High Court Round UpLegal RoundUp

TOP STORY OF THE MONTH 


Marital Rape

Split Verdict on Criminalisation of Marital Rape| Can a Husband be labelled as a rapist? Does MRE provide impunity to offender? One says ‘Yes’, other says ‘No’

In a split verdict the Division Bench of Rajiv Shakdher and C. Hari Shankar, JJ., laid down their opinion on “Should a husband be held criminally liable for raping his wife who is not under 18 years of age?”

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Allahabad High Court


Employees State Insurance Act

Whether ‘Printing Press’ is a manufacturing process under Employees State Insurance Act?

Stating that the word ‘manufacturing process’ has been expansively defined under the Factories Act even to include Printing Press activity as a manufacturing process whereas in common parlance Printing Press cannot be termed as a ‘manufacturing process’, Pankaj Bhatia, J., held that, the term ‘manufacturing process’ was added to the ESI Act after the 1989 Amendment, hence, there would be no application of the said term prior to the said amendment.

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Abetment of Suicide

Biggest jolt for any married woman that her husband is being shared by some other lady or he is going to marry some other lady: Court dismisses discharge application of husband accused of abetting suicide of wife

Rahul Chaturvedi, J., noted that a lady soon after coming to know that her husband got married in clandestine way with some other lady, committed suicide.

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Loudspeaker

Use of loudspeaker in mosque is not a fundamental right

The Division Bench of Vivek Kumar Birla and Vikas Budhwar, JJ., held that the law has been settled, that use of loudspeaker from mosque is not a fundamental right.

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Maintenance

If wife sells out some property, in order to maintain her children, would that mean the wife will not have opportunity to claim maintenance under S. 125 CrPC?

Brij Raj Singh, J., while discussing the matter with regard to providing maintenance to a wife, noted that the Court below had made observations on being influenced by factual aspects which were not proved.

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Duty of father to maintain child, daughter entitled to seek maintenance from father

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

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Taj Mahal

Judges by experience and training not equipped to pronounce any verdict on non-justiciable issues: Sealed 22 rooms at Taj Mahal to stay locked

In a matter wherein the petitioner sought commissioning of a study so that the history of Taj Mahal could be explored, and controversy be put to rest, the Division Bench of Devendra Upadhyaya and Subhash Vidyarthi, JJ., held that the as to which subject should be studied or researched or which topic of a particular area or discipline are not issues where this Court can be said to be possessed of any judicially manageable standards to adjudicate upon.

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Divorce

If divorce is declared in one go and Fatwa is issued, Is muslim wife entitled to maintenance under S. 125 CrPC?

Brij Raj Singh, J., while addressing a maintenance case, observed that if a wife proves that she is unable to maintain herself, she will be entitled to maintenance.

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Sexual Assault

Junior of a practicing advocate alleges to have been subjected to sexual assault: Will All HC grant him bail?

In an alleged sexual assault case, Samit Gopal, J., noted that allegations of sexual assault were against a practicing lawyer by a junior in his office.

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Andhra Pradesh High Court


[Doctrine of Separability] AP HC discussed the enforceability of arbitration clause embedded in an unstamped charter party/agreement

“The doctrine of separability treats an agreement to arbitrate contained within a contract as an independent agreement that is deemed to be separable from the main contract. The doctrine preserves the validity and enforceability of the arbitration clause in a contract, even when the primary contract is found to be invalid and unenforceable, providing autonomy to the arbitration clause. The UNCITRAL Model law on International Commercial Arbitration, 1985, Article 16[1], integrates the doctrine of separability as an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.”

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Bombay High Court


News Items

Article on a rift between police officers published in newspaper: Will the reporter be punished under S. 505 IPC?

In a matter wherein, a journalist sought to quash proceedings against him for publishing news items regarding the rift between the officers of the police departments, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that:

“If we will say that any news article pertaining to two Sections of any Department will fall within the purview of Section 505(2) of the Indian Penal Code, in that case, we are interpreting the provisions of Section 505(2) of the Indian Penal Code too far and it is not expected by legislatures.”

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Dying Declaration

Dying declaration is by itself sufficient to convict an accused of accusation levelled against him provided dying declaration is found to be voluntary, truthful and hence, could inspire confidence of Court

While addressing a matter with regard to a husband setting ablaze his wifethe Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., made an observation with respect to dying declaration that,

It is by itself sufficient to convict an accused for the accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the court.

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Medical Test

Bom HC provides succor to a girl who was declared “male” in medical test, Directs State to consider her for post in Police department

The Division Bench of Revati Mohite Dere and Madhav J. Jamdar, JJ., directs the State Government of Maharashtra, to consider a woman who was declared as “male” in her medical test for the non-constabulary post in the police department.

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Section 377 Penal Code, 1860

Would kissing on lips and touching private parts of a minor be an offence under S. 377 Penal Code, 1860?

Anuja Prabhudessai, J., observed that touching private parts and kissing on the lips of a minor would not constitute to be an offence under Section 377 of Penal Code, 1860.

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Cruelty

Can filing of divorce petition by husband be an act of ‘Cruelty’?

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

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Maintenance to in-laws

Can Maintenance and Welfare of Parents and Senior Citizens’ Tribunal direct the daughter-in-law to pay maintenance to her in-laws?

The Division Bench of S.S. Shinde and Revati Mohite Dere, JJ., observed that the daughter-in-law cannot be directed by the  Maintenance and Welfare of Parents and Senior Citizens’ Tribunal to pay maintenance to her in-laws.

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Bonafide Passenger

If a passenger carries a season ticket on local train but fails to provide an identity card, would he be not covered under ‘Bonafide Passenger’?

While partly allowing the appeal wherein a passenger sustained injuries in an untoward incident, Sandeep K. Shinde, J., expressed that, Railway Claim Tribunal, shall proceed to grant compensation to the appellants in terms of Rule 3 of the Rules, 1990, after verifying the medical evidence produced by the appellant in support of his claim.

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Calcutta High Court


Spot Memos

None of the proceedings initiated by the department shown to have been taken to the logical end; spot memos cannot be enforced

The Court was unclear about the fact that why different wings of the very same department have been issuing notices and summons to the appellants without taking any of the earlier proceedings to the logical end.

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Ocular Testimony

In case of discrepancy between ocular and medical evidence, ocular testimony shall prevail; Conviction set aside entitling benefit of doubt

Bibek Chaudhury, J. allowed an appeal which was filed assailing the judgment and order of conviction passed by the Trial Court for committing offence under Section 324 of the Penal Code, 1860 and consequence sentence of imprisonment for a term of one year with fine.

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Vital Facts

Vital facts overlooked by the Trial Court; Conviction set aside under Essential Commodities Act, 1955

Moushumi Bhattacharya, J. allowed an appeal which was filed assailing the impugned judgment passed under section 7 (1) (a) (ii), of the Essential Commodities Act, 1955 and paragraph 12 of the West Bengal Kerosene Control Order, 1968. The appellant was convicted under the aforesaid provisions with fine and simple imprisonment.

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Bail

Bail granted to NDPS accused with 100% speech and hearing impairment

The Division Bench of Kesang Doma Bhutia and Moushumi Bhattacharya, JJ. allowed a bail application of the petitioner suffering from 100% speech and hearing impairment under Section 439 of the Code of Criminal Procedure, 1973 under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

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Income Tax

Not providing an opportunity to file a reply to the show-cause notice violation of principle of natural justice; Case remanded back to the Assessing Officer for fresh assessment

Md. Nizamuddin, J. allowed a petition which was filed challenging the impugned assessment order under Section 147 read with Section 144B of the Income Tax Act, 1961 relating to assessment year 2013-2014 on the ground of violation of principle of natural justice by not providing the petitioner with an opportunity to file a reply to the show-cause-notice.

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Conviction

Abscondence of an accused by itself does not establish his guilt; Conviction and sentence for punishment of murder set aside

The Division Bench of Joymalya Bagchi and Ananya Bandyopadhyay, JJ. allowed an appeal which was directed against the judgment and order convicting the appellant for commission of offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine.

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Chhattisgarh High Court


Irretrievable breakdown of Marriage

Chh HC dissolves marriage on appeal filed by husband against trial court order

Sanjay S. Agrawal, J., reversed the judgment of the trial court and granted divorce in an application filed by the husband, while granting Rs 15 lakhs permanent alimony to the wife.

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Excise Act

Confiscation order can only be challenged when it reaches its finality and the statute does not give any space to challenge any other order except the final one

Goutam Bhaduri, J., allowed the petition and directed the vehicle to be released on certain conditions.

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Negative Equality

Art. 14 of the Constitution does not envisage negative equality; Grant of study leave to employees under probation, cannot be a ground for claiming negative parity in the teeth of R. 42 (5) of Chhattisgarh Civil Services (Leave) Rules, 2010

A Division Bench of Arup Kumar Goswami CJ. and Rajendra Chandra Singh Samant J. dismissed the appeal and remarked that quality cannot be claimed in illegality.

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Appellate Tribunal

Whether the power exercised by the single-member Appellate Tribunal of STAT formed under MV Act would be valid under RERA and within jurisdiction?

The Division Bench of Goutam Bhaduri and Sanjay S Agarwal, JJ. directed that the State shall ensure that the Appellate Tribunal shall be made functional so that the grievance of the public at large who are affected are redressed.

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Cruelty

Would pledge of ornaments kept for marriage of a daughter and use for self without knowledge of husband would amount to cruelty?

In a matter pertaining to mental cruelty, the Division Bench of Goutam Bhaduri and N.K. Chandravanshi, JJ., expressed that, if a spouse by her own conduct, without caring about the future of the daughter, parts with ornaments which were meant for the marriage, it will be within the ambit of mental cruelty done by the wife.

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Delhi High Court


Shared Household

Visits of sundry family members to matrimonial home, without permanency or intention to treat premises as a shared household: Would it render family members as members of shared household?

Prateek Jalan, J., addressed the issue of whether visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as a shared household, would render them members of the “shared household.

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Irretrievable Breakdown of Marriage

Husband and wife, two pillars of family, if one gets weak or breaks, whole house crashes down

In a matter of dissolution of marriage, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., expressed that husband and wife together can deal with any situation, if one gets weak or breaks, the whole crashes down.

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Judicial Functions

How an Additional Rent Controller did not exhibit a great degree of temperance in discharge of judicial functions

Hari Shankar, J., expressed that, Unwarranted and needless hypersensitivity is not expected of Judicial Officers, who are expected, at all times to maintain composure and poise, befitting the office they hold.

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Negotiable Instruments Act

When no offence is attributable to Company, it is not possible to attach liability on Managing Director by deeming provisions of S. 141 of the NI Act

Asha Menon, J., held that if no offence is attributed to the company, its Directors and other persons responsible for the conduct of its business cannot be saddled with any liability.

