Case BriefsHigh Courts

Allahabad High Court: Brij Raj Singh, J., expressed that, a father is legally bound to maintain his child according to the status and lifestyle.

Instant revision was preferred to set aside the decision passed by the Principal Judge under Section 125 CrPC after summoning the records of the lower Court with a prayer to stay implementation and operation of the said order and to direct the OP-2 to provide Rs 10,000 per month towards interim maintenance to revisionist and Rs 40,00,000 for the purpose of marriage and education during the pendency of revision.

The revisionist had filed through her mother for granting maintenance of Rs 5,000 per month to be paid by her father, the OP 2.

Analysis and Decision

High Court took note of the settled law enunciated by the Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 324, that both, the working mother and working father have to take the liability of the child and if the mother is working, it does not mean that the father will be absolved from taking responsibility of his child. The father is legally bound to maintain his child according to the status and lifestyle.

The Court stated that in the present matter, lower Court’s finding that the revisionist was not showing emotional feeling and compassion towards her father on the dates when the case was fixed for hearing, has got no legs.

It is the duty of the father to maintain her child and the revisionist being daughter is entitled to seek maintenance from her father. 

Further, this court opined that the lower Court committed an error while making an observation that the mother was working in H.A.L, therefore, she must maintain the revisionist. The finding was further incorrect, wherein, it was observed that the mother was maintaining her daughter since 1991 and thus it was presumed that all the needs of the child were being fulfilled.

It was also noted that OP 2 indicated that his total salary was Rs 78, 825 out of which he had deposited Rs 45,000 in PF just to show that he was getting a lesser income of Rs 23,025 per month. He deposited the heavy amount in the PF so that the revisionist may not claim the appropriate maintenance amount.

In view of the above findings, Court did not find the order passed by the lower Court to be sustainable. Hence, the revision was allowed. [Ankita Dikshit v. State of U.P., Criminal Revision No. 398 of 2016, decided on 13-5-2022]


Advocates before the Court:

Counsel for Revisionist:- Mohammad Aslam Beg

Counsel for Opposite Party:- Govt. Advocate, Akhilesh Kumar Srivastava

Appointments & TransfersNews

The Supreme Court Collegium has approved the proposal for the elevation of the following Judicial Officers as Judges in the Patna High Court:

1. Shri Shailendra Singh,

2. Shri Arun Kumar Jha,

3. Shri Jitendra Kumar,

4. Shri Alok Kumar Pandey,

5. Shri Sunil Dutta Mishra,

6. Shri Chandra Prakash Singh, and

7. Shri Chandra Shekhar Jha.


Supreme Court of India

[Statement dt. 4-5-2022]

Case BriefsHigh Courts

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

The facts of the case are such that the petitioner in partnership with one P. Praveen Kumar was carrying on mechanical, electrical and electronic engineering works in the name of Isha Engineering with effect from 22-2-200. The petitioner registered his establishment with the respondent corporation i.e. Employees State Insurance i.e ESI. It was alleged that as the firm sustained losses, the partnership was closed in the year 2011 and since then the petitioner had no contacts with the Managing Partner. The petitioner failed to pay contributions for certain years and notices were issued which were not responded.  Thus, ESI determined contribution under Section 45 ESI Act and issued order under Section 45A as none of the partners were able to bring any record regarding closure of the establishment. Despite bringing the said fact to the notice of the respondents, the respondents were insisting for payment of the said amount. As such the petitioner was constrained to file the instant Writ Petition.

Counsel for the respondent submitted that the petitioner had got an alternative and effective remedy under Sections 75 of ESI Act. The petitioner filed the writ petition invoking the extraordinary jurisdiction of this court without availing the said remedy. As such the writ petition was liable to be dismissed on the above ground. It was further submitted that both the partners have overall supervision and power over the business of the firm and both of them were responsible for conducting the affairs of the business which would mean that the petitioner was not a sleeping partner. Even if the whereabouts of the Managing Partner were not known, the petitioner was the responsible person to clear the recovery dues. The respondent Corporation followed the due procedure as per the provisions of ESI Act, 1948. The petitioner failed to produce relevant documents or proof of evidence about the closure of the unit and prayed to dismiss the petition by vacating the interim order.

The Court relied on judgment Whirlpool Corporation v. Registrar of Trademarks, Mumbai, (1998) 8 SCC 1  and observed that alternative statutory remedy is not a constitutional bar to the High Court’s jurisdiction under Article 226 of the Constitution of India in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged.

The Court further observed that in the present case the writ petition is not filed for enforcement of any of the Fundamental Rights nor there was any violation of the Principals of Natural Justice as show cause notice was issued to the petitioner and opportunities are provided to the petitioner to submit his written representation as well as for personal hearing, some of which were availed by him by sending his representative and some not availed by him even after receipt of notice. The order passed is not without jurisdiction nor are vires of any Act challenged in this case. The petitioner failed to produce the documentary evidence in support of his contention about closure of the firm before the concerned authorities. The petitioner directly approached this court by filing the writ petition without availing the statutory remedy of appeal provided under the Act. The High Court cannot adjudicate the disputed issues and such disputed issues are to be decided with reference to the original documents and evidences to be produced by the respective parties.

The Court thus held the Writ Petition is disposed of directing the petitioner to approach the EI Court under Section 75 of the ESI Act by filing an appropriate application and the EI Court is directed to dispose of the said application in accordance with law. The respondent shall not take any coercive steps for recovery of the purported due amount from the petitioner for a period of 60 days. [C. Chandra Mohan Reddy v. UOI, Writ Petition No. 30176 OF 2021, decided on 12-04-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Hot Off The PressNews

President appoints (1) Miss Justice Kesang Doma Bhutia, S/Shri Justices (2) Rabindranath Samanta, (3) Sugato Majumdar, (4) Bivas Pattanayak, and (5) Ananda Kumar Mukherjee, Additional Judges of Calcutta High Court to be Judges of Calcutta High Court with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 27-4-2022]

Appointments & TransfersNews

President appoints Justice Satyen Vaidya, Additional Judge of the Himachal Pradesh High Court, to be a Judge of the Himachal Pradesh High Court with effect from the date he assumes charge of his office.


Ministry of Law and Justice

[Notification dt. 27-4-2022]

Case BriefsHigh Courts

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

A petition was filed challenging the order wherein the Family Courts directed the petitioner/husband to pay interim maintenance of Rs 20,000 per month to the respondent/wife.

Analysis, Law and Decision


Section 125 CrPC was enacted to ensure that women and children are provided maintenance by the husband so as to protect them from a life of potential vagrancy and destitution.

Supreme Court had consistently upheld that the conceptualization of Section 125 was meant to ameliorate the financial suffering of a woman who had left her matrimonial home; it is a means to secure the woman’s sustenance, along with that of the children, if any.

“…if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities.”

The underlying purpose and social context of Section 125 CrPC was examined by the Supreme Court in Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.

Hence, the Court expressed that the purpose of Section 125 CrPC is to provide a speedy remedy for the supply of food, clothing and shelter to the deserted wife.

With regard to interfering with the order of the Courts below, the Bench stated that,

Judicial discipline, circumspect this Court from interfering in an Order rendered by the Courts below and only justifies interference if the Order is egregious in nature and suffers from legal perversity.

