice 2020 Referendum’.

Read full report here…

Divorce

Are Recordings of Private Conversation between Husband and Wife permissible as evidence under S. 13 of HMA, 1955? HC decides 

Lisa Gill, J., held that to permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act cannot be permitted.

Read full report here…

Investigation

P&H HC stresses upon adopting contemporary methods of investigation rather than taking third-degree shortcuts

Bench reiterated that,

“police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force.” 

Read full report here…


Rajasthan High Court


Mother tongue or English as a medium of instruction? Raj HC dealt with the issue when State decided to convert a Hindi medium school to English medium

“…the rights of the petitioners and the pupil of the school to have instructions in Hindi that are protected under Article 19(1)(a) of the Constitution of India and such rights can be diluted only by way of a legislation enacted in the contingencies mentioned in cause (2) of Article 19.”

Read full report here…

Police Protection

Courts are not meant to provide police protection to youths who have fled to marry according to their own wishes; Raj HC reiterated

The Court observed that in a deserving case, the Court can provide security to the couple, but cannot lend them the support they have sought. They have to learn to support each other and face the society. If any person misbehaves or manhandles them, the Courts and police authorities are there to come to their rescue, but they cannot claim security as a matter of course or right.

Read full report here…

Pecuniary Jurisdiction

Objection with regard to pecuniary jurisdiction shall be taken at the first instance at the earliest possible opportunity in accordance with S. 21 CPC

“no such objection was taken by the defendants at the earliest stage or not during the course of trial when it reached to its final stage. Now at the stage of final disposal, the application has been submitted which has been accepted by the learned court below by overlooking the mandatory provisions contained under Section 21 of the Code of Civil Procedure.” 

Read full report here…

Reverse Burden of Proof

Burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities, need not be proved beyond all manner of doubt

Read full report here…


Telangana High Court


 Section 138 NI Act

A joint account holder cannot be prosecuted unless and until he/she is a signatory to subject cheque

“…Penal provisions should be construed strictly, but not in a routine/casual manner. The words used in Section 138 of N.I. Act  that “such person shall, be deemed to have committed an offence,, refers to a person who has drawn the cheque, but not any other person, except the contingencies mentioned under Section 141 of the N.I. Act.”

Read full report here…


Tripura High Court


Insurance Company

Compensation amount limited to amount claimed, Insurance Company’s liability reduced

S.G. Chattopadhyay, J. in the concerning matter to Parimal Das, held that the person claiming compensation should receive the amount not more than what he claimed. However, this doesn’t mean that the court is powerless to not award more compensation than the amount claimed.

Read full report here…

DNA Testing

Unless and until there is a challenge to the personal documents, direction cannot be given for DNA testing; Court dismisses appeal

Amarnath Goud, J., dealt with a petition wherein the case of the petitioner was that the respondent was not the son of the deceased Kshitish Ghosh and under the garb of certain Wills the respondent was selling the properties which were in dispute before the trial court. Petition further prayed to reconsider DNA testing approval which was dismissed earlier.

Read full report here…

Case BriefsHigh Courts

Gujarat High Court: Ashokkumar C. Joshi, J. dismissed a petition which was filed under Article 227 of the Constitution of India against the order of the Principal Judge, Family Court, Ahmedabad. Application had been filed inter alia praying for to issue order / directions that the plaintiff-respondent 1 herein, along with a minor may remove themselves from House No. 43, Nathalal Colony, Nr. Sardar Patel Colony, Post – Navjivan Station Road, Ahmedabad (suit property) and to restrain the plaintiff by injunction from using or occupying the said property as there residence.

Facts:

Petitioner was the father-in law of the respondent 1 and the father of the respondent 2 herein, pertinent to note that it was the second marriage of both the respondents after their divorce from the previous marriage from which respondent t No. 1 was having a daughter (minor) whereas, the respondent 2 was having a son. After the marriage, the respondents started living in the suit property; however, on 12-03-2017 the respondent 2 returned to the USA and on the very same day, the respondent 1 also left the suit property, so as to reside at her own flat. Respondent 1 never resided along with the petitioner in the absence of the respondent 2 and never cared for them. It was further submitted that it was only in March 2020 when the respondent 2 had come to India and due to Covid-19 pandemic since could not return to USA the respondents stayed in the suit property, however, in June 2020, the respondent No. 2 again left for USA in June 2020 and no sooner as he left for USA, the respondent No. 1 also left the suit property and started residing in her own flat. However, in September 2020, due to utter shock and surprise, the respondent No. 1 barged into the house of the petitioner with some people, including the lawyer, and forcefully entered the house and created a lot of ruckus and havoc. Petitioner gave an application in the police station and on the very same day respondent 1 also filed the suit in question i.e. Family Suit No. 2020 before the Family Court. Said application by the petitioner came to be rejected. The petitioner also filed his written statement-cum-Reply-cum-injunction application, which came to be dismissed by way of the impugned order, being grieved by the same, the petitioner was before this Court by this petition.

Contentions:

It was submitted by the senior advocate for the petitioner that the property belonged to the petitioner and the respondent 1 has by forcefully trespassing in the same, has breached the right of the petitioner and accordingly, an eviction order is solicited against the respondent 1.

Advocate for respondent 1 contended that t it may be true that the flat owned by the respondent No. 1 is given on rent, however, the same does not, in itself debar her from staying in her matrimonial home, besides, it is also a fact that the respondent 1 would have no other means to live if the order impugned herein would be set aside.

Advocate for respondent 2 supported the case of the petitioner submitting that he was residing in the USA and his father, the petitioner herein, was entitled to the shared house and the respondent 1 was not, in any way, entitled for any rights or title in the same.

