Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Neeraj Kumar Gupta (Information Commissioner) held that:

“Since filing of the Income Tax Returns by an individual with the Income Tax Department is not a public activity and rather it is in the nature of an obligation which a citizen owes to the State viz. to pay his taxes, this information could not be disclosed to the appellant in the absence of any larger public interest.”

In the instant application, the appellant sought the following information from the CPIO, Income Tax Officer:

  • “Please inform name and branch address of all those banks wherein my spouse Ms Mamta Arora was having account, at any point of time, during the financial years 2012-2013 to 2017-2018, the information is requested financial year-wise, the date of opening and closure of each bank account concerned be also informed and if any of the account is functional till the date of disposal of this application, then its functional status be also informed. The PAN card number of my spouse is APSPM8586N and her Aadhaar Card number is 319568028653.
  • Please provide details as to name and branch address of all those banks wherein my spouse Ms Mamta Arora has held any account, at any point of time, during the present financial year 2018- 2019. Date of opening and closure of each bank account concerned be also informed and if any of the bank accounts is functional till the date of disposal of this application, then its functional status is also informed.
  • Please inform what were the income tax slabs, for all the categories i.e. males, females, senior citizens etc. during the financial years 2012-2013 to 2017-2018, for assessment of income tax on the annual income of any resident Indian individual Etc.”

On being dissatisfied with CPIO’s response, appellant filed the instant second appeal before the Commission requesting to take appropriate legal action against the CPIO under Section 20 of the RTI Act and also to direct him to provide the sought-for information.

Decision

Commission observed that the opening words of Section 11 of the RTI Act are “CPIO…intends to disclose” which indicate that the procedure of Section 11 has to be followed only if CPIO intends to disclose the third party information.

Bench deduced that the CPIO is expected to follow the procedure of Section 11 when he “intends to disclose any information on record”.

Since the CPIO found no merit in disclosure, hence Section 11 was not invoked. Further, with regard to applicability of Section 8(1)(j) of the RTI Act, 2005 for non-disclosure of the third party bank details and Income Tax returns Commission referred to the Supreme Court’ decision in Girish Ramchandra Deshpande v. Central Information Commission, (2013) 1 SCC 212.

Legal Issue

Whether the appellant claiming to be the legally wedded husband is entitled to seek information regarding his wife’s bank details and income tax returns?

To answer the stated question, Commission referred to the decision of Delhi High Court in Vijay Prakash v. UOI,2009 SCC OnLine Del 1731, wherein it was clarified that in a private dispute between husband and wife, the basic protection afforded by virtue of the exemption from disclosure enacted under Section 8(1)(j) cannot be lifted or disturbed unless the petitioner is able to justify how such disclosure would be in ‘public interest’.

Commission referred to the following decisions in regard to the disclosure of the information as sought in the instant application was of not larger interest:

[Bombay High Court] Shailesh Gandhi v. CIC, WP No. 8753 of 2013

[Delhi High Court] Naresh Kumar Trehan v. Rakesh Kumar Gupta, WP(C) No. 85 of 2010, 24-11-2014.

[Delhi High Court] Harish Kumar v. Provost Marshall, LPA No. 253 of 2012, 30-03-2012.

In light of Section 2(n) of the RTI Act, 2005 bench stated that Ms Mamta Arora being a person other than the RTI applicant came within the definition of ‘third party’.

Hence, while concluding the decision, Commission held that the in view of the above-decision, Bench opined that in the absence of any larger public interest in the matter, the appellant was not entitled to seek information regarding the bank details and income tax returns of his wife which is exempted under Section 8(1)(j) of the RTI Act.

Appeal was disposed of in view of the above. [Pawan Kumar Saluja v. CPIO, Income Tax Officer; Second Appeal No. CIC/CCITD/S/2019/120284; decided on 05-01-2021]

Case BriefsSupreme Court Roundups

2020 has been a year of COVID-19, challenges, and changes. Of many things that this year has taught us, one of the biggest lessons has been our ability to work from home alone – but together! Like most of us, the Courts too took the cue and started functioning via video conferencing when the pandemic hit the World. At first, the Supreme Court restricted it’s functioning to avoid mass gatherings in Courts and directed that only urgent matters will be heard, however, soon all the in-person hearings were completely banned and the Court directed that it would hear “extremely urgent” matters via video conferencing.

Ultimately, faced with the unprecedented and extraordinary outbreak of a pandemic, Supreme Court issued guidelines on functioning of courts through video conferencing. It said that it was necessary that Courts at all levels respond to the call of social distancing and ensure that court premises do not contribute to the spread of virus.

Also read:

When the video conference hearings first began, the Courts and the public at large were skeptical about it’s success, however, the Supreme Court, in October, said that the “the system of Video Conferencing has been extremely successful in providing access to justice.” 

Read: SC says “system of Video Conferencing has been extremely successful”; alters only one guideline from April 6 order

Here are a few unmissable facts and stories from the highest Court of the country:

  • Even though most of the Court functioning took place online and through video conferencing, 696 judgments were delivered in the year 2020 .
  • All the Constitution bench verdicts were unanimous with no dissenting opinion. [Read more]
  • In a first, Single-Judge bench started hearing cases. [Read more]
  • A new dress code was notified for advocates in light of the COVID-19 pandemic. [Read more]
  • 228 advocates registered as Advocates-on-Record of the Supreme Court. [Read more]
  • 2 judges, Justice R. Banumathi and Justice Arun Mishra retired

Read:

Read: “Justice Ramana’s proximity with Mr. Chandrababu Naidu is too well-known”; Read what Andhra Pradesh CM Jagan Mohan Reddy wrote in his letter to CJI

Here’s a quick roundup of all the important Supreme Court judgments:

11 Constitution bench judgments 

  • All the Constitution bench verdicts were unanimous with no dissenting opinion.
  • 9 out of 11 Constitution bench judgments were delivered by benches consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran and M.R. Shah, followed by Justices Aniruddha Bose and S. Ravindra Bhat who were part of Constitution benches in 5 and 4 cases, respectively.