Bench found the impugned order passed by the Family Court to be well reasoned, hence it did not warrant any interference. [Jitendra Kumar Garg v. Manju Garg, 2022 SCC OnLine Del 1180, decided on 26-4-2022]


Advocates before the Court:

For the Petitioner:

Mr. Rajinder Mathur and Akshat Singhal, Advocates

For the Respondent:

None

Case BriefsHigh Courts

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

The applicant had circulated the matter for urgent listing and when the Court raised a query about whether there was any urgency as to take the matter out of turn, the applicant’s counsel, Anjali Patil went totally off the tangent and made allegations that this Court was giving priority to certain matters and to certain advocates and this insinuated that the Court was not fair and biased.

Further, it was also complained by the counsel that the litigants do not get justice from the Court.

She threatened that she would lodge a complaint before the Chief Justice about conduct of this Court and further sought time to place the facts on record on an affidavit.

“Advocate has every right to protect interest of his/her clients. An advocate is answerable to his/her clients and the frustration of an advocate when the matter gets adjourned for whatsoever reason or does not reach the board is understandable.”

High Court remarked that, Anjali Patil, Advocate for the applicant grossly overstepped the limits of propriety when she made imputations of partiality and unfairness in the open Court. Her conduct was highly unprofessional and unbecoming of an advocate.

Lastly, the Bench stated that,

“It has to be borne in mind that casting scurrilous aspersions not only has the inevitable effect of undermining the confidence of the public in the judiciary but also has the tendency to interfere with the administration of justice.”

[Dipak Kalicharan Kanojiya v. State of Maharashtra, 2022 SCC OnLine Bom 872, decided on 19-4-2022]


Advocates before the Court:

Ms. Anjali Patil i/b. Nouman Shaikh for the Applicant.

Mr. S.H. Yadav, APP for the State.

Case BriefsHigh Courts

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

Instant petition under Section 482 CrPC had been filed for setting aside the order passed by the Special Judge and directions for the resignation of FIR have also been sought.

Petitioner’s Counsel submitted that the petitioner was the Director and authorized representative of the Indian Fitness Connect Private Limited. Ozone Spa Private Limited filed an application under Section 156(3) CrPC against the petitioner and other Directors of India Fitness Connect which was pending before the Metropolitan Magistrate.

Petitioner alleged that the said complainant had sought to influence the Court of Metropolitan Magistrate.

High Court found that there was absolutely no merit in the present petition.

Further, the Bench added that Special Judge was justified in disallowing the application under Section 156(3) CrPC and directing the registration of an FIR, as no police investigation was required in the matter. However, it was the view of this Court that the Special Judge erred in allowing the petitioner to lead evidence in the complaint filed by her.

Additionally, the order of the Metropolitan Magistrate before whom the complaint case against the petitioner was pending, was clearly a recusal order. Supreme Court’s decision in Assn. v. Union of India, (2016) 5 SCC 1 while dealing with the issue of recusal observed that:

“A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression that the Judge had been scared out of the case, just by the force of the objection…..”

The Bench observed that,

“…an investigation into the cause/reason for recusal by a Judge, particularly, by a litigant, would itself be an interference with the course of justice.”

 Court also added that, had a Judge refrained from giving a reason for recusal, no one can insist on the Judge making such disclosures. The discretion of the Judge concerned in the matter of disclosure is absolute.

It was noted that the petitioner sought full disclosures by forcing the police to make inquiries from the Metropolitan Magistrate, who in order to ensure fairness in the trial, chose to recuse.

It was for the concerned Metropolitan Magistrate to decide whether to initiate any contempt or other criminal proceedings against the petitioner and the “known person”. The learned Metropolitan Magistrate did not find any need to do so and it is not for the petitioner to question that decision, which is what she is seeking to achieve by insisting on the registration of an FIR and filing a complaint case under Section 200 Cr.P.C. To that extent the refusal of the police to register the FIR and the refusal of the learned Special Judge to advise the registration of the FIR are both proper.

Hence, the petition filed by the petitioner seeking registration of the FIR and quashing of the order of the Special Judge dated 16th July, 2020 was dismissed. [Sherry George v. GNCTD, 2022 SCC OnLine Del 1031, decided on 13-4-2022]


Advocates before the Court:

For Petitioner: Mr. Ankur Mittal and Mr. Abhay Gupta, Advocates.

For Respondent: Manjeet Arya, APP

Case BriefsHigh Courts

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

By the application under Section 482 of the Code of Criminal Procedure, the applicants prayed for quashing of the entire criminal proceedings under Sections 406 IPC and Section 6 of the Dowry Prohibition Act on the basis of compromise arrived between the parties.

Complainant had filed a complaint arraigning the four accused inter alia with the allegations that the marriage of her daughter was fixed with applicant 1. Pre-marriage ceremonies were held, in which Rs 100,000 was given to Mahesh Yadav, one gold ring and sum of Rs 11,000. In addition, thereof, money and clothes were given to the person attended the ceromancies. The Complainant had also made the bookings of all necessary things for which about Rs 50,000 was given as advance. Later, demand of Rs 50,000, motorcycle, cash and gold chain was made by the accused.

In view of the complaint, the Magistrate summoned the applicants to face trial. The said summoning order has been challenged in the present application.

After this Court’s order on 3-32022, the applicants kept playing hide and seek with the Court and tried to obtain interim order from this Court by hook or crook and when the applicants failed to achieve their nefarious design, when the case was taken up by applicants counsel that the applicants were not responding to calls and the Court may pass orders.

In Court’s opinion, the applicants tried to misguide the Court by stating that compromise had been arrived between the parties, but the fact was that no compromise had been effected.

“…applicants have not approached this Court with clean hands and filed false affidavit before this Court that the matter has been compromised, therefore, he does not deserve any indulgence by this Court.”

“…it appears that the applicants have no respect to the orders of this court.”

Additionally, the Bench held that the judicial process cannot become an instrument for oppression for abuse or a means in the process of the Court to subvert justice, for the reason that the Court exercises its jurisdiction, only in furtherance of justice.

“The Courts have, over the centuries, frowned upon litigants, who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts.”

Lastly, the High Court held that the applicants had misused the process of law by filing an application under Section 482 Cr.P.C. on false facts that the matter has been compromised

Fairness, purity of mind should be of the highest order to approach the court, failing which the litigant should be shown the exit door at the earliest point of time.[Umesh Kumar Yadav v. State of U.P., Application U/S 42 No. 28762 of 2021, decided on 13-4-2022]


Counsel for Applicant :- Jaysingh Yadav

Counsel for Opposite Party :- G.A.,A Kumar Srivastava, Manish Kumar

Case BriefsHigh Courts

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

Applicant’s application under Section 438 of the Criminal Procedure Code, 1973 for grant of anticipatory bail as he was apprehending his arrest with regard to an offence punishable under Sections 376(2)(N), 328, 313, 506 and 34 of the Penal Code, 1860.

An FIR was lodged against the applicant alleging that she was friends with the present applicant and came to know him in the year 2016 and used to meet him for the purpose of studies only. However, at one point of time he called her to his room and offered her a drink after which she fell unconscious and committed rape on her.

Once the complainant came to her senses, she saw that her clothes were removed by the applicant and when she asked him about the same, he told her that she has had sexual intercourse with her and had also made a video of the same and if she informed to any other person, he would viral the same.

Subsequently, the applicant kept on committing rape on her with the threat that he would viral her video with him. In the year 2017, it was found that she was pregnant. When the applicant came to know about the pregnancy of the complainant, he forced her to terminate the same and thereafter, he again started having physical relationship with her.

The prosecutrix kept on following the dictates of the present applicant and again got pregnant. The said pregnancy was again aborted. Thereafter, the applicant stopped meeting her and subsequently her father engaged her to a boy, but someone sent the applicant the said information, after which the applicant started harassing her parents, her uncle and her fiancé and his family, by sending messages, photographs and also threatened them that if the prosecutrix marry some other person, he would viral her videos and photographs.

