Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In an application seeking the appointment of the applicant as a fit and proper person to be guardian of the minor children and for grant of sole and permanent custody of the minor children, Krishnan Ramasamy, J. has directed the father/respondent to hand over interim custody of the children to the mother/applicant, till the disposal of the main original petition.

In this case, the applicant and respondent got married in the year 2009 and have 2 children. Thereafter, matrimonial disputes arose between the parties, and the wife was subjected to harassment and was thrown out of the matrimonial home in 2021 by the respondent, while he retained the custody of the children. Thereafter, the applicant filed various petitions and applications, seeking dissolution of marriage, custody of minor children and visitation rights etc.

The Court noted that this Court by various orders has granted the visitation rights to the applicant to ensure that the well-being of the children be unaffected by the estranged and strained relationship of the parents, however, the respondent has failed to comply with the said orders. Further, the respondent has even indulged in parental alienation and tutored the children to act and behave contrary to the wishes of the applicant and according to the respondent. He has even updated the children about the Court proceedings, which prompted the elder son to act against the mother and to resist to stay with her, and to demand from her to withdraw the case filed against his father.

The Court observed that without parental alienation, this could not be possible for a tender aged child to insist and demand his mother to withdraw the case and impose the condition that unless she withdraws the case, he would not come to his mother.

The Court further observed that the respondent is throwing the blame on the children stating that the children themselves are not interested in going and staying with the mother and that he cannot force them, and it is beyond his hands; also, in the Court orders there is no specific role mentioned directing the respondent to act in the matter of convincing and handing over the children to the applicant. This clearly proves the aspect of parental alienation on the part of the respondent. Further, his inability to advise and persuade the children, further evidents his inability and incapability to maintain and keep the custody of the children anymore.

Moreover, the Court viewed that “to turn a child against a parent is to turn a child against himself. Parental alienation is inhuman, and it is a menace to a child, who directly needs two hands to hold, both the mother and father till he/she walks throughout the life or at least till he/she attains majority” Further, it was observed that hatred is not an emotion that comes naturally to a child against his/her mother/father unless it is taught by the person whom the child believes. A parent indulging in parental alienation means he/she is polluting the tender mind of the innocent child by portraying the mother/father as a villain, which would have a considerable impact on him/her throughout his/her life.

The Court observed that “the welfare of the child is of paramount consideration but being with the parent who is not ready to teach and persuade his children to love their own mother, cannot be accepted. Further, it is not fair on the part of the respondent in not accommodating the children to spend time with their mother despite the Court orders.

Moreover, the Court observed that “children have a fundamental right and need for an unearthened and loving relationship with their parents and denying the said right would amount to child abuse” and the respondent, without justification, has been indulging in such child abuse. It was observed that when there is healthy co-parenting, the children will lead a happier childhood instead of becoming an emotionally broken adult who will in turn become non-understanding and unsympathetic citizens.

The Court further viewed that the welfare of a child is not to be measured only by money and physical comfort, as it includes material welfare; however, they are secondary matters, the primary considerations of matters are the stability and the security, the loving and understanding, care and guidance, warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.

Further, the Court observed that it appears prima facie that the respondent poisons the minors’ minds against the mother and acted against the welfare of the minors and for the healthy growth of the children, their custody was discontinued with the respondent as there is very high probability that if the children continue to stay with him, they will be influenced to such an extent that they will never want to return to their mother, it will cause mental and physical disorders including psychological pain, anger and depression, which would certainly cause harm to the welfare of the child.

The Court also observed that it is incumbent upon a parent, having the custody of the children, to encourage co-parenting despite having personal hatred towards the spouse and allow the children to move freely with their parent, as the quality of the relationship between the co-parents have a strong influence on the mental and emotional well-being of the children.

Moreover, the Court observed that “the concept of marriage is not for mere satisfying carnal pleasure, but it is mainly for the purpose of Pro generation, which leads to the extension of the families of the two individuals, who have been united over a sacred oath, taken by both”. Further, it was observed that the law can satisfy the ego, but it can never satisfy the requirements of the child, as the framers of the law were only conscious of the welfare of the child and not on the mental turmoil that would be faced by a child in such a calamitous situation.

The Court further viewed that in matters relating to custody of children, primarily, the Court will consider the welfare of the children and decide which parent is suitable to look after the child in a better manner by providing them all necessary facilities and comforts, however, what the Court cannot evaluate is, whether the child feels happy only with one parent, ultimately, the child is the silent sufferer, having lost the love and affection of another parent. Thus, taking into consideration the welfare of the child, the Court granted interim custody to the mother/ applicant.

[X v. X, Application No. 2011 of 2021, decided on 16.09.2022]

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: In a case filed by the petitioner-mother (‘petitioner 2') seeking acceptance on her pending passport application for her minor ward (‘petitioner 1') without any compulsion on her to mention the name of the father of the ward or his presence or signature in any form, Krishna S Dixit J., allowed the petition and directed the Regional Passport Officer to consider the subject application for passport without insisting upon the presence or consent of the father of the ward i.e., ex-spouse of petitioner as mere grant of passport does not, in anyway, threaten the rights of the respondent.

The present petition was filed in respect of a minor ward by the mother, who has been accorded exclusive custody of the ward by the Family Court. Counsel for petitioner submitted that once exclusive custody is granted by the Family Court, Regional Passport Officer is not justified in insisting upon the presence of father of the ward or for his consent and therefore, the passport must be granted sans such an insistence.

The Court noted that the Family Court has granted a Divorce Decree in the subject matrimonial cause whereby limited visitation rights have been accorded to the ex-husband of petitioner 2 i.e., father of the ward. Thus, on the apprehension of the respondent that absolute curtailment would occur, in case of visa-less travel, the Court noted that mere grant of passport would not per se result in curtailment of visitation rights as such.

Placing reliance on Master Kishan v. Union of India, in WP No. 32531 of 2017, decided on 15-02-2017, the Court directed Regional Passport Officer to consider the subject application for Passport sans insisting upon the presence or consent of the father of the ward i.e., ex-spouse of the petitioner 2.

The Court also clarified that petitioner 2 shall not travel without getting permission of Family Court.

[Divena Nayudu v. Government of India, WP No. 14716 of 2022, decided on 24-08-2022]


Advocates who appeared in this case :

Swamy MM, Advocate, for the Petitioner;

Sarojini Muthanna K, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has put this brief together.

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: Saurabh Shyam Shamshery, J. dismissed a habeas corpus petition holding that the certificates issued by Arya Samaj alone do not prove the legality of a marriage.

The petition was filed alleging that corpus was wife of petitioner 1 and for proof that they were legally married counsel for petitioners had placed reliance upon a certificate issued by Arya Samaj Mandir, and further a certificate of registration of marriage as well as certain photographs. An FIR was lodged against petitioner 1 by the father of corpus and the investigation was undergoing.