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Trademark Infringement

Infringement of Starbucks trademark FRAPPUCCINO | Del HC awards Rs 2 lakh in damages and 9 lakh costs

In a matter wherein Starbucks trademark ‘frappuccino’ was being infringed, Jyoti Singh, J., while observing that, FRAPPUCCINO trademarks have acquired formidable reputation and goodwill in India, awarded Starbuck Rupees 2 lakhs damages and 9 lakh costs.

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Titles of films are capable of being recognised under trademark law? Read Del HC’s decision in light of film ‘SHOLAY’

Prathiba M. Singh, J., expressed that, the word ‘SHOLAY’, is the title of an iconic film, and consequently, as a mark having been associated with the film, cannot be held to be devoid of protection

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[Trademark Battle] Karim’s v. Kareem’s | Kareem’s related to or associated with Delhi’s iconic Karim’s restaurant?

Prathiba M. Singh, J., has restrained Kareem Dhanani from opening any further restaurants under the marks “KARIM/KARIM’S/KAREEM/KAREEM’S” or any other marks which are identical or deceptively similar to the Plaintiff’s marks “KARIM/KARIM’S/KAREEM” till the next date of hearing.

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Section 304B Penal Code, 1860

Injuries found on person of deceased who was more than 6 months pregnant, but MM ignored postmortem report: Will onus be on husband to offer an explanation under S. 104 Evidence Act?

Asha Menon, J., while setting aside the conclusion of the Metropolitan Magistrate and upholding the intervention by Sessions Court expressed that, injuries were found on the person of the deceased who was more than 6 months pregnant during her residence with her husband, hence the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

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Marital Rape

Explainer | Would striking down ‘Marital Rape Exception’ create a New Offence?

In the Split verdict on Criminalisation of Marital Rape Exception (MRE), the Division Bench of Delhi High Court pronounced a 393-Pages Judgment, wherein the Justices Rajiv Shakdher and C. Hari Shankar while disagreeing with each other on various issues, very significantly pointed out the issue if  “NEW OFFENCE”.

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Extradition

When does petitioner’s concern of lack of disclosure of evidence require court’s intervention?

Chandra Dhari Singh, J., while addressing a matter, expressed that,

Under Principles of Natural Justice, it is settled law that (a) where at the stage where an authority is merely required to form an opinion as to whether an enquiry should be held into allegations or contraventions, it is not required to give to the notice details of nature of evidence and documents, and (b) where a hearing for determination of guilt is to be held de novo, without any reference to any preliminary enquiry report, then the report need not be disclosed to the party affected.

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Post-Decisional Hearing

MeitY directed to provide original copy of blocking order and post-decisional hearing to owner and creator of website ‘Dowry Calculator’

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., in a matter with regard to blocking of a website ‘Dowry Calculator’, directed the MeitY committee to give a copy of the order to the creator of the website.

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Ration Delivery Scheme

Delhi HC strikes down Delhi Government’s Doorstep Ration Delivery Scheme | Lieutenant Governor expressed his difference of opinion

The Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, the Delhi Government’s Mukhya Matri Ghar Ghar Ration Yojana cannot be implemented and rolled out by the GNCTD since the LG expressed his difference of opinion.

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Society

Can an occupant deprived of his demarcated car parking in a Society registered under Delhi Cooperative Societies Act occupied by unauthorized occupants approach the Court?

The Division Bench of Mukta Gupta and Neena Bansal Krishna, JJ., observed that Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances.

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Condonation of Delay

Whether merely writing letters or making representations would give a sufficient cause or ground to a party to seek condonation of delay?

Stating that mere writing of a letter of representation cannot furnish an adequate explanation for the delay, Jyoti Singh, J., expressed that, it is a settled principle of law that in writ jurisdiction, the Court would not ordinarily assist those who are lethargic and indolent.

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Landlord-Tenant

Once tenant starts paying rent, can he/she turn around and challenge title of landlord?

In a matter with regard to the grant of leave to defend, Subramonium Prasad, J., expressed that, the tenant cannot merely make allegations that the landlord has other premises without producing some material to substantiate the same.

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Custom Duty

Import without custom duty, lower Court issued summons order, but Delhi HC sets aside: Read 5 reasons why impugned order was bad in law

Chandra Dhari Singh, J., while setting aside the order of lower Court in a case concerning Customs Act, laid down five reasons why the impugned order was bad in law.

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Maintenance

Whether right to claim maintenance under Domestic Violence Act and S. 125 CrPC are mutually exclusive?

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

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Gauhati High Court


Can a husband escape from his liability to pay maintenance to his wife by signing an agreement to the contrary?

While addressing a matter with regard to maintenance of wife, Rumi Kumari Phukan, J., expressed that, the statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.

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Gujarat High Court


Gratuity

If there is a delay in payment of gratuity, whether interest on delayed gratuity will be mandatory or discretionary?

Biren Vaishnav, J., reiterated that, interest on delayed payment of gratuity is mandatory and not discretionary

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Convict

Admission of co-accused cannot be sole base to convict any person; application dismissed

B.N. Karia, J. rejected an application under Section 397 read with Section 401 of the Code of Criminal Procedure, wherein the applicant-State has requested to quash and set aside the order and stay the implementation of the said order till hearing and final disposal of the present application.

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Motor Accident Claims Tribunal

Appeal dismissed on grounds of meagre amount; Order of Motor Accident Claims Tribunal upheld

Sandeep N. Bhatt, J. dismissed an appeal preferred by the Insurance Company being aggrieved and dissatisfied with the judgment and award passed by the Motor Accident Claims Tribunal by which the Tribunal has awarded Rs.65,200/- with 7.5% interest p.a. from the date of the claim petition.

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Himachal Pradesh High Court


Section 125 CrPC

The findings in a proceeding under S. 125 CrPC cannot be binding on matrimonial Court while dealing with an application for divorce on the ground of res judicata

Tarlok Singh Chauhan, J. remarked, “there has been no matrimonial relationship between the parties for the last nearly two decades, which in itself establishes that the parties are not in a position to live together any longer.”

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Jammu and Kashmir and Ladakh High Court


Freedom of Speech and Expression

Statement that Kashmir is under occupation of armed forces and people of Kashmir reduced to slaves, will be protected under Right to Freedom of Speech and Expression?

Stating that, the intention of a person can be gathered from the words spoken or written or other expressions, Sanjay Dhar, J., expressed that,

Expression of outrage at the negligence and inhuman attitude of the security forces, police and establishment would come within the ambit of freedom of expression of an individual which includes freedom to criticize the Government of the day which is permissible under law but the same may not be the position if an individual questions the fact of a State being a part of the Country by using the expression ‘occupation of military or the people being slaves etc.

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Bail

63-year-old woman aided her 65-year-old husband to commit rape on a minor girl: Can she be granted bail?

Sanjay Dhar, J., expressed that, in the cases involving offences of serious nature falling under IPC or POCSO Act, where the victim happens to be a minor child, the Court has to be alive to the need for protecting the victims and the witnesses and it is the duty of the Court to ensure that victim and witnesses, in such serious matters, are made to feel secure while deposing before the Court.

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Karnataka High Court


Lok Adalat

Kar HC issues general directions in matters relating to compromise before the Lok Adalat which are challenged by way of writ petitions

Suraj Govindaraj, J., allowed the petition and quashed the compromise decree in the original suit filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings.

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Arbitration

Whether Arbitration involving third parties leading to other proceedings would be arbitrable?

B.M. Shyam Prasad, J., held that there cannot be a complete adjudication of the petitioner’s rights unless the third parties are also heard.

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Maintenance

Granting or non-granting interim maintenance is not punishing any litigant; Kar HC observes Proviso to S. 125 of CrPC provides discretion to court to order interim maintenance during pendency of proceedings

M Nagaprasanna, J., dismissed the petition and refused to grant prayer as the case is at a pre matured stage and is not the right time to post the matter for examination.

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Juvenile Justice Act

In the absence of any declaration that the child is deserted by his biological or adoptive parents or guardians; no offence can be made out under S. 80 JJ Act

Hemant Chandangoudar, J., allowed the petition and quashed the impugned proceedings initiated against alleged offence under Section 80 of Juvenile Justice (Care and Protection of Children) Act, 2015.

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Work From Home

Work From Home under Maternity Benefit Act can be availed only if nature of work assigned to women is possible for them to work from home

Noting that the nature of work assigned to a woman cannot be carried from home, R Devdas, J., held that, as per Section 5(5) of the Maternity Benefits Act, 1961 work from home after availing the maternity benefit could be given only in a case where the nature of work assigned to the women is such that it is possible for her to work from home.

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Industrial Disputes Act

Labour Court has no jurisdiction to first decide the workmen’s entitlement and then proceed to compute the benefit so adjudicated; Labour Court’s power like that of the Executing Court’s power

K.S. Mudagal, J., allowed the petition and set aside the impugned award awarding compensation as well as the silver medal allowance without considering the question of maintainability of the petition under Section 33C(2) of the I.D. Act.

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Indian Nursing Council

No objection from the Indian Nursing Council is not required for the purpose of University granting recognition or approval for the GNM Course

P Krishna Bhat, J. disposed of the application with a direction to KSNC and State to consider the applications of petitioners which were filed in the year 2019 and take a final decision on the same.

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Negotiable Instruments Act

A 138 NI complaint filed was barred by limitation but such issue was raised for the first time before the Appellate Court and not Trial Court

HP Sandesh J. dismissed the petition and upheld the judgment by the Appellate Court and further directed the complainant to file necessary application to condone the delay.

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POCSO

Teacher aged 55 years harassed a student on separate occasions, booked under POCSO, released on bail

H.P. Sandesh, J. allowed the petition and granted bail to the petitioner in connection with a crime registered in  Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the POCSO Act.

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GST Act

Whether on coming into force of GST Act a Municipal Corporation can levy advertisement tax/fee?

The Court observed that in the entire transaction of GST, the petitioners are only a collecting agency who collects the GST payable on the service rendered and deposits the same with the authorities, the incidence of tax, i.e., GST being on the services rendered or goods supplied, the obligation of payment being on the person availing the service and or receiving the goods.

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Kerala High Court


Suicide

Person tries to commit suicide after being subjected to severe mental stress, which is a punishable offence: Is there any provision which can save her from penal provision?

Expressing that, Criminal prosecution followed by conviction and imposing substantive sentences and fines on those convicted of suicidal behaviours are believed to constitute an affront to human dignity, K. Haripal, J., pointed out that a large section of the society considers that suicidal behaviour is typically a symptom of psychiatric illness or an act of psychological distress, suggesting that the person requires assistance in his personal and psychological life, not punishment with imprisonment or fine.

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Maternity Benefits

Do employers have a responsibility to ensure that delivering and raising a child, shall not be detrimental to female officer’s career?