Analysis, Law and Decision


High Court observed that the present matter was not a case where the rape was committed on the pretext of marriage, but a case where the prosecutrix was raped after the applicant spiked her drink and took advantage of her.

As per the case diary and various documents filed by the applicant, the prosecutrix and applicant were having live-in-relationship for quite some time and during the said time, the prosecutrix also got pregnant more than a couple of times and got it terminated under the pressure of the present applicant.

In Court’s opinion, the act of the applicant needed to be viewed seriously as how much stress his acts must have caused to the prosecutrix, her family members as also other persons was not difficult to comprehend.

“…the bane of live-in-relationship is a by-product of Constitutional guarantee as provided under Article 21 of the Constitution of India, engulfing the ethos of Indian society, and promoting promiscuity and lascivious behavior, giving further rise to sexual offences. Those who wanted to exploit this freedom are quick to embrace it but are totally ignorant that it has its own limitations, and does not confer any right on any of the partners to such relationship.”

High Court held that the applicant fell into the above-stated trap and portrayed himself as a victim and assumed that once he had a relationship with the prosecutrix, he could also force himself upon her for the time to come having her photographs and video clips, etc.

Therefore, the custodial interrogation of the applicant was necessary. [Abhishek v. State of M.P., Misc. Criminal Case No. 15851 of 2022, decided on 12-4-2022]


Advocates before the Court:

For the applicant: Yogesh Kumar Gupta, Advocate

For the respondent: Amit Singh Sisodiya, G.S. and O.P. Solanki, Objector

Op EdsOP. ED.

Introduction

If the local Government included in this category of reservations such a large number of seats, I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner.

Dr B. R. Ambedkar in Constituent Assembly Debates on 30-11-1948 Part II.[1]

History is witness; making India independent was not a cakewalk. Our great leaders had made every stone unturned to unite the newly independent but fragmented India and shape it into an Akhand Bharat. The integration of States was made possible after pacifying every section of Indian population through deliberate talks, meetings, agreements, and policies. One such policy for socially and educationally backward sections was “reservation”. Back in 1948, when the reservation policy was proposed, it was welcomed with an overwhelming response, yet with an intention to initially limit its implementation to the period of 10 years which could be extended, only if necessary.

Since then, more than 75 years have passed, Indian politicians still seem to play the “reservation” card in pursuit of their political advantage, and Indians are still brawling for quotas in educational institutions and jobs. A little while ago, in January 2019, the present Government brought a new reservation policy granting 10% reservation of seats in government jobs and educational institutions for economically weaker section (EWS). The persons who will fall into the category of EWS are those who, are not covered under the scheme of reservation for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs).[2] This was facilitated by incorporating Articles 15(6) and 16(6) by the 103rd Constitutional Amendment Act on 14-1-2019.[3]

Since then, debates on EWS reservations have been the talk of the town. Numerous writ petitions were filed challenging the constitutional validity of the 103rd Constitutional Amendment in Supreme Court.[4] Though final decision on validity of EWS reservation and 103rd Constitutional Amendment is yet to be decided by the Supreme Court, the State and Union Governments are implementing EWS reservation scheme under the principle that there is always a presumption that the legislature understands and correctly appreciates the need of its own people and therefore, every legislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality.[5]

In July 2021, Central Government issued notifications regarding 27% reservations for OBCs and 10% quota for EWS in NEET All India Quota seats. These created furors among doctors which led them to protest and document multitudinous writ petitions in the Supreme Court. The Supreme Court heard all writ petitions under the case, Neil Aurelio Nunes v. Union of India.[6] Though the Supreme Court passed an interim order in this case allowing 27% reservation to OBC and 10% to EWS for the current academic cycle but the question is still unanswered — Is EWS reservation constitutionally valid?

To derive to the conclusion to this question, the Supreme Court sought clarifications from the Central Government by asking whether the Union Government endeavoured to take any exercise before deciding the criteria for the determination of the EWS category, whether or not EWS criteria is over-inclusive and arbitrary at the same time as it provides identical income cap both for the OBC and EWS categories, whether the regional income differences is considered before arriving at Rs 8 lakh income limit and many more related questions. This article endeavoured to analyse the answers to such micro questions in order to derive at solution to one mega question — Is EWS reservation constitutionally valid?

Definition of economic weaker section —A game changer

Definitions are of the utmost significance in legal thought, and that terms which cannot be defined should be dropped.[7] Central Government defines EWS[8] as –

“Persons who are not covered under the scheme of reservation for SCs, STs and OBCs and whose family has gross annual income below Rs 8 lakh are to be identified as EWSs for benefit of reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc. for the financial year prior to the year of application. Also, persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income:

  1. 5 acres of agricultural land and above;
  2. Residential flat of 1000 sq ft and above;

iii. Residential plot of 100 sq yd and above in notified municipalities;

  1. Residential plot of 200 sq yd and above in areas other than the notified municipalities.”

A bare reading of the definition seems to be clear, comprehensive and unambiguous, but subsequent paragraphs of this article show this definition grossly violates Articles 14[9], 15[10] and 16[11] of the Constitution.

An arbitrary definition

“It is an injustice to treat unequals as equals, just as it is an injustice to treat equals as unequals.”– Aristotle.

Reservation of OBC is based on rule of exclusion which excludes socially advanced sections of people from OBC category (creamy layer) from the purview of reservation. Criteria for determining creamy layer are given under Annexure II of Official Memorandum on Issue of Instructions on Reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes in services under the Government of India.[12] Out of 6 categories that have been set out for determining creamy layer among OBCs, one category is income/wealth test. Sons and daughters of persons having gross annual income of Rs 1 lakh or above for a period of three consecutive years would fall within the creamy layer and would not be entitled to get the benefit of reservation available to the Other Backward Classes.[13] The income slab for ascertaining the creamy layer sections was subsequently raised to Rs 2.5 lakhs, Rs 4.5 lakh, Rs 6 lakhs vide different notifications. The current income slab for creamy layer status has been raised to Rs 8 lakhs per annum.[14] Therefore, income/wealth test to determine rule of exclusion (creamy layer) and rule of inclusion (EWS) for the benefit of reservation is same.

By employing only income/wealth test to determine the category for EWS reservation, the Government has bypassed a catena of Supreme Court judgments[15], where the Court has held that neither income by itself nor caste by itself can be the sole criteria to determine social backwardness, and both income and caste together are relevant in determining the backwardness of citizens but, nevertheless, the Government has brought reservation solely based on economic factor. Not much scrutinising on the debate whether or not it is constitutionally valid to make economic factor sole criteria to determine EWS reservation; this paper will remain focus on analysing the “economic factor” already set by the Government to determine EWS reservation.

Before further examining the income/wealth test of EWS reservation through a hypothetical situation, it is pertinent to understand the meaning of “socially and educationally backward”. In Indra Sawhney v. Union of India[16] the following observation was penned down:

The expression “backward class of citizens” is neither defined nor explained in the Constitution…. However, the backward class or classes can certainly be identified with reference to caste along with other criteria nature of traditional occupation or trade, poverty, place of residence, lack of education and these factors are not exhaustive and in communities where caste is not recognised by the above recognised and accepted criteria except caste criterion…a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservations can be made in the favour of the caste.