Read more…


Maintenance in matrimonial disputes| Extensive guidelines framed; Issue of overlapping jurisdiction under different Laws resolved

The bench ofIndu Malhotra and R. Subhash Reddy, JJ framed guidelines on overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Read more…

Also read: Guidelines

[ Rajnesh v. Neha,  2020 SCC OnLine SC 903 ]


Appointments and functioning of Tribunals

A 3-judge bench issued extensive directions in relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020.

“Dispensation of justice by the Tribunals can be effective only when they function independent of any executive control: this renders them credible and generates public confidence.”

Read more…

Also read: ‘It’s high time we put an end to the disturbing trend of Govt ignoring our directions.’ Read why Supreme Court directed constitution of National Tribunals Commission

[Madras Bar Association v. Union of India2020 SCC OnLine SC 962 ]


Constitutionality of imposition of GST on lotteries, betting and gambling

Lottery, betting and gambling are well known concepts and have been in practice in this country since before independence and were regulated and taxed by different legislations. When Act, 2017 defined the goods to include actionable claims and included only three categories of actionable claims, i.e., lottery, betting and gambling for purposes of levy of GST, it cannot be said that there was no rationale for including these three actionable claims for tax purposes.

Read more…

[Skill Lotto Solutions v. Union of India, 2020 SCC OnLine SC 990 ]


Homebuyer can choose between seeking remedy under the RERA Act or the Consumer Protection Act

The bench of UU Lalit and Vineet Saran, JJ held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.

Read more… 

[Imperia Structures v. Anil Patni,  2020 SCC OnLine SC 894 ]


Domestic Violence| Wife’s right to residence in shared household belonging to not just husband but also to his relatives

“The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.” 

Read more…

[Satish Chander Ahuja v. Sneha Ahuja, 2020 SCC OnLine SC 841 ]


Daughters’ coparcenary rights

The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJheld that daughters have right in coparcenary by birth and that it is not necessary that the father coparcener should be living when the Hindu Succession (Amendment) Act, 2005 came into force.

“The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.”

Read more…

[ Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 ]


Permanent commission to all women Army officers

The bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

Read more… 

[Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469]


RBI’s ban on Cryptocurrency trading quashed

The 3-judge bench of Rohinton Fali Nariman, S Ravindra Bhat and V Ramasubramania, JJ has struck down the curb on trading in virtual currency, cryptocurrency and bitcoins in India.

In the 180 pages long verdict penned by Justice Ramasubramania, it was held,

“When the consistent stand of RBI is that they have not banned Virtual currencies (VCs) and when the Government of India is unable to take a call despite several committees coming up with several proposals including two draft bills, both of which advocated exactly opposite positions, it is not possible for us to hold that the impugned measure is proportionate.”

Read more…

[Internet & Mobile Assn. of India v. Reserve Bank of India, (2020) 10 SCC 274 ]


Installation of CCTV Cameras in all Police Station

The 3-judge bench of RF Nariman*, KM Joseph and Anirudhha Bose, JJ directed all the States and UTs to install CCTV cameras in all Police Stations and file compliance affidavits within 6 weeks. The Court said that the directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and hence, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible.

Read more… 

[Paramvir Singh Saini v. Baljit Singh, 2020 SCC OnLine SC 983 ]


Automatic expiration of stay 

“Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.” 

Read more…

[Also read detailed report on the 2018 verdict in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, 2018 SCC OnLine SC 310,  here.]


Political parties to publish criminal antecedents of candidates & give reasons for their selection

A bench of RF Nariman and S. Ravindra Bhat, JJ directed all political parties to upload on their website details of pending criminal cases against candidates contesting polls, noting that there has been an alarming increase in criminalisation of politics. The Court said political parties will also have to upload reasons for selecting candidates with pending criminal cases on their website.

Read more… 

[Rambabu Singh Thakur v. Sunil Arora, (2020) 3 SCC 733 ]


SC/ST (Prevention of Atrocities) Amendment Act, 2018 constitutionally valid

 A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has upheld the constitutional validity of the SC/ST (Prevention of Atrocities) Amendment Act, 2018, and said that a court can grant anticipatory bail only in cases where a prima facie case is not made out. In the unanimous verdict, Justice Mishra penned the opinion for himself and Justice Saran whereas Justice Bhat wrote a separate but concurring opinion.

Read more… 

[Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 ]


Test for determining non-arbitrability of disputes

The 3-judge bench of NV Ramana*Sanjiv Khanna** and Krishna Murari, JJ overruled the ratio in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 wherein it was held that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy.

Read more…

[Vidya Drolia v. Durga Trading Corporation, 2020 SCC OnLine SC 1018 ]


Admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

Read more…

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 ]


Advance tax ruling system

The bench of SK Kaul and Indu Malhotra, JJ has recommended the Central Government to consider the efficacy of the advance tax ruling system and make it more comprehensive as a tool for settlement of disputes rather than battling it through different tiers, whether private or public sectors are involved. It suggested that a council for Advance Tax Ruling based on the Swedish model and the New Zealand system may be a possible way forward.

Writing two postscripts, the Court said that it was forced to do so on account of the backbreaking dockets which are ever increasing and as a move towards a trust between the Tax Department and the assessee.

Read more… 

[National Co-operative Development Corporation v. Commissioner of Income Tax, 2020 SCC OnLine SC 733 ]


Telecos get 10 years to pay AGR dues

Asking Telecom Operators to make the payment of 10% of the total AGR dues as by 31.3.2021, the 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ gave 10 years to the Telecom Service Providers (TSPs) to complete the payment of their AGR dues.

Read more…

[Union of India v. Assn. of Unified Telecom Service Providers of India, (2020) 9 SCC 748 ]


All petitions challenging the IBC provisions relating to personal guarantors transferred to Supreme Court

The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by the Supreme Court to avoid any confusion.