The Court stated that the courts are flooded with the marriage certificates issued by different Arya Samaj Societies which have been seriously questioned during different proceedings by numerous High Courts of the country.

“The said institution has misused their beliefs in organizing the marriages without even considering genuineness of documents and since the marriage has not been registered, therefore, only on the basis of said certificate it cannot be deemed that the parties have married.”

Further, relying on Mohd. Ikram Hussain v. State of U.P., (1964) 5 SCR 86 and Kanu Sanyal v. Distt. Magistrate, (1973) 2 SCC 674, the Court reiterated that habeas corpus is a prerogative writ and an extraordinary remedy. It cannot be issued as a right but only on reasonable grounds or probability.

The Court however reminding that the petitioners have other remedies available for the purpose under criminal and civil law, dismissed the petition finding it to be not maintainable. The Court clarified that in the present case the corpus is a major and an F.I.R. has been lodged against the petitioner 1 by father of corpus and investigation was undergoing, therefore, there is no case of illegal detention.

[Bhola Singh v. State of U.P., Habeas Corpus Writ Petition No. – 637 of 2022, decided on 31-08-2022]


Advocates who appeared in this case :

Dharam Veer Singh, Advocate, Counsel for the Petitioner;

Sunil Srivastava, Advocate, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a divorce case where the Family Court had refused to hear the case on priority for early disposal, the Division Bench of A. Muhamed Mustaque* and Sophy Thomas, JJ. on observing that the woman belonged to Muslim community, suggested her to exercise her right to extra-judicial divorce.

The Court opined that the Presiding Officer of the Family Court is the best person to judge the management of the cases pending before the Court.

The petitioner, a 26-year-old lady Muslim woman had approached the Family Court for divorce and recovery of gold ornaments. She had sought for early hearing of the petition in the light of the judgment in Shiju Joy v. Nisha, 2021 SCC OnLine Ker 1391, wherein the High Court had issued guidelines to streamline, the disposal of the pending cases before the Family Court. Family Court was also permitted to depart from the guidelines in appropriate cases.

In the instant case, the Family Court dismissed the petition by stating that the petition being considerably a new case, it could not be prioritized f or disposal. The Family Court further found that there were no sufficient reasons to depart from the normal listing of the case.

Assailing the Family Court’s order, the petitioner contended that her parents are Senior citizens and they are longing for her second marriage after settling all the monetary claims.

The Court noted that the petitioner, being from a Muslim community has every right to invoke extra judicial divorce to separate legal marriage and there was no reason for her to wait at the corridors of the court for having separation of her marriage with the respondent. The Court said,

“When law itself bestowed her with the right to invoke extra-judicial divorce, we are at the dismay, why the petitioner has not chosen to exercise that option. If she really needs legal separation, she could have very well invoked extra-judicial divorce even in the pending matter.”

The Court further observed that if she resorts to extra-judicial divorce, the Family Court record the same in the proceedings pending before it and can very well dispose of the case without further delay as there would be no adjudication required.

In regard to the monetary claims, claim for movables, etc., the Court held that it could not pressurize the Family Court to dispose of such case overlooking the other pending matters. Further, the Court opined that the Presiding Officer of the Family Court is the best person to judge the management of the cases pending before the Court.

Hence, the Court affirmed the order passed by the Family Court and dismissed the instant petition.

[Aayisha A. v. Ahammed Haneefa, OP (FC) No. 90 of 2022, decided on 17-02-2022]


*Judgment by: Justice A. Muhamed Mustaque


Appearance:

For the Petitioner: Advocate B. Mohanlal


Kamini Sharma, Editorial Assistant has put this report together.


Gujarat High Court
Case BriefsHigh Courts

Gujarat High Court: Nirzar S. Desai, J. quashed an FIR and its consequential proceedings which were registered for the offences punishable under Sections 498-A, 323, 504, 114 and 506(2) of the IPC and Section 4 of the Dowry Prohibition Act, 1961.

Respondent 2 (original complainant) had filed the above FIR stating that she got married with Anil R. Panchal and everything was good for 6 months and she delivered a baby girl but thereafter, as the job of the husband required him to stay at the place of job, he used to come once in a week to home and respondent 2 used to stay with her in laws. The present applicant, who happens to be son of maternal uncle of the husband of the complainant used to visit matrimonial home of the complainant and along with other family members, he used to taunt the complainant that she got married by cheating and she has not brought anything which would suit the reputation of the family of the husband in the society.

Advocate for the applicant submitted that barring one sentence involving the applicant, there is no allegation against the applicant in the FIR. The only allegation against the applicant is verbal taunting to the complainant and that also of absolutely general nature.

Advocate for the respondent 2, vehemently opposed the petition by submitting that because of pendency of this application and as the relief has been granted in favour of the applicant, the Investigating Officer is not filing charge sheet even against the husband. Additional Public Prosecutor could not point out any material against the applicant.

The Court after hearing the parties noted that in the entire FIR there is only one sentence whereby some role has been attributed to the applicant. Further considering the fact that the applicant happened to be the distant relative of the husband of the complainant, it seems that the impugned order is nothing but an attempt to falsely implicate the applicant as accused just with a view to harass the applicant.

The Court set aside the FIR and quashed the consequential proceedings holding that allegation against the applicant is purely of general in nature and considering the fact, that the applicant stays at a different place, the registration of impugned FIR against the applicant is nothing but an abuse of process of law.

[Paavanbhai Jagdishbhai Panchal v. State of Gujarat, 2022 SCC OnLine Guj 1127, decided on 04-08-2022]


Advocates who appeared in this case :

Ishan Rajdev for Sanat B. Pandya, Advocates, for the Applicant 1;

Montubhai G Patel, Amit N Chaudhary, Advocate, for the Respondent 2;

Maithili Mehta, Advocate, for the Respondent 1.


*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Sunita Agarwal and Om Prakash Shukla, JJ. dismissed and appeal on the admission stage itself which was directed against the order passed by the family court under Section 24 of the Hindu Marriage Act, 1955 in a proceeding for divorce instituted by the appellant husband.

It was noted from the impugned order that only Rs. 3000/- per month had been granted towards interim maintenance to the respondent wife apart from Rs. 5000/- towards the cost of the proceeding. Counsel of the appellant had challenged the order contending that the appellant was unemployed and he has no source of income. It was further submitted that the respondent wife has independent income as she is running a medical store along with his father who is a doctor.

The Court was of the opinion that the mere fact that the respondent wife is educated and is doing something to survive since she has been thrown out of her matrimonial home cannot be a reason to deny interim maintenance.