Considering a hypothetical situation, where there are 2 families, one is General category (herein referred as Family A) and the other is OBC category family (herein referred as Family B).  Each has 4 members – father (businessman), mother (housewife), candidate, and a minor sibling. For many consecutive years, Family A’s annual income was Rs 8,50,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.) and pay tax accordingly, but due to temporary loss in business, their 2020-2021 annual income dropped to Rs 7,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.).Therefore, for the year 2020-2021, Family A falls under the definition of economic weaker section and the candidate can claim reservation under EWS category. On the other hand, Family B generally has annual income of Rs 6,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.) but due to unpredictable profit in business for 3 consecutive years the family income has raised to Rs 8,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.). This implies that now a candidate from Family B falls under creamy layer status and cannot claim reservation. This implies that backward class community who are socially and educationally deprived for years but only due to economic growth in 3 consecutive years they are not been given reservation benefit, but parallel to this, general category community who are neither socially nor educationally nor economically deprived but due to loss in business in a single year will make them eligible for reservation.

The Central Government tries to explain the differences between Rs 8 lakhs income test of EWS criteria and creamy layer criteria on the basis of definition of “family”, constituents of “annual income” and considering 3 consecutive years in OBC and prior year annual income in EWS. But from this hypothetical situation it can be concluded that despite the differences between the two Rs 8 lakh income slabs, the Government are treating unequal equally and therefore violate Article 14 of the Constitution.

Even though Central Government accepts the proposal to increase the income limit of Rs 8 lakhs to 12 lakhs for determining the creamy layer among OBCs17, the over-inclusive nature of Rs 8 lakh income slabs for determining EWS category will still make it a problematic policy to implement.

An over-conclusive definition

In India, the income tax structure is designed in such a way that up to Rs 2,50,000 annual income, no tax rate is levied. Above Rs 2,50,000, different tax rate is imposed according to different income slab. It is pertinent to note that neither in existing tax regime nor in new tax regime, Rs 8,00,000 is made upper limit or lower limit of any income tax slab. The present government reports that for Financial Year 2018-2019 till February 2020, only 1% of the Indian population pays income tax. Meaning thereby, out of 138 crore populations, only 5.78 crore individuals are taxpayers and out of these total taxpayers, only 1.46 crores individual filed income tax returns above Rs 5 lakhs income tax slab.18It would be wrong to argue that due to tax evading practices in India there are so few taxpayers. As per the data released by the Government, 75% Indians have annual income less than Rs 5lakhs and 17% Indians have income between Rs 5 lakhs to 10 lakhs.19 According to the Government’s Economic Survey 2020-2021, per capita income of India in 2020-21 is Rs 1,26,96820, which means the average Indian earns Rs 1.3 lakhs (approx.) in a year. These statistical data implies that the bulk of population will be eligible for EWS reservations within Rs 8 lakhs income bracket, making it an unreasonable and irrational threshold.

Inequality among Indian States

In a country like India, where inter-State disparity and regional income inequality prevails across the Indian States21, Government has imposed Rs 8 lakh income cap as a uniform income-based threshold which is uniformly adopted across the country. As per  RBI Handbook of Statistics on Indian States, per capita net State domestic product for the year 2020-2021 is highest in Goa (Rs 4,72,216) followed by Sikkim (Rs 4,24,454) and Delhi (Rs 3,54,004) and lowest in Bihar (Rs 46,292), Uttar Pradesh (Rs 65,431) and Jharkhand (Rs 75,587).22 This implies that State economic production value attributed to per person of Goa, Sikkim and Delhi is much higher than that to per person of Bihar, Uttar Pradesh and Jharkhand. Under this background, it can be concluded that majority population from Bihar, Uttar Pradesh, Jharkhand and other low per capita (NSDP) States will fall under 10% EWS reservation. Therefore, Rs 8 lakhs income criterion is over-inclusive.

On the substratum of the above discussion, it can be very well stated that the scheme of EWS reservation suffers from the vice of non-application of mind by the authority concerned, as the Union Government had “mechanically” adopted Rs 8lakhs cut-off without endeavouring to undertake any appropriate exercise before determining the criteria for EWS reservation. This act of arbitrariness by the Government manifests flagrant violation of the constitutional mandate of Article 14.

Is even10% valid

The Report of the National Backward Classes Commission states forward Hindu caste and communities (which includes Brahmins, Bhumihars, Rajputs, Marathas, Jats, Vaishyas-Bania, Kayasthas and other forward Hindu castes) constitute 17.58% of the population.23 In addition to these 17.58%, Buddhist (0.67%) and Jains (0.47%) are also not covered under any scheme of reservations. This data has been recently used by  the Supreme Court in deciding the civil appellate/original jurisdiction case Jaishri Laxmanrao Patil v. Chief Minister (also called Maratha Reservation case).24 Based on the calculation of above data, it can be estimated that the total population outside the purview of reservation benefit in India is not more than 20%. For 20% socially and educationally forward population, the Government has reserved 10% seats in government jobs and education institutions with over-inclusive income brackets.

Though 50% has been set as the maximum limit for caste-based reservation, but this ceiling can be crossed in extraordinary circumstances.25Unfortunately, the Government is treating the underline situation as extraordinary in order to validate the breaching of 50% reservation ceiling while implementing 10% EWS reservation. Before delving into the discussion of whether the present matter falls within the ambit of an extraordinary situation, it is necessary to understand what comes under an extraordinary situation. Indra Sawhney case26 has given illustration regarding certain extraordinary situation in para 810 of the said judgment:

  1. … It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

The Supreme Court in para 475 of Maratha Reservation case27agreed that the expression in far-flung and remote areas” incorporates geographical test and “the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them” incorporates social test. In the same paragraph of the abovementioned case, the Supreme Court held that:

475 … one of the social conditions in para 810 (of Indra Sawhney case28) is that (not) being within the mainstream of national life, the case of Maratha does not satisfy the extraordinary situations as indicated in para 810 of Indra Sawhney29, as the Marathas are in the mainstream of the national life….30

The above discussion makes it clear that due to over-inclusive nature of EWS definition, people from mainstream of national life are also covered for the benefit of reservation and therefore, the present case does not quench the extraordinary situations as specified in Indra Sawhney judgment31. Overstepping the 50% reservation maximum cap without there being any instance of extraordinary circumstances clearly flouts Articles 14 and 16 of the Constitution, which makes the enactment ultra vires.32

Under this background, it would not be wrong to conclude that the EWS reservation scheme criteria have been implemented without taking due consideration of gross domestic product (GDP)/per capita income, inter-State economical differences, rural urban purchasing power and other various data. This is a blatant manifestation of political moves in the guise of policy implementation with a lack of up-to-date and quantifiable data. In the line of a series of recent judgments, the Supreme Court and High Courts33 have called attention to the significance of quantifiable data as a mandatory prerequisite for the reservation scheme in education and employment. In Jaishri Laxmanrao Patil v. Chief Minister34, the Supreme Court reiterated the observation held in M. Nagaraj v. Union of India35 that if they are making provisions related to reservations, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation. The Supreme Court in Maratha Reservation case36 has struck down the reservation policy for Maratha as the Government could not back up the reservation policy with appropriate, adequate and quantifiable data. Same might be the fate of EWS Reservation policy, if the authority concerned could not come up with the necessary modification in tuned with appropriate and quantifiable data.

Conclusion

In India, the “reservation” is getting deceptively complex with each passing day. Judiciary with its legal power consistently engrossed in simplifying the puzzle posed by the regular conflicting interest between the Indian politicians, who once in 5 years deliberate on “reservation” as their election manifesto to secure their vote bank and the stakeholders, who for the entire 5 years agitate either “for” reservation or “against” reservations. The present Government by bringing EWS reservation has though chosen bold path but with wobble steps which, if get implemented will result in more harm than good. Considering the present scenario, the Supreme Court can lead the case to three different possible situations: first, upheld the 103rd Constitutional Amendment Act, 2019; second, partially upheld by recommending certain modification in income bracket and quantum of seats reserved; and third, quash the 103rd Constitutional Amendment Act, 2019 on basis of sole economic criterion and exceeding 50% reservation cap. Whether the Supreme Court ends the controversy with these expected outcomes or adopts a different strategy to decide the case is yet to be seen.