Findings:

The Court after considering material on record was of the opinion that this case was more in regard to the applicability of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 vis-a-vis the Protection of Women from Domestic Violence Act, 2005 and inter se overriding effect thereof.

The petitioner is a senior citizen, whose son, the respondent  2 herein is residing in the USA and the daughter-in-law, the respondent No. 1 herein, has allegedly, illegally trespassed the house of the petitioner and eventually, the petitioner has to reside at a different place and accordingly, under the provisions of the Act of 2007, the petitioner is entitled for the said dwelling house by eviction of the respondent No. 1 therefrom. Whereas, the case of the respondent No. 1 is that she being the daughterin-law of the petitioner, is entitled to the share household in her matrimonial home and she cannot be evicted from the same under the provisions of the Domestic Violence Act, 2005.

The Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 has considered in detail the Scope of interference by this Court that, Article 227 can be invoked by the High Court Suo motu as a custodian of justice. Further explaining that in exercise of its power of superintendence, High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view.

In answering as to whether which enactment would prevail the High Court relied on the judgment of the Supreme Court in S. Vanitha v. Deputy Commissioner, Bengaluru Urban District, 2020 (0) AIJELSC 66818, where an identical issue was before them. The ratio decidendi was

“The right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.”

The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislation have to be harmoniously construed.

Elaborating definitions of “Children” and “Parent” Court observed a bare reading of the provisions of Section 4 and 5 of the Act of 2007, revealed that a senior citizen including parent who is unable to maintain himself, shall be entitled to make an application under Section 5 to the Tribunal as constituted by the State Government under the provisions of Section 7 of the Act of 2007. In the case on hand, it was nobody’s case that any such application has been preferred by the petitioner and/or is pending before any Tribunal.

After observations and discussions the Court found that the Family Court had committed no error which required interference thus dismissed the petition.[Jagdeepbhai Chandulal Patel v. Reshma Ruchin Patel, R/Special Application No. 11129 of 2021, decided on 18-01-2022]


Suchita Shukla, Editorial Assistant has reported this brief.


Mr YN Oza, Senior Advocate with Shashvata U Shukla for the Petitioner

Mr Jamshed Kavina for the Respondent(s) 2

Mr Vishal P Thakker for the Respondent(s) 1

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., examines whether an application under Section 12 of the Domestic Violence Act on behalf of relatives of deceased seeking monetary relief, possession of ‘stridhan’ and compensation was maintainable or not.

Question for Consideration:

Whether an application presented by the petitioners under Section 12 of the D.V. Act on behalf of deceased, Suchita Sapre, seeking:

(i) monetary relief under Section 20(b) i.e. reimbursement of medical expenses incurred by petitioner 2 for the treatment of deceased, Suchita;

(ii) possession of “Streedhan” of late, Suchita under Section 19(8) of the D.V. Act; and

(iii) compensation under Section 22 from the respondents, was maintainable?”

Trajectory of the Case  

Petitioner 1 was the minor daughter of the deceased. Respondent 1 was the father of the petitioner and respondents 2 and 3 were the grandfather and grandmother of petitioner 1, whereas petitioner 2 was the mother of the deceased.

It was stated that the deceased was neglected by her husband and in0laws and was subjected to physical, verbal and economic abuses by the respondent due to which she suffered serious sickness and later passed away.

Petitioners alleged the respondents did not bother to look after Suchita in her lifetime and even during her illness. Petitioner 2 (mother of Suchita) would claim that, she had spent Rs 60,00,000 for Suchita’s treatment and would also claim that, she had gifted gold ornaments in Suchita’s marriage, which are in the custody of mother-in-law, respondent 3.

In view of the above background, petitioner had presented an application under Section 12 of the DV Act.

Respondents questioned the locus of the petitioners and maintainability of the present application under Section 12 of the DV Act stated that the reliefs under the said Act could not have been sought on behalf of the deceased.

Later, petitioners’ application was rejected and in appeal, the order of Additional Sessions Judge was confirmed, and the said orders have been assailed in the instant petition.

Significant Point: Suchita died in the year 2013, whereas the petitioner presented the application for various reliefs in 2015.

Analysis, Law and Decision

High Court noted that petitioners did not claim themselves to be “aggrieved person” but asserted their right to present an application under Section 12 of the DV Act on behalf of the deceased who as per them was an aggrieved person. Therefore, the petitioners sought enforcement of the personal rights of the deceased.

The Bench held that the rights sought to be enforced by the petitioner by presenting an application under Section 12 of the DV Act was clearly not maintainable for the following reasons:

  • the right to claim monetary reliefs, protection order and compensation under the D.V. Act, are personal-statutory and inalienable rights of the “aggrieved person”. These rights extinguish on the death of “aggrieved person”. For that reason, such rights were not enforceable by legal representatives of “aggrieved person”.
  • expression “aggrieved person” has to be understood and given restrictive meaning, in view of the Statement of Object and Reasons of the Act. Defined expression “aggrieved person” is not inclusive and thus by process of interpretative explanation, its scope cannot be expanded like suggested by the petitioners, as it would counter the Scheme and Object of the Act and would defeat the intention of the legislation.
  • although “any other person” can present an application under Section 12 of the D.V. Act, on behalf of “aggrieved person”, nevertheless, such “other person” cannot maintain an application independently of an “aggrieved person”. Infact, Section 12 of the D.V. Act, simply enables, the “aggrieved person” to present an application under the Act through “any other person”. That being the Scheme of the Act, “aggrieved person” must be living (alive) while presenting the application.