An able-bodied husband cannot argue that he is not in a position to maintain his wife. It is social, legal and moral responsibility of a man to maintain his wife and no exception to the same can be taken by us, in view of bald assertions of the appellant.

The Court dismissed the appeal referring to the decision of the Supreme Court in Rajnesh v. Neha , (2021) 2 SCC 324 where law of maintenance was discussed.

[Vaibhav Singh v. Divyashika Singh, 2022 SCC OnLine All 577, decided on 03-08-2022]


Advocates who appeared in this case :

Santosh Kumar Singh, Advocate, Counsel for the Appellant.


*Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case relating to talaq as per Muslim personal law and bigamy, A. Muhamed Mustaque, J. held that the Family Courts have no jurisdiction to restrain a person from pronouncing talaq or conducting a second marriage as per personal law. The Court remarked,

“The Court has no role in restraining the parties invoking their personal law remedies. The Court should not forget the mandate of Article 25 of the Constitution, which not only allows one to profess religion but also to practice.”

The petitioner-husband, a Muslim by faith, had married the respondent in accordance with the Muslim religious rites and ceremonies. Later on, when the marital relationship became strained, he initiated steps to pronounce Talaq and pronounced first and second Talaq. However, before he could pronounce irrevocable Talaq, he had been restrained by an order of temporary injunction by the Family Court.

The said order had been passed at the instance of the wife. The wife had also filed an application restraining her husband to conduct a second marriage which was also allowed by the Family Court. Aggrieved thereby, the petitioner-husband had assailed the impugned order of the Family Court.

Observing that restraining someone from acting in accordance with personal belief and practice would amount to encroaching his constitutionally protected rights, the Court stated that no doubt, any aggrieved can challenge an action emanating out of the exercise of faith and practice, but that stage would arise only after the performance of the act. Holding that the jurisdiction of the Court is limited in these kinds of processes, the Court expressed,

“Family Court cannot restrain a person performing his act in accordance with personal law.”

The Court noted that the act complained—invoking irrevocable invocation of Talaq—was yet to come into existence; and it was only after the completion of the process and the procedure act qua the Talaq, that it could be said whether the said act was in accordance with the procedure as prescribed under the personal law or not. Displeased by the manner the Family Court had dealt with the matter, the Court said that it is unfortunate that before the act could be done, the petitioner had been restrained from acting in accordance with his personal belief and practice.

On the order restraining the petitioner from conducting second marriage, the Court expressed,

“Right to marry more than one person at a time is prescribed under the personal law. If the law ensures such protection, it is not for the Court to decide that one person should not act in accordance with the personal conscious and belief in accordance with his religious practices.”

Reminding the Family Court of the limited jurisdiction, the Court stated that the courts have no role to restrain or regulate one’s behavior or decision in accordance with the personal law guaranteed.

In the light of the above, the Court held that the impugned orders were without any justification and jurisdiction. Accordingly, the Court set aside both the orders. At the same time, the Court clarified that if Talaq is not exercised in accordance with the law, the respondent-wife can approach the competent Court to redress her grievances.

[Anvarudeen v. Sabina, OP (FC) No. 394 of 2022, decided on 17-08-2022]


Advocates who appeared in this case :

Majida S and Ajikahn M, Advocates, for the Petitioner;

Suresh Kumar M.T., R. Ranjith, Smitha Philipose, Manjusha K, and Sreelakshmi Sabu, Advocates, for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: In a complex case where both the parties claimed to be disabled to get the matrimonial case transferred to the court of their convenience, V. Ramasubramanian, J., held that once the order fixing maintenance has attained finality, the petitioner cannot seek a transfer of the execution pending under Section 125(3) the CrPC to another Court.

In a collateral proceeding, the marriage between the parties had been dissolved by the Family Court and the petitioner-husband was directed to pay the maintenance to the respondent-wife under Section 125(1) CrPC. The said order has attained finality.

Later on, the respondent-wife approached the Family Court on the ground that the maintenance so fixed in the original order had not been. The petition for enforcement was taken up by the Family Court along with an application for modification of the maintenance, filed by the petitioner-husband.

The Family Court passed an order on 18-01-2019 directing the petitioner-husband to pay the entire arrears of maintenance within one month as a condition precedent for deciding the application for modification. Though the petitioner did not challenge the said order dated 18-01-2019, he has come up with the instant petition for transfer of the proceedings on the ground that he is suffering from bone cancer and that he is not in a position to undertake travel from Delhi to Nagpur, Maharashtra. The Petitioner also contended that he is wheelchair-bound and the Family Court in Nagpur is not disabled-friendly. The averments made by the petitioner were disputed by the respondent-wife. In contrast, she claimed to be suffering from a serious kidney disorder forcing her to undergo dialysis.

Considering the contentions of the parties, the Court said,

“The question as to whether the petitioner or the first respondent, who is more disabled has itself become a serious matter of challenge. It is not possible for this Court while dealing with a transfer Petition, to undertake a roving inquiry to find out who is more disabled.”

Noticing that the conditional order dated 18-01-2019 for taking up the application for modification has also not been complied with and a period of more than three years has passed, the Court opined that even if the transfer is ordered, as prayed for, the order dated 18-01-2019 will stare at the face of the petitioner.

Therefore, the Court concluded that however unfortunate the case may be on either side or on both sides, the petitioner did not deserve the indulgence of the Court for transfer. Therefore, the Transfer Petition was dismissed.

[Navneet Wadhwa V. Simran Wadhwa, 2022 SCC OnLine SC 1078, decided on 16-08-2022]


Advocates who appeared in this case :

AOR Krishan Kumar,and Advocates Vidur Kamra and Jyoti Taneja, Advocates , for the Petitioner;

Senior Advocate V. Mohana, Advocates Satyajit A. Desai, Devdeep, and AOR Anagha S. Desai, Advocates, for the Respondent(s).


*Kamini Sharma, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where protection was sought by a Muslim couple anticipating danger from the girl’s family (‘respondent 4 and 5′), Jasmeet Singh, J. directed State to grant protection to them as the girl (‘petitioner 1′) has attained puberty and willfully consented to the marriage with the boy (‘petitioner 2′).

The petitioners, Mohammedans by religion, were in love with each other and got married in accordance with Muslim rites and rituals by Maulana Imtiyaz of Jokihat Masjid, District Aauriya, Bihar. Respondents 4 and 5 are parents of the girl and opposing the marriage of the petitioners and have registered an FIR under Section 363 of Penal Code, 1860 (‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) against petitioner 2 . The instant petition was filed seeking directions for protection to the petitioners.

Petitioner 1 submitted that she was regularly beaten by her parents at home and the parents tried to forcibly marry her to someone else. It was also submitted that petitioner 1 is pregnant and the petitioner 1 and 2 are expecting a child together. The state submitted that the petitioner was only 15 years and 5 months on the date of the marriage, thus justifying the charges alleged.