*5th year student, B.A-LL.B, National University of Study and Research in Law, Ranchi. Author can be reached at subhashni.kumari@nusrlranchi.ac.in.

[1]Constituent Assembly Debates, Vol. 7, 30-11-1948 speech by Dr B.R. Ambedkar, p. 702.

[2]Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, Official Memorandum No.36039/1/2019-Estt (Res) (notified on 31-1-2019).

[3]Constitution (103rd Amendment) Act, 2019, Arts. 15(6) and 16(6).

[4] Janhit Abhiyan v. Union of India, 2020 SCC OnLine SC 624.

[5]State of Bombay v. F.N. Balsara, AIR 1951 SC 318.

[6] 2022 SCC OnLine SC 75.

[7] Huntington Cairns, A Note on Legal Definitions, 36 Columbia Law Review 1099, 1099 (1936),

<https://www.jstor.org/stable/1117047>.

[8]Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, Official Memorandum No.36039/1/2019-Estt (Res) (notified on 31-1-2019).

[9]Constitution of India, Art. 14.

[10]Constitution of India, Art. 15.

[11]Constitution of India, Art. 16.

[12] Government of India Ministry of Personnel, Public GrievancesandPensions Department of Personnel & Training Official Memorandum No.36011/6/2010-Estt.(Res), (Notified on 25-6-2010),

<https://documents.doptcirculars.nic.in/D2/D02adm/36011_6_2010-Estt.(Res).pdf>.

[13] Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel &Training Office Memorandum No. 36012/22/93-Estt. (SCT) (Notified on 8-9-1993).

[14] Government of India Ministry of Personnel, Public Grievances and Pensions, Department of Personnel &Training Office Memorandum No. 36033/1/2013-Estt. (Res.) (Notified on13-9-2017).

[15]Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420; K.S Jayasree v. State of Kerela, (1976) 3 SCC 730.

[16]1992 Supp (3) SCC 217, para 243.

17Rahul Srivastava, Centre Considering Proposal to Revise Income Criteria for Determining Creamy Layer among OBCs,India Today (3-2-2021), <https://www.indiatoday.in/india/story/centre-considering-proposal-to-revise-income-criteria-for-determining-creamy-layer-among-obcs-1765327-2021-02-03>.

18Only 1% Indians Pay Income Tax, Government Tells Lok Sabha, Business Today, <https://www.businesstoday.in/latest/economy-politics/story/only-1-percent-indians-file-income-tax-govt-tells-lok-sabha-273519-2020-09-21> (last visited on 8-1-2022).

19Only 1% of Taxpayers Earn over Rs 50 Lakhs: Government Data, Times of India, <https://timesofindia.indiatimes.com/business/india-business/people-earning-less-than-2-5-lakh-constitute-57-of-taxpayers-govt-data/articleshow/77519141.cms> (last visited on 10-1-2022).

20Statistical Appendix: Economic Survey 2020-21, <https://www.indiabudget.gov.in/economicsurvey/doc/Statistical-Appendix-in-English.pdf> (last visited on19-1-2022).

21Government of India, Ministry of Finance Department of Economic Affairs Economic Division, Economic Survey 2020-21, Vol. 1, Ch. 4, Inequality and Growth: Conflict or Convergence, 121-149,

<https://www.indiabudget.gov.in/economicsurvey/doc/echapter>.

22RBI Handbook of Statistics on Indian States Report, <https://rbidocs.rbi.org.in/rdocs/Publications/PDFs/16T_241121E38C1EC7A0CE444BB1D875B6CBAC913B.PDF > (last visited 8-1-2022).

23Government of India : Report of the Backward Classes Commission (Mandal Commission Report), Part 1, Vol. I, p. 56.

24(2021) 8 SCC 1.

25Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

261992 Supp (3) SCC 217, 735.

27JaishriLaxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 247.

281992 Supp (3) SCC 217.

291992 Supp (3) SCC 217.

30Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 247, para 475.

311992 Supp (3) SCC 217.

32Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 254, para 493.

33V.V.Saminathan v. Govt. of T.N., 2021 SCC OnLine Mad 5646.

34(2021) 8 SCC 1, 245, para 466.

35(2006) 8 SCC 212.

36Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Neeraj Kumar Gupta (Information Commissioner), decides whether Commission can provide a ruling regarding the merits of a case or redressal of grievance.

Appellant had filed an application under the Right to Information Act, 2005 before the Central Public Information Officer, Life Insurance Corporation of India seeking the following information:

  1. Why my S.R. No. is getting changed? Who is responsible for this change and thereby loss incurred.
  2. Does my other benefits affect due to change of S.R. Number?
  3. My loan was on floating interesting why it is changed to fixed @9.75% without any information. Is there any circular?
  4. My E.M.I’s are always deducted from my salary and sent by my branch. Why there is a gap? Please inform the gap month.
  5. Since the E.M.I’s for the month April 2012, May 2012, June 2012, July 2012 and Aug 2012 are received by HFL Jalandhar. Why the susbsidy is not released.
  6. Our cadre loan is Rs 2075000 but still there is ex cadre loan of Rs 3583 O/S in my case.

The CPIO denied the information as sought by the appellant under Section 2(f) of the RTI Act, 2005. Being dissatisfied with the same, the appellant had filed the first appeal and requested that the information should be provided to him, and FAO upheld the CPIOs response and disposed of the appeal. Further second appeal before the Commission was filed to direct the respondent to provide complete and correct information.

Decision

The Commission observed that the queries of the appellant were more in the nature of seeking explanation/opinion/advice from the CPIO and he had expected that the CPIO should first analyse the documents and then provide information to the appellant.

CPIO is not supposed to create information; or to interpret information; or or to furnish clarification to the appellant under the ambit of the RTI Act. As per Section 2(f) of the RTI Act, the reasons/opinions/advices can only be provided to the applicants if it is available on record of the public authority. The CPIO cannot create information in the manner as sought by the appellant. The CPIO is only a communicator of information based on the records held in the office and hence, he cannot expected to do research work to deduce anything from the material therein and then supply it to him. 

With regard to the grievance raised by the appellant regarding the reason for a change in S.R. number, Coram observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/right to information and not to venture into the merits of a case or redressal of grievance.

Concluding the matter, the Commission held that the respondent had furnished point-wise reply/information to the appellant on his RTI application and further forwarded his grievance to the department concerned. Therefore, no intervention was required. [Deepak Kumar Joshi v. CPIO, LIC; CIC/LICOI/A/2020/118695; decided on 1-4-2022]

Case BriefsHigh Courts

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

Wife and children of the respondent had filed under Sections 10,24 and 25 of the Hindu Marriage Act and under Sections 18, 20(1)(d) and 26 of the Protection of Women from Domestic Violence Act, for judicial separation, permanent alimony, compensation and injunction.

Factual Matrix


The matrimonial life of the 1st respondent was miserable due to the cruel nature and behavourial problems of the appellant. She was treated like a slave and the appellant has no love or affection for her.

In view of the above, the wife shifted to her parent’s house along with her children and since 2011, both of them have been living separately.

Further, it was stated that the husband sought divorce from the 1st respondent after branding her as a mental patient. Though the wife sought a decree for judicial separation, permanent alimony, compensation for physical and mental torture since she didn’t want her children to be known as the children of a divorcee.