Addressing a matter wherein maternity benefits were not being allowed to female officersRaja Vijayaraghavan V, JJ., expressed that the employer is to take all steps possible to ensure that they are sympathetic to the cause of the female officer so that she can achieve her potential in the workplace and the time spent by her to deliver and raise her child shall not be detrimental to her career or her prospects.

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Floods

Persons who violate directions of Corporation, as mandated by law, against deposit of garbage into canals, shall be taken to task under fullest warrant of law

Expressing that, as much as this Court does not desire to control the management of the drains or the flood mitigating systems of the city on regular basis, it is forced to do so because of the large-scale inundation witnessedDevan Ramachandran, J., held that it is necessary that citizens understand their duty to ensure that canals are fenced and maintained well and kept free of debris, which otherwise would challenge the lives of many other affected by the flooding.

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Educational Loan

Can low CIBIL Score of a co-borrower be a reason for denial of an education loan?

In a case wherein, due to low CIBIL Score education loan was denied, N. Nagaresh, J., directed for reconsideration of loan applications, disregarding the low Credit Score of the co-obligants.

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Right of Press

Right of Press to report truthfully and faithfully | Press shall NOT indulge in sensationalism

Stating that, though the Press has a duty to inform the public, the Division Bench of Devan Ramachandran and Sophy Thomas, JJ., observed that, it is the well-accepted thumb rule that the Press shall not indulge in sensationalism; or in speculating upon the guilt or otherwise of any accused or other individual; or to create an opinion about the comportment or character of a person involved in the Trial; and not to embellish, by impelling or sponsoring an opinion they seek.

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Promise to Marry

Whether promise to marry made to married women is legally enforceable?

In a bail matter,P.V. Kunhikrishnan, J., noted the position of law that, a promise to marry made to married women is not legally enforceable, the offence of rape is not attracted.

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Political Rallies

Can organisers of political rallies be responsible for provocative slogans raised by any of the participants during such rallies?

P.V. Kunhikrishnan, J., observed that, if a member of a rally raises provocative slogans, the persons who organize the rally is also responsible.

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Madras High Court


Legal Entity

Mother Nature is a living being having legal entity? Madras HC answers

Stating that the past generations have handed over the ‘Mother Earth’ to us in its pristine glory, S. Srimathy, J., expressed that it is the right time to declare/confer juristic status to the “Mother Nature”.

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Right to Worship

Whether constitutional guarantee of freedom of religion enshrined in Art. 25(1) of the Constitution of India extends even to rites and ceremonies associated with a religion?

Expressing that, the right of worship guaranteed under the Constitution to be respected by all concerned and devotees cannot be denied their right to worship under any circumstances, S.M. Subramaniam, J., held that every devotee has got a right to enter into the temple and worship Lord Sri Varadaraja Perumal in the way he likes without affecting the rights of other devotees/worshippers and temple activities.

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Negotiable Instruments Act

Obligation of Thumb Impression and Signature, both, for a Pro-Note under Negotiable Instruments Act: Mandatory or Not?

Teekaa Raman, J., observed that there is no mandatory provision under the Negotiable Instruments Act that both the signature and thumb impression has to be obtained for a pro-note and the lower Appellate Judge has totally misguided and misused the provision of the Negotiable Instruments Act, regarding the burden of proof and not even followed basic rudimentary of Section 20 of the Negotiable instruments Act.

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Public Employments

Can appointments be claimed as a matter of absolute right?

S.M. Subramaniam, J., observed that, equal opportunities in public employment is the Constitutional mandate.

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Madhya Pradesh High Court


Retiral Dues

Illicit deduction of amount from the retiral dues; Directions issued to refund the amount

Sushrut Arvind Dharmadhikari, J. allowed a writ petition which was filed assailing the legality, validity and propriety of the order dated 1-8-2018 whereby the excess amount of Rs.81,239/- has been sought to be recovered from the gratuity payable to him.

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Section 311 CrPC

Permission to change statement before Court would be dangerous for legal system and it may be also misused of S. 311 of CrPC; application for restatement after 2 years dismissed

Anil Verma, J. dismissed a criminal revision filed against the impugned order whereby an application preferred by the applicant/prosecutrix under Section 311 of CrPC was been dismissed.

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Civil Suit

Application under S. 151 of CPC maintainable despite the fact that order allowing the application under Or. 7 R. 11 of CPC is appealable; Trial Court directed to restore civil suit

Dwarka Dhish Bansal, J. allowed a civil revision under Section 115 of CPC against the order rejecting the application filed under Section 151 of CPC holding that the same was not maintainable.

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Bail

Not entitled to keep the amount of compensation paid to the State government in the event of a false rape case; Court allows bail

Vivek Agarwal, J. deciding a second bail application filed by the applicant in connection with Crime under Sections 376, 376(2)(N), 506 of IPC and Sections 3,4,5J(ii), 5L POCSO Act and Sections 3(1)(w)(II), 3(1)(w)(II), 3(II)(V) of SC/ST Act directed the Trial Court to ask the prosecutrix to refund the compensation amount paid by the State.

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Police Protection

Major Couple entitled to police protection in event of any future threats from parents; Permission granted to approach police commissioner directly

Vivek Rusia, J. decided on a petition which was filed seeking police protection.

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Termination of Pregnancy

Victim of rape allowed to terminate 13-week pregnancy; Direction issued to District Hospital for immediate action

Vivek Rusia, J. allowed an appeal which was filed seeking permission/ direction for termination of pregnancy.

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Principles of Natural Justice

Order by Trial Court violative of principles of natural justice; IO to be given opportunity to be heard

Atul Sreedharan, J. allowed a petition which was filed aggrieved by the order where after deciding a criminal case, the Additional Sessions Judge passed an order asking the Superintendent of Police to take action against the petitioner, who was the Investigating Officer of the case.

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Meghalaya High Court


Piling up Garbage

With serious menace of garbage piling up in one of the major towns, State administration seeks only to play the fiddle; matter receives the urgent attention at the highest quarters

The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. took up a petition on a matter pertaining to the piling-up of garbage in the town of Jowai. The petition was filed on 12-04-2022 complaining of household waste and general garbage not being collected in the Jowai urban township area from 04-02-2022. The Court had served the respondents served immediately and informed that the matter will appear a week hence for a preliminary hearing and appropriate directions on 20-04-2022.

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Orissa High Court


Exercise of power involving Application under Or. 1 R. 10 of CPC is completely different from Exercise of Power under Or. 21 Rules 97, 99 & 101 of CPC; Scope of latter is much wider

“…there exist two decrees passed by two different courts at the instance of third party and the other at the instance of the Plaintiff- Petitioner involved here in the Execution Proceeding.”

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Section 37 IT Act

The reasonableness of the expenditure had to be adjudged from the point of view of the businessman; Applied the test of commercial expediency

A Division Bench of S. Muralidhar CJ and R. K. Pattanaik J. dismissed the appeal filed by the assessee and upheld AO’s decision to disallow part of the payment towards commission.

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Food License

Any person selling article or food without a license would be punishable under S. 16 (I)(a)(ii) PFA Act as per S. 7(iii) PFA Act

Muralidhar CJ dismissed the revision petition and set aside the conviction decision of the Trial Court which was later affirmed by the Appellate Court.

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POCSO

Proceedings of the High Court cannot be held hostage to the whims of the investigating agency; granted bail to a CCL

V Narasingh, J. disposed of the bail application and restrained the Court to not grant any further adjournments and released the petitioner on bail.

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Industrial Disputes Act

It is not mandatory for Central Government to make a reference to a dispute which is of national importance to a National Tribunal in view of S. 7-B r/w S 10 (1-A) ID Act

A Division Bench of S. Muralidhar, CJ and R.K. Pattanaik J. dismissed the petition and upheld the judgment by CGIT, Bhubaneshwar declining the prayer of the Petitioner as regards the maintainability of the dispute before it.

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Contract

It is only when a purchase order is placed that a ‘contract’ would be entered into and only then arbitration clause would become part thereof

Muralidhar, CJ. dismissed the petition, declined the appointment of arbitrator and left it open to the petitioners to avail other remedies as may be available to them in accordance with law.

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Patna High Court


Negotiable Instruments Act

Can an order of interim compensation under S. 143-A NI Act, be enforced as ‘public demand’ under Bihar & Orissa Public Demands Recovery Act, 1914?

The Division Bench of Sanjay Karol, CJ and S. Kumar J., held that an order of payment of interim compensation under the Negotiable Instruments Act, 1881 can be enforced under the Bihar & Orissa Public Demands Recovery Act, 1914 as ‘public demand’.

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Punjab and Haryana High Court


Protection of Life and Liberty

State’s respect for individual independent choices has to be held high

“Courts’ responsibility to uphold the principles of constitutional morality, there exists a parallel duty to not infringe upon the personal relationship between two free willed adults.”

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Abetment of Suicide

Abetment of suicide by wife and mother-in-law of deceased?

Vikas Bahl, J., granted bail to mother-in-law and wife alleged to have incited husband to commit suicide.

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Maintenance Tribunal

If a person is aged below 58 years, Can Maintenance Tribunal invoke jurisdiction under the Maintenance and Welfare of Parents and Senior Citizen Act?

Arun Monga, J., held that the Maintenance Tribunal has no jurisdiction under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 if a person is aged below 58 years old.

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Mental Cruelty

If a husband stops talking to the wife, would that cause mental cruelty?

In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

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Sedition

Can an act of dissent be labeled as sedition?

Expressing that, in a democratic set-up, there always would be voices of dissent and opinions against rules and protest against actions, Vinod S. Bhardwaj, J., observed that, some protests may have aggression but still an act of dissent would not be ordinarily labeled as sedition.

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Rajasthan High Court


Remedy

Writ Petition not maintainable due to having an alternative and efficacious remedy under S. 17 of the SARFAESI Act

Mahendar Kumar Goyal, J. dismissed the writ petition in view of availability of alternative remedy to the petitioners under the provisions of the SARFAESI Act. 

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Sikkim High Court


Penetrative Sexual Assault

Trial Courts should exhibit sensitivity to the plight of a child victim but they cannot go overboard and stonewall steps that are mandatory to be complied with when analysing and interpreting evidence given by  witnesses; Sentence of rape accused modified

The Division Bench of Meenakshi Madan Rai and Bhaskar Rai Pradhan, JJ. partly allowed an appeal which was filed by the appellant who aged about 40 years, was accused of having committed the offence of aggravated penetrative sexual assault, as defined under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012, on the victim, aged about 10 years. Trial Court on consideration of the evidence on record convicted the Appellant of the offence under Section 5(m) punishable under Section 6 of the POCSO Act, 2012 by the impugned Judgment and Order on Sentence, both dated 11- 11-2020, and sentenced him to undergo rigorous imprisonment for a term of 40 years and to pay fine of Rs 30,000/- (Rupees thirty thousand) only, with a default clause of imprisonment of 5 years.