The Court noted that as per Mohammedan Law, a girl who had attained the age of puberty could marry without consent of her parents and had right to reside with her husband even when she was less than 18 years of age and thus otherwise a minor girl.

Reliance was placed on Imran v. State of Delhi, (2011) 10 SCC 192 to prove the point that POCSO is an Act for protection of children below 18 years from sexual abuse and exploitation and will apply to Muslim law. However, the Court clarified that this case cannot be relied on, in terms of the facts of the present case.

The Court clarified stating “There was no marriage between the prosecutrix and the accused. In fact, in that case sexual relationships were established prior to marriage. Post establishing the physical relationship, the accused had refused to marry the prosecutrix. It was on this basis that POCSO had been applied to the facts of that case. The object of the POCSO Act states that the Act is aimed at ensuring the tender age of the children and ensuring they are not abused and their childhood and youth are protected against exploitation. It is not customary law specific but the aim is to protect children under the age of 18 years from sexual abuse.”

The Court further noted that present is not a case of exploitation but a case where the petitioners were in love, got married according to Muslim laws, and thereafter, had physical relationships, thus giving no strength to the charges alleged under POCSO.

The Court also observed that in the present case, the environment in the house of petitioner 1 is hostile towards her and her husband as per allegations levelled by petitioner 1. Thus, the petitioners being lawfully wedded to each other cannot be denied the company of each other which is the essence of the marriage. If the petitioners are separated, it will only cause more trauma to the petitioner 1 and her unborn child.

The Court directed respondent 1 to 3 to ensure safety and protection of the petitioners.

[Fija v. State Govt NCT of Delhi, 2022 SCC OnLine Del 2527, decided on 17-08-2022]


Advocates who appeared in this case :

Mr. Arvind Singh, Mr. AK Mishra, Advocates, for the Petitioner;

Ms. Rupali Bandhopadhyay, ASC with Mr. Akshay Kumar, Mr. Abhijeet Kumar, Advocates with ASI Harvinder Kaur, PS Dwarka North, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case of marital discord and petitioner-wife, a practicing advocate was seeking removal of respondent-husband from the matrimonial home, R N Manjula, J. granted protection order and directed the husband to move out of the matrimonial home in the best interest and welfare of the children and to ensure peaceful possession and enjoyment of the petitioner wife in the home in any manner.

The petitioner wife filed an Original Petition for dissolution of marriage against the respondent-husband. During the pendency of matrimonial proceedings, the wife filed an interim application seeking mandatory injunction directing the respondent to move out of the matrimonial home in the best interest and welfare of the children till the disposal of the Original Petition which was partly allowed by the Family Court directing the respondent to not disturb the peaceful possession and enjoyment of the petitioner in the matrimonial home in any manner whatsoever where the petitioner living along with her children, till the disposal of the main petition. Assailing this, the revision petitioner preferred the instant Civil Revision Petition.

The Court noted that instead of giving a supportive hand to the petitioner by being accommodative of her demanding profession, the respondent developed a complaining attitude and found fault with the respondent for being engaged with her work.

Placing reliance on Samir Vidyasagar Bhardwaj v. Nandita Samir Bhardwaj, (2017) 14 SCC 583, the Court noted that if the removal of the husband from home alone is the only way to ensure domestic peace, the courts need to pass such orders irrespective of the fact whether the respondent has or has not another accommodation of his own. If the husband has got alternate accommodation, it is fine that he can be asked to accommodate himself in those alternate premises. If he does not have any other accommodation, it is up to him to secure alternate accommodation.

On the impugned order passed by the Family Court, the Court remarked that “Allowing the respondent to be at the same home but directing him that he should not disturb the other inmates of the home is something impractical. A relief for a person who fears about an impending atom bomb, would be just to remove the bomb from his/her vicinity.”

Thus, the Court observed that when a couple lives under one roof, the conduct of one party to the other is always vital in defining the respect and recognition the family would get from others. If domestic peace is disturbed due to unruly acts of one party, namely the husband, there need not be any hesitation in giving the practical enforcement for the protection order by removing the husband from the house.

The Court modified the impugned order passed by the Family Court and directed the respondent-husband to leave the house where the petitioner and the children live and find alternate accommodation within a period of two weeks from the date of receipt of a copy of the order, failing which, the respondent shall be removed from the matrimonial home with the help of police protection.

[V Anusha v. B Krishnan, CRP (PD) No. 1824 of 2022, decided on 11-08-2022]


Advocates who appeared in this case :

S. P. Arthi, Advocate, for the Petitioner;

D. Suresh Kumar, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case where husband (‘respondent’) filed for annulment of marriage alleging suppression by wife regarding her hormonal imbalance and irregular periods resulting in non-consummation of marriage, R N Manjula J. quashed Family Court’s ruling that directed the wife ‘revision petitioner’ to undergo medical examination of the same and even went ahead to direct medical examination of her genitals which was beyond the scope of the original petition.

A petition was filed by the husband seeking to declare the marriage with his wife as null and void alleging that his wife is unfit for marital life and she did not cooperate with him for conducting happy married life and admitted to having irregular periods and hormonal imbalance. During the pendency of this proceeding, an interim application was filed seeking medical examination of the wife on the ground that she herself admitted of her irregular periods and hormonal imbalance for which she has taken treatment yet no document has been produced to corroborate the same. Thus, Additional Sub Court, Coimbatore allowed the petition directing the wife for medical examination. Assailing this, present civil revision petition was filed by the wife.

Counsel for revision petitioner submitted that the medical examination was ordered to ascertain whether she had taken treatment for her health issues in order to examine about her Hormonal imbalance and irregular periods, which is beyond the scope of the pleadings made in the original petition and just to damage her self-esteem the Trial Judge also ordered for examination of the genital organs of the revision petitioner in the guise of referring the revision petitioner for examining the complaint of hormonal imbalance and menstrual irregularity even though she has admitted the fact of non-consummation of marriage and menstrual irregularity.

It is interesting to note that in counter of the main petition regarding annulment of marriage, the wife stated that it was the husband who was unwilling to share the bed with her and even when she asked him to go for medical examination, he did not concede and since the revision petitioner had irregular periods, she informed the respondent and both of them went for medical examination; even on the advice of the doctor, the husband omitted to produce the report of his sperm count.

 

The Court noted that for these kinds of allegations, it would have been better if the Trial Judge had ordered for medical examination of both the parties. When the revision petitioner has stated that she does not suffer from any structural defect of the genitals and her problem is only with regard to hormonal imbalance, such condition cannot be construed as impotency.