Though the appellant/respondent opposed the petition and denied the allegations.

Family Court found that 1st respondent/wife was entitled to a decree for judicial separation, monthly separation, maintenance of Rs 20,000, compensation of Rs 5 lakhs and injunction prohibition the appellant from alienating the schedule property. The minor children were also awarded monthly maintenance of Rs 15,000.

Analysis, Law and Decision


High Court observed that the Family Court exercising jurisdiction under the Hindu Marriage Act, at the time of passing any decree, can order a gross sum or such monthly periodical sum towards maintenance and support for a term not exceeding the life of the applicant.

Further, as there was no evidence to show that, the 1st respondent is having her own job and income to maintain her, going by Section 25 of the Hindu Marriage Act, on passing a decree for judicial separation under Section 10 of the Hindu Marriage Act, she was entitled to ask for permanent alimony either as a gross sum or monthly/periodical sum.

Bench expressed that,

Only the wife/husband is entitled for permanent alimony as per Section 25 of the Hindu Marriage Act, and the children will not get any amount under that head.

 High Court stated that in order to pay monthly maintenance to the children at the rate of Rs 15,000 was to be set aside reserving their right to approach the Family Court with a separate petition for enhancement of maintenance if they propose to do so.

Noting the financial capacity and potential of the appellant as a highly professional and the properties and buildings owned by him, Court found it just and proper to award a lump sum amount of Rs 30 lakhs as permanent alimony instead of the monthly maintenance of Rs 20,000 ordered by the Family Court.

Lastly, the Bench held that, Section 25 of the Hindu Marriage Act specifically says that, the permanent alimony and maintenance ordered under that Section may be secured, if necessary, by a charge on the immovable property. So, the injunction order granted by the Family Court was against the spirit of Section 25 of the Hindu Marriage Act.[P.V.G. Menon v. Anjana Menon, 2022 SCC OnLine Ker 1479, decided on 24-3-2022]


Advocates before the Court:

For the Appellant/Respondent:

By Adv. Sri Srinath Girish

For the Respondents/Petitioners:

By Adv. Sri K.P. Balasubramanyan

Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court, Srinagar: Sanjay Dhar, J., addressed a matter with regard to providing maintenance to a minor child amidst the dispute regarding the paternity of the child.

Petitioner (minor) through her mother challenged the order passed by the Judicial Magistrate in the proceedings under Section 488 of J&K CrPC whereby the Magistrate deferred the proceedings till the outcome of the civil suit in which question of paternity of the petitioner was an issue.

Factual Background

Minor petitioner through her mother filed a petition against the respondent claiming maintenance from him. It was alleged that in the year 2010, the respondent had developed a relationship with the petitioner’s mother and further the respondent converted to Islam, whereafter he entered into wedlock with the mother of the petitioner.

Later, on being posted to New Delhi the respondent shifted leaving the petitioner and her mother in lurch. On visiting the native place of the respondent the petitioner and her mother came to know that the respondent was already a married man, hence the marriage between the petitioner’s mother and the respondent got automatically dissolved.

The petitioner and her mother filed a suit for declaration and injunction against the respondent.

The respondent did remit some maintenance amount in the bank account of the petitioner, yet the same was very meager, hence the petitioner sought maintenance of Rs 30,000 from the respondent.

Analysis, Law and Decision

High Court noted that one birth certificate showed the name of the child as Riza Jan with Mr Idress Bashir Jabari as her father, whereas the other one showed the name of girl child as Raaisha with the name of the father as respondent.

Further, the petitioner’s own document, the bank statement depicted that her bank account had been opened in the name of Riza Jan. It meant that Raaisha and Riza Jan were one and the same person.

Hence, in view of the provisions contained in Section 114(e) of the Evidence Act, there is a presumption of correctness attached to the particulars entered in the said certificate.

On the other hand, the birth certificate dated 01.09.2014, on which reliance is being placed by the petitioner, appears to have been issued pursuant to the directions of the Court after more than three years of the event of birth, by taking recourse to the provisions contained in Section 13 (3) of the Registration of Births and Deaths Act, 1969

Therefore, the presumption could not be raised as regards the correctness of contents of the said certificate, unless oral and documentary evidence is led to support the same.

High Court added that, the presumption contained in Section 112 of the Evidence Act is also attracted to the facts of the instant case.

As per the aforesaid provision, the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, is conclusive proof that he is the legitimate son of that man, unless it is shown that the parties to the marriage had no access to each other.

Hence, the petition was born out of wedlock of her mother with Mr Idrees Bashir Jabari, unless it is shown that Mr Idrees Bashir Jabari had no access to the mother of the petitioner during the said period.

The Bench also observed that, the mother of the respondent could not place on record any Nikahnama or any other material to show that she entered into a wedlock with the respondent.

Merely because wife of the respondent had alleged in her divorce petition that respondent was forced to marry mother of the petitioner does not prove the said fact particularly when respondent’s wife has admittedly withdrawn the petition itself.

Thus, Magistrate had no evidence to even prima facie records a finding that the respondent was the father of the minor.

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

High Court observed that the revision petition was not maintainable and hence deserved to be dismissed. [Raaisha v. Syed Sudhanshu Panday, 2022 SCC OnLine J&K 242, decided on 27-1-2022]


Advocates before the Court:

For the Petitioner: Abdul Manan, Advocate.

For the Respondent: Anil Bhan, Advocate

Case BriefsDistrict Court

Court of Additional Sessions Judge, Thane: Noting the fact that a man suppressed the material fact of his private life before marriage i.e., about him being a homosexual, Rajesh S. Gupta, J., found that, the whole life of a young girl had been spoiled due to the material suppression, if the same would have been shared prior to the marriage then the consequence would be different.

In the present matter, the applicant/accused had preferred anticipatory bail for the offences punishable under Sections 420, 465, 467, 468, and 506 of IPC.

Advocate for applicant/accused submitted that de facto complainant and applicant/accused were husband and wife, and their marriage was solemnized.

During the period of marriage, the applicant/accused was working and earning around Rs 8 lakh per annum and as there were bright chances of increments in near future, de facto complainant accepted and agreed to the job profile of the applicant/accused and marriage was performed by mutual consent.

It was submitted that only with the intent to put the applicant/accused behind the bar, a false complaint was lodged.

On the other hand, APP submitted that there were specific allegations that the applicant/accused suppressed the material facts before the marriage as he being gay and indulged in homosexuality and thereby committed cheating and played fraud in the complainant and had ruined the life and future of the complainant and was not interested in the opposite sex.

IO submitted that there were chat messages between the applicant/accused and his other male partners which clearly indicated that the accused/applicant was interested in same-sex.

Original complainant submitted that the applicant by suppressing the incriminating facts before the marriage was only interested in financial assistance from the parent of the de facto complainant.

Analysis and Decision

“It is consciously taken note Hindu Marriage is a religious sacrament in which a man and a woman are bound in permanent relationship for a physical, social and spiritual purpose of Dharma, procreation and sexual pleasure.”

Court noted the allegation regarding the bogus job offer of the applicant/accused, further, it was also noted that the accused/applicant was indulging in telephonic sex with his male partners, which revealed that he was gay and interested in homosexuality, hence till date, he did not consummate a marriage with the de facto complainant and disinterested in the opposite sex.

Prima Facie it appeared that the applicant/accused had suppressed the material fact of his private life before marriage and thereby caused a wrongful loss to the parent and the complainant.

