Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while addressing the present petition issued directions with regard to the counselling process at the time of admission into Medical Postgraduate.

Petitioner a qualified doctor filed the present petition praying to preserve his admission at the Maulana Azad Medical college for MD (Pathology).

Petitioner belongs to the Economically Weaker Section and holds an EWS certificate from the State of Kerala. Petitioner had appeared for NEET Examination on 5-01-2020.

After the results, as a procedural step, the petitioner had to register himself for counselling for various quotas wherein he applied for the All India Quota, Central Inst. Quota and the Delhi University Quota.

Petitioner had obtained a seat for MD (Pathology) in MAMC and after the process for admission was completed in the evening he was informed by the college staff that he had been wrongfully allotted a seat under the Delhi University Quota and thus his admission could not be confirmed.

He did not get any clarity from the authorities on the said decision and hence filed the present petition.

Decision and Analysis

Delhi University Quota

Bench on perusal of the averments and facts of the present matter observed that there was no doubt about the fact that the petitioner ought to have been conscious of the fact that he would not have been eligible under the Delhi University Quota.

Prior to the registration for counseling, the eligibility criteria for each of the institutional quotas are already set.

Court observed that in order to avail of a PG seat in Delhi University Quota, the candidate must have passed his/her final MBBS from Delhi University.

Petitioner is clearly not qualified from the Delhi University Quotaand he was at best entitled to a seat in the All India Quota or in the State Quota for Kerala depending upon his rank.

Hence in view of the above-stated position, Court opines that the petitioner does not satisfy the eligibility for being considered in DU Quota and therefore the relief sought is not tenable.

Further, the Court added that the said confusion could have been avoided if there were proper checks at different levels of counselling.

The Court while being empathetic with the position in which the Petitioner currently finds himself, however, cannot direct confirmation of his admission in MAMC under the Delhi University Quota.

Bench directed the State of Kerala to allot any unfilled seat to the petitioner in a post-graduate medical course to enable him to take admission on or before 31-08-2020.

To avoid situations as arose in the present case, the Court passed the following directions:

  • At the time of registration for counselling there shall be a specific field in which candidates would be required to fill up with details of the college and the University from where they have completed their M.B.B.S. course.
  • Upon the said field being incorporated, the system should be designed in such a manner that only those quotas for which the candidates are eligible would be made available to the candidates.
  • After registration, prior to the allotment of seats, the data submitted by candidates shall be cross-verified with the data available with MCC so that wrong allotment is not made.

In view of the above, the present petition was disposed of. [Dr Machat Balakrishnan Menon v. Medical Council of India, 2020 SCC OnLine Del 1086, decided on 25-08-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Goutam Bhaduri, J., while dismissing the present petition held that,

Legislature has before it a full panoply of legislative powers and as an incident of those powers, the express constitutional authority to disapprove an ordinance. If an ordinance has to continue beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the legislature incorporating its provisions.

Petitioners counsel submitted that notification inviting application by Public Service Commission respondent 1 was published on 27-11-2019 pursuant to official communication of 23-11-2019.

It has been submitted that the above-said notification did not carve out any space for the Economically Weaker Section (EWS) which was brought about by the Constitution (One Hundred and Third Amendment) Act, 2019.

Governor of Chhattisgarh had promulgated the Ordinance of 2019 as the State Legislature was not in session.

Legislative Assembly of the State was held on 2nd and 3rd October, 2019, but no legislative business was laid held. For the legislative business, the Assembly started on 25-11-2019 till 02-12-2019 and therefore the ordinance which was promulgated on 04-09-2019 would hold the field.

If the State took the decision to conduct an examination prior to publication of the notification, it would amount to playing fraud with the Constitution. He also referred to the case Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, and submitted that laying of an Ordinance before the legislature is mandatory.

State Counsel submitted that the Ordinance by the Governor was on 04-09-2019 and re-assmbly took place on 02-10-2019, therefore by virtue of Article 213 (2), six weeks expired on 13-11-2019 and the Ordinance ceased to operate. Subsequently, even if re-assembly of State Legislature started on 25-11-2019 till 02-12-2019 even after expiry of six weeks therefrom ordinance was not laid in the House, therefore, mandamus to this effect cannot be issued the Court.

Analysis

“Article 174 shows that the Governor has power to call for the sessions of the State Legislature and the time limit gap of 6 months is provided. Article 213 further gives power to the Governor to promulgate the Ordinance during the recess of Legislature.”

Since Article 213(2) mandates that the ordinance will expire from six weeks of the date of reassembly of the legislature, the ordinance having not been laid before the legislative assembly, within six weeks it would expire on 13-11-2019. Consequently, the said Article shows that after 13-11-2019, the ordinance ceased to function in operation.

Thus, keeping in view the facts and circumstances of the case and on perusal of the above-stated analysis, it is apparent that, if the State has not placed ordinance for EWS in the Legislative Assembly, the Court cannot issue a writ to promulgate the ordinance by way of mandamus on the principles of separation of powers.

Court also clarified that the reliance place on Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1 does not endorse the view that if the ordinance is not placed within the time prescribed under Article 213(2), the Court will assume such power of effective review or reconsideration.