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Telangana High Court


Police Negligence

Tel HC remarks several writ petitions are filed complaining about police negligence and delays during investigation; Such issues cannot be decided by invoking jurisdiction under Art. 226 of the Constitution

“…The appropriate and efficacious remedy available to the petitioner, if she is aggrieved by the action/inaction of the Investigating Officer is to file a private complaint against the said officer before the competent Court.”

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Contempt of Court

‘slap- say sorry-forget cannot be accepted’; An apology can neither be a defence nor a justification for an act which tantamount to Contempt of Court

A Division Bench of P Naveen Rao and M G Priyadarshini, JJ. dismissed the petition and held that contempt has taken place and no apology must be given.

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Uttaranchal High Court


POCSO

Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case; appeal dismissed in POCSO matter

Ramesh Chandra Khulbe, J. dismissed a criminal appeal which was filed from jail assailing the judgment and order whereby the Trial Court had convicted and sentenced the appellant on the counts of Sections 376, 377, 506 Penal Code and Section 6 of POCSO Act.

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Juvenile Justice Act

Child in conflict with law cannot be allowed anticipatory bail as JJ Act does not make any provision for the same; Application dismissed

Ravindra Maithani, J. dismissed an application for anticipatory bail in regards to an ongoing trial under Sections 376, 323, 504, and 506 Penal Code, 1860. The previous anticipatory bail application of the applicant had been rejected by the Fast Track Court/Special Judge, POCSO/Additional Sessions Judge, Dehradun on the ground that since the applicant is a child in conflict with the law (“CIL”) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act”) does not make any provision for anticipatory bail, the application cannot be allowed.

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Intra-Court Appeal

Adequate opportunity of filing counter-affidavit should be afforded to State; intra-Court appeal allowed

The Division Bench of S.K. Mishra, ACJ and A.K. Verma, J. allowed an intra-Court appeal wherein the State has assailed the order passed by the Single Judge whereby the Writ Petition of the writ petitioners-respondents herein was allowed supposedly on the concession made by the government pleader.

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Legal RoundUpWeekly Rewind

Top Stories of the Week 


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

https://www.scconline.com/blog/post/2022/05/11/sedition-law-review-section-124a-pending-trials-fresh-cases-stay-supreme-court-india-judgment-law-legal-research-updates-news/

Whether Marital Rape Exception should remain on the statute?

https://www.scconline.com/blog/post/2022/05/12/split-verdict-on-criminalization-of-marital-rape-can-a-husband-be-labelled-as-a-rapist-delhi-high-court/


Supreme Court Updates


“A judge, like Caesar’s wife, must be above suspicion”. Showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty

https://www.scconline.com/blog/post/2022/05/09/judges-undue-favour-judicial-misconduct-dishonesty-supreme-court-judgment-legal-law-updates-research-news/   

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

https://www.scconline.com/blog/post/2022/05/11/ni-act-cheques-security-quashment-proceedings-supreme-court-judgments-india-legal-law-research-updates-news/


High Court Updates


Kerala High Court

Do employers have a responsibility to ensure that delivering and raising a child, shall not be detrimental to female officer’s career?

https://www.scconline.com/blog/post/2022/05/12/do-employers-have-a-responsibility-to-ensure-that-delivering-and-raising-a-child-shall-not-be-detrimental-to-female-officers-career-maternity-benefit/

Karnataka High Court

Work From Home under Maternity Benefit Act can be availed only if nature of work assigned to women is possible for them to work from home

https://www.scconline.com/blog/post/2022/05/12/work-from-home-under-maternity-benefit-act-can-be-availed-only-if-nature-of-work-assigned-to-women-is-possible-for-them-to-work-from-home/

Jammu and Kashmir and Ladakh High Court

Statement that Kashmir is under occupation of armed forces and people of Kashmir reduced to slaves, will be protected under Right to Freedom of Speech and Expression?

https://www.scconline.com/blog/post/2022/05/09/statements-that-kashmir-is-occupied-by-military-or-people-of-that-region-have-been-reduced-to-slaves-will-be-protected-under-right-to-freedom-of-speech-and-expression-jammu-and-kashmir-and-ladakh-hig/


Legislation Updates


SEBI (Collective Investment Schemes) (Amendment) Regulations, 2022 

https://www.scconline.com/blog/post/2022/05/11/sebi-collective-investment-schemes-amendment-regulations-2022/

Government revokes restrictions on banks as to payment of dividend in case of unamortised expenditure on account of enhancement in family pension 

https://www.scconline.com/blog/post/2022/05/10/government-revokes-restrictions-on-banks-as-to-payment-of-dividend-in-case-of-unamortised-expenditure-on-account-of-enhancement-in-family-pension/

Government notifies sporting events of national importance 

https://www.scconline.com/blog/post/2022/05/10/government-notifies-sporting-events-of-national-importance/


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Case BriefsHigh Courts

In the Split verdict on Criminalisation of Marital Rape Exception (MRE), the Division Bench of Delhi High Court pronounced a 393-Pages Judgment, wherein the Justices Rajiv Shakdher and C. Hari Shankar while disagreeing with each other on various issues, very significantly pointed out the issue if  “NEW OFFENCE”.

Let’s break it down


In the opinion of Justice Rajiv Shakdher, on striking down MRE, no new offence would be created and for the said, following reasons were laid down:

  • Since the stated object of the rape law is to protect women from sexual abuse of the worst kind, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is exercised, all that would happen is, it would extend the ambit of Section 375 IPC to even offending husbands.
  • If the ingredients of the offence has been changed, then a new offence/new crime would have been created. All that would happen if MRE is truck down is that the offending husband would fall within the ambit of the offence.
  • Reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful.
  • MRE seeks to ring-fence the offender based on his marital relationship with the accused.
  • What is principally punished under the criminal law is the act of omission or commission, as etched out in the IPC. The penal law is act/omission centric and, in most situations, is neutral to who the perpetrator of the crime is.

The ratio of the judgment of the House of Lords in R v. R  in Justice Shakdher’s opinion was squarely applicable, both for the proposition that striking down MRE does not create a new offence and that if such step is taken, the Court need not leave the matter to the legislature.


 Justice C. Harishankar’s Opinion


The proscription on Courts creating an offence by judicial fiat operates as a restraint even on the exercise of the power to strike down a legislative provision as unconstitutional, said Justice Shankar.

  • Judges sitting in courts cannot, on the basis of arguments of Counsel, howsoever persuasive, create offences, or pass judgements which would result in an act, otherwise not an offence, being rendered an offence.
  • A court cannot legislatively stipulate the punishment for the offence. If the Court is not empowered to prescribe punishments, equally, the Court cannot, by its order, convert an act which, prior thereto, was not an offence, into an offence.

[RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404, decided on 11-5-2022]

Case BriefsHigh Courts

Delhi High Court: In a split verdict the Division Bench of Rajiv Shakdher and C. Hari Shankar, JJ., laid down their opinion on “Should a husband be held criminally liable for raping his wife who is not under 18 years of age?”

“Women in most parts of the world are treated as individuals, free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing.”

–Justice Rajiv Shakdher

Whether or not Exception 2 Section 375 of the Penal Code, 1860 should remain on the statute?

 Remarks before pronouncing the ruling

I must state, with all humility at my command, that as I began to pen this judgment, the enormity of its impact on the society was not lost on me. I do not lay claim to being the repository of all wisdom that must be brought to bear in dealing with a sensitive issue that I am to rule on. 

— Justice Rajiv Shakdher

Whether Marital Rape Exception should be struck down?

Those wanting to strike down Exception 2 to Section 375 IPC, also seek striking down of Section 376B which concerns sexual intercourse by a separated husband with his wife, albeit, without her consent.

Further, prayer to strike down Section 198B of the Code of Criminal Procedure, 1973 which prohibits a Court from taking cognizance of an offence punishable under Section 376B IPC except upon satisfaction of facts which constitutes the offence once a complaint is lodged by the wife against her husband was also filed.

Analysis, Law and Decision

Justice Rajiv Shakdher’s Opinion

Constitutional Viability of classification between married and unmarried women in the context of Article 14

Justice Rajiv Shakdher expressed that there can be no doubt that the legislature seeks to punish offenders who are guilty of committing rape, the said principle is the bedrock on which Section 375 IPC was founded.

Further, it cannot be doubted that there is a differentia between married, separated, and unmarried couples.

Marital Rape Exception grants impunity to an offender based on his relationship with the victim.

In Justice Shakdher’s opinion, the classification was unreasonable and manifestly arbitrary as it seemed to convey that forced sex outside marriage is “real rape” and that the same act within marriage is anything else but rape.

Sex-worker has been invested with the power to say “no”; by the law; but not a married woman.

In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law; but not the offending husband only because of his relationship with the victim. A married woman’s ability to say “no” to sexual communion with her husband when he is infected with a communicable disease, or she is herself unwell finds no space in the present framework of rape law. Thus, the rape law as it stands at present is completely skewed insofar as married women are concerned.

Hence, in his view MRE, violates the equality clause contained in Article 14 of the Constitution and MRE with one stroke deprives nearly one-half of the population of equal protection of the laws.

The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman.

Conjugal expectation

Conjugal expectations, though legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-à-vis his wife disregarding the circumstances which obtain at the given point in time as also her physical and mental condition.

Non-consensual sexual intercourse is not labelled as “rape” to save the institution of marriage

Justice Shakdher agreeing with Karuna Nundy, Advocate stated that sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage.

Invasion of Private Space 

The prosecution of the offending husband for a rape offence would result in invading the private space of a married couple is nothing but an attempt to keep the law at bay even when a heinous crime such as rape has occurred within what some would refer to as “sacrosanct” space.

In Justice Shakdher’s opinion, the above was morally suspect and legally untenable.

The attempt to keep away the law even when a woman is subjected to forced sex by her husband, by demarcating private and public space is to deny her the agency and autonomy that the Constitution confers on her.

Gathering evidentiary material would be difficult

In the opinion of Justice Shakdher, the difficulty in collecting evidentiary material should not be the reason for keeping an offending husband who subjects his wife to forced sex out of the purview of the substantive rape law.

New Offence 

To strike down MRE, would create a new offence, is misconceived for the following reasons:

(i) Firstly, the offence of rape is already defined in the substantive part of Section 375 of IPC. The sexual acts which are described in Clauses (a) to (d) of Section 375 constitute rape if they fall within any of the seven circumstances alluded to in the said provision. There are two exceptions provided in Section 375 and, thus, those who come within the ambit of the exception cannot be prosecuted for the offence of rape. The first exception concerns a circumstance where the woman undergoes a medical procedure or intervention. The second exception (which is the exception under challenge) concerns the act of sexual intercourse or sexual acts which involve a man and his wife who is not under 18 years of age. The exception clearly subsumes the main provision without providing a determining principle or rationale as to why husbands who have subjected their wives to forced sex should not face the full force of the rape law. Since the stated objective of the rape law is to protect women from sexual abuse of the worst kind i.e., rape, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is excised, all that would happen is, it would extend the ambit of Section 375 to even offending husbands.

