Case BriefsHigh Courts

Delhi High Court: Noting that, Section 14 of the Hindu Marriage Act intends to discourage the couples from breaking the sacred bond of marriage in haste, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, a mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

Appellant/wife preferred the present appeal under Section 19 of the Family Courts Act, 1984 to quash and set aside the decision passed by the Family Court. Family Court had dismissed the divorce petition by the impugned Judgment which was preferred by the appellant/wife and petitioner 2/husband under Section 13B of Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce by mutual consent.

The appellant and respondent hardly lived together as husband and wife and had no children born out of wedlock.

Further, it was noted that due to temperamental differences, the parties started living separately.

The parties had filed the petition under Section 13B (1) along with an application under the proviso to Section 14 of the Act, for leave to present the petition before the expiry of the cooling-off period of one year from the date of marriage.

The appellants sought to satisfy the requirements of the proviso to Section 14, by stating that there was denial of sex from both sides which led to a situation of “exceptional hardship”/ “exceptional depravity”.

Analysis, Law and Decision


Applicability of the proviso to Section 14 to a divorce under Section 13B of the Act

As per Section 13B (1) parties are provided with an option of a divorce based on mutual consent of the parties subject to the fulfilment of three conditions/grounds:

  • Parties have been living separately for a period of 1 year or more;
  • Parties have not been able to live together;
  • They have mutually agreed that the marriage should be dissolved.

The first condition specifies the period to be elapsed before filing the petition. Further, Section 13B (2) provides for another period of 6 months which must elapse before proceeding with the second motion. However, the period mentioned in sub-section (2) is not a subject matter of dispute in the present case.

In the present matter, the controversy was regarding the period of one year specified in sub-section (1). The appellant had sought the waiver of the said period by resorting to the proviso to Section 14 of the Act.

As per Section 14, no petition for divorce must be entertained by the Court before a period of 1 year from the date of marriage.

Only on two counts, the condition laid under Section 14 could be relaxed:

  • There is exceptional hardship
  • There is exceptional depravity

The Supreme Court’s decision in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, was relied on to contend that the period under Section 13B(1) is merely directory, and not mandatory.

Bench agreed with the view taken by this Court in Sankalp Singh v. Prarthana Chandra, 2013 SCC OnLine Del 855, that the period of one year stipulated in Section 13B (1) may be waived provided a case of “exceptional hardship” or “ exceptional depravity” is made out before the Court.

Section 14 of the Hindu Marriage Act provides a window for reconsideration and reconciliation and is an acknowledgement that temperamental differences between the parties could be addressed with time and must not become a reason for breaking off marriage.

High Court observed that,

The mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

Adding to the above analysis, Court stated that the proviso to Section 14 is applicable to petitions filed for divorce, equally under Section 13 and under Section 13B.

A divorce on the ground of “mutual consent” is premised on freewill or free consent of both the parties. Formation of free consent is not expected to be an instantaneous process, and the requirement of minimum period ensures that the consent is backed by patient thought and consideration of all the pros and cons of the relationship.

Whether non-indulgence of a married couple in sexual activity, owing to temperamental difference, could be regarded as so “exceptional” so as to attract immediate dissolution of the marriage, without even waiting for 1 year period which contemplates an opportunity of reconciliation?

Answering the above question in negative, the Court expressed that, if there are serious, temporal or behavioral issues between a married couple, it is nothing but expected that they would not be maintaining a healthy conjugal relationship.

A mere incompatible marital relationship, or one which has irreconcilable differences due to temporal or behavioral differences would not, in itself, lead to the causing of exceptional depravity by either of the parties to the other. 

Mere denial of sex by one, or both the parties to the other, cannot be described as an act of exceptional depravity.

The denial of sex by one spouse to the other, or by both of them to each other may certainly constitute “hardship”, but it cannot be said to be “exceptional hardship” under Section 14(1) of HMA. 

High Court held that denial of cohabitation in a marriage cannot be regarded as “exceptional hardship” or “exceptional depravity”, it could not call for waiver of a mandatory period of one year which is to be waived as a matter of exception, and not as a matter of rule.

Additionally, the Court remarked that denial of a conjugal relationship, or non-consummation due to temperamental/behavioural differences can only be aground for divorce, under cruelty.

Hence, the appeal was rejected and Family Court’s order was upheld. [Rishu Aggarwal v. Mohit Goyal, 2022 SCC OnLine Del 1089, decided on 18-4-2022]


Advocates before the Court:

For the appellant:

Mr. Rajesh Aggarwal, Mr. Mridul Aggarwal & Ms. Deeksha Aggarwal, Advocates (both for appellant as well as respondent).