Read more…

[Insolvency and Bankruptcy Board of India v. Lalit Kumar Jain,  2020 SCC OnLine SC 884 ]


The final order that sealed the fate for the Nirbhaya convicts

Putting the last nail in the coffin for the Nirbhaya death row convicts, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ dismissed the plea file by Pawan Kumar Gupta challenging the rejection of his mercy petition by the President on the ground that his plea of juvenility had not been finally determined and this aspect was not kept in view by the President of India while rejecting his mercy plea.

The hearing took place late at night at 2:30 AM.

Read more…

Also read:

[Pawan Kumar Gupta v. State of NCT of Delhi, 2020 SCC OnLine SC 340 ]


Shaheen Bagh Protests

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.” 

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has, in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied in such a manner and that too indefinitely.

Read more…

[Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808 ]


Farmers’ protest

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order.”

Refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ said that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.

Read more…

[Rakesh Vaishnav v. Union of India, 2020 SCC OnLine SC 1032 ]


Sushant Singh Rajput Death Case

When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well. Satyameva Jayate.”

A single judge bench of Hrishikesh Roy, J has held the ongoing investigation by the CBI to be lawful and further directed that if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well.

Read more… 

[Rhea Chakraborty v. State of Bihar, 2020 SCC OnLine SC 654 ]


Scandalous allegations against Supreme Court judges

After finding advocates Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan guilty of levelling scandalous allegations against Justice RF Nariman and Justice Vineet Saran, the bench of Deepak Gupta and Aniruddha Bose, JJ has sentenced all 3 to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-. It further said that in default of payment of fine, each of the defaulting contemnors shall undergo further simple imprisonment for a period of 15 days.

Read: 

[Vijay Kurle, In re, 2020 SCC OnLine SC 407  and Rashid Khan Pathan v. Vijay Kurle, 2020 SCC OnLine SC 711]


Vikas Dubey Encounter

After Vikas Dubey, a history-sheeter and gangster-turned-politician, was killed in a police encounter on July 10, 2020, the Supreme Court gave a go ahead to Inquiry Committee headed by Former SC judge Justice B S Chauhan.

Later,  a 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ refused to scrap the Judicial Committee constituted to look into the killing of Vikas Dubey and said that the allegations of bias made against the members of the Commission merely on the basis of newspaper reports and nothing more, are liable to be rejected outright.

“ … the Chairman and a Member of the Commission had held high Constitutional positions and while making allegations the petitioner has based his claim only on the newspaper report and the manner in which the averments are made in the application is unacceptable.”

Read: 

[Ghanshyam Upadhyay v. State of Uttar Pradesh2020 SCC OnLine SC 587 and 2020 SCC OnLine SC 658 ]


Prashant Bhushan Contempt proceedings

Twitter row

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has, in a 108-pages long verdict, held advocate Prashant Bhushan guilty of criminal contempt in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. It held,

The tweets which are based on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’. 

The Court, however, sentenced Bhushan with a fine of Rupee 1 for his contemptuous tweets and said

“If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of  Re.1/­ (Rupee one).”

Read:

[Prashant Bhushan, In re, 2020 SCC OnLine SC 646 and  2020 SCC OnLine SC 698 ]

Tehelka contempt

In another contempt proceeding against Bhushan, after refusing to accept the explanation of advocate Prashant Bhushan in the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the 3-judge bench of Arun Mishra, BR Gavai and MR Shah, JJ framed larger questions in the matter that will have far-reaching ramifications.

Read more… 

[Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 651 ]


Kunal Kamra and Rachita Taneja contempt cases 

The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ issued notice to cartoonist Rachita Taneja and comedian Kunal Kamra in two separate cases relating contemptuous social media posts.

Read more…

[Shrirang Katneshwarkar v. Kunal Kamra2020 SCC OnLine SC 1041 and Aditya Kashyap v. Rachita Taneja, 2020 SCC OnLine SC 1042 ]


Here’s the list of some of the important COVID-19 Orders/Direction issued by the Supreme Court:

“Even if one survives from COVID-19, many times financially and economically he is finished.”

“To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them.” 


Also read:

2020 Roundup: 11 Constitution bench judgments, 17 judges, Zero dissent

 

Case BriefsHigh Courts

In our series of 2020 wrap-ups, let’s revisit and take a dive at some of our stories on family laws and how different High Courts dealt with the same involving some very significant rulings.

We have listed down Case briefs under sub-categories, of our coverage under the Family Law and its allied provisions.


[Allahabad High Court]

Custody of Minor

In minor’s custody case, where child is below 5 years of age, mother is preferred, but is there any exception to it? All HC explains

[Meenakshi v. State of U.P., 2020 SCC OnLine All 1475, decided on 02-12-2020]

If a natural guardian faces criminal charges relating to death of spouse, can custody of children or visitation rights be granted? All HC discusses

[Shaurya Gautam v. State of U.P., 2020 SCC OnLine All 1372, decided on 10-11-2020]

Decree of Eviction against Son

Can daughter-in-law be evicted without seeking decree of eviction against the son under S. 2(s) of Domestic Violence Act? All HC answers

[Sujata Gandhi v. S.B. Gandhi, 2020 SCC OnLine All 763, decided on 12-06-2020]


 [Bombay High Court]

Alimony

If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Bom HC’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay TukaramManore, 2020 SCC OnLineBom 3925, decided on 09-12-2020]

Bigamy

Person committing offence under S. 494 IPC, must have married another woman or man during subsistence of his or her first marriage; Bom HC invokes power under S. 482 CrPC to meet ends of justice

[Rekha v. State of Maharashtra, 2020 SCC OnLineBom 291, decided on 13-02-2020]

 Cooling-off Period

Can “cooling-off period” under S. 13-B(2) of Hindu Marriage Act be waived? Legal position discussed in a case of pregnant woman

[Kovelamudi Kanika Dhillon v. Kovelamudi Surya Prakash Rao,  2020 SCC OnLineBom 2054, decided on 26-10-2020]

 Cruelty to Woman

Abuse of S. 498-A IPC by making vague allegations and roping in family members of husband: Courts to carefully scrutinize allegations

[Shabnam Sheikh v. State of Maharashtra, 2020 SCC OnLineBom 1752, decided on 15-10-2020]