 

The Court remarked “The Trial Judge has gone to an extent further and observed in his order that the revision petitioner should prove satisfactorily that she is fit to have sexual relationship and to conceive a child. Trial Judge ordered the revision petitioner to also undergo the examination of her genitals along with the other examinations connecting to irregular periods and hormonal imbalance”

Thus, the Court observed that when the revision petitioner herself admitted about the non-consummation of marriage and the reason for it is the non-cooperation on the side of the respondent, to subject the revision petitioner for medical examination and that too for examining her genitals, would only affect her self-esteem.

As the Trial seems to have been completed and matter is at the stage of pronouncing judgment, thus the Court directed the Family Court to pass appropriate order based on evidence available on record instead of directing the revision petitioner wife for medical examination.

[Natchal v V Chokkalingam, CRP (PD) No. 942 of 2022, decided on 29-07-2022]


Advocates before Court

For Petitioner: Mr. V. Vijayakumar

For Respondent: Mr. S. Sithirai Anandan


*Arunima Bose, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Agarwal, J. dismissed a bail application of an applicant who was in custody since 29-06-2022 for the offence punishable under Sections 376, 506 of Penal Code, 1860.

Counsel for the applicant submitted that incident took place on 03-12-2020 then on 18-03-2022 prosecutrix pressurized the present applicant for marriage and, thereafter, on 12-04-2022, FIR was lodged. Applicant is a differently abled person working as Canteen Attendant in Ministry of Defence. The prosecutrix was a consenting party and allegation was only in regard to false promise of marriage. It was also submitted that the prosecutrix herself has refused to marry initially and later sent a message that the applicant can marry any other girl.

Government Advocate for the respondent-State submitted that on the last date, applicant had sought time to seek instructions because it was informed that applicant is willing to marry but because of family pressure, he has to wriggle out. It is also submitted that it is not a case of simplicitor consensual pre-marital sex. Both the applicant and the complainant are handicapped and knew each other. Applicant approached the complainant with a promise of marriage and enticed her in physical relationship. Later on, he refused to marry as soon as applicant could get a job with the defence establishment as his expectations were on wings but in the present hearing counsel for the applicant submitted that though sister of the applicant is willing for performance of marriage of the applicant with the complainant but since father of the applicant has refused because of age difference and caste difference, marriage is not possible.

The Court after hearing the parties noted that it was evident that applicant always had knowledge about the age difference between him and the complainant. There was also conscious knowledge of difference in the caste. The only uniting factor was emotional bonding on account of both being differently abled and there was a promise on part of the applicant but later on as soon as he could get a job, he has changed his attitude.

The Court was astonished by the fact that in the 21st century, still in the name of caste and creed, social differentiation is being created. The Court noted that prosecutrix has not been examined in the Court of law and she is a vulnerable witness. The court believed that if applicant is enlarged on bail then there is possibility of witness being tampered with.

The Court thus dismissed that bail application opining that to secure the interest of justice so also interest of a vulnerable witness, this is not the correct stage to extend benefit of bail to the applicant.

[Naresh Rajoriya v. State of Madhya Pradesh, Miscellaneous Criminal Case No. 34551 of 2022, decided on 04-08-2022]


For applicant: Ankit Saxena

For respondent: Aditya Narayan Gupta, Rajkumar Raghuwanshi


*Suchita Shukla, Editorial Assistant has reported this brief.

Meghalaya High Court
Case BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J. allowed a petition where a man was arrested under the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) for allegedly having ‘consensual sex’ with his minor wife. 

Petitioner 1(husband) and 2 (wife) were in a love relationship since the year 2018 and in the year 2019 started living together as husband and wife with the knowledge and consent of the family members of petitioner 2. The relevant fact being that petitioner 2 was about 16 years old at that time. In October 2019 she stated complaining of weakness with bouts of vomiting following which she was taken to the Hospital. After conducting the required examination on 22-10-2019 it was confirmed that the petitioner 2 was pregnant for 16 weeks 4 days. As is duty bound, the Medical Officer informed the petitioner 1, the petitioner 3 and the uncle of the petitioner 2 that they need to report the matter to the police station as the petitioner 2 is still a minor.  

Consequently, an FIR was lodged by petitioner 3 and a case under Section 5(j) (ii) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 was registered. Petitioner 1 was arrested after the investigation. 

Counsel for the appellant led this Court to the statement of the petitioner 2 made under Section 161 Criminal procedure Code, 1973 and has submitted that the petitioner 2 has confirmed that she was in a relationship with the petitioner 1 since 2018 and has had physical relationship with him on several occasions and that too, with her consent, coupled with the fact that they were now staying together as husband and wife. She reiterated this in her statement under Section 164 CrPC and even in her evidence before the Special Court. It was also further submitted that in the meantime the petitioner  1 and 2 have solemnized their marriage on 30-05-2022 on petitioner having attained the age of majority. 

The Court remarked that the procedure for trial under the POCSO Act is in accordance with the Code of Criminal Procedure, 1973 and as such, the High Court, if it chooses to interfere with any proceeding under the POCSO Act can do so by exercising its inherent power under Section 482 of the CrPC. 

The Court looking at the facts at hand observed that in the event it is apparent that a young couple are in a relationship where love is the deciding factor even to the extent that it has culminated into a marriage relationship, it may be the case that in such a relationship even if the girl involved is legally a minor, if she has the capacity to procreate and her age is perhaps ranging from about 16 to 17 years and more but below 18 years, it would not shock their conscience if hypothetically speaking such a girl enters into a marriage relationship on her own free will, as oppose to a child of about 12 or 13 years voluntarily entering into a marriage relationship. 

The Court relied on Skhemborlang Suting v. State of Meghalaya, 2022 SCC OnLine Megh 66 and Ranjit Rajbanshi v. State of W.B., 2021 SCC OnLine Cal 2470 and stated that as the present case is at the evidence stage, this Court can exercise its inherent power to ensure ends of justice is met. 

It would be an injustice to separate or to divide a well knitted family unit. 

Thus, the Court was convinced that the petitioners have made out a case for quashing of the said proceedings in Special (POCSO) Case and consequently the petition was allowed.  

[Kwantar Khongsit v. State of Meghalaya, 2022 SCC OnLine Megh 393, decided on 10-08-2022] 


For the Appellants : A. Syiem 

For the Respondents : H. Kharmih 


*Suchita Shukla, Editorial Assistant has reported this brief. 

Tripura High Court
Case BriefsHigh Courts

   

Tripura High Court: The Division Bench of Amarnath Goud and Arindam Lodh, JJ. allowed an appeal which was filed against the judgment of Sessions Judge convicting the appellant under Section 302 of the Penal Code, 1860 (IPC).