For the respondent:

Mr. Rajesh Aggarwal, Mr. Mridul Aggarwal & Ms. Deeksha Aggarwal, Advocates (both for appellant as well as respondent).

Mr. Preetesh Kapur, Amicus Curiae.

Kerala High Court
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 BriefsSupreme Court

Supreme Court: In a habeas corpus case the Division Bench Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,

 “We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”

Background

The instant case arose out of unfortunate dispute between the appellant- wife and the respondent – husband over the custody of their minor male child Aaditya Kiran. The parties were married and living in New York, USA and the child held the citizenship of USA. It was for the treatment of the child for hydronephrosis in India, which required surgery that consent for international travel with one legal guardian, was executed by and between the appellant and the respondent on 04-02-2019. The consent was recorded in the said document to enable the child to travel with the mother–the appellant to India for the period between 05-02-2019 to 26-09-2019. It was further recorded that any changes to this plan shall be discussed and consented to by both the parents.

The child underwent a surgery on 14-03-2019 in Max Hospital, Saket, New Delhi. The certificate issued by Dr. Anurag Krishna, Director, Paediatrics and Paediatric Surgery of Max Hospital recorded  that he had examined the child on 12-07-2019 when he found that the child was doing well, however a suggestion was made that the child needed to be reviewed 6 to 7 months post-surgery along with a fresh ultrasound and renal scan.

Apple of Discord and Litigation History

It was the case of the respondent that the appellant had violated the international travel consent by not allowing the minor child to come back to USA by 26-09-2019, hence a petition was filed before the Circuit Court of Benton County, Arkansas, USA seeking primary care, control, and custody of the minor on account of his wrongful detention outside USA by the appellant wherein interim order was pronounced in favour of the respondent.

It was when no heed was paid to the said order by the appellant; the respondent approached the High Court of Punjab and Haryana seeking a writ of habeas corpus to secure release of the minor child from the illegal custody of the appellant. The High Court, by the impugned judgment decided the case in favour of the respondent and directed to hand over the custody of the minor the respondent.

Doctrine of Best Interest

The appellant’s stand was that there was a need to make a departure from the rule of “best interest of the child” or the “welfare principle” as welfare would mean balancing the interests of all the members of the child’s family and the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected.

Rejecting the contention of the appellant, the Bench held that the principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant. Opining that when a Court decides that it is in the best interest of the minor to remain in the custody of one of the parents, the rights of the other parent are bound to be affected, the Bench stated that the rights of parents/parent cannot be put on par with welfare of child.

Giving the example of visitation rights, the Bench stated, whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents.

Hence, the Bench concluded that the consideration of well-being and welfare of the child must get precedence over the individual or personal rights of the parents.

Whether the Court, while deciding custody matters, can compel one of the parents to move from one country to another?

Another question before the Court was whether a parent can be compelled to go abroad for enforcing the Court order in custody cases. In that regard, the Bench opined that the welfare of a minor being of paramount consideration in such proceedings, the Courts cannot decide where the parents should reside as it will affect the right to privacy of the parents.

Therefore, the Bench held that a parent has to be given an option to go abroad with the child and it ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child as it will all depend on the priorities of the concerned parent. However, noticing that in the impugned judgment the High Court did provide such an option to the appellant, the Bench held that there was no compulsion on the appellant to go abroad with the child.

Factual Analysis

Considering the submissions made by both the parties and evidence available on record the Bench made following observations:

  • It was not the case of the appellant that there was even a discussion with the respondent for modification of the said consent till date and admittedly, the period of travel mentioned in the consent was not extended by the respondent.
  • Though the doctor recorded that the child needed to be reviewed 6 to 7 months after the surgery along with fresh ultrasound and renal scan, the surgery had taken place 33 months back and the appellant had neither provided any medical opinion on the current health of the child nor any medical certificate recording that the child needs any further treatment or medical care in India.
  • The child had spent more than three years in USA and two and a half years in India. Therefore, it could not be said that there was a complete integration of the child with the social, physical, psychological, cultural and academic environment of either USA or India.
  • The respondent had financial resources to maintain the appellant and the minor child in USA.
  • The welfare report of Visiting Consular of US Embassy recorded that the appellant informed that “her aunt picks up the minor child from school and brings him home each day and stays with him throughout the day while the mother and grand-parents are at work. Moreover, a domestic helper is taking care of the needs of the child.” Therefore, the appellant was not devoting her whole day to take personal care of the minor and to attend to the needs of the minor child.
  • On the other hand, the respondent had submitted that he had an option to permanently work from home and his mother had a valid visa to stay in USA till 23-02-2024 who had expressed willingness to take care of the minor child in USA.