“Easy to accuse somebody of ill-treatment after someone dies, but not wise to convict somebody based on general statements”: Bom HC holds every cruelty is not an offence under S. 498-A IPC

[State of Maharashtra v. Shri Balu Ravji Abhang, 2020 SCC OnLineBom 307, decided on 20-02-2020]

Family members should not be dragged without specific evidence against them, otherwise, S. 498-A IPC is unfortunately misused as a weapon, says Bom HC

[State of Maharashtra v. Ashok, 2020 SCC OnLineBom 331, decided on 26-02-2020]

 Custody of Minor

Welfare of child as paramount consideration: Bom HC gives custody to father of minor for mother not being able to take care of the child

[Sashanka v. Prakash, 2020 SCC OnLineBom 3497, decided on 27-11-2020]

Domestic Violence & Jurisdiction of Courts

Does Family Court has jurisdiction to entertain an application for relief under Ss. 18 to 22 of DV Act? Read what Bom HC held

[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLineBom 983, decided on 28-09-2020]

Second Marriage

Performing second marriage during pendency of an appeal is a breach under S. 15 of HMA, but would it amount to civil contempt? Bom HC analyses

[Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLineBom 911, decided on 08-09-2020]

 Unmarried Daughter (Maintenance)

Whether unmarried daughter who is major by age, entitled to claim maintenance from father till her marriage? Bom HC explains law in light of Hindu Adoption & Maintenance Act

[Sanjay J. Phagnekar v. State of Maharashtra, 2020 SCC OnLineBom 3382, decided on 23-11-2020]

Widowed Daughter-in-Law (Maintenance)

Can a widowed daughter-in-law claim maintenance from the estate inherited by her father-in-law? Law explained

[Sardool Singh Sucha Singh Mathroo v. Harneet Kaur, 2020 SCC OnLineBom 927, decided on 07-09-2020]

 Wife having Independent Source of Income (Maintenance)

[S. 125 CrPC] Wife cannot be denied maintenance on ground of having a source of income: Restated by Bom HC

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLineBom 694, decided on 26-05-2020]


[Calcutta High Court]

Child Marriages

Alarming rise of child marriages during lockdown has given a strong impression that they may be in garb of child trafficking; Police to investigate

[Contagion of COVID-19 Virus in Children, In Re., 2020 SCC OnLine Cal 1066, decided on 25-06-2020]

 Harassment over Complexion

Harassment by in-laws for woman’s black complexion is cruelty under S. 498-A IPC; Husband convicted for murdering wife over her black complexion

[Mazidul Miah v. State of W.B., 2020 SCC OnLine Cal 1077, decided on 25-06-2020]


[Chhattisgarh High Court]

Alienation of Property by Alleged Wife

Whether alienation of property by an alleged wife of a deceased is void? Chh HC analyses position in light of ‘Customs’ under Hindu Marriage Act

[Anirudh Prasad Kamal Sen v. Dashmat Bai Suryavanshi, Second Appeal No. 93 of 2009, decided on 28-08-2020]

Cause of Action

In a matrimonial dispute, cause of action can arise several times, even if the dispute is settled and case has been withdrawn

[Harsha Dewani v. Ashutosh Gupta, 2020 SCC OnLineChh 149, decided on 10-08-2020]


[Delhi High Court]

Adultery

Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery; Divorce petition dismissed

[Vishal Singh v. Priya, 2020 SCC OnLine Del 638, decided on 12-06-2020]

Affidavit of Assets, Income and Expenditure

Del HC updates Affidavit of Assets, Income & Expenditure to be filed at threshold of matrimonial disputes; Issues modified directions [Detailed Report: Read Directions]

[Kusum Sharma (5) v. Mahinder Kumar Sharma, 2020 SCC OnLine Del 931, decided on 6-8-2020]

Cruelty & Desertion

Del HC analyses “A typical case that showcases as to what would amount to cruel behaviour on part of one spouse to utter detriment of other”

[Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571, decided on 01-05-2020]

Divorce Proceedings

Husband citizen and domicile of USA, Can he raise objections on divorce proceedings filed by wife in India? Del HC decrypts the law in light of catena of SC decisions

[Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

 Impotency

Is making false allegation of impotency by wife against husband a ground for decree of divorce? Del HC determines

[Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]

Maintenance

If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Del HC answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]

Matrimonial Disputes

Del HC reiterates SC’s position on “duty of the Courts to encourage genuine settlements of matrimonial disputes”

[Harish Kumar v. State, 2020 SCC OnLine Del 1635, decided on 04-12-2020]

 Remedy against Custody Orders

“No exception to remedy against orders of custody under Domestic Violence Act”: Del HC dismisses S. 482 CrPC petition in view of S. 29 DV Act

[Srisha Dinav Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764, decided on 20-07-2020]

Right to Privacy versus Right to Fair Trial

[S. 14 of Family Courts Act] In a contest between right to privacy and right to fair trial, both of which arise under expansive Art. 21, right to privacy may have to yield to right to fair trial

[Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672, decided on 30-06-2020]

Second Marriage & Custody of Children

Second marriage of a mother is by itself not sufficient to deprive her of custody of her biological child

[Faisal Khan v. Humera,  2020 SCC OnLine Del 572, decided on 1-5-2020]

Settlement Deed affecting Children’s Right to Maintenance

Is it lawful for a wife to agree to a settlement deed in the process of dissolution of marriage wherein she settles that her minor children will not claim maintenance in future? Court explains

[Vashno Jaishwal v. State (NCT of Delhi), 2020 SCC OnLine Del 1504, decided on 20-11-2020]


[Gauhati High Court]

 Conjugal Life

Refusal to wear “sakha and sindoor” is clear intention that a hindu wife is unwilling to continue conjugal life: Divorce decreed to husband

[Bhaskar Das v. Renu Das, 2020 SCC OnLineGau 2954, decided on 19-06-2020]

 Maintenance

If a woman is divorced, will her status as a wife entitling her to maintenance under S. 125 CrPC change? Read Gau HC’s position