Marriage ceremony was solemnized in between the deceased Sima and the accused s. The complainant, father of the deceased alleged that since for the last ten years after marriage, the petitioner's daughter (wife of accused) was subjected to cruelty both physically and mentally. On 07-04-2017, the complainant came to know from his son that his daughter was no more alive. Accordingly, the complainant along with others visited the rented house of his deceased daughter and found his daughter in hanging condition with some blood stain on her face and nose. He alleged that the accused murdered his daughter and after murder, he hung her body and committed this heinous offence due to the abatement of his brother. On receipt of the said complaint, FIR under section 498-A, 302, 109 of IPC was registered.

The Trial Court had found that though the prosecution was able to prove their case against accused but the evidence on record was not sufficient to come to a conclusion that accused was instigated by the brother and thereby, committed any offence as charged against him. Thus, the instant appeal.

Senior counsel appearing for the appellant emphasized that it is a case of suicide but it is not the case of homicide. Addl. P.P. appearing for the state stated that the medical evidence is not a conclusive proof in the present case but it has been corroborated by the statement of the land lady and the minor daughter that the accused was present in the hut. He has further submitted that the corroboration, the last seen together, the special knowledge is the case of the prosecution.

The Court noted that PW-21 who had conducted the postmortem examination was inexperienced and had no special knowledge in forensic segments and even the medical evidence had not been categorically confirmed with regard to the death of the deceased. The Court thus observed that mere presence of the accused persons and the last seen of offence along with the child in the hut with the deceased woman (wife) in a hanging position cannot draw an inference and the circumstantial evidence cannot be connected that the husband had killed the wife.

The Court allowed the appeal holding that the prosecution failed to prove his case beyond reasonable doubt against the accused person.

[Akhil Das v. State of Tripura, CRL.A.(J)57 of 2020, decided on 20-07-2022]


Advocates who appeared in this case :

Mr P.K. Biswas, Advocate, for the Appellant(s);

Mr P. Majumder, Mr S. Ghosh, Addl. P.P., Mr J. Majumder, Advocate, for the Respondent(s).


*Suchita Shukla, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

There came a time when Rama was going to perform a huge sacrifice, or yajna, such as the old kings used to celebrate. But no ceremony in India can be performed by a married man without his wife; he must have the wife with him, the sahadharmini, the “co-religionist” – that is the expression for a wife. The Hindu householder has to perform hundreds of ceremonies but not one can be duly performed according to the shastras, if he has not a wife to complement it with her part in it. Now Rama’s wife was not with him then, as she had been banished. So, the people asked him to marry again. But at this request Rama for the first time in his life stood against the people. He said, “this cannot be. My life is Sita’s”. So, as a substitute, a golden statue of Sita was made, in order that the ceremony could be accomplished”.

[Lectures of Swami Vivekananda, California on 31-01-1900]   

Madras High Court: G R Swaminathan, J. allowed a couple to solemnize their marriage virtually, having sanction under Section 12 Special Marriage Act, 1954 wherein the petitioner-bride was a resident from Kanyakumari and her groom was an American national. The Court cited various historical, mythological references along with international covenants and foreign law that supports virtual weddings. It remarked that since law has to keep pace with the march of technology, the choice of the parties being online mode very much passes legal muster.

A joint application was filed before the respondent under Section 5 of Special Marriage Act, 1954; notice was thereby published, and objections were received which was found to be unreasonable. The mandatory 30 days period expired on 12-06-2022. The parties appeared before the respondent on 13-06-2022 but did not facilitate the solemnization of marriage in his presence. Rahul could not wait further as he had to return owing to Visa requirements. Now the demand made by the parties is that they should be allowed to solemnize their marriage under Section 12 of the Act even though the bride is in India and the bridegroom is in USA.

The writ petition was filed under Article 226 Constitution of India, to issue a writ of mandamus, to direct Sub Registrar (‘respondent’) to solemnize the marriage of Vasmi Sudarshini (‘petitioner’), a resident of Kanyakumari with bridegroom namely Rahul Leena Madhu, a US national, through video conference and register the same under Special Marriage Act, 1954 and issue marriage certificate by considering the representation of the petitioner dated 06-07-2022 within the time stipulated by the Court.

The Court noted that one has read in history books that a Rajput bride can marry a Rajput warrior by garlanding his sword. Soldiers of First World War were allowed to marry their sweethearts in the United States through interchanging a marriage contract by mail subject to non-contravention of State statutes; Ernest Lorenzen had written a scholarly article in Harvard Law Review on “Marriage by Proxy and The Conflict of Laws” which states marriage by proxy has been expressly sanctioned by law in three of the continental countries — Belgium, France and Italy and that it was allowed by Roman Law and Canon Law.

Thus, the Court further noted that in this case, the parties do not propose to conduct proxy marriage as the bridegroom will be very much present. The only distinguishing feature will be his presence being virtual and not physical. Section 12 of Special Marriage Act, 1954 does not exclude virtual presence.

The Court observed that Singapore had enacted Covid-19 (Temporary Measures for Solemnization and Registration of Marriages) Act, 2020 providing for solemnization and registration of marriages using remote communication technology. Eligible couples may solemnize their marriage online through a video link. Even statutory declarations can be made virtually. According to school of thought in Pakistan, marriage can be performed through Skype and there is no need for bride or groom to join their Nikah ceremony personally.

The Court opined that the right to marry being a fundamental human right, Sections 12 and 13 of Special Marriage Act, 1954 should be so construed as to effectuate this right. Section 12 (2) Special Marriage Act, 1954 states that marriage may be solemnized in any form which the parties may choose to adopt which happens to be online mode in the instant case.

Thus, there being no legal impediment, the Court directed the respondent to facilitate the solemnization of the marriage of the writ petitioner with Rahul L. Madhu in the presence of three witnesses through virtual mode. Once the declaration is made as per Section 12 (2) Special Marriage Act, 1954, the marriage shall be deemed to be complete and binding on the parties.

Further, the petitioner was directed to affix her signature in the marriage certificate book both for herself and on behalf of Rahul L. Madhu (as the petitioner has power of attorney of Rahul L Madhu), the marriage certificate will be issued under Section 13 Special Marriage Act, 1954.

[Vasmi Sudarshini v. Sub Registrar, WP (MD) No. 15511 of 2022, decided on 28-07-2022]


Advocates who appeared in this case :

Mr. M. Gnanagurunathan, Advocate, for the Petitioner;

Mr. K. S. Selvaganesan Additional Government Pleader, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case where an Indian man and a Canadian woman were unable to marry due to a mandatory requirement turning out to be a legally impossible task, as Canadian law neither requires nor provides for the issuance of non-objection and bachelorhood certificate, V.G.Arun, J., permitted the woman to submit an affidavit as to her single status, notarised by an Attorney in Canada instead.

The Court held that the diplomatic officers of the Indian Embassy in Canada are empowered to apostille affidavits and do notarial acts, which shall have the same effect as done by an authorised officer/attorney in India.