Hence, petitioners’ application was rightly rejected by Trial Court and Appellate Court.

In view of the above discussion, petition was disposed of. [Kanaka Kedar Sapre v. Kedar Narhar Sapre, 2022 SCC OnLine Bom 1, decided on 4-1-2022]


Advocates before the Court:

Mr. Abhijeet Sarwate, Advocate for the petitioner.

Mr. Tapan Thatte a/w. Mr. Amar Patil i/by. Mr. Shantanu Adkar, Advocate for respondents 1 to 3.

Mr. A.R. Patil, APP for State.

Saket Court
Case BriefsDistrict Court

Saket Courts, New Delhi: Anuj Agrawal, Additional Sessions Judge, dismissed an appeal filed by the husband against the order of the trial court granting maintenance to the wife.

Factual Background

A complaint was filed under Section 12 of the Domestic Violence Act by the respondent/complaint stating that she was subjected to domestic violence by the husband as well as his other family members. Respondent added that she had been sustaining herself with great hardships and thus, she claimed monetary relief from the husband.

Trial Court had also granted maintenance. Appellants was aggrieved with the said order.

Analysis, Law and Decision

Settled Law:

Serious disputed questions of fact (requiring evidence) cannot be gone into at the time of deciding an application for grant of interim maintenance and as the same can only be decided during course of trial after-parties lead their respective evidence.

In the instant matter, respondent made allegations of she being subjected to domestic violence, a prima facie case for domestic violence was made out.

Court stated that it will decide the legality of award of interim maintenance.

“…while fixing an interim maintenance, court has to take a prima facie view of the matter and need not to critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same, the evidence would be required.”

 Bench expressed that an aggrieved person cannot be rendered to lead a life of a destitute till the completion of the trial.

No income affidavit came to be filed by the appellant/husband before the trial court, therefore, trial court was left with no option but to make guesswork regarding the monthly income of the husband. Hence, Trial Court’s approach cannot be faulted.

In the present appeal, the appellant/husband did not dispute his monthly income. Therefore, there was no infirmity with the order of Trial Court whereby monthly income of appellant/husband was assessed as Rs 35,000/-.

Therefore, the interim maintenance to the respondent/wife has to be commensurate with the income of husband.

Principle of apportionment has been reiterated by Delhi High Court in Nitin Sharma v. Sunita Sharma, 2021 SCC OnLine Del 694.

Appellant’s contention that no Domestic Incident Report was called by Trial Court is also without merit as it was evident from Trial Court record same was duly called from Protection Officer concerned.

Settled Law:

A Magistrate, when petitioned under Section 12 (1) of the Act, is not obliged to call for a domestic incident report before issuing notice to respondent.

Court relied on the decision of Delhi High Court in Shambhu Prasad Singh v. Manjari, 2012 SCC OnLine Del 1371

Hence, no merit was found in the instant appeal. [Anjan Kumar Sahoo v. Kamla Sahoo, Criminal Appeal No. 444 of 2017, decided on 21-10-2021]

Case BriefsHigh Courts

Delhi High Court: While stating the well-settled law that even when an appellate Court affirms the order of the Court below, it has to adjudicate on the issues which arise in the appeal, Subramonium Prasad, J., emphasized why reasons laid down in a judgment are essential and in view of that referred to certain decisions of the Supreme Court.

Present matter was directed against the decision of Additional Sessions Judge arising out of the order passed by Metropolitan Magistrate.

The Metropolitan Magistrate had dismissed the petition filed under Section 12 of the Domestic Violence Act on the ground of non-prosecution. Further, the MM had also issued notice to the Deputy Director, Directorate General of All India Radio to furnish details of empanelment of the petitioner along with other details in order to determine the maintenance.

Additional Sessions Judge heard the appeal under Section 29 of the DV Act.

Under Section 29 of the DV Act, an appeal is maintainable against an order passed by the Magistrate on both law and facts.

“…reasons are the live links between the mind of the decision taker to the controversies in decision and the decision or conclusion arrived at. An order sans reasons takes away a very valuable right of a litigant – to challenge that order.”

 Supreme Court’s decision in CCT v. Shukla & Bros., (2010) 4 SCC 785 was also referred wherein it was observed that,

“…Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders…” 

“…A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment…”

Supreme Court’s decision in State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568 was also referred to.

Bench held that the impugned order was completely bereft of any reasons.

Duty of the Appellate Court is to see whether the Metropolitan Magistrate had considered the claim of the petitioner on merits and what are the reasons given by the Metropolitan Magistrate to reject the claim.

High Court while setting aside the order of the Additional Sessions Judge remanded the matter back to the ADJ for consideration. [BSR v. PSR, 2021 SCC OnLine Del 4789, decided on 21-10-2021]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J. while addressing the matter, expressed that

“…in the opinion of this Court, all cases of family disputes cannot be characterised as cases under the DV Act.”

Plaintiff had filed a suit against his son and daughter-in-law, respectively.

In view of various disputes between the plaintiff and his son/daughter-in-law, he sought the permanent and mandatory injunction, damages seeking vacant and peaceful possession of the suit property and removal of his son and daughter-in-law. Damages and mesne profits were also sought by the plaintiff.

 Issues:

  • Condonation of delay of 342 days, in filing the present second appeal.
  • Merits of matter.

Analysis, Law and Decision

High Court stated that there was no delay in filing the present appeal.

Several disputes arose amongst the said family members, which, according to Plaintiff, were due to the interference of the family members of the daughter-in-law, including the mother and the brothers of the daughter-in-law.

There was no document on record to show the existence of a HUF, of which, Plaintiff was alleged to be the Karta.