[Bijoy Seal v. Sefali Seal, 2020 SCC OnLineGau 4024, decided on 30-09-2020]

Special Marriage Act

If a marriage is first solemnised under the Special Marriage Act and later upon conversion to Islam, marriage is again solemnised under Mohammedan Law: Which law will prevail for dissolution of marriage? Gau HC to consider

[Md Makfur Rahman v. Malina Deb Barman, 2020 SCC OnLineGau 4645, decided on 23-04-2020]


[Gujarat High Court]

Permanent Alimony to a Muslim Woman

Will permanent alimony granted to a Muslim woman be conditional to her remarriage? Detailed report untangling significance of ‘Permanent Alimony’ & ‘Periodical Maintenance’

[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLineGuj 711, decided on 19-03-2020]

Special Marriage Act

If marriage is registered under Special Marriage Act, is it necessary for the couple to take recourse of same law to sever ties permanently? Guj HC elucidates in a custody matter

[Chavda Twinkle v. State of Gujarat, 2020 SCC OnLineGuj 1167, decided on 17-07-2020]


[Himachal Pradesh High Court]

Ancestral Property

Can wife claim maintenance under S. 12 of the Protection of Women from Domestic Violence Act, 2005 over ‘ancestral property’ of the husband? HP HC explains

[Kubja Devi v. Chhape Ram,  2020 SCC OnLine HP 1829, decided on 05-10-2020]


[Jharkhand High Court]

Desertion

‘Desertion’ has to be wilful and voluntary for a valid ground for divorce under S. 13 of Hindu Marriage Act, 1955; Legal principle “No one can take a benefit of his own fault” applied

[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLineJhar 773, decided on 08-09-2020]


[Karnataka High Court]

Cruelty to First Wife

Though Shariat permits a Muslim man to practise polygamy, but would that amount to cruelty to first wife? Kar HC explains concept of Marital Cruelty

[Yusufpatel v. Ramjanbi, MFA No. 201154 of 2018 (FC), decided on 17-08-2020]


 [Kerala High Court]

Convenience & Welfare of Children over Wife

In matrimonial matters preference is to be given to convenience and welfare of children over wife: Ker HC dismisses application for transfer of case

[Nimi v. Ajith M.T., 2020 SCC OnLine Ker 4313, decided on 09-10-2020]

Cruelty

Wife’s persistent effort to separate husband from family amounts to cruelty: Divorce granted in favour of husband

[Ranjith P.C. v. Asha Nair. P, 2020 SCC OnLine Ker 1751 , decided on 20-05-2020]

 Dowry

Is there a limitation period for wife to claim property entrusted to in-laws given in form of dowry? Ker HC answers

[Sheela K.K. v. N.G. Suresh, 2020 SCC OnLine Ker 4240, decided on 24-09-2020]

 Suppressing Material Facts & Marriage

If a wife obtains husband’s consent for marriage by suppressing material facts like cardiac ailments, would that amount to fraud? Ker HC explains whether marriage can be declared null & void

[Ajitha v. Harshan, Mat. Appeal No. 734 of 2012, decided on 25-09-2020]

 Transfer Petitions related to Matrimonial Disputes

While considering transfer petitions related to matrimonial disputes, the convenience of wife is to be preferred over the convenience of husband; Ker HC reiterates

[Kavitha v. Gopakumar, 2020 SCC OnLine Ker 6098, decided on 30-11-2020]


[Madras High Court]

Customary Divorce

Can plea of customary divorce be considered as a valid defence while departmental proceeding for bigamy is initiated? Madras HC considers scope of defence under Service Rules

[Sudalaimai v. Deputy Inspector General of Police, WP (MD) No. 17504 of 2014, decided on 09-09-2020]

 Illegitimate Child [Maintenance]

Is an illegitimate child entitled to maintenance under S. 125 CrPC? Madras HC reiterates legal position

[Pachaimuthu v. Minor Vishanthini, 2020 SCC OnLine Mad 2677, decided on 01-10-2020]

Limitation Period for Domestic Violence Complaints

Limitation provided under CrPC is applicable to complaints under Domestic Violence Act: Madras HC rejects complaint filed after lapse of 1 yr 10 months

[N. Prasad v. Harithalakshmi, 2020 SCC OnLine Mad 1767, decided on 20-07-2020]

 Void Marriage

What is the essential condition for validity of any marriage? Detailed Report highlighting legality of marriage of a girl below 18 years of age

[Prakash v. State, Crl. A. No. 334 of 2014, decided on 30-11-2020]


[Orissa High Court]

Rights of a “lady” in Same-sex Couple Relationship

Same-sex couple have a right to live together outside wedlock; Rights of a woman enshrined in Protection of Women from Domestic Violence Act, 2005 to apply on the “lady” in the relationship

[Chinmayee Jena v. State of Odisha, 2020 SCC OnLine Ori 602, decided on 24-08-2020]


[Punjab & Haryana High Court]

Sapinda Prohibition

Whether partners falling in sapinda prohibition under HMA can stay in a live-in relationship? Parties argue while hearing in anticipatory bail

[Akhilesh v. State of Punjab,  2020 SCC OnLine P&H 2058, decided on 19-11-2020]

Section 498-A IPC, a weapon?