(ii) Secondly, a new offence/new crime would perhaps have been created if the ingredients of the offence had changed. [See People v. Liberta] It is no one’s case that the ingredients of the offence have changed; all that would happen if MRE is struck down is that the offending husband would fall within the ambit of the offence.

iii) Thirdly, reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful. [See C.B. Gautam v. Union of India (1993) 1 SCC 78; Navtej Singh Johar; and Harsora v. Harsora.]

(iv) Fourthly, MRE (Exception 2 to Section 375 of the IPC) seeks to ring- fence the offender based on his marital relationship with the accused. The main provision is neutral to the relationship that may or may not subsist between the offender and the victim. Thus, a person who is a stranger or is in a live-in relationship with the victim can be prosecuted for the offence of rape. As a matter of fact, the legislature pursuant to the Criminal (Amendment) Act, 2013 has brought within the sway of rape law (Section 375) even separated husbands by inserting Section 376B in Chapter XVI of the IPC; a provision which is challenged by the petitioners on different grounds.

(v) Fifthly, what is principally punished under the criminal law is the act of omission or commission, as etched out in the IPC.

MRE violates Article 21 of the Constitution

The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing.

“Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally.”

 “Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals.”

MRE violates Articles 15 and 19(1)(a) of the Constitution

Continuance of MRE, violates Article 15 of the Constitution since it triggers discrimination against women based on their marital status. The said exception impairs and abstain the power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses.

MRE is violative of Article 19(1)(a) of the Constitution as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country.

Separated husbands

Since Justice Shakdher concluded that granted impunity to offending husbands under the MRE is violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution, the class which comprises separated husbands would also necessarily have to be dealt with as any other rapist.

“…separated husbands would suffer the same punishment, as prescribed for any other rapist under Section 376(1) of the IPC, as that would be the logical sequitur of striking down MRE.”

Conclusion

(i) That the impugned provisions [i.e. Exception 2 to Section 375 (MRE) and Section 376B of the IPC as also Section 198B of the Code], insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years of age), albeit, without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and, hence, are struck down.

(ii) The aforesaid declaration would, however, operate from the date of the decision.

(iii) The offending husbands do not fall within the ambit of the expression “relative” contained in Section 376 (2)(f) of the IPC and, consequently, the presumption created under Section 114A of the Evidence Act will not apply to them.

(iv) Certificate of leave to appeal to the Supreme Court is granted under Article 134A(a) read with Article 133(1)(a)&(b) of the Constitution as the issue involved in this case raises a substantial question of law which, in my opinion, requires a decision by the Supreme Court.

Justice Shakdher concluded that Exception 2 to Section 375 and Section 376B of the IPC as well as Section 198B of the Code of Criminal Procedure (CrPC), as they relate to husband or separated husband having sexual intercourse with his wife without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and therefore deserve to be struck down.

Justice C. Hari Shankar’s Opinion

Justice Shankar stated that it is not to judge whether non-consensual sex within marriage ought, or ought not, to be punished or, if it is, to opine appropriate punishment that should visit the perpetrator of the act.

Re: Article 14

Justice Shankar stated that the act of sex, when it takes place between parties who are joined by marriage, declares the impugned Exception, is in no case rape.

“Applying the “intelligible differentia” test, the impugned Exception would, therefore, infract Article 14 only if the relationship of marriage, between the man and woman involved in the act, does not provide any intelligible differentia having a rational nexus to the object sought to be achieved by the impugned Exception.”

The ‘institution of marriage’, and the intelligible differentia that results

Petitioners completely failed to note the uniqueness of marriage as an institution, its peculiar demographics and incidents, and the emotional, psychological, social and other complex equations that exist between a wife and a husband.

“Between a husband and wife, who spend their days and nights together, living in a house which, by the dint of their joint effort, they make a home, there exists a bond which defies, and indeed transcends, all known and identifiable parameters.”

Further, Justice Shankar added that, there can be no comparison, whatsoever, between the relationship between a husband and a wife, with any other relationship between man and woman. It is for this reason that there is an enforceable legal right – which even Ms Nundy acknowledged – of each party in a marriage, to cohabit with, and for the consortium of, the other.

Petitioner’s counsel completely failed to accord to the marital relationship, the status and importance it deserves.

“Marriage is an institution which epitomizes, at the highest level, the most sublime relationship that can exist between man and woman.”

In this relationship, given its unique character and complexity, the legislature has, advisedly, felt that no allegation of “rape” has place. Sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred. In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable. The marital bedroom is inviolable. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of ‘rape’, in my view, is completely immune to interference.

—Justice Shankar

In his view, introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist if he has, on one or more occasions, sex with her without her consent, would be completely antithetical to the very institution of marriage.

Adding to the above observation, it was expressed that,

“Marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined. The impugned Exception does not, however, either expressly or by necessary implication, confer, on the husband in a marriage, an entitlement to insist on sex with his wife, against her willingness or consent.”

 “The expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond.”

Elaborating further, Justice Shankar remarked that, any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, is not only unjustified, but ex facie unrealistic.

Stating that, if the legislature, decided to treat non-consensual sex by a man with a woman, where the woman is a stranger, as rape, and non-consensual sex by a husband with his wife, as not rape, Justice Shakdher was unable to subscribe to the submission that the distinction violates Article 14 of the Constitution of India.

Re. the argument that the impugned Exception creates “three classes of victims”

In the case of an act of non-consensual sex between a husband and wife, there is no societal ramification whatsoever, unlike in the case of a woman raped by a stranger, as the act takes place within the privacy of the marital bedroom and, more empirically, because the man and the woman are married.

Conjugal right v. Conjugal expectation

The impugned Exception does not, either directly or by necessary implication, state that, by reason of marriage, a husband has a right to have sex with the wife against her will or consent. All that it says is that, if he does so, he, unlike a stranger committing such an act, cannot be treated as a rapist. There is a clear intelligible differentia between the two situations, stated Justice Shankar.

“The impugned Exception does not seek, directly or indirectly, to enforce a non-enforceable conjugal right, or even a conjugal expectation.”

Justice Shankar elaborated its observation stating that, the impugned Exception, applies to subsisting and surviving marriages, where the husband and wife are together, and not separated.

“In a subsisting, and surviving, marriage, where the husband and wife are staying together and cohabiting, if the legislature feels that an allegation of rape – and, consequently, the chance of the husband being called a rapist – should find no place even if, on one occasion or the other, the wife is compelled to have sex with the husband without willingness or consent, can it be said that the legislature acts unconstitutionally?”

In Justice Shankar’s opinion, this Court cannot approach the issue before it with a view of pronouncing on whether non-consensual sex within marriage ought to be punished, or not, and, if it feels that it should, find a way of doing so. That is exclusively the province of the legislature.

Consent and the ‘effect doctrine’

In Court’s opinion, there was nothing in the impugned Exception which obligated a wife to consent to having sex with her husband, wherever he so requests. It does not even obliquely refer to consent, or want of consent.

Conclusion

(i) the petitioners’ case is premised on a fundamentally erroneous postulate, for which there is no support available, either statutory or precedential, that every act of non-consensual sex by any man with any woman is rape,
(ii) the impugned Exception does not violate Article 14, but is based on an intelligible differentia having a rational nexus with the object both of the impugned Exception as well as Section 375 itself,
(iii) the impugned Exception does not violate Article 19(1)(a),

(iv)  the impugned Exception does not violate Article 21,

(v)  none of the indicia, on which a statutory provision may  be struck down as unconstitutional, therefore, can be said to exist, and

vi) in such circumstances, the Court cannot substitute its subjective value judgement for the view of the democratically elected legislature, hence challenges laid by the petitioners to the constitutional validity of Exception 2 to Section 375 and Section 376B of the IPC, and Section 198B of the Cr PC, have to fail.

Lastly, Justice Shankar concurred with the opinion of Justice Shakdher in his decision to grant certificate of leave to appeal to the Supreme Court as the present matter involved substantial questions of law.[RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404, decided on 11-5-2022]


Advocates before the Court

….. Petitioner
Ms Karuna Nundy with Mr Mukesh Sharma and Mr Raghav Awasthy,

….. Respondent
Mr Tushar Mehta, SG and Mr Chetan Sharma, ASG with Ms Monika Arora, CGSC along with Mr Vinay Yadav, Mr Amit Gupta, Mr Akshya Gadeock, Mr Rishav Dubey, Mr Rajat Nair, Mr Sahaj Garg and Mr R.V. Prabhat, Advs.

for UOI.
Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advs.
Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.
Mr Amit Lakhani and Mr Ritwik Bisaria as Intervenors for Men’s Welfare Trust.

W.P.(C) 5858/2017 & CM No.45279/2021

… Petitioner
Mr Colin Gonsalves, Sr. Adv. With Ms. Olivia Bang, Ms Sneha Mukherjee, Ms Mugdha and Ms Aimy Shukla, Advs

….. Respondents

Mr Ruchir Mishra, Mr Sanjiv Kumar Saxena, Mr Mukesh Kumar Tiwari and Mr Ramneek Mishra, Advs. for UOI. Mr Gautam Narayan, ASC, GNCTD with Ms Nikita Pancholi, Adv.

Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.

Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

Mr R.K. Kapoor, Advocate for applicant in CM 19948/2016.

W.P.(C) 6024/2017

…Petitioner

Ms Karuna Nundy, Ms Ruchira Goel, Mr Rahul Narayan, Mr Nitish Chaudhary, Ms Ragini Nagpal, Ms Muskan Tibrewala, Mr Utsav Mukherjee and Mr Shashwat Goel, Advs.

…. Respondent
Mr Chetan Sharma, ASG with Mr Anil Soni, CGSC along with Mr Devesh Dubey, Mr Vinay Yadav, Mr Amit  Gupta, Mr Akshya Gadeock, Mr Rishav Dubey, Mr Sahaj Garg and Mr R.V. Prabhat, Advs. for UOI.
Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.
Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

W.P.(CRL) 964/2017

…… Petitioner

Mr Sahil Malik, Adv.

….. Respondents Ms Nandita Rao, ASC for State.

Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.

Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.


Read More:

Split Verdict on Criminalisation of Marital Rape Decision: One strikes down the exception, one upholds [Report to be updated]

Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

Hot Off The PressNews

In the batch of petitions filed asking for striking down marital rape to be an exception under the Penal Code, 1860, Delhi High Court passed a split verdict.