Plea of ‘shared household’ appeared to have clearly been put up on behalf of the daughter-in-law, as a faint plea, and as an argument of last resort.

There were no complaints that had been preferred against the father-in-law and there were no cases filed or pending under the DV Act, or any other legislation at the instance of the daughter-in-law.

Further, the Bench stated that the father was merely seeking to evict both his son and daughter-in-law, on the strength of his ownership of the suit property.

Adding to the above, Court stated that the settled position of law is that proceedings under the DV Act are not required and the same can also be raised as defence in the suit, the basic requirements of the said Act ought to be satisfied.

The present is not a case where the case set up is one under the DV Act, involving domestic violence. 

High Court highlighted the peculiar facts:

  • The ownership of the Plaintiff in the suit property is not in dispute.
  • The sale of the property of the mother, which took place in 2011, was never challenged by the Defendants.
  • The purchase of this suit property in the name of the Plaintiff was never challenged by the Defendants.
  • There is no complaint of Domestic Violence raised by the daughter-in-law before any forum. In fact, to the contrary, the Plaintiff has filed complaints against his son and daughter-in-law with police repeatedly, alleging ill-treatment and abuse.
  • The Defendants i.e., the son and daughter-in-law are living together peacefully. The written statement before the trial court was filed jointly. The first appeal was also filed jointly, and so is the present second appeal. There is no estrangement or marital discord between them.
  • The order passed in the application under Order XII Rule 6 CPC has also been executed and the Defendants have already moved out of the suit property and are living in alternate premises.

In light of the above stated facts and noting that they are distinguishable from the facts of Satish Chandra Ahuja v. Sneha Ahuja, [2020 (11) SCALE 476] and Vanitha v. Deputy Commr., [2020 (14) SCALE 210]

Court dismissed the appeal. [Aarti Sharma v. Ganga Saran, 2021 SCC OnLine Del 4110, decided on 24-08-2021]


Advocates before the Court:

For the Appellants: Zahid Ali, Advocate

For the Respondent: Ashok Kumar Tiwari, Advocate

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., while upholding the decision of Sessions Court discussed more on the concept of ‘continuing offence’ under the Domestic Violence Act, 2005.

Background

Petitioner had filed an application under the provisions of The Protection of Women of Domestic Violence Act, 2005 for various reliefs. The said application was partly allowed by the Judicial Magistrate directing Omprakash (husband) to pay an amount of maintenance and rent to his wife, whereas the return of Stridhan and household articles was rejected.

With the above decision, both the wife and husband were aggrieved and hence filed appeals before the Sessions Court. Sessions Court had partly allowed the appeal of the wife by enhancing the monthly maintenance and additionally the husband was directed to pay an amount of Rs 50,000 to his wife towards compensation.

Appeal filed by the husband was dismissed.

Aggrieved by the judgment, present petitions were filed in which the Court issued notices.

Analysis, Law and Decision

Limitation

In the instant matter, Court stated that it is concerned with the complaint filed by the wife under Section 12 and other provisions of the D.V. Act.

The wife claimed that she was harassed and abused and that she also suffered economic abuse at the hands of the husband and his relatives. Further, she added that she was subjected to “domestic violence” as defined under Section 3 of the D.V. Act, hence sought redressal for such abuse and claimed return of articles gifted to her by her parents and other relatives.

“…concept of continuing cause of action and continuing offence needs to be appreciated from the point of view of the aggrieved person i.e. wife.”

 In the case of Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705, Supreme Court held that the concept of continuing offence gets attracted from the date of deprivation of Stridhan and that therefore, an application in that context would have to be entertained and it cannot be thrown out on the ground of limitation

Continuing Offences

Court opined that, the definition of ‘domestic violence’ under Section 3 of the D.V. Act shows that depriving an aggrieved person of not only Stridhan but also shared household, maintenance, alienation from assets, banks lockers etc., prevention from entering place of employment of the aggrieved person, would all be covered, under the concept of continuing offences.

Hence, merely because the wife filed a complaint after one year, the said complaint cannot be barred by limitation.

Enhancement of Maintenance

High Court held that considering the salary of the husband, he directed to pay an amount of Rs 6,000 and the same cannot be said to be unreasonable.

Physical Abuse 

Husband contended that since the wife did not place on record any material to show any physical abuse or proof of having filed any police complaint, she did not deserve to be paid any compensation.

To the above, Court reasoned that in cases of domestic violence, it is often found that the aggrieved person does not immediately rush to the police when inflicted with physical, mental, and physiological and economic abuse.

Adding to the above, Bench stated that even if such persons suffer injuries, they will not necessarily keep medical records of the same and it cannot be said that only because no medical documents were produced, the wife in the present matter was not entitled to compensation.

In view of the above discussions, the Session Court’s decision was upheld. [Aruna v. Omprakash, Criminal Writ Petition No. 372 of 2019, decided on 27-7-2021]


Advocates before the Court:

Shri. C. A. Joshi, Advocate for Petitioner

Shri. A. S. Joshi, Advocate for Respondent.

Op EdsOP. ED.

On 10-3-2021, the Punjab and Haryana High Court, in Moyna Khatun v. State of Punjab[1] dismissed the petition of Ms Moyna Khatun, aged 18 years and Mr Lab Singh, aged 19 years, seeking protection of their life and liberty at the hands of private respondents.

Live-in relationships or relationships in nature of marriage have slowly gained legal and judicial acceptance in the country. Statutorily, the Evidence Act, 1872[2] allows the court to draw a presumption of marriage under Section 114(g)[3] and Section 50[4]. In order to establish the presumption it has to be proved that the man and woman were living together for a long period as husband and wife; and that they projected themselves to the society as a married couple. There is no need to prove the factum of marriage in cases falling under Section 114. This reflects the approach of the law that it assumes in favour of marriage and against concubinage when couples have lived together as husband and wife for a long period of time.