Disgruntled wives use provisions of S. 498-A IPC as a weapon rather than shield: P&H HC

[Amarjit Kaur v. Jaswinder Kaur, 2020 SCC OnLine P&H 577, decided on 15-05-2020]

 Voidable Marriage

In case a marriage is solemnized in violation of age restriction, marriage is only voidable

[Deepak Kumar v. State of Haryana, 2020 SCC OnLine P&H 759 , decided on 15-06-2020]


[Rajasthan High Court]

Theory of Homicidal Death

Allegation of woman set ablaze in view of dowry demand dismissed; Prosecution theory of homicidal death sheer exaggeration; finds Raj HC

[Gopal v. State of Rajasthan, DB Criminal Appeal No. 799 of 2014, decided on 06-08-2020]


 [Telangana High Court]

Harassment or Cruelty

For invoking S. 304-B IPC, harassment or cruelty caused to a woman should have happened “soon before her death”

[Surender Singh v. State of A.P., 2020 SCC OnLine TS 874, decided on 06-07-2020]


[Tripura High Court]

Dissolution of Marriage of ST Couple

Will Hindu Marriage Act have application on a couple belonging to Scheduled Tribe notified under the Constitution for purpose of dissolution of marriage? Tripura HC explains

[Rupa Debbarma v. Tapash Debbarma, 2020 SCC OnLine Tri 425, decided on 09-09-2020]

Irretrievable Breakdown of Marriage

What amounts to irretrievable breakdown of marriage? Tripura HC discusses in a case where the couple lived apart for 13 continuous years

[Aparna Dey v. Alok Dey, 2020 SCC OnLine Tri 411, decided on 09-09-2020]

Lived like a Wife [Maintenance]

“Woman who lived like wife, cannot be deprived of maintenance”: Tripura HC grants maintenance to woman who “lived like wife” for 10 yrs

[Sri Bibhuti Ranjan Das v. Gouri Das, 2020 SCC OnLine Tri 280, decided on 07-07-2020]


[Uttaranchal High Court]

Medical Examination of Wife in Divorce Proceedings

Wife not eligible for medical examination of whether she can conceive or not during Divorce proceedings; Utt HC allows appeal

[Rashmi Gupta v. YogeshBabu, 2020 SCC OnLineUtt 339, decided on 01-07-2020]

 Mental Cruelty

Mental cruelty is no less than physical cruelty, wife causing mental cruelty to husband valid ground for dissolution of marriage; Utt HC dismisses appeal

[Anita Gaur v. Rajesh Gaur, 2020 SCC OnLineUtt 503, decided on 24-08-2020]


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2020 Wrap Up — Flashback of Stories on Consumer Cases

Case BriefsHigh Courts

Bombay High Court: C.V. Bhadang, J., addressed whether the Family Court can application for reliefs under Section 18 to 22 of the Protection of Women from Domestic Violence Act, 2005.

The instant application was filed in regard to the transfer of Criminal Miscellaneous Application pending before the Judicial Magistrate for dissolution of marriage on the ground of cruelty.

Bench noted that the applicant was seeking reliefs against the respondent with regard to the dissolution of marriage and permanent custody of the children.

Respondent had filed Criminal Miscellaneous Application under Sections 12, 17, 18, 19, 20, 22 and 23(2) of the D.V. Act, seeking a residence order a protection order and monetary reliefs.

Principle Issue 

Whether the Family Court can entertain the application, as framed and filed by the respondent before the Magistrate?

Court referred to the three decisions of Single Judges of this Court which have already covered the above issue:

  • Minoti Subhash Anand v. Subhash Manoharlal Anand (R.D. Dhanuka, J.),2015 SCC OnLine Bom 6113
  • Sandip Mrinmoy Chakraborty v. Reshita Sandip Chakraboarty ( Bharati H. Dangre, J.), 2018 SCC Online Bom 2709
  • Santosh Machindra Mulik v. Mohini Mithu Choudhari (S.C. Gupte, J.), Misc. C.A. No. 64 of 2019 decided on 15-11-2019

This Court has consistently held that in view of Section 7(2)(b) of the Family Courts Act, read with Section 26 of the Protection of Women from Domestic Violence Act, 2005, Family Court would get jurisdiction to entertain the application for reliefs under Section 18 to 22 of the D.V. Act.

“…if the Family Court can entertain an application under Sections 18 to 22, if filed under Section 26 merely because the application is styled as one under Section 12, would hardly make any difference.”

Hence, the present application was allowed and the Criminal Miscellaneous Application was transferred to the Family Court.[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLine Bom 983, decided on 28-09-2020]


Advocates who appeared before the Court:

Abhijit D. Sarwate for the Applicant.

Arvind Chavan for the Respondent.

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., dismissed the petition in view of the dispute being settled mutually.

The instant petition sought quashing of an FIR registered under Sections 498A/406/34 of the Penal Code, 1860 submitting to the effect that a settlement has since been arrived at between the parties.

State did not oppose the quashing of FIR which was apparently emanated due to a matrimonial discord which has been resolved by the dissolution of the marriage between the parties vide a decree of divorce through mutual consent under Section 13 B (2) of the Hindu Marriage Act, 1955.

Respondent 2 had stated that she arrived at the settlement with petitioners without any duress, pressure or coercion from any quarter, hence Court considered it appropriate to put a quietus to the litigation between the parties and for the maintenance of peace and harmony between the parties in view of the observations of the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303 and Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58, wherein it was held that:

“… it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.

16. There has been an outburst of matrimonial disputes in recent times. They institution of marriage occupies an important place and it has an important role to play in society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising their extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed….”

(emphasis supplied)

Hence, in view of the above, the Court directed for quashing of the FIR and disposed of the petition.[Harish Kumar v. State, 2020 SCC OnLine Del 1635, decided on 04-12-2020]


Advocates who appeared before the Court:

For the petitioners: Naveen Kumar Bansal, Advocate with petitioners in person.

For the Respondents: Sanjeev Sabharwal, APP for State with SI Maninder Maan Piyush Pahuja, Adv for R-2 with R-2 in person.

Case BriefsHigh Courts

Kerala High Court: Shircy V. J., while allowing the present petition against the original petition filed in the family court, reiterated, “In matrimonial disputes, while considering transfer petitions, the convenience of the wife is to be preferred over the convenience of the husband.”

Background

The present petition is filed by the respondent in the original petition no. 557 of 2020, to seek transfer of the said petition from Family Court, Attingal to Family Court, Chavara.

It is submitted by the counsel for the petitioner that the petitioner is currently residing at Puthukkad which is hardly 6 km from the Family Court, Chavara where two cases were pending. Now she has to undertake a long journey to contest her case as the Family Court at Attingal is situated 64 km away from her place of residence. Such being the case, it will become extremely difficult for her to attend the court proceedings before the Family Court, Attingal with her child.