Conclusion

In the backdrop of above mentioned observations the Bench upheld the impugned judgment with some minor modifications and passed the following order:

  • The appellant was given option to travel to USA along with the minor child and to contest the proceedings pending in USA and in such case, the appellant was directed to communicate her willingness to the respondent within two fifteen days and inform him of possible travel dates which was to be within three months;
  • If the appellant opts for travelling to USA, the respondent was directed to sponsor air tickets for round trip, arrange separate accommodation for the appellant and if she wishes to continue in USA, the respondent was to take all possible steps for the extension of visa or for getting a new visa;
  • If the appellant agrees to travel, the respondent was directed to pay US$ 6,500 to the appellant for her initial expenditure in USA and after expiry of period of one month the respondent was to pay mutually agreed amount of maintenance along with proper medical insurance to the appellant and the minor child. Additionally, the respondent was directed to undertake obligation to provide proper medical treatment to the minor child;
  • If the appellant agrees to travel, for a period of three months from the date of her arrival, the respondent was not take any steps to implement or enforce the order passed by the Circuit Court of Benton County, Arkansas to enable her to contest the said case. Hence, for the said period the custody of the minor was to be with appellant; during that period the respondent was granted temporary custody of the minor child from 10 am to 5 pm on every Sunday and liberty to video call the minor child for half an hour on every day.
  • In the event, the appellant deny to visit USA and fails to communicate her willingness to visit USA within a period of fifteen days, the respondent was granted liberty to take custody of the child.

Additionally, the Bench added the parties would be at liberty to adopt agreed joint parenting plan if they wish to.

[Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43, decided on 12-01-2022]


*Judgment by: Justice Abhay S. Oka


Kamini Sharma, Editorial Assistant has put this report together 

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of K.Vinod Chandran and C.Jayachandran, JJ., slammed the Kerala State Commission for Child Rights for directing psychiatric treatment for wife of the accused without any jurisdiction. Expressing anguish over the factum that the Commission had aided the accused in trespassing the house of the victim and forcefully admitting her in the hospital, the Bench remarked,

“The case is very distressing insofar as, the 4th respondent, prima facie has been attempting to style his wife as a mental patient before various forums. By the continued harassment by the 4th respondent; employed in the Law Department of the State and was also once appointed as a temporary Magistrate, who was wont to use his official clout to witch-hunt the wife and children.”   

The wife-daughter of the petitioner had filed a divorce application before the Family Court, and that provoked the husband who attempted to portray the wife as a mental patient, which till date was not successful. The petitioner alleged that the respondent 4, son-in-law of the petitioner and the father of the children, had trespassed into the rental house of the detenue with about ten persons and forcefully took them away. It was also alleged that all the three, the mother (petitioner’s daughter) and the children were injected with some medicines making them unconscious and subsequently, the mother was admitted in the hospital by respondent 4, without any valid cause.

The petitioner had approached the Court in a writ of habeas corpus, seeking production of his daughter and grand children. Moved by the grievances of the petitioner, the Bench observed, “The writ petition narrates a sad tale of marital discord, from the very inception of the marriage and the wife being evicted from the marital home after giving birth to two children. The mother and children resigned to their fate were residing in a rental accommodation when the husband-the 4th respondent relentlessly harassed them in one manner or other.”

Noticeably, during the divorce proceedings, the application made by the respondent 4 under the Mental Health Care Act, 2007 to portray the wife as a mental patient was rejected by the Magistrate Court; yet the mother (wife of respondent 4) had been forcefully admitted to the Sacred Heart Hospital for psychological treatment, and the children were separated from her by the respondent 4. Considering the gravity of the matter, the Bench conducted the psychological test of the mother and children in the Court chamber by one Dr.Priya to assess their mental status. The doctor informed the Court that the petitioner’s daughter did not seem to be suffering from any psychotic illness and that her disturbed mental status, was only due to the stress she had undergone in her life and the horrendous incident she was subjected to recently, of forceful admission in a mental institution and separation from her children.