SPLIT VERDICT


Justice Rajiv Shakdher held that Exception 2 to Section 375 IPC, which exempts the husband from the offence of rape for forcible sex with the wife, is unconstitutional.

Justice C. Shankar held that Exception 2 to Section 375 IPC is not unconstitutional and there is an intelligible differentia. In his opinion, the challenge cannot sustain.

[Judgment copy awaited]


Also Read:

Marital Rape will be criminalised or not? Judgment to be pronounced | Stay tuned to know the verdict

 

Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

Hot Off The PressNews

Delhi High Court will be soon pronouncing its ruling with respect to a batch of petitions filed asking for striking down marital rape to be an exception under the Penal Code, 1860.

How can killing your own wife be criminal but indulging in sexual activity without her consent (forcibly) be not a criminal activity?

Delhi High Court to decide on Exception 2 to Section 375 of the Penal Code, 1860. (IPC)

What does Section 375 Exception 2 state?


Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

On 21-2-2022, the Delhi High Court had reserved its order.

[To be updated once Judgment is pronounced]


Also Read:

Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

Case BriefsHigh Courts

A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”

Karnataka High Court: M Nagaprasanna J. dismissed and disposed of WP Nos. 48367 of 2018, 12976 of 2017, 10001 of 2018 and partly allowed 50089 of 2018.

Factual Background

The facts of the case, as according to the narration of the victim, clearly indicates as to how brutally the petitioner used to have sex, anal sex with the complainant/wife in the presence of his daughter who was 9 years old at that point in time and later used to touch the private parts of the daughter and also indulged in sexual acts against the daughter. The complaint was filed by the victim wife and the charge sheet was filed by the Police for offences punishable under Sections 498A, 376, 354, 506 of the Penal Code, 1860 i.e. IPC and Section 5(m) and (l) of the Act. The petitioner, on filing of the final report, filed an application under Section 216 of the Criminal Procedure Code i.e. Cr.P.C seeking a prayer to drop the first charge framed under Section 376 of the IPC, as the offence would not get attracted in the case of the petitioner who is the husband of the complainant which was rejected by the Sessions Court in terms of its order dated 16-10-2018. Thus the petitioner knocked the doors of the instant Court in the subject petition in the garb of calling in question the Constitutional validity of clauses of presumption under Sections 29 and 30 of POCSO Act.

Issues:

(i) Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC is tenable in law?

(ii) Whether the allegation against the petitioner for other offences is tenable in law?

(iii) Whether the prosecution notwithstanding the presumption under Sections 29 and 30 of the Act has to prove the foundational facts beyond all reasonable doubt?

(iv) Whether the designated Court to try the offences under the Act has jurisdiction to try both the offences under the IPC and the Act in the facts of this case?

(v) Whether charge sheet against the petitioner should be altered to include addition of the offence punishable under Section 377 of IPC?

(vi) Whether proceedings under the POCSO Act against the petitioner need to be interfered with?

Issue 1

History of Section 375 Penal Code, 1860

The genesis of Section 375 of the IPC and its exception has its roots in the Code propounded by Macaulay in 1837. It is Macaulay’s Code that becomes the basis for the Indian Penal Code of 1860, which governs the penal provisions even as on date with certain changes on certain occasions. Exception to Section 375 has existed in the IPC since the time of its enactment by the British in the year 1860. Exception-2 then was guided by the laws that were existent in all the countries where the British had their foot on. They were several decades ago. It was founded and remained on the premise of a contract in the medieval law that husbands wielded their power over their wives. In the Victorian era women were denied the exercise of basic rights and liberties and had little autonomy over their choice. Their statuses were nothing beyond than that of materialistic choices and were treated as chattels.

Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression. Under the Constitution, the rights are equal; protection is also equal.

Justice JS Verma Committee: Recommendations

79. We, therefore, recommend that:

i. The exception for marital rape be removed.

ii. The law ought to specify that:

a. A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;

b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;

c. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

80.We must, at this stage, rely upon Prof. Sandra Freedman of the University of Oxford, who has submitted to the Committee that that “training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”.

Section 375 of the IPC came to be amended with effect from 10-05-2013 after introduction of Criminal Law Amendment Bill before the Parliament, pursuant to the constitution of J.S.Verma Committee for suggesting amendments to criminal law.

The Exception to pre-amendment reads as follows:

“Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The Exception to post-amendment reads as follows:

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

 The Court thus remarked, “a woman being a woman is given certain status; a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality. The Constitution recognizes and grants such equal status to woman as well.”

The Court observed that the Code practices discrimination. Under the Code every other man indulging in offences against woman is punished for those offences. But, when it comes to Section 375 of IPC the exception springs. Thus, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality.

Therefore, the situation now emerges is equality pervades through the Constitution, but inequality exists in the Code qua – Exception-2 to Section 375 of the IPC.

The Court held “I find no error committed by the learned Sessions Judge in taking cognizance, framing the charge under Section 376 of the IPC and also rejecting the application to drop the said charge.”

Issue 2

The Court held “Other offences alleged against the petitioner, the ones punishable under Sections 498A, 354, 506 of the IPC are clearly brought out in the complaint and in the charge sheet. This is again a matter of trial” 

Issue 3

The Court relied on GS Venkatesh v. State of Karnataka, (2020) 3 KCR 2276 wherein it was observed “In a case where an offence is committed against a child, having regard to the very nature of the offence where it is difficult for the prosecution to prove the facts and circumstances in which the offence had taken place, the Act has cast the burden on the accused to prove the facts within his knowledge as it is easier for the innocent accused to produce evidence contrary to the case proved by the prosecution. This is called reverse burden whereby the burden is shifted to the accused to disprove the facts established by the prosecution. The question of discharging the reverse burden by the accused would arise only when the initial burden cast on the prosecution is discharged to the satisfaction of the Court. Therefore it follows that without the proof of basic facts constituting the offence charged against the accused, the accused cannot be called upon to disprove the case of the prosecution.”

The Court thus held the prosecution has to prove the foundational facts beyond all reasonable doubt and cannot rest its case on preponderance of probability, merely because the statute imposes reverse burden upon the accused on proving innocence in place of the prosecution proving the guilt.

Issue 4

The Court relied on judgment Vivek Gupta v. CBI, (2003) 8 SCC 628 and held “I am of the considered view that the trial that is now sought to be held before the POSCO Court by the Sessions Judge can also try the offences alleged under the Code. Therefore, the point that has arisen for consideration is answered against the petitioner.” 

Issue 5

The Court observed and held that the finding that when the allegations made against the husband attracts Section 376 of the IPC and a charge is also framed in respect of the said offences, question of considering the request to frame a charge under Section 377 of the IPC does not arise, is erroneous. The allegations clearly make out an offence punishable under Section 377 of the Code which deals with unnatural sex. Therefore, the order under challenge is to be set aside allowing the application filed by the prosecution under Section 216 of the Cr.P.C. with a direction to the trial Court to frame the charge for the offence punishable under Section 377 of the IPC as well.

Issue 6

The Court held Allegations against the petitioner-husband for offences punishable under the POCSO Act for alleged sexual acts on the daughter cannot be interfered with. It is yet again a matter of trial.”

[Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371, decided on 23-03-2022]


Appearances:

For petitioner: Mr. Hashmath Pasha and Mr. Ranjan Kumar

For respondent: Mrs. Namitha Mahesh., R D Renukaradhya, Mr. Madanan Pillai, and A D Ramananda


Arunima Bose, Editorial Assistant ahs reported this brief.

Op EdsOP. ED.

Decades have passed, several amendments have been introduced, yet no specific provision to punish a man indulging in sexual acts with his wife considering as his right and disrespecting the significance of the word “Consent”. Why?

Delhi High Court will be soon pronouncing its ruling in respect to a batch of petitions filed asking for striking down marital rape to be an exception under the Penal Code, 1860.

How can killing your own wife be criminal but indulging in sexual activity without her consent (forcibly) be not a criminal activity?


Husband not guilty to rape his own wife


In 2018, Gujarat High Court’s Single Judge Bench in Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732 while noting the acts of a husband to constitute as rape under Section 375 stated that lawful marriage between the accused and the first informant that saves the situation for the husband. 

“…the complainant is a legally wedded wife of the accused, the sexual intercourse with her or any sexual acts by accused would not constitute an offence of rape even if it was by force, violence or against her wishes.”

Though the Court made it clear that in case of separation if a husband makes sexual intercourse with the wife, the said act would be an offence under Section 376-B.

“By marriage a woman gives irrevocable consent for her husband to have sex with her any time he demands it.”

“If the husband lays an assault on her wife, then that would constitute an offence under the IPC. If the very same husband lays an assault and forces his wife to have sexual intercourse, he would be liable for assault but not for an offence of rape only because there is a valid marriage between the two.”

Gujarat High Court observed that,

Husbands need to be reminded that marriage is not a license to forcibly rape their wives. A husband does not own his wife’s body by reason of marriage.

In 2021, in a recent decision of Chhattisgarh High Court, it was held that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape.” [Dilip Pandey v. State of Chhattisgarh, CR.R. No. 177 of 2021]

Whether a wife can claim divorce based on marital rape?


Kerala High Court’s Division Bench comprising of A. Muhamed Mustaque and Kauser Edappagath, JJ., remarked that merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.

Noting that the wife was subjected to the worst form of sexual perversion and unnatural sex against her will held that, treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

High Court remarked that “A spouse has a choice not to suffer and law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court. [X v. X, Mat. Appeal No. 151 of 2015]

Women’s right to refuse to indulge in sexual activity


 Supreme Court stressed upon woman’s right to refuse in the case of Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, wherein the Court expressed that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.

Hear the voices of Silence | A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”.


In a recent decision delivered on 23-3-2022, the Karnataka High Court in Hrishikesh Sahoo v. State of Karnataka, WP 48367 of 2018 while throwing light on equality amongst genders, laid down that,

Woman and man being equal under the Constitution cannot be made unequal by Exception-2 to Section 375 of the IPC. It is for the law makers to ponder over existence of such inequalities in law. For ages man donning the robes of a husband has used the wife as his chattel; […] his crude behavior notwithstanding his existence because of a woman.

A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape.

Court remarked that, A man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC. The contention of the senior counsel that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, such an argument cannot be countenanced.


The trajectory of unheard voices is unending, yet the hope for a ray of light for the unheard is still alive.

Legal RoundUpWeekly Rewind

SCC Online Weekly Rewind Episode 23rd ft. Devika Sharma, Senior Editorial Assistant is out now. The written episode along with the video episode can be watched and read below.


Kerala High Court

 Is marital rape a form of cruelty?

Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

In a very significant decision, Kerala High Court held that merely for the reason that law does not recognize marital rape under the penal law, it does not inhibit the Court from recognizing the same as a form of cruelty to grant divorce.