Laying of an Ordinance before the State Legislature sub-serves the purpose of Legislative control over the ordinance-making power.

Therefore, Court cannot issue a writ of mandamus to Legislature as it would amount to encroaching the turf of the State Legislature. [Irfan Qureashi v. Chhattisgarh State Public Sevice Commission, 2020 SCC OnLine Chh 7, decided on 07-02-2020]

Op EdsOP. ED.

Let’s have a look at the Most-Viewed Blog Posts of the SCC Online Blog in the Year 2019:

“Over the years there have been many important changes in the way cheques are issued/bounced/dealt with. Commercial globalisation has resulted in giving a big boost to our country. With the rapid increase in commerce and trade, use of cheque also increased and so did the cheque bouncing disputes.[1] The object of Sections 138-142 of the Negotiable Instruments Act, 1881  is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques.[2]”

Section 498-A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed. The expression “cruelty” has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of “cruelty”.

  • Economically Weaker Section (EWS) | Reservation For EWSs In Direct Recruitment in Civil Posts And Services In Government of India

  • Adultery [S. 497 IPC and S. 198(2) CrPC]

    The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”[1]. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

    Under Indian law, Section 497 IPC  makes adultery a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. The offence of adultery under Section 497 is very limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a man who had sexual intercourse with the wife of another man without the latter’s consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence[2]. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed, with the permission of the court. It does not consider the wife of the adulterer as an aggrieved person.

    Section 497 IPC and Section 198(2) CrPC together constitute a legislative packet to deal with the offence of adultery[3]which have been held unconstitutional and struck down by the Supreme Court in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

  • Maintenance – Wife

“Maintenance” is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. Various laws governing maintenance are as follows:

for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956

for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986

for Parsis – Parsi Marriage and Divorce Act, 1936

for Christians – Divorce Act, 1869

secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954.

  • Live-In Relationship and Indian Judiciary

    It is being truly said that the only thing which is constant in this world is change. Indian society has observed a drastic change in its living pattern in the past few years. People are slowly and gradually opening their minds towards the idea of pre-marital sex and live-in relationships. However, this change has been continuously under criticism and highly discussed as such concepts lack legality and acceptance by society. Unlike marriage, in live-in relationships, couples are not married to each other but live together under the same roof that resembles a relation like marriage. In other words, we can say it is a cohabitation. In India, only those relations between a man and a woman is considered to be legitimate where marriage has taken place between the two based on existing marriage laws otherwise all other sort of relationships are deemed to be illegitimate.

    The reason behind people choosing to have a live-in relationship is to check the compatibility between couples before getting legally married. It also exempts partners from the chaos of family drama and lengthy court procedures in case the couple decides to break-up. Whatever the reason, it is very evident that in a conventional society like ours, where the institution of marriage is considered to be “sacred” an increasing number of couples choose to have a live-in relationship, even as a perpetual plan, over marriage. In such circumstances, many legal and social issues have arisen which have become the topic of debate. With time many incidents have been reported and seen where partners in live-in relationships or a child born out of such relationship have remained vulnerable for the very simple reason that such relationships have been kept outside the realm of law. There has been gross misuse by the partners in live-in relationships since they do not have any duties and responsibilities to perform. This article seeks to analyse the judicial response to the concept of live-in relationships so far. It also talks about the rights available to live-in partners in India and also, what is the status of children born out of such relationships.

  • Bom HC | Order of Maintenance under DV Act set aside in absence of any act of Domestic Violence committed by Husband

  • Maintenance – Children and Parents

In India, beneficial provisions for maintenance of children and parents are provided under various Acts. Objective of such provisions is to achieve a social purpose and to prevent vagrancy and destitution and to provide simple, inexpensive and speedy mechanism for providing support and maintenance to children and parents.

“the limited interest or Hindu Woman’s Estate [acquired under Section 3 of the Hindu Women’s Right Property Act] shall be held by the widow as full owner in terms of provisions of Section 14(1) of Hindu Succession Act, 1956?

“Section 23 of the DV Act does not provide a substantive right to parties but is a provision which empowers the trial court to pass an order granting interim maintenance in a petition filed under Section 12 of the DV Act. Merely because the trial court has not exercised the power under Section 23 of the DV Act, when a substantive petition under Section 12 of DV Act was filed and chose to pass an order only when a separate application under Section 23 of the DV Act was filed, does not mean that a Magistrate does not have the power to pass an order with effect from the date of filing of the substantive petition under Section 12.”


† Legal Editor, EBC Publishing Pvt. Ltd.

Amendments to existing lawsLegislation Updates

The President on 12-01-2019 assented to the Constitution (One Hundred and Twenty- fourth Amendment) Bill, 2019. It was passed by the Rajya Sabha on 09-01-2019 as The Constitution (One Hundred and Twenty- fourth Amendment) Bill, 2019.

Highlights of the Act are as under:

Amendment of Article 15:

In Article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

‘(6) Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent the State from making,—
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Amendment of Article 16:

In Article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

“(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the
existing reservation and subject to a maximum of ten per cent of the posts in each category.”

Explanation.—For the purposes of Article 15 and Article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’