Petitioner 1, an Indian citizen, and petitioner 2, a Canadian citizen with an Overseas Citizen of India card had submitted a notice of intent to marriage along with the receipt to the Marriage Officer. Pursuant to this, an intimation was sent to the petitioners, requiring them to appear on 22-05-2022 for solemnisation of the marriage.

Meanwhile, petitioner 2 had to rush back to Canada at her employer's behest, therefore, she requested the Marriage Officer to permit her to appear through online mode. Since petitioner 2 is a Canadian citizen, a non-objection and bachelorhood certificate’ was required to be obtained from the Canadian Embassy in India to prove her single status.

However, Canadian law neither requires nor provides for the issuance of non-objection and bachelorhood certificate, therefore the Canadian Embassy expressed its inability to provide the same. Therefore, petitioner 2 approached the Court with the grievance that she could not be compelled to perform the impossible task of producing a bachelorhood certificate and should, in the alternative, be permitted to produce an affidavit as to her single status, notarised by an Attorney in Canada.

The issue before the Court was whether affidavits apostilled in a foreign country will be acceptable even if the foreign country is not a member of the Hague Apostille Convention, 1961. The Marriage Officer contended that Canada not being a member of the Hague Convention, the affidavit of petitioner 2, even if apostilled by a Notary in Canada, cannot be accepted.

The Court noted that the Hague Apostille Convention of 1961 is an international treaty creating a unified process for confirming the authenticity of documents and for recognising the documents of other participating countries, however, Canada not being a participant to the Hague Convention, the apostille on documents executed in Canada or its Embassy in India will not be acceptable in India.

Another option before the petitioners was to rely on the Notaries Act, 1952 if Canada was one among the countries notified under Section 14 of the Notaries Act. Inasmuch as Canada is not a notified country, the Court opined that the petitioners will have to depend upon Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 which enables the administration of oaths by diplomatic and consular officers for a prescribed fee.

The legal validity of administration of oaths by diplomatic officers under Section 5 of the Act, 1948 had been dealt with in K.K. Ray (Private) Ltd., In re, 1967 SCC OnLine Cal 19, which had been reiterated in Elizabeth Rajan v. Inspector General of Registration, (2022) 2 Mad LJ 321.

Hence, the Court held that the Act, 1948 empowers diplomatic or consular officers, exercising functions in any foreign country to administer oath, take affidavits and do notarial acts which any notary public may do within that State. Such oath, affidavit and notarial act administered, sworn or done by or before any such diplomatic officer shall be effectual as if duly administered, sworn or done by or before any lawful authority in the State. Therefore, the Court permitted petitioner 2 to produce an affidavit duly attested/notarised in the manner provided in Section 3, in lieu of the ‘non-objection and bachelorhood certificate’ and directed the Marriage Officer to accept the same. The writ petition was disposed of with the directions that if the duly attested affidavit is submitted by petitioner 2, the marriage shall be solemnised, by permitting her to appear through online mode, subject to the following conditions:

  • The witnesses required for solemnization of marriage shall be present before the Marriage Officer.

  • The witnesses shall identify the parties who are online.

  • The copies of passport or any other public document, in respect of the party who is appearing online, shall be provided to the Marriage Officer for the purpose of identification.

  • Wherever signature of parties is required, that shall be affixed by the authorised Power of Attorney of the party appearing online.

Additionally, the Court directed that on solemnisation of marriage, the certificate of marriage shall be issued in the manner referred to in Section 13 of the Special Marriages Act. Since the period for solemnisation stipulated in the Special Marriage Act was due to get over by 18-07-2022, the Court extended the same by a period of one month from receipt of a copy of the judgment.

[Shan S v. Marriage Officer, 2022 SCC OnLine Ker 3792, decided on 15-07-2022]


Advocates who appeared in this case :

R.V.Sreejith, Advocate, for the Petitioners;

Advocate General, for the Respondent;

P. S. Appu – GP, Shyam Padman, Laya Mary Joseph, Advocate, Others Present.


*Kamini Sharma, Editorial Assistant has put this report together

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: V Sivagnanam J. directed the State police to add the offences under Sections 417 and 420 Penal Code, 1860 (‘IPC') on allegations that the accused husband has deceived the complainant- ex-wife and made her to marry him, wrongfully displaying that he is competent to consummate marriage.

The petitioner is the complainant whose marriage took place with the first accused took and after the marriage, the complainant found that he is not interested with his wife in the marriage life due to his impotency. Thereafter, the complainant came to know that due to his impotency, he got divorced from his first wife. Pursuant to this, the accused husband left the home on 04-01-2022 and the petitioner made a complaint on 15-02-2022 that got registered on 18-05-2022.

A perusal of the complaint given by the complainant clearly states about the non-disclosure of the impotency of the husband at the time of marriage and he made the complainant to believe that he is a competent person to live ordinary life as husband and wife without disclosing his incapacity and thereby, the accused-husband deceived the complainant and made her to marry him, claiming that he is competent to consummate the marriage. After the alleged deceit came to light, the accused-husband granted divorce to the wife by saying ‘talaq' and went to United States of America.

The case was registered under Sections 498-A and 406 IPC without including Sections 420, 417 and 379 IPC even though the allegation disclosed the fact of cheating committed by the accused persons. Thus, the instant criminal original petition was filed to direct the respondent police to alter the FIR by including Sections 420, 417 and 379 Penal Code, 1860 therein.

Relevant provisions of Penal Code, 1860

Section 417 Punishment for cheating —Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 420 Cheating and dishonestly inducing delivery of property. —Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Counsel for State submitted that the matter has been referred to the Social Welfare Department, Madurai, for the purpose of conducting a preliminary enquiry. After receiving the report from the Social Welfare Department, Madurai, they are ready to consider the alteration of F.I.R.

Thus, the Court directed the respondent Police to add the offences under Sections 417 and 420 IPC in the case and investigate and file the final report within four months, after receiving the report from the Social Welfare Department, Madurai.

[Irfana Nasreen v. The State, Crl. O P (MD) No. 11840 of 2020, decided on 20-07-2022]


Advocates who appeared in this case :

M. Radhakrishnan, Advocate, for the Petitioner;

R. Suresh Kumar, Government Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where two adults married against the wishes of the family and now anticipate danger to their lives, Tushar Rao Gedela, J. remarked State is under a Constitutional obligation to protect its citizens especially in cases where the marriage is solemnized between two consenting adults irrespective of caste or community.