High Court expressed:

if marriage is seen as a symbol to project status, without reflecting the values the individuals or society would cherish to profess, we may miss the basic concept required for marriage

https://www.scconline.com/blog/post/2021/08/10/marital-rape/


Supreme Court

SC issues directions to make voter’s right to information more effective; penalises political parties for non-compliance with earlier directions regarding disclosure of criminal antecedents: Read full report

“The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government.”

In a matter arising out of the elections held at Bihar Legislative Assembly, the Supreme Court found several political parties guilty of contempt of court for non-compliance of directions given by the Supreme Court in Rambabu Singh Thakur v. Sunil Arora, in connection with disclosure of information of candidates with criminal antecedents. Penalties have been imposed on the political parties found guilty. The Court also issued further directions in order to make the right of information of a voter more effective and meaningful.

https://www.scconline.com/blog/post/2021/08/13/fine-on-political-parties/

Foreign arbitral award enforceable against non-signatories to agreement; ‘perversity’ no longer a ground to challenge foreign award; tort claims arising in connection with agreement are arbitrable: SC expounds law on foreign awards

 A foreign arbitral award is enforceable against non-signatories to arbitration agreement. The Supreme Court reiterated that grounds for resisting a foreign arbitral award contained in Section 48(1)(a) to (e) of the Arbitration and Conciliation Act, 1996 are to be narrowly construed, and that a non-signatory’s objection cannot possibly fit into Section 48(1)(a). Furthermore, a foreign arbitral award cannot be challenged on the ground of “perversity”.

Incidental to the main issue, it was also held that Section 44 recognises the fact that tort claims may be decided by an arbitrator provided they are disputes that arise in connection with the subject agreement.

The instant appeals before the Supreme Court raised interesting questions relatable to Part II of the Arbitration and Conciliation Act which provisions deal, inter alia, with recognition and enforcement of foreign awards.

https://www.scconline.com/blog/post/2021/08/11/foreign-arbitral-awards/

Conundrum of res judicata and rejection of plaint: SC summarises guiding principles for deciding an application under Or. 7 R. 11(d) CPC

Another very interesting development from the Supreme Court was that, the Court summarized the guiding principles for deciding an application under Order 7 Rule 11(d) of CPC.

(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;

(ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application;

(iii) To determine whether a suit is barred by res judicata, it is necessary that (a) the ‘previous suit’ is decided, (b) the issues in the subsequent suit were directly and substantially in issue in the former suit; (c) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (d) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and

(iv) Since an adjudication of the plea of res judicata requires consideration of pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused. 

https://www.scconline.com/blog/post/2021/08/10/conundrum-of-res-judicata-and-rejection-of-plaint/

15 years after superannuation, a Govt. Employee still accommodated at Govt. accommodation: Does SC finds this legitimized?

In a conflict of Right to Shelter v. Right to Govt. accommodation, SC noted that a Kashmiri Migrant retired from the Intelligence Bureau was even after 15 years of his retirement still staying at the accommodation provided by the Government.

Court in view of the stated backdrop affirmed that,

If a retired government employee have no residence, they have an option to avail transit accommodation or to receive cash compensation in the place of transit accommodation.

Further, the Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office.

Holding that the right to shelter does not mean right to government accommodation, the matter was disposed of directing the retired officer to vacant the accommodation. 

https://www.scconline.com/blog/post/2021/08/13/right-to-government-accommodation/


Telangana High Court

Mother allows her live-in partner to sexually assault minor daughter continuously

 In a gruesome matter, Telangana High Court noted that a mother allowed her live-in partner to commit sexual assault on her minor daughter as result of which the minor became pregnant and gave birth to a male child.

High Court rejected the bail application of the mother.

https://www.scconline.com/blog/post/2021/08/09/mother-allows-her-live-in-partner-to-sexually-assault-minor-daughter-continuously/


Kerala High Court

Penetration between thighs of the victim held together; will it fall within the ambit of Rape?

Whether penetration to any part of the body of such woman as mentioned in Section 375(c) of IPC brings within its ambit a penile sexual act committed between the thighs held together; which do not qualify to be called an orifice?

In a historic decision the Kerala High Court held that the sexual act of penetration committed between the thighs of the victim held together is an act of manipulation of the body of the victim to obtain sexual gratification and the same fell within the ambit of the amended definition of rape.

Elaborating more, the Court stated that , when the body of the victim is manipulated to hold the legs together for the purpose of simulating a sensation akin to penetration of an orifice; the offence of rape is attracted. When penetration is thus made in between the thighs so held together, it would certainly amount to “rape” as defined under Section 375.

https://www.scconline.com/blog/post/2021/08/09/rape-3/

Kerala HC directs Kerala to reinstate the woman terminated for unauthorised absence on availing maternity leave

While addressing the grievances of a woman whose request for maternity leave was turned down by the State and to then exacerbate her agony, she was terminated from service on the accusation of unauthorised absence. Voicing the plight of the pregnant women in general, the Kerala High Court stated,

“Life as a new mother is like being on a roller-coaster and being a working mother is tougher. The minutiae of motherhood can never be properly contemplated and it involves navigation through myriad daily issues, which ultimately determine the health and future of the child.”

https://www.scconline.com/blog/post/2021/08/13/maternity-leave-3/


Bombay High Court

Can mere dishonour of cheque amount to abetment of suicide?

In the backdrop of a matter wherein a person committed suicide living behind an alleged suicide note naming the person who did not repay the deceased’s money. Though there was a big question mark on the genuineness of the suicide note.

High Court held that mere dishonour of cheque and refusal to pay the remaining balance amount involved in the transaction does not amount to abetment to commit suicide.

https://www.scconline.com/blog/post/2021/08/10/mere-dishonour-of-cheque/

Would throwing love chit on person of a married woman amount to outraging her modesty?

Modesty of a woman is most precious jewel and there cannot be a straitjacket formula to ascertain whether modesty is outraged.

Bombay High Court dealt with a matter wherein a 45 year old married woman was subjected to a situation where a man threw a chit on the person of woman professing love for her, noting the said fact Court held that this act was sufficient to be categorized under the ambit of Outraging the modesty of woman, As even on earlier occasions the man used flirted with the woman making gestures like pouting lips and hitting her with small pebbles.

https://www.scconline.com/blog/post/2021/08/11/outraging-modesty-of-a-woman/


Central Information Commission

Centre’s denial on information relating to committee set up to ensure adequate availability of medical oxygen during COVID-19, is justified?

 Two weeks back, Central Information Commission dealt with a very pertinent matter, wherein an activist approached the Commission seeking certain information on the 9-Member Committee set up in April 2020 to ensure the adequate availability of medical oxygen during COVID-19 Pandemic.

In the arguments submitted by the Centre, they contended that the said information cannot be provided as the High level discussions of the empowered group frequently form part of the discussions within the highest decision-making body to avert and mitigate the impact of COVID-19 pandemic in the country and thus must be protected from disclosure given the larger intent to protect such information from being misused or being adversely used against the interest of the state.

The Commission directed the Centre to provide a point wise reply the activist within 10 days and in case if any information was being denied then the same should be suitably justified.

https://www.scconline.com/blog/post/2021/08/13/centres-denial-on-information-relating-to-committee-set-up-to-ensure-adequate-availability-of-medical-oxygen/


Appointments

Appointment | Kerala High Court gets 2 new Additional Judges 

Two new Additions in the form of Additional Judges were made to the Kerala High Court vide notification dated 11th August 2021 by the Ministry of Law and Justice.

Read the Notification here:

https://www.scconline.com/blog/post/2021/08/11/appointment-of-additional-judges/

 


Legislation updates 

IBC (Amendment) Act, 2021 

The Central Government has notified the Insolvency and Bankruptcy Code Amendment Act, 2021 which has brought Pre-packaged Insolvency Resolution Process for MSMEs. The Act repeals the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2021 and amends the provisions of IBC Act, 2016. 

The Application for initiating Prepacked Insolvency Resolution Process may be filed in the event of a default of at least one lakh rupees. However, the Central Government may increase the threshold of minimum default up to one crore rupees through a notification.   

https://www.scconline.com/blog/post/2021/08/13/pre-packaged-insolvency-resolution-for-msmes-introduced-vide-ibcamendment-act-2021/  

Rent-a-Cab (Amendment) Scheme 2021 

The Central Government has notified Rent-a-Cab (Amendment) Scheme 2021 which provides that the battery-operated motor cabs and motor cabs driven on methanol and ethanol is exempted from the provisions under S. 66 of the Motor Vehicles Act, 1988. 

https://www.scconline.com/blog/post/2021/08/12/battery-operated-motor-cabs-driven-on-methanol-and-ethanol-exempted-from-necessity-of-permits-vide-rent-a-cab-amendment-scheme-2021/  

Income tax Amendment (22nd Amendment), Rules, 2021 

The Central Board of Direct taxes has notified the Income tax Amendment (22nd Amendment), Rules, 2021 which provides the procedure for computation of income of a specified fund attributable to units held by non-resident as well as the procedure for computation of exempt income of specified funds. 

https://www.scconline.com/blog/post/2021/08/12/determination-of-income-of-specified-funds-associated-with-units-held-by-nri-notified-vide-income-tax-amendment-22nd-amendment-rules-2021/  

In the Monsoon Session, Various Bills Have Been Passed by Parliament Such as:

  1. Tribunal Reforms Bill, 2021 [ https://www.scconline.com/blog/post/2021/08/10/parliament-passes-tribunal-reforms-bill-2021/]
  2. General Insurance Business (Nationalisation) Amendment Bill, 2021 [ https://www.scconline.com/blog/post/2021/08/12/parliament-passes-general-insurance-business-nationalisation-amendment-bill-2021/
  3. National Commission for Homoeopathy (Amendment) Bill, 2021 
  4. National Commission for Indian System of Medicine (Amendment) Bill, 2021

https://www.scconline.com/blog/post/2021/08/12/rajya-sabha-clears-national-commission-for-homoeopathy-amendment-bill-2021-and-national-commission-for-indian-system-of-medicine-amendment-bill-2021/  

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.

Expressing concern over situation as it exists with regard to arranged marriage that is followed traditionally in our country; the Bench stated that the choice for a woman is limited as they simply follow the guidance of parents or elders. The Bench further stated that if marriage is seen as a symbol to project status, without reflecting the values the individuals or society would cherish to profess, we may miss the basic concept required for marriage. Voicing the plight of the respondent in the instant case, the Bench expressed,

“The case in hand depicts a story of the struggle of a woman within the clutches of law to give primacy of choice “not to suffer” in the bondage of legal tie. An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation for obtaining a divorce, she has forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years). She still awaits a final bell to answer her prayers and cry.”