Bench expressed that,

No doubt, every individual has its dignity to live in the society. No other person can interfere into lifestyle but that does not mean that a person gets liberty to spoil the life of either of spouse.

Additionally, the Court remarked that the damage caused to the de facto complainant was irreparable and could not be compensated in money.

Prima facie, the Court opined that fraudulent intention by suppressing material fact was noted. Court also stated that prima facie, the applicant committed cheating by causing wrongful financial loss to the parent of the complainant and as well as irreparable damage to the life of the complainant.

Lastly, concluding the matter, Court observed that if released on bail, the applicant/accused will tamper with the evidence, hence no case of pre-arrest bail was made out. [Rohan Pradeep Shinde v. State of Maharashtra, 2022 SCC OnLine Dis Crt (Bom) 7, decided on 5-4-2022]


Advocates before the Court:

Shri. Valinjkar, Advocate for the applicant/accused.

Shri. V. A. Kulkarni for the respondent.

De facto complainant present in-person.

Shri. Sagar Kadam Ld. Advocate for the intervener.

Case BriefsHigh Courts

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

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

Factual Background

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Advocates before the Court:

For the Petitioner:

Badar Mahmood, Advocate

For the Respondent:

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

Case BriefsHigh Courts

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

Instant appeal was directed against the decision of Additional Sessions Judge (POCSO) whereby the appellant had been held guilty for the offence under Sections 363, 366 of Penal Code, 1860 and Section 4 of the POCSO Act.

Prosecution’s Case


Prosecutrix was aged about 17 years and the appellant, both were having a love affair. On one night the prosecutrix ran away from the house after which the father of the prosecutrix lodged a missing report.

In 2018, the prosecutrix was recovered from the custody of the appellant and out the said relationship, a child was born who was 3 months of age.

On completion of the trial, the appellant vide impugned judgment was convicted and sentenced.

Analysis, Law and Decision


High Court noted that the prosecutrix deposed that two year prior to the incident, she was having a love affair with the appellant and when her family members came to know about the said fact, they started searching groom for her. When the said circumstances came to the knowledge of the prosecutrix, she voluntarily left her house and went to Raipur.

Later, she approached the appellant and asked him to take her along with him, on which, the appellant said that since she was a minor, she could not accompany him. Further, on prosecutrix’s constant requests and pressure and threat to commit suicide, the appellant gave up, reached Raipur and took her along with him.

Further, the prosecutrix specifically stated that the appellant had done nothing wrong with her or against her will.

The prosecutrix even deposed that since the family was against her relationship, hence the appellant lodged the FIR against the appellant.

Bench expressed that, 

In case of sexual molestation, the evidence of the prosecutrix is evident.

In view of the statement of the prosecutrix, it appeared that she had not inculpated the appellant in any manner and nor said anything against him instead she had specifically deposed that her family members wanted to get her married against her will to some other boy, therefore, she voluntarily left her house.

Hence, in view of the above-said circumstances, the appellant assisted her due to having a loving affair.

Therefore, it could not be proved that the appellant had abducted the prosecutrix from the lawful guardianship of her parents and induced in any manner and further looking to the statement of prosecutrix, the appellant had not committed any wrong with her.

High Court found that the trial Court did not properly appreciate the evidence available on record.

Lastly, the Court directed for the release of the appellant. [Anil Ratre v. State of Chhattisgarh, 2022 SCC OnLine Chh 625, decided on 25-3-2022]


Advocates before the Court:

For Appellant Mr. Pragalbh Sharma, Advocate

For Respondent /State Ms. Shubha Shrivastava, Panel Lawyer

Case BriefsHigh Courts

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

The suit properties which included 4 agricultural lands and two-house properties, were the properties of Dajiba.

The four daughters of Dajiba had filed the suit against their stepmother for partition and separate possession of their share in the suit properties. The stepmother having agreed to sell one of the suit properties being Survey No. 42/B to respondent 2, was arrayed as defendant 2.

Trial Court decreed the suit awarding a joint 4/5th share to the daughters in all the suit properties.

The above-said judgment was challenged by the step mother and the purchaser and further, the appeal was partly allowed. Except for Survey No. 42/B, the share allotted to the daughters in all the suit properties was confirmed.

Further, the stepmother had agreed to sell it to the purchaser to meet the legal necessity of the family.

Aggrieved with the District Court’s decision, one of the daughters who was plaintiff 4 preferred the second appeal arraying her stepmother and the purchaser as also the remaining three sisters as respondents.

Analysis, Law and Decision

High Court noted that there was no dispute with regard to the suit properties and after the demise of Dajiba, his widow i.e., defendant 1 and daughters, who were the plaintiffs simultaneously succeeded to his estate in view of Section 8 of the Hindu Succession Act.

With regard to Section 19 of the Hindu Succession Act, all the above-stated heirs of Dajiba would inherit as tenants in common and not as joint tenants.

The very theory of existence of a karta and legal necessity presupposes that the sharers are joint, which is not the case in the matter in hand.

Bench stated that by virtue of the above-stated mode of succession by the widow and four daughters of Dajiba receiving the suit properties as heirs, they take their individual shares as tenants in common.

Since the suit properties were not joint, there was no question of the stepmother acting as a manager or karta of the family. Therefore, she had no right to deal with the suit properties even for legal necessity.

High Court relied upon the decision of Supreme Court in Commissioner of Income-Tax, Madhya Pradesh, Nagpur and Bhandara Nagpur v. Seth Govindram Sugar Mills, AIR 1966 SC 24.

Bench added that it has been held that,

under Hindu Law coparcenership is a necessary qualification for becoming a manager of joint Hindu family and since a widow cannot be a coparcener she is not legally entitled to become a manager. Conspicuously, this was a position even prior to the coming into force of the Hindu Succession Act. By virtue of Section 19 it has been explicitly made clear that if two and more heirs succeed together to the property and in estate, they take the property as tenants in common and not as a joint tenants.

With regard to the present matter, the Bench held that, once it was established that the step mother was not entitled to act as a manager or karta of the family, there was no question of her having any power to deal with suit properties to the detriment of the stepdaughters.

Hence, the second appeal was allowed. [Kamalabai v. Darubai, 2022 SCC OnLine Bom 686, decide don 31-3-2022]


Advocates before the Court:

Mr. D.R. Shelke, Advocate for the appellant

Mr. P.G. Godhamgaonkar h/f. Mr. M.D. Godhamgaonkar, Advocate for respondent nos.1 and 2

Mrs. S.D. Shelke, Advocate for respondent nos.3a, 4 and 5

Case BriefsDistrict Court

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

Applicant moved an application for grant of custody parole on the ground that he is required to visit the office of Tehsildar for signing adoption papers.

Additional PP for the State opposed the application stating that in Islam, adoption is not legally permissible and thus the very ground for custody parole is specious. Further, it was submitted that the personal laws are applicable in issues related to adoption and thus the application deserved to be dismissed.

Counsel for the defence relied upon the Supreme Court decision in Shabnam Hashmi v. Union of India, WP(Civil) No. 470 /2005, to contend that although under personal rules, adoption is not permissible in Islam but under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, even a Muslim is entitled to adopt a child and the rights of the accused cannot be negated on the ground that he is facing trial.

Decision

Court concurred with the defence counsel that merely because the applicant/accused happens to be Muslim and governed by personal laws on various issues, he cannot be debarred from availing the rights conferred upon him by general and benevolent legislation like Juvenile Justice (Care and Protection of Children) Act, 2000.

In view of the above, the instant application was allowed.