The petitioner 1 left her home as her parents and other family members were torturing and harassing her on account of her relationship with petitioner 2 after which petitioners 1 and 2 solemnized their marriage on 13-06-2022 in accordance with the Special Marriage Act and copy of the certificate was placed on record. The father of petitioner 1 is politically a well-connected person in Uttar Pradesh and is capable of influencing the State machinery to their detriment. Thus, apprehending physical harm from the side of parents/family members, a present petition was filed seeking directions to the police to ensure the safety of life, limb and property to the petitioners.

The Court noted that in the present case, the petitioners 1 and 2 are major and the marriage certificate being placed on record prima-facie lends credence to the merits of the case in their favour.

The Court further observed that the Constitutional Courts under its framework are empowered to pass orders to protect the citizens, especially in the cases of the present nature. Our Constitution ensures two consenting adults to live together as husband and wife and there can be perceivably no interference in their lives from third parties, including their family. It is not only the duty of the State but also its machinery and the agencies which ensure law and order to ensure that no harm comes to the citizens of this country.

Thus, the Court directed to provide the mobile numbers of the SHO/Division Officer/Beat Officer(s) attached with PS Malviya Nagar to the petitioners so that in case of any threat/emergency, the petitioners may contact these officials for help.

The Court also directed the police officials to respond immediately in case of any call received from either petitioner regarding any incident of emergency or threat and to visit the residence once in two days only for the next three weeks to ensure the safety of the petitioners.

[Hina v. State, 2022 SCC OnLine Del 2194, decided on 13-07-2022]


Advocates who appeared in this case :

Ms. Mumtaz Ahmed, Mr. Satish Sharma, Advocates, for the Petitioner;

Ms. Kamna Vohra, ASC (Crl.) with Mr. Mukesh Kr, APP and SI Shajid Hussain, HC Harish Kumar, PS Malviya Nagar, Advocates, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Anoop Kumar Mendiratta, J. rejected bail to an accused allegedly kidnapping and raping a minor girl of 14 years. The Court held that merely because sometimes sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law.

A complaint was filed by the mother of the victim alleging that some unknown person had kidnapped her daughter of 15 years, missing since 09-07-2019. On investigation, the complainant was charged for offences under Sections 363, 366 and 376 Penal Code, 1860 and Section 4 &6 Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) as the victim was recovered along with her 8-month-old female child from the house of petitioner/accused and was about 1½ months pregnant. The complainant was arrested and thus, the present bail application was filed contending that the victim is wife of the petitioner-accused and is suffering on account of incarceration of the petitioner and he needs to take care of his wife and child.

State submitted that that victim was merely 14 years and 06 months of age, at the time she was lured and kidnapped by the petitioner and the entire machinery was kept in the dark by the petitioner who deliberately concealed the particulars of the victim and misled the investigating agency on the wrong path despite filing of the Habeas Corpus petition by the mother of the victim.

The Court noted that alleged marriage with a minor as claimed by the petitioner is in violation of the provisions of the Prohibition of Child Marriage Act, 2006.

Placing reliance on Independent Thought v. Union of India, (2017) 10 SC 800 and Jayanti Lal Dabgar v State of Gujarat, (2015) 7 SCC 359 wherein it was observed that sexual intercourse or sexual act by a man, even with his own wife under 15 years of age, has been classified as rape, the Court opined that sexual relationship with minor is prohibited and the law clearly treats them as offences even if the same is based upon alleged consent of a minor.

The Court observed that such incidents of luring a minor and entering into physical relationship, accused thereafter claiming consent of the minor, cannot be treated in a routine manner. Merely because the petitioner has claimed that marriage had been performed with the victim in a temple, the same cannot sanctify the offence as the victim was a minor and under 15 years of age at the time of the incident. The claim of marriage is also yet to be proved on record.

Thus, the Court rejected the bail being devoid of evidence in favour of accused suggesting consent of the parents to take their minor daughter away from their lawful custody along with constantly misleading the Court during investigation and his claim of consent by minor for sexual intercourse being irrelevant.

[Jagbir v. State, 2022 SCC OnLine Del 2159, decided on 22-07-2022]


Advocates who appeared in this case :

Mr. Lokesh Kumar Mishra, Mr. Himanshu Sharma and Mr. Haider Khan, Advocates, for the Petitioner;

Mr. Adhishwar Suri, Advocate for Ms. Supriya Juneja, Advocate for complainant with Complainant in-person, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Kaushal Jayendra Thaker and Ajai Tyagi, JJ. dismissed a writ petition with costs which was filed by the petitioners seeking protection of their lives and liberties.

Petitioner 1 was married to respondent 3 and there were children born out of the said wedlock. Petitioner 1 alleged that she was harassed as respondent 3 had come in contact with bad elements and used to come home only at midnight. In the complaint dated 01-09-2021, she also alleged that on the night of 07-09-2021, he came with his friends and wanted her to have illicit relations with his friends which she refused and at night, when her husband and children were sleeping, she left the matrimonial home. She later on went to live with petitioner 2.

The Court noted that till September, 2021, petitioner 1 was with respondent 3 and the daughters but it has not been disclosed that since when petitioner 1 and 2 were living as husband and wife and as to when respondent 3 had threatened their relation. The Court was unable to reconcile as to how the incident of 07-09-2021 can be narrated in a complaint dated 01-09-2021.

The Court distinguished on facts the case of Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 relied on by the counsel of the petitioner regarding the belief of relationship where there is domestic violence perpetrated and defence was taken that there was no marriage. However, the Court said the marriage and family are social institution of vital importance reiterating relevant part of the same judgment. The Court thus concluded that it cannot be said that the relationship outside the matrimony has also to be recognized under Indian law. Paragraph 52 of the said judgment categorically mentions that Live-in relation as such is a relation which has not been socially accepted in India unlike many other Countries.

The Court clarified that the contention that India is governed by Constitution of India and we are not living in primitive days makes no difference as in the present case it cannot be said that petitioners are living as husband and wife and it is evident from the record and submission that the marriage of petitioner 1 with respondent 3 has not yet been dissolved. Further, there was nothing on record to show as to when respondent 3 threatened her while being in live-in-relation.

Constitution of India may permit live-in relation but, this writ petition is nothing else but filed with a purpose of obtaining seal of this Court on their illegal relationship.

The Court determined whether there is any act, omission or conduct of the respondent which would permit us to issue direction of no coercive action or granting protection and found that petitioner 1 had come with incorrect facts deliberately as her complaint has not culminated into F.I.R. being lodged. The Court was of the opinion that there are grey areas in the facts of the case which police will have to investigate. There is no threat perception, and no such complaint has been made to the police authority.

The petition was dismissed with costs Rs.5,000/- because there is no threat perception as prayed by petitioners from respondent 3.

[Sunita Devi v. State of U.P., 2022 SCC OnLine All 488, decided on 18-07-2022]


Advocates who appeared in this case :

Shyam Shankar Mishra, Advocate, Counsel for the Petitioner;

C.S.C., Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.