 Observation

Upon observing the facts and circumstances of the present case, the Court acknowledged the genuineness of the prayer sought and further said that the factum of convenience tilts in the favour of the wife. It was further specified by the Court that, “…in matrimonial disputes, while considering transfer petitions, the convenience of the wife is to be preferred over the convenience of the husband.” Reliance was placed over, Sumita Singh v. Kumar Sanjay, (2002) KHC 1889, Sailaja V v. V. Koteswara Rao, (2003) KHC 3105 and Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi, (2005) 12 SCC 237 against the same.

 Decision

While concurring with the settled precedents upon the said premise, the Court allowed the petition for transfer in the interests of justice and good conscience.[Kavitha v. Gopakumar, 2020 SCC OnLine Ker 6098, decided on 30-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Telangana High Court: K. Lakshman, J., addressed an issue in the criminal petition in light of Section 41-A of the Criminal Procedure Code, 1973 and the essence of quashing criminal proceedings was thrown light upon by citing the Supreme Court decision in Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350.

The present application sought to quash proceedings pending against the petitioners wherein they were accused of the offences alleged under Sections 498-A, 406 and 420 read with Section 34 of Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

Petitioners Counsel submitted that petitioner 1 and daughter of respondent 2 — de facto complainant married in the USA and registered their marriage. Petitioner 2 is the father of petitioner 1. Petitioner 3 is the mother of petitioner 1.

It has been stated that the de facto complainant implicated the petitioners herein in this false case due to matrimonial disputes between his daughter and accused 1. 

Adding to the above, counsel stated that the punishment prescribed for the offences alleged against the petitioners is seven years and below seven years and the police without following the procedure laid down under Section 41-A of CrPC, is trying to apprehend the petitioners. In the said course of action, the police have been calling petitioners 2 and 3 who are other aged parents of petitioner 1-accused 1, suffering from various old-age ailments.

In view of the above, petitioners sought to quash the same.

In Supreme Court’s decision of Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350, it was held that:

“…quashing of criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same.”

“It was further held in the very same judgment that on perusal of the complaint, if discloses prima facie offences that are alleged against the respondents, it is sufficient. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process, it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused.”

Bench stated that in the present case, certain aspects need to be investigated by the investigating officer.

It is trite to note that the punishment prescribed for the offences alleged against the petitioners is imprisonment of seven years or below seven years.

Court disposed of the criminal petition directing the Station House Officer to follow the procedure laid down under Section 41-A of the CrPC and also the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.[Prudhvi Nallamanikaluva v. State of Telangana, 2020 SCC OnLine TS 1291, decided on 19-10-2020]

Case BriefsHigh Courts

Kerala High Court: Shircy V., J. allowed the transfer petition of the petitioner’s matrimonial dispute cases to the Family Court most convenient for her to appear before.

In the present case, the petitioner who resides with her minor child at her paternal home approached the Court seeking to transfer her matrimonial dispute cases to the Family Court in the district where she currently resides.

The Court while evaluating the facts and circumstances of the case took note of her hardships and the inconvenience she has to undergo while travelling up and down to the Family Court where her cases are pending. The Court further emphasised that such hardships were not uncommon especially amongst women who are aggrieved by such disputes.

Therefore, the Court laid stress on taking a lady’s convenience to travel while considering transfer petitions in the future too.[Valsala Nisha v. Rajesh Soman Nair, 2020 SCC OnLine Ker 3184, decided on 11-08-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. allowed a petition filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR registered for offences under Sections 498-A and 506 of the Penal Code, 1860, on the ground that parties had entered into a compromise.

In the present case, the petitioner-husband and respondent-wife were married according to Hindu rites. After five years of their marriage, the wife left her matrimonial home and went to live with her parents in Shimla. She later filed an FIR under Sections 498-A and 502 of IPC against the husband. However, the parties later entered into a compromise and in order to maintain their cordial relation, they did not want to pursue cases against each other. Thus, the present petition was filed by the husband under Section 482 of CrPC requesting the court to quash the FIR filed against him along with the cases based upon it.

Learned counsel for the petitioner, R. L. Verma, contended that as the parties have compromised the matter, no purpose would be served by keeping the matter alive, hence the FIR, along with the subsequent proceedings should be quashed by the Court.

Learned counsel for the respondent, Dinesh Bhatia, prayed that the petition may be allowed in view of the compromise arrived between the parties.

The Court relied upon the judgment in Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58 where it was held that even in non-compoundable offences pertaining to matrimonial disputes, if Court is satisfied that parties have settled the disputes amicably and without any pressure, then for purpose of securing ends of justice, FIR/complaint or subsequent criminal proceedings in respect of offences can be quashed.

In view of the above, the petition was allowed and FIR against petitioner, along with its subsequent proceedings, was quashed.[Dharmender Mathur v. State of H.P., 2019 SCC OnLine HP 585, decided on 08-05-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of Sonia Gokani, J., allowed a petition seeking quashing of the FIR registered with Mahila Police Station under Sections 498-A, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860 on the ground that the parties had settled all their disputes.

The facts of the case are that the respondent had been residing along with her husband-petitioner for last about four months and due to the intervention of the family members and friends and also for the better future of their child they chose to bury all their disputes.

The Court placed reliance on the case of Gian Singh v. State Of Punjab, (2012) 10 SCC 303 and held that in view of the nature of disputes being matrimonial and when the parties had voluntarily chosen to end all their grievances by mutual understanding, the Court should show indulgence and invoke the powers under Section 482 of the Code of Criminal Procedure for bringing lasting peace between the parties. The application was thus allowed. [Namoribhai Mudjibhai Maheshwari v. State of Gujarat, 2019 SCC OnLine Guj 25, decided on 10-01-2019]

Op EdsOP. ED.