Facts of the case

The instant appeal arose from a common judgment allowing a petition for divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights. The couple had an arranged marriage and had two children in the wedlock. The appellant-husband had claimed to be a qualified medical doctor at the time of marriage but he never practised as a medical doctor and was rather engaged in the real estate business and construction. The real estate business was not a smooth run for the appellant as he never succeeded in the business.

A case of cruelty was put forward by the respondent-wife on constant harassment and demand for money in spite of the fact that she had been given 501 gold sovereigns at the time of marriage besides car and flat. It was the case of the respondent that the respondent’s father gave Rs.77 lakhs to the appellant on different occasions apart from that the respondent contended that the entire gold ornaments were also misappropriated by the appellant. The respondent also alleged sexual perversion and physical harassment as a part of the cruelty; while the allegations of extramarital relationship were levelled against the respondent by the appellant.

The Family Court had allowed the divorce petition filed by the respondent and the petition filed for restitution of conjugal rights by the appellant was dismissed.

Analyses and Opinion of the Court  

Noticing that the appellant’s own father had approached the police with complaints against the him stating that he had been compelling him to give more money, been ill-treating his wife and members of her family, and even threatening his sister and her two children over the phone daily with danger to their lives, the Bench stated that the ‘cruelty’ reflects the character of a person. The Court, therefore, is required to adopt social semiotic approach to analyse the conduct in given situation.

Opining that the demand for money had to be taken into account in the background of the fact that the appellant never cared to provide love and care to the respondent or his children, the Bench was of the view that in the matrimonial life of the appellant and the respondent, the respondent never felt any security or affection or care from the side of the appellant. This, coupled with the fact of constant harassment demanding money, had caused mental pain, agony and sufferings to her.

The physical cruelty and mental cruelty meted out to the respondent had been narrated succinctly in the oral testimony given by the respondent. In spite of the respondent having helped the appellant monetarily in every possible manner, it turned to be a strategy for the appellant to get more money from the respondent and her father in the pretext of his debt using his fiduciary relationship for financial gain and bargain.

Relying on the decision of the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Bench held that the appellant’s licentious and profligate conduct could not be considered as part of normal conjugal life. Therefore, the Bench held that insatiable urge for wealth and sex of a spouse would also amount to cruelty. Similarly, the unsubstantiated allegations of adultery alleged by the appellant also constituted mental cruelty.

Marital Rape as a Ground for Divorce

The respondent had deposed that even during her pregnancy, the appellant abused her and had committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The respondent deposed that the appellant even did not spare her for sex even on the day the appellant’s mother expired. She also stated that the appellant forced her to have sex in front of their daughter. Considering that there was no serious challenge against the narration of sexual conduct, the Bench opined that there was no reason to disbelieve the respondent’s version that the appellant often forced her to have unnatural sex.

Opining that a husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, the Bench stated, albeit such conduct could not be penalised, it falls in the frame of physical and mental cruelty. Marital rape, though alien to Indian penal jurisprudence, had been defined in Black’s Law Dictionary 8th Edition as “a husband’s sexual intercourse with his wife by force or without her consent”. Hence, marital rape occurs when husband is under notion that body of his wife owe to him. In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

Right to respect for physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy. Therefore, marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy. This essentially would constitute cruelty. Hence, merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. Accordingly, the Bench held that marital rape is a good ground to claim divorce.

Findings and Suggestions by the Court

Considering that sex in married life is the reflection of the intimacy of the spouse and the evidence of the respondent clearly established that she was subjected to all sorts of sexual perversions against her will, the Bench upheld the divorce granted by the Family Court.

The Bench opined, a spouse in a marriage has a choice, a choice not to suffer, which is fundamental to the autonomy guaranteed under natural law and the Constitution. Law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court. Expressing concern over plight of the women caught in such marital ties, the Bench expressed,

“This depicts a sordid tale of a woman losing a precious part of her life in a battle of fate. In a changed scenario of marriage in the society, shifting from the social philosophy to individual philosophy, we are afraid whether the present divorce law on enumerated grounds would stand to the test of constitutionality”.

Observing that fine balancing of individual choice and individual’s best interest is missing in law relating to dissolution of marriage, the Bench made following suggestions to introduce reform in existing law:

  1. “Paternalistic intervention through legislation must be limited to help and aid parties in taking a decision for their own good. Therefore, the framework of divorce law must be with an objective to help individuals to take a decision on their own affairs.
  2. The forum provided under law to decide upon the fate of a relationship must be conceded with a power to enable parties to decide on the best possible choice governing their own affairs by themselves and not by wresting the power on a fictional ground to decide on their fate.
  3. The court should articulate its power in a scientific temper to help individuals to make decisions on their own affairs.
  4. Modern-day mediation, medical help like psychological and psychiatric, involvement by families and friends etc., would progressively help the parties to take a decision of their own choice.
  5. Our law also should equip to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond.
  6. Marriage and divorce must be under the secular law; that is the need of the hour. Time has come to revamp the marriage law in our country.”

[X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: (Party in person)

For the Respondent: Adv. Millu Dandapani

Case BriefsHigh Courts

Gujarat High Court: While deciding the present case wherein the focal point was marital rape and unnatural carnal activity, the Bench of J.B. Pardiwala, J., observed that a wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent. Furthermore, the Court urged that the time is ripe that the legislature intervenes and goes into the soul of the issue of marital rape as it is a serious matter which unfortunately is not attracting serious discussions at the end of the Government.

In the present matter, the applicant was accused by his wife of inflicting torture and performing sexual activity (often unnatural) without her consent on many occasions. It was argued by the applicant’s counsel Jigar Gadhvi that, in India, marital rape is not recognized and the same is not an offence. However it was submitted that at the most a prima facie case of cruelty under S. 498A of IPC can be made out against the applicant. Appearing for the respondents, Rajesh K. Shah contended that the present case is one of marital rape as there was unwanted intercourse by the applicant with his wife and the consent was obtained by force. Thus the case at hand is one of non-consensual act of violent perversion by a husband against the wife where she was abused physically and sexually.

The Court delved into the  provisions concerned of the Penal Code i.e. Sections 377 and 376. The issues raised by the Court were that whether a husband can be prosecuted for the offence of rape under Section 376 of IPC at the instance of his wife; whether a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the IPC; and is there a concept of marital rape. After a detailed analysis of the provisions and the facts of the case, the Court observed that Section 377 identifies certain acts which if committed would constitute an offence and such a prohibition regulates the sexual conduct regardless of gender identity and orientation. Consent is not the determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under Section 377, thereby making it clear, that a wife can initiate proceedings against the husband under Section 377 for unnatural sex. The Court however noted that as per the current legal position the wife cannot initiate proceedings against her lawfully wedded husband for the offence of rape punishable under Section 376 as the idea is that, by marriage a woman gives irrevocable consent to her husband to have sex with her any time he demands it. The Bench however strongly stressed that marital rape is not merely a concept and stated that, “It is time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.” [Nimeshbhai Bharatbhai Desai v. State of Gujarat,2018 SCC OnLine Guj 732, decided on 02-04-2018]

Case BriefsSupreme Court

Supreme Court: The bench of Madan B Lokur and Deepak Gupta, JJ reserved the judgment in the issue relating to criminalising of forced sexual acts by the husband with his minor wife.

The Court was hearing the petition filed by NGO Independent Thought and Advocate Gaurav Agarwal, appearing for the NGO had contended before the Court that by the Criminal Law (Amendment) Act, 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years, however, exception 2 to section 375 of the IPC still retains the age of consent as 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl. He added that if the object behind increasing the age of consent to 18 years in 2013, was that a girl below that age is incapable of realising the consequences of her consent, then marriage of girl between the age of 15-17 years does not make the girl mature enough, mentally or physically, for the purpose of consent.

Taking note of the argument, the Court had, on 01.09.2017, sought to know whether it can create an offence by striking down the exception 2 of section 375 of IPC which the Parliament has refused to do. It also showed concern over the fate of the children born from such marriages if the provision was struck down. [Independent Thought v. Union of India, Writ Petition(s)(Civil) No(s). 382/2013, order dated 06.09.2017]

Hot Off The PressNews

Supreme Court: Hearing the plea questioning the validity of a provision permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18 years, the bench of Madan B. Lokur and Deepak Gupta, JJ expressed dismay over the prevalence of the practice of child marriage despite the existence of the Child Marriage Prohibition Act and said

“It is a hard reality and is unfortunate that most of the child marriages happening in the country are done by parents of the girl child. However, to this, there are odd exceptions when a minor boy and girl fall in love and marry on their own.”

Advocate Gaurav Agarwal, appearing for NGO Independent Thought, brought to the Court’s notice that by the Criminal Law (Amendment) Act, 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years, however, exception 2 to section 375 of the IPC still retains the age of consent as 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl. He added that if the object behind increasing the age of consent to 18 years in 2013, was that a girl below that age is incapable of realising the consequences of her consent, then marriage of girl between the age of 15-17 years does not make the girl mature enough, mentally or physically, for the purpose of consent.

Taking note of the argument, the Court sought to know whether it can create an offence by striking down the exception 2 of section 375 of IPC which the Parliament has refused to do. It also showed concern over the fate of the children born from such marriages if the provision was struck down.

The Centre, on the other hand, had contended that child marriage were still happening in the country due to uneven economic and educational development and it has been, therefore, decided to retain the age of 15 years under exception 2 of section 375 of IPC, so as to give protection to husband and wife against criminalising the sexual activity between them.

The next date of hearing on the matter is 05.09.2017.

Source: PTI

Hot Off The PressNews

Supreme Court: The bench of Madan B. Lokur and Deepak gupta, JJ has sought response from the Centre as to whether Parliament has debated the aspect of protecting married girls between the age group of 15-18 years from the forced sexual acts by their spouses and whether the court could intervene to protect the rights of such married girls who may be sexually exploited by their spouses.

The Court was hearing the plea that had challenged the constitutionality of the exception under Section 375 IPC which says the intercourse or sexual act by a man with his wife, not below 15 years, is not a rape. NGO Independent Thought contended that the distinction made in between 18 and 15 is illegal and unconstitutional as a girl in the age group of 15-18 is not that physically developed and she is not capable of taking an informed decision or consent. It was argued that the Parliament cannot impinge upon Article 21 by allowing the girl to marry under 18 years of age and allowing her to get pregnant or have intercourse. Centre, however, responded by saying that all the aspects have been considered pragmatically by the Parliament and keeping the child marriage prevalent in some societies,  the age of 15 has been kept as a threshold.

The bench noticed that declaring the law unconstitutional may have some serious repercussions as there are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law and the boy suffers even when he is not at fault. Similarly, when a girl, under 18 years of age, elopes and engages in consensual sexual activity, the male gets booked for rape. The Court, hence, asked the Centre to apprise it about the number of prosecutions under the Child Marriage Act for past three years in three weeks and listed the matter for hearing after 4 weeks.

Source: PTI