Kerala Child Rights Commission

Distressed by the manner of the State Commission for Protection of Child Rights with which it had proceeded in the instant case, the Bench stated that it was appalling that the Commission thought it fit to direct the District Child Protection Officer (DCPO), to submit a mental status report of the persons. The DCPO submitted a report pointing out that, the mother is very lean and that she wears five Rudraksha chains and there are photographs of Christian, Hindu and Islam religions in their house. The mother also is said to have the habit of cleaning the residential premises in the morning and in the evening. It was also reported that the mother and children were living without much social contacts.

On the above grounds, the DCPO recommended that the welfare of the mother and children should be monitored with the assistance of the respondent 4. The Commission based on the report of the DCPO directed psychiatric treatment to be given to the wife of the respondent 4 which was totally without jurisdiction. The Bench slammed the commission for putting the DCPO in charge of the children and directing him to approach the Station House Officer for appropriate treatment to be given to the family without any mental status examination by a competent Doctor. The Bench remarked,

“More distressing is the fact that on the strength of this order, the 4th respondent along with ten persons have trespassed into the rented residence of his wife and children and forcefully taken them away.”

Disturbing Conduct of the Accused Husband

The Bench found it surprising that the respondent 4 took it upon himself to separate the wife and the children and admit the wife in a Mental Hospital, when, a valid proceeding initiated for providing psychiatric treatment to the wife was rejected by the competent Court, especially when respondent 4 was a lawyer and was Section Officer in Law Department. The respondent 4 was also said to have served as a temporary Magistrate in the judicial service and it was not as if he did not know the tone and purport of the order of the Commission, which, even if passed with jurisdiction, did not clothe the respondent 4 with the authority to take the children or admit the wife, forcefully to a mental institution for psychiatric treatment.

Decision

On an evaluation done by the Psychiatrist and after evaluating the materials on record, the Bench allowed the daughter of the petitioner and the children to go with the petitioner. Respondent 4 was directed not to interfere in their life. The Station House Officer was directed to go to the house of the petitioner and record the statement of his daughter and her children and take it to logical conclusion if any cognizable offence is detected.

The Hospital was directed to produce the entire treatment records of the daughter of the petitioner. Additionally, the petitioner was directed to ensure that his daughter and the children are taken to Dr Priya, at the Government Medical College. Similarly, the respondent 4 was also directed to appear before the Doctor for check-ups. [Balakrishnan v. Inspector General of Police, WP(Crl.) No. 413 of 2021(S), decided on 06-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Lisy T. Skaria, Advocate

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and N.J. Jamadar, JJ., while addressing the present matter, expressed that:

Where the prosecution succeeds in discharging its primary burden and brings evidence on record which indicates that the facts, thereby proved, rest within the special knowledge of the accused, Section 106 of the Evidence Act comes into play.

Suspicion, however strong, cannot take the place of proof.

Factual Matrix

Accused-Appellant has challenged the decision of the Additional Sessions Judge, wherein he was convicted for the offence punishable under Section 302 of the Penal Code, 1860 for having committed the murder of his wife Sunita (the deceased).

The accused harassed and ill-treated the deceased on suspecting fidelity of the deceased. The deceased and accused shifted to Beghar Vasti wherein they erected a temporary shed adjacent to the house of the first informant. Later the accused and deceased desired to erect a shed with a thatched roof.

To erect the shed with a thatched roof, both the accused and deceased went to the field in order to collect a wooden log. The first informant also went to the fieLd to graze the goats, wherein he saw that the deceased was lying near a mango tree and her clothes were stained with blood. However, first informant did not find the accused in the vicinity of the said spot. Thus, he suspected that the accused to have done so, after which he lodged a report.

 During the investigation, it was found that the deceased was carrying six months pregnancy and the said occurrence resulted in the death of quick unborn child as well. The accused came to be arrested.

Additional Sessions Judge framed charge against the accused of the offences punishable under Sections 302 and 316 of the IPC.

After the trial, offence for Section 316 IPC was not established against the accused, though he came to be convicted under Section 302 IPC.

Aggrieved with the above, present appeal was preferred.

Analysis and Decision

Bench noted that the fact that the accused did not offer any explanation regarding the circumstances in which he parted the company with the deceased and how the deceased sustained those fatal injuries weighed with the Additional Sessions, Judge.

In the context of the marital relationship between the deceased and the accused and the indisputable fact that they were residing at Khatgun along with the first informant, the “last seen theory” constitutes the linchpin of the prosecution case. 