Another statute which recognises live-in relationships is the Protection of Women from Domestic Violence Act, 2005[5] (the PWDVA, 2005), which was passed in keeping with India’s international commitments to address gender specific grievances of women. Section 2(f) of the PWDVA, 2005[6] defines a domestic relationship as a “relationship between two persons who live or have lived together in a shared household when they are related by consanguinity, marriage, adoption or through a relationship in the nature of marriage”.

The need to include relationships in nature of marriage was recognised in the Report of the Parliamentary Standing Committee on the Protection from Domestic Violence Bill, 2002[7]. The Committee acknowledged that there are many instances in India where a man and woman, though not legally married, still live together as husband and wife and have social sanction for it as well. Therefore, these relationships need to be included within the framework of the law to ensure that such women who are victims of any kind of violence that occurs within the family are protected. Relationship in nature of marriage is defined as analogous to common law marriage[8] i.e. the couple has to hold themselves out to the society as being akin to spouse; have to be of legal age to marry; have to be otherwise qualified to enter into a marriage, including being unmarried; and have to voluntarily cohabit for a significant period of time.

Landmark cases such as D. Velusamy v. D. Patchaiammal[9] and Indra Sarma v. V.K.V.  Sarma[10] have recognised and given contour to the factors that need to be established for proving live-in relationships. The Courts, have also generally been sensitive towards partners of live-in relationships. For instance, in Nandakumar v. State of Kerela[11], the Supreme Court allowed an underage couple to live together. It recognised that the concept may be socially unacceptable, but in law, it could not be looked down upon. Similarly, in a Gujarat High Court decision of 2020, the Court ordered the police to extract the documents of the girl from her father so that she could subsequently solemnise marriage with her live-in partner.[12] The Punjab and Haryana High Court has also ordered police protection to live-in couples in cases like Simran Kaur  v. State of Punjab[13] and Sukhbir Singh v. State of Punjab[14], Soniya v. State of Haryana[15], Priyapreet Kaur v. State of Punjab[16], Pardeep Singh v. State of Haryana[17] as also the Allahabad High Court in Kamini Devi v. State of Uttar Pradesh[18].

The case of Moyna Khatun v. State of Punjab[19] is a unique case of live-in relationships. The female partner, aged about 18 years and the male partner, aged about 19 years, entered into a live-in relationship deed, which they settled by way of mutual consent. Through the contractual live-in-relationship, both parties agreed their relationship will not be a marital relationship; that they will fully cooperate with each other without any dispute and will not claim anything against each other; and if either party backs out from the aforesaid deed, the other party will have a right to approach a competent court of law for implementation of the same. Further, the parties will be entitled and will be at liberty to terminate the deed at any time after giving one month’s notice to the other party. Additionally, on attaining marriageable age, the parties agreed to solemnise marriage. It was also submitted by the counsel for the parties that the deed was executed by the parties in Patiala.

This is the first time that a case of such nature has come before any court in India. The Hon’ble Judge dismissed the petition on the ground that the terms and conditions of the deed, especially stating that it is not a marital relationship, is nothing but the misuse of the process of law as it cannot be morally accepted in society. This brings the author of this piece to the larger question of whether deeds of live-in relationships are void ab initio, or they have some merit in the law and can be executed in certain circumstances.

In countries such as the United Kingdom and the United States of America, live-in partners can enter into cohabitation contracts. These contracts are primarily used to protect the rights of the cohabiting partners upon dissolution of the relationship, either by death or dissolution. These generally include, but are not limited to, disclosure of each partner’s assets and liabilities. With respect to property of the partners, the agreement must specify how the parties intend to deal with property owned before the relationship as well as that acquired afterwards. Matters other than property that can form part of such an agreement are support, custody or visitation rights for children born during the relationship and payment of debts before and during the relationship. Inclusion of such clauses will make the agreement holistic and truly lead to protection of the rights of live-in partners.

When cohabitation contracts, or live-in relationship deeds are so framed, the next point of enquiry becomes whether such deeds are opposed to public policy. Not only in India, but in USA and UK as well, cohabitation contracts have been challenged on the ground of violating public policy. There are two public policy aspects implicit in the proposition of legally accepting the validity of cohabitation contracts – the execution of such contracts can lead to dissolution of the institution of marriage, and an increase in cohabitation; and, these contracts may be based on meretricious agreements. The latter was discussed in the landmark case of Marvin v. Marvin[20]:

Adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of sexual services so long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements.[21]

On the question of whether cohabitation agreements discourage marriage, the enquiry will lie in determining whether encouraging marriage is a matter of public policy, or, does it fall within the realm of private lives of people? Historically, marriage has been said to hold a place of extreme significance, both for the individuals as well as for the State. It was considered as the basic unit of society, a constituent element in determining the political theory, and consequently the functioning of the State.[22] It creates strong ties of identity, kinship, mutual interdependence and responsibility[23] and … brings with it a psycho-physical intimacy[24]. Marriage also serves as the backbone for the principle of legitimacy, since human children require a long duration of caring and it is in their benefit that they can associate to an identifiable mother and father as nurturers.[25]

Over the years, marriage has taken an institutional form, acceptable both in society and in religion. This is evident from the sacrosanct status to marriage given under the Hindu Law, wherein it has been considered to be a samskara. Similarly, in Islam, marriage is considered to partake elements of both ibadat i.e. worship and muamlat i.e. daily affairs of men. In Christianity as well, marriages have to be officially validated by a priest and clandestine living together or informal marriages are not accepted.[26]

The social significance placed upon marriage by legitimising it through religious and ceremonial practices reflects the notion of “marriage as a status”. Gradually, however, as with the movement of all States from “status” to “contract”, marital relationships have also moved from “status” to “contract”.[27] As a result of this, people have found the legal space to exercise their option of entering into non-marital unions. Live-in relationships are a form of intimate partner living.