Hence, the Jail Superintendent was requested to take the applicant on custody parole to the office of Tehsildar.[State v. Ashabuddin, FIR No. 55 of 2013, decided on 28-3-2022]


Advocates before the Court:

Sh. Irfan Ahmed, Ld. Addl. PP for State

Ms. Qausar Khan, Ld. Counsel for applicant/accused Ashabuddin.

Case BriefsTribunals/Commissions/Regulatory Bodies

West Bengal Taxation Tribunal: The Coram of Justice Malay Marut Banerjee (Chairman) and Suranjan Kundu (Judicial Member) and Chanchalmal Bachhawat (Technical Member), expressed that, Article 304(a) frowns upon discrimination (of a hostile nature in the protectionist sense) and not on mere differentiation.

In order to implement a uniform tax structure effectively, both Union and States had to surrender some of their erstwhile exclusive fields of taxation and there was a realignment of the legislative power of the Union and the States.

Background

The petitioners have challenged the vires of the West Bengal Finance Act 2017 on grounds such as lack of legislative competency, discrimination, the impossibility of its successful implementation and so on.

Various petitions were filed before the Calcutta High Court seeking instructions on various situations so arose after the verdict of the Single Bench declaring the Entry Tax ultra vires was passed on 24-6-2013.

Issues:

(a) Is there any stay of the Judgment date 24-6-2013 by which the Entry Tax Act 2012 was declared void and unconstitutional? And if not, then can such Act be amended during the period when the appeal challenging the said Judgment is pending and is not yet reversed?

(b) (i) After deletion of Entry No. 52 from the State list of 7th schedule of the Constitution, has the State Legislature absolutely lost its legislative competency to amend the Entry Tax Act with a view to making it non- discriminatory with retrospective effect?

(ii) If not then whether Section 19 of the C.A. Act 2016 has conferred the said power to the State Legislature?

(c) Do Sections 5 & 6 of the Amending Act 2017 withstand the test of Article 304(a) of the Constitution?

(d) Is the retrospective imposition of Entry Tax with effect from 01-04-12 by Sections 5 & 6 of the Amending Act 2017 permissible in law?

(e) Is the Amending Act 2017 violative of Article 14 and Article 19(i)(g) of the Constitution?

Decision

Issue 14 (a)

“Once a provision has been declared ultra vires, the State cannot invoke that the said ultra vires proceedings against the citizen of the country, simply because interim order has been passed in an appeal.”

Adding to the above observation, the tribunal stated that during the period of appeal an Act already declared void can at best be considered voidable, but the said Act cannot be revived in a detour way.

Bench stated that in the present case State Legislature increased the tax liability of the existing assesses, by creating new class of assesses with the ostensible reason to make it non-discriminatory and all that happened when the verdict declared it unconstitutional and existed unreversed by the higher forum.

Tribunal opined that the State Legislature should not have amended the Entry Tax Act 2012 which was declared unconstitutional, and which is not yet reversed.

“…this amendment is premature and smacks of mis-adventure despite the fact that interim order was granted with some conditions.”

Issue 4(b)(i)

Bench stated that as to how the State Legislature obtained power to amend in the field of Entry Tax when the same was deleted, AG did not enlighten the Court any further except Section 19 of the C.A Act 2016.

In order to promote GST both the Centre and State Governments had to surrender some of their filed of taxation.

Bench noted that Entry 52 was dropped permanently so that the State Legislature cannot make any law in the field of entry of goods into local area for consumption, use and sale therein.

Further, the Tribunal remarked that,

Entry 52 having been omitted there is no vestige of power left with State Legislature to legislate or amend the law in Entry tax matter and this loss is absolute and final. 

Issue 4(b)(ii)

On bare reading of Section 19 of the C.A Act 2016 the following characteristics can be noted:

(a) it deals with those provisions which relates to tax on goods or services or both.

(b) which are in force in any State on 16.09.16,

(c) which are also inconsistent with the purpose / goal for which C.A Act 2016 was enacted.

(d) which will continue to be in force for one year up to 15.09.17

Or (e) until amended or repealed which ever is earlier.

(f) by competent Legislature or competent Authority.

Bench laid down its observation that, once a law was declared void and its appeal was pending, the State legislature, however laudable the purpose may be, without legislative competency cannot amend the same with retrospective effect.

Hence, the Tribunal found that Entry 52 of list II was a spoilsport, the presence of which would have obviously marred the successful implementation of GST.

In the present case, State Legislature had nothing left for amendment of Entry Tax Matter and it had no option.

Moving further, it was expressed that Entry 54 of the State list was not entirely deleted but was substituted and therefore, the power to frame legislation under Entry 54 was retained albeit in a truncated form.

The State Legislature lost some of their erstwhile fields of taxation for ever and retained some in changed form. Section 19 has conferred limited legislative power within a prescribed period to amend those entries of State list which were substituted / truncated / partially changed.

Sections 5 and 6 of Amending Act 2017 (West Bengal Finance Act 2017 enacted on 06.03.2017) is unconstitutional and non est in the eyes of law, having no legal effect being beyond the Legislative competence of the State of West Bengal.

Tribunal held that the State of West Bengal had no legislative competency to introduce Sections 5 and 6 of West Bengal Finance Act 2017 and the said provisions are hereby declared ultra vires and unconstitutional.

State of West Bengal had no legislative competency to introduce sec. 5 and 6 of West Bengal Finance Act, 2017 with effect from 1st July, 2017 and therefore the said provisions are ultra vires and unconstitutional,

“…advocates for the petitioners that such an attempt is a sham and futile because in view of the provision of limitation in the old Act of 2012 such new classes of assesses could never be assessed to Entry Tax.”

Lastly, the Bench held that,

Even assuming for a moment that the West Bengal Entry Tax Act was not struck down by any judgment of the High Court can it be said that the amendment introduced retrospectively and validation of the Act by way of introducing Finance Act of 2017 is within the legislative competence of the State Government?

Having regard to the deletion of Entry 52 of the State List and bearing in mind the provision contained in Article 265 of the Constitution we are impelled to hold that the State Legislature did not have the legislative competence to bring in such amendment insofar as it relates to the West Bengal Tax on Entry of Goods into Local Areas Act, 2012 

Therefore, Section 5 & Section 6 of the West Bengal Finance Act, 2017 are ultra-vires and unconstitutional. [Tata Steel Ltd. v. State of W.B., Case No. RN-08 of 2018, decided on 25-3-2022]


For Applicant(s) : Mr. Kavin Gulati, Ld. Advocate, Mr. Ajay Aggarwal, Ld. Advocate, Mr. Sumeet Gadodia, Ld. Advocate, Mr. Avra Mazumder, Ld. Advocate, Mr. Ananda Sen, Ld. Advocate,

Mr. Boudhayan Bhattacharyya, Ld. Advocate, Mr. Jaweid Ahmed Khan, Ld. Advocate,
Mr. Puneet Agarawal, Ld. Advocate,
Mr. Sandip Choraria, Ld. Advocate,

Mr. Anil Kumar Dugar, Ld. Advocate, Mr. Somak Basu, Ld. Advocate,
Dr Samir Chakraborty, Ld. Advocate, Mr. Sujit Ghosh, Ld.Advocate,

Mr. Atish Chakroborty, Ld.Advocate, Mr. Pujon Chatterjee, Ld. Advocate Mr. Piyal Gupta, Ld. Advocate.

For Respondent(s):Mr. Soumendra Nath Mookerjee, Ld. Advocate General, Government of West Bengal, with
Mr. Soumitra Mukherjee, Ld. Advocate,
Mrs. Maitree Sen,

Mrs. Pampa Sur,
Md. Zafarullah,
Mr. Debashis Ghosh, State Representative(s)