Court added that the fact that the deceased was found beneath the mango tree in the said field, within a couple of hours of the accused and the deceased having left the house, can also be said to have been proved beyond the shadow of doubt.

Further, since there has been ample evidence to indicate that the first informant found the deceased lying in a motionless state with fatal injuries and when she raised alarm, the prosecution witnesses, Dharam Pawar (PW-6) and Sushila Pawar (PW-9) went to the scene of occurrence and found the deceased lying beneath the mango tree.

Adding to the above, Court also stated that in any event, the interval of time between the accused and the deceased leaving together their home and the deceased having been found dead in the field ‘Kolki’, did not exceed three hours.

It is trite law that the ‘last seen’ theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the perpetrator of the offence, is inconceivable.

In view of the above law and facts of the case, Court held that the prosecution succeeded in establishing that the accused and the deceased were “last seen together”.

Nature of the death

The nature of the injuries found on the person of the deceased and the attendant circumstances are of determinative significance. Bench stated that the injuries found on the person of the deceased were on accessible and elective parts i.e. wrist and neck.

It is true that the accused did not endeavour to offer an explanation as regards the circumstances in which the deceased suffered the aforesaid injuries, when confronted with the incriminating material.

The question that triggers in the above circumstances is whether the failure to offer the explanation is sufficient to fasten the liability on the accused?

In the circumstances of the present case, in the absence of any positive evidence, motive to eliminate the deceased cannot be attributed to the accused on the premise that, before the accused and the deceased shifted to Khatgaun, their marital life was afflicted with discord.

Accused having changed the clothes with a view to conceal the fact that the clothes which he wore at the time of occurrence were stained with blood, is not of conclusive tendency and incriminating nature. Admittedly, the accused was found in an injured condition. Wounds were found on both the wrists and neck of the accused.

Adding to the above, Court expressed that the accused had visible injuries, on his person, when he was apprehended. The presence of bloodstains on the clothes of the accused, which he wore on the day of occurrence, therefore, cannot be construed as an incriminating circumstance.

Though prosecution made an endeavour to draw home the point that the accused had self-inflicted the above-stated injuries overcome by the feeling of guilt. Bench found it hazardous to draw an inference that the said attempt on the part of the accused to cause injuries to himself was due to the fact that the accused was overcome by the guilt, as held by the Additional Sessions Judge.

What emerges from the above discussion?

From all the above discussion, Court observed that there has been clear evidence of ‘last seen’ and the death of the deceased within a couple of hours of the deceased and the accused having been last seen together.

The wounds found on the person of the deceased especially the situs, elective parts, and nature were suggestive of suicidal infliction.

As the fundamental fact of the deceased having met a homicidal death itself is in the corridor of uncertainty.

In Court’s opinion, the circumstance of ‘last seen’, and the failure of the accused to offer a plausible explanation, on their own, were not sufficient to sustain the guilt of the accused beyond reasonable doubt.

Section 106 of the Evidence Act does not relieve the prosecution of its general or  primary burden of establishing the guilt of the accused beyond reasonable doubt.

 Supreme Court’s decision in Sawal Das v. State of Bihar, (1974) 4 SCC 193 was also referred for the above purpose.

Propositions that emerged from the above discussion:

  • If an accused is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased.
  • The failure of the accused to offer a reasonable explanation in discharge of the said burden provides an additional link in the chain of circumstances proved against the accused.

In the present matter, homicidal nature of the death was not established and the prosecution case rested upon the circumstance of “last seen” to a great extent.

With regard to the legal position in respect to sustaining the guilt on the only circumstances of “last seen”, Court referred to the decision of Supreme Court in Dharam Deo v. State of U.P., (2007) 3 SCC 755.

Hence, Bench held that circumstance of ‘last seen’, in the totality of circumstances, cannot sustain the burden of establishing the guilt of the accused beyond a reasonable doubt, especially when the fact of homicidal death is in the realm of uncertainty.

High Court concluded its decision by referring to the decision in Navaneethakrishnan v. State, (2018) 16 SCC 161, wherein the legal position in the context of sustaining conviction on the basis of circumstantial evidence was expounded.

Conviction under Section 302 IPC could not sustained in view of the above discussion. [Krishna Mahadev Chavan v. State of  Maharashtra, 2021 SCC OnLine Bom 191, decided on 12-02-2021]


Advocates who represented the parties:

Aashish Satpute, Advocate appointed by Court for appellant.

S.R. Agarkar, APP for respondent-State.