A live-in relationship or cohabitation does not require proof of the couple being akin to spouses. It is thus, an alternate form of living together and founding a family. These relationships find their basis in the will theory of contract.[28] The prime reasons for the growth of live-in relationships have been the freedom associated with this living arrangement, test of emotional and physical compatibility and rejection of restrictions and inequalities that have come about in the institution of marriage.[29] At the same time, cohabitation relationships often involve incidents of marriage such as emotional and physical exclusivity of partners; expectations of a permanent relationship; stability and similar phenomena. Some partners may even comingle their assets, incomes, financial burdens and have children.[30] The main criticism against acceptance of cohabitation relationships is its duration and often impermanence. However, with increasing divorce rates, this argument may not hold tight. In India, the number of divorces has doubled over the past two decades. Though only 1.1 per cent of women are divorced, those in urban areas make up the largest proportion.[31]

In India marriage is the dominant form of intimate partner relationship. Living together, though socially unacceptable is legally acceptable. However, not every relationship qualifies as a live-in relationship, and the strict interpretation laid down by the courts has to be complied with in order to get the protection of the law. Presently, the law provides only limited rights to partners who live together. Maintenance is one such right that has been secured for the female partner, through a catena of judgments. Upon dissolution of the relationship due to separation or death of a partner, the law is silent on property rights, or even the matters of custody of children who are born during the relationship. If live-in deeds provide for the management of property, they will indeed secure rights of both parties, especially when this cannot be achieved by the succession laws of the country.  It will ensure that the partner with lower earnings has an income to rely on upon dissolution; and, the higher earning partner is not exploited eventually. Providing for child custody will also reduce unnecessary litigation and provide a harmonious environment for the upbringing of the child. The arrangement can however, be challenged in the court if it is found to not be in the best interest of the child. Mere mentioning of the relationship as a live-in relationship should also not be considered as a ground for rejecting the contractual arrangement if it can be established by the parties that their relationship is equivalent to a de facto marriage. It is here that the tests laid down by the Supreme Court will be useful. It will also exclude the possibility of the relationship being a meretricious one, as was cautioned in Marvin v. Marvin.[32]

Public policy is an unruly horse, but must change with the changing times. The same can even be said about immorality as a ground for not executing a contract. The aim of public policy is to preserve public welfare, wherein, individual freedom is restricted to ensure the general good of the society. Immorality too aims to protect the larger societal good. In light of this, it is imperative to note that the Parliamentary Standing Committee itself recognised the existence of live-in relationships in India. The author submits that merely mentioning that a relationship is a live-in relationship and not a marital relationship should not be considered immoral. Further, when the live-in relationship deed provides for protection of property, financial and custody and guardianship rights, it must be executed, subject to the principles of property and guardianship laws.


*Assistant Professor of Law, Institute of Law, Nirma University. Author can be reached at shreya.srivastava@nirmauni.ac.in

[1] 2021 SCC OnLine P&H 920.

[2] Evidence Act, 1872.

[3] Ibid, Section 114 (g).

[4] Ibid, Section 50.

[5] Protection of Women from Domestic Violence Act, 2005.

[6] Ibid, Section 2(f).

[7] Department-Related Parliamentary Standing Committee on Human Resource Development on the Protection from Domestic Violence Bill, 2002 (Report No. 124).

 [8] D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

[9] Ibid.

[10] (2013) 15 SCC 755.

[11] (2018) 16 SCC 602.

[12] Bhakhodiya Ashokbhai Rameshbhai v. State of Gujarat, 2020 SCC OnLine Guj 2984

[13] 2017 SCC OnLine P&H 5409.

[14] 2015 SCC OnLine P&H 20771.

[15] CRWP No.4533 of 2021, decided on 18-5-2021.

[16] 2020 SCC OnLine P&H 2340.

[17] 2021 SCC OnLine P&H 921.

[18] Writ C No. 11108 of 2020, decided on 23-11-2020.

[19] 2021 SCC OnLine P&H 920.

[20] (1976) 18 Cal 3d 660.

[21] Ibid.

[22] Elizabeth Brake, Marriage and Domestic Partnership, Stanford Encylopaedia of Philosophy (12-3-2021, 10:00 a.m.) <https://plato.stanford.edu/entries/marriage/#:~:text=The%20state%20arises%20from%20component,theory%20(Politics%2C%201264b)>.

[23] Marriage and the Public Good: Ten Principles (Princeton, New Jersey, 2006), [Philosophy (12-3-2021, 10:30 a.m.)] < http://www.laikos.org/PublicGood.pdf>.

[24] E.O. James, Marriage and Society, (Hutchinson University Press, London, 1952)

[25] Kris Franklin, A Family Like any Other Family: Alternative Methods of Defining Family in Law, 18 NYU Rev. L. & Soc. Change 1027, 1033 (1990).

[26] Lord Hardwicke’s Marriage Act of 1753 declared that all marriage ceremonies must be conducted by a Minister in a Parish, Church or Chapel of the Church of England to be legally binding.

[27] Janet Halley, What is Family Law?: A Genealogy Part I, 23 Yale JL & Human, 52, 56 (2011)

[28] Ibid.

[29] State v. Manu Gopal, SC No. 456/2017, decided on 5-1-2019 (Delhi District Court).

[30] See Newcomb, Cohabitation in America: An Assessment of Consequences 43 (3) J. Mar & Fam. (1979); Glick & Norton, Marrying, Divorcing, and Living Together in the US Today, 32(5) Population Bulletin 32 (1977).

[31] UN Women Report on Progress of the World’s Women 2019-2020: Families in a Changing World, United Nations in India, <https://in.one.un.org/un-press-release/progress-worlds-women-report-2019-2020/> (13-3-2021, 9:30 p.m. )

[32] (1976) 18 Cal 3d 660.

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., held that

Protraction and prolongation of litigations affecting women can never be encouraged by the Courts.

Husband and wife used to live in Singapore and when a misunderstanding arose between the two, the husband stated that the respondent/wife deserted him in the year 2018. Hence, the husband sought the relief of Restitution of Conjugal Rights by filing a petition in the Family Court, Chennai.

Wife had filed a Domestic Violence Complaint against the husband and further filed the maintenance seeking maintenance.

Under the above-stated circumstances, an instant transfer petition was filed to transfer the Domestic Violence Act case.

Questions of Legal Importance

Whether the High Court in the exercise of power of superintendence under Article 227 of the Constitution of India transfer the criminal proceedings from the Criminal Court to the Family Court, when the powers of transfers of cases are already conferred on the High Court under the provisions of the Criminal Procedure Code and Civil Procedure Code?

Presuming, the powers under Article 227 of the Constitution of India is exercised, in order to transfer a criminal case to a Civil Court or Family Court, what would be the consequences and the provisions governing such transfers and the Constitution of Special Courts under the Special enactments?

Whether the decision of this Court in Mohana Seshadri v. Anuja, CDJ 2020 MHC 944, can be followed as a precedent in the present matter?

Analysis

The above case cited by the petitioners need not be relied upon for the purpose of entertaining a transfer petition under Article 227 of the Constitution of India. In the present petition, this Court has to consider the provisions of the Special Acts namely the Domestic Violence Act, Family Courts Act and also the Code of Criminal Procedure for the purpose of forming an opinion.

Domestic Violence Act

Provisions of the ‘DV Act’ are unambiguous that an application is entertainable before the Judicial Magistrate Class I or the Metropolitan Magistrate as the case may be for seeking one or more reliefs under the Act.

Proceedings under the ‘DV Act’ are regulated under the Code of Criminal Procedure as contemplated under Section 28 of the ‘DV Act’. Thus, a complaint registered under Section 12 of the DV Act is criminal proceedings on the criminal side of the judiciary and accordingly the said proceedings are to be regulated under the Criminal Procedure Code.

Generalia Specialibus non derogant (when there is a conflict, general and special provision, the later will prevail)

It is to be held that Special Act will prevail over the General Laws.

Therefore, when a Special enactment is in force to deal with certain specific offences, in the present context, Domestic Violence Act, then the other general laws cannot have any application and all such Domestic Violence’s are to be tried by following the procedures as contemplated under the Special Enactment and this being the legal principles, the application under

Section 12 of the Domestic Violence Act cannot be construed as a civil natured proceeding.

Family Courts Act, 1984

Applications which are all filed seeking maintenance for wife, children and parents alone shall be tried by exercising the powers conferred under Section 7(2)(a) of the Family Courts Act, 1984. Hence, with regard to the jurisdiction as contemplated under the DV Act, the Family Courts/Civil Courts are not having jurisdiction to deal with certain offences defined under the provisions of the DV Act.

Criminal Procedure Code

Section 407 of the Criminal Procedure Code provides Power of High Court to transfer cases and appeals.

 Hence, the High Court is empowered to transfer the case from one Court to another Court as the case may be as contemplated under the provisions of Section 407 of the CrPC.

Civil Procedure Code

Under Section 24 of CPC, Civil Proceedings can be transferred from one Civil Court to another Civil Court.

 However, Criminal Proceedings cannot be transferred from one Criminal Court to a Civil Court/Family Court.

Article 227 of the Constitution of India

In the Supreme Court decision of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, there was an elaborate consideration of High Court’s Power of Superintendence under Article 227 of the Constitution.

Power of High Court

High Court’s power under Article 227 to be plenary and unfettered but at the same time, the High Court should be cautious in its exercise.

“…in cases, where the High Court exercise its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claiming it as as a matter of right.”

Jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Jurisdiction under Article 227 is exercised by the High Court for the vindication of its position as the highest judicial authority in the State

Scope of the power under Article 227 of the Constitution cannot be exercised overriding the provisions of the Special Enactments, wherein the specific reliefs are provided for redressal.

Thus, the proceedings instituted under the Family Courts Act before the Family Courts are to be regulated in accordance with the provisions as contemplated.

Equally, an application filed under Section 12 of the Domestic Violence Act is to be regulated under the provisions of the ‘DV Act’ and the application registered under Section 12 of the Domestic Violence Act is a criminal proceedings and the entire provisions of the ‘DV Act’ unambiguously portrays that the nature of proceedings are under criminal law. The procedures as contemplated under the Criminal Procedure Code is to be followed for trial of the cases under the ‘DV Act’.

Thus, there is no reason to form an opinion that application filed under the ‘DV Act’ is a “Civil natured proceeding”.

Bench added that when the scope of Article 227 does not permit the High Court to entertain a transfer petition to transfer a criminal case to a Civil Court or a Civil case to a Criminal Court, then conversion of such power under Article 227 for transfer of cases is certainly beyond the scope of the principles settled by Supreme Court decisions.

Transfer not Traceable

The power of transfer conferred under the Code of Criminal Procedure and the Code of Civil Procedure are expected to be exercised by the High Courts and such power of transfer is not traceable under Article 227 of the Constitution of India.

Multiple options are provided under the special enactments, facilitating the aggrieved women to redress their grievances which are to be dealt in accordance with the provisions of such enactments and speedy disposal being the paramount importance, Courts are bound to ensure all such cases, affecting women must be disposed of at the earliest possible.

Proceedings under the Domestic Violence Act

Further, the Court added to its elaborative analysis that the initiation of proceedings under the Domestic Violence Act with reference to the bodily injuries contemplated under the provisions of the Act, are Criminal acts and therefore, the Domestic Violence proceedings are criminal in nature and to be tried by the competent Judicial Magistrate.

Offences/Bodily Injuries as contemplated under the DV Act are against the society at large and therefore, the proceedings are criminal and competent criminal Court of Law is empowered to try those cases.

In view of the above discussion, Court concluded that criminal proceedings instituted under the Domestic Violence Act cannot be converted as Civil proceedings nor construed as proceedings of civil nature, so as to transfer such criminal proceedings before the Civil Court or Family Court by exercising the supervisory powers under Article 227 of the Constitution of India.

Therefore, any transfer petition, if at all filed to transfer a case registered under the Domestic Violence Act must be entertained only under the Code of Criminal Procedure and certainly not by invoking power under Article 227.

On transferring the DV Act proceedings to Family Court, the appropriate reliefs are depraved.

Hence, the objections regarding the maintainability of the transfer petition raised by the Registry, High Court of Madras, is perfectly in consonance with provisions of law and said objections stands confirmed. [P. Arun Prakash v. S. Sudhamary, 2021 SCC OnLine Mad 1954, decided on 01-04-2021]

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., dealt with the provisions in regard to the concept of the shared household while referring to a very pertinent decision of the Supreme Court.

In the instant case, the petitioner is stated to be the daughter-in-law and respondents her parents-in-law.

It has been added that multiple proceedings have been pending between the husband and wife but the focus and purpose due to which the parties were present before the Court was the Agreement to Sell entered between respondent 1 mother-in-law with third-party qua property which was purportedly in her name.

Shared Household Property

As per the petitioner, the property in question was a shared household property where she had lived with her husband due to which the said property could not be alienated from the said property.

Petitioner with regard to the above, filed an application under Section 19(1)(d) of the Protection of Women from Domestic Violence Act, 2005 (DV Act) and Magistrate after issuance of notice, vide an order granted interim relief to petitioner restraining respondents from selling or alienating the property in question.

Revision Petition was preferred against the interim order before the Sessions Court under Sections 395/397 CrPC which was converted into an appeal and vide judgment dated 03-05-2021, the said appeal was allowed.

Petitioner sought aside the judgment passed by the Appellate Court.

Analysis, Law and Decision

Bench perused the impugned judgment, provisions of DV Act as well as Supreme Court’s decision in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414.

What was the crux of the matter?

Petitioner filed an application to restrain the parent-in-law from selling or alienating the subject property. Since Agreement to Sell had to be executed with a limited time frame, aggrieved parents-in-law filed an appeal against the restraint order, which was allowed by the Appellate Court after giving due opportunity of being heard.

Appellate Court referred to Section 2(s) of the Statute, which defined shared household and relied upon the Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 where the rights of an aggrieved woman as provided under Sections 17 & 19 of the Statute, came to be revisited by the Supreme Court.

Appellate Court had observed that daughter-in-law was not residing at the house in question on the day of presentation of the complaint nor any time soon before. It was added to the observation that she was occupying a staff quarter allotted to her husband and lived in the house in question only for a short duration and occasionally visited parents-in-law, to say only thrice.

What did the appellate court held?

“…that these short durational visits or stay of daughter-in-law at the house of the parents-in- law would not get the house a colour of being a shared house hold.”

Bench in the instant case agreed with the ratio laid down by the Supreme Court decision in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, however, the facts were different in the present case in comparison to the Supreme Court decision.

High Court added that the fact remained that petitioner never resided with parents-in-laws and always stayed at the place of posting of her husband and visited them occasionally.

Bench added that the intent and purpose of DV Act was to safeguard the interest of distressed women.

Though it is stated that the provisions of Section 17 of the DV Act stipulate that every woman in a domestic relationship shall have a right to reside in the shared household whether or not she has any right, title or beneficial interest in the same, but in the present case, petitioner had in fact neither permanently nor for a longer period resided in the house of parents-in-law and so, it could not be termed as ‘shared household’. Hence, there was no question of evicting or dispossessing her from there.

Pertinent Question in the present case

Whether the old aged parents-in-law, who at the fag-end of their life, wish to sell off their property to relocate themselves in a better place of their choice, be restrained to sell of the house or permitted to do it?

Supreme Court’s observation in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 was referred to, wherein it was stated:

90. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of the 2005 Act or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by the High Court [Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886] in para 56 adequately balance the rights of both the parties.”

Hence, in light of the above observations, Court found that the impugned judgment did not suffer from illegality or infirmity.

Therefore, the present application was accordingly dismissed while making it clear that the observations made by this Court are in the peculiar facts of the present case and shall not be treated as a precedent in any other case. [Vibhuti Wadhwa Sharma v. Krishna Sharma,2021 SCC OnLine Del 2104, decided on 17-05-2021]


Advocates before the Court:

For the petitioner: Jatan Singh, Saurav Joon & Tushar Lamba, Advocates

For the respondents: Roopenshu Pratap Singh, Advocate