William E. Gladstone rightly said, Justice delayed is justice denied. This means that if the principle of timely justice is not adhered to, it is tantamount to a complete negation of justice. This problem is prevalent in the Indian judicial system where there is a backlog of nearly 27 million pending cases out of which, approximately 55,000 comprise of disputes relating to divorce.[1] This impediment in obtaining timely justice has resulted in alternate dispute resolution mechanisms such as negotiation, mediation, arbitration and conciliation gaining popularity due to their speedy nature of settling disputes. These forums provide a platform for parties to seek relief without involving litigation, thus literally “outside a courtroom”.

Mediation has emerged as the most widely accepted dispute resolution mechanism for settling matrimonial disputes. The problem arises when these include cases of domestic violence. While using mediation to resolve disputes of such nature, there are two opposing ideologies that exist in society. The advocates of mediation hold mediation to be a favourable mechanism as it safeguards family relationships; more specifically children from having to experience the severities of the traumatic process ordinarily attached to a typical divorce and also provide speedy justice. Whereas the critics of mediation hold mediation to be ineffective as the wrongdoer escapes without being punished through the State’s orderly penal apparatus.

There are several advantages attached to mediation of matrimonial affairs such as confidentiality, cost effectiveness, informal procedures, power of control, full freedom of parties to reject the outcome, mutuality, etc. The most attractive and indispensable feature is that it follows the principle of timely justice.

With reference to domestic violence cases, Section 12 of the Protection of Women from Domestic Violence Act, 2005 clearly lays down that a magistrate must dispose of a case under this Act within 60 days. However, this provision is rarely complied with. An Advocate, Dinesh Sharma stated, “Cases of such nature are never wrapped up in the 60 days period unless parties reach a compromise.”

The main reason for this “delayed justice” is the judge-population ratio in India. As per the Law Commission Report, there are only 17 Judges per one million people in comparison to USA’s 107 per one million people. Justice V.V. Rao stated, “It would take 320 years for the Indian judiciary to clear millions of pending cases.” Looking at the current condition of the Indian courts, it would not be incorrect to assume that alternate dispute resolution forums like mediation might be a more viable option for parties to seek relief.

The use of mediation in India is promulgated under the Arbitration and Conciliation Act, 1996 and the Code of Civil Procedure, 1908 (CPC). Section 30 of the Arbitration and Conciliation Act states that an “Arbitral Tribunal may use mediation to encourage settlement of disputes”. Section 89 CPC states that “courts may refer the parties for mediation if it appears that there exists an element of settlement”. As it can be inferred from the title, this Code only deals with “civil” matters. Thus, criminal matters are removed from the purview of mediation. So where does domestic violence fit in mediation?

Section 498-A of the Penal Code, 1860 (IPC) deals with matters of domestic violence. Under Section 320 of the Code of Criminal Procedure (CrPC) this is a non-compoundable offence where no compromise is allowed to be made. Offences of this type are of such serious nature that even courts cannot compound them. However, in India courts have time and again referred parties to mediation in resolving matrimonial disputes regardless of the nature of the offence. The Supreme Court in 2013 sanctioned all criminal courts to adopt mediation, with specific regard to cases under Section 498?A IPC.

The judiciary has shown no reluctance in adopting mediation to settle matrimonial disputes, even in criminal cases:

In Mohd. Mushtaq Ahmad v. State[2], the wife filed a divorce petition alongside an FIR against the husband under Section 498?A IPC after disputes arose between the couple subsequent to birth of a girl child. The Karnataka High Court directed the parties to mediation under Section 89 CPC. The matter was settled amicably through mediation after which the wife decided to quash the FIR. The Court allowed this stating, “The court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice.”

In Gurudath K. v. State of Karnataka[3], the facts are identical to the case above. Here the court stated, “Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably … Section 320 CrPC would not be a bar to the exercise of power of quashing of FIR or criminal complaint in respect of such offences.” Thus, the court allowed for the offences to be compounded on coming to the conclusion that the wife was under no threat or coercion for the same.

The court’s intention to settle matters as amicably as possible is clear. The intention of the court matches the ideology of the advocates of mediation, which is to safeguard family relationships and provide speedy justice.

Due to this move of the Indian courts, the accused are less apprehensive of being convicted in cases of domestic violence. This is where critics of mediation come in, who hold mediation to be ineffective as the wrongdoer escapes without being punished. Even though the law clearly debars offences of such nature from being compounded, the judiciary has time and again ignored this provision in the “interest of justice”. Besides being a boon to the accused, this is also a corresponding threat to the society at large to have criminals roaming free on the streets.

As per India’s National Crime Records Bureau, the number of domestic violence cases filed increased from 50,703 in 2003 to 118,866 in 2013.[4] This is an increase of 134% within the span of 10 years. Jawaharlal Nehru once said “You can tell the condition of a nation by looking at the status of its women.” For many years, India has been a patriarchal society. Women have always been mistreated and looked upon as a liability. Section 498-A was enacted for the upliftment of women in this patriarchal society. The seriousness of this offence is denoted in the statute itself by making it a non-bailable and non-compoundable one punishable with up to 3 years imprisonment.

The critics of mediation believe that the seriousness of such crimes should not be undermined by simply pardoning the accused and settling matters amicably. The accused must be sentenced to imprisonment so they are reformed before entering the society again. In the cases we have seen above, the victims of domestic violence have agreed to forgive the accused and settle the matters amicably. But should the State acquit the accused merely because the victim’s approval has been affirmed?

In K. Srinivas Rao v. D.A. Deepa[5], the Court held:

44. … though offence punishable under Section 498-A IPC are not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation…. The Judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law…. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest.

It is quite evident from this holding that courts have not tuned a blind eye toward the fact that this offence is non-compoundable. The Court’s actions are done in good faith to save parties from the hectic court procedures. The Court has used the word “appropriate cases” in the first line, which means that all cases of such nature will not be referred to mediation. It is only those ones that the court deems to be appropriate to be sent for mediation.

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd.[6] the Supreme Court clarified that “even when a case is referred to a mediator the court retains its control and jurisdiction over the matter and the mediation settlement will have to be placed before the court for recording the settlement and disposal”. This shows the Court’s efforts in attempting to avoid mediation to be carried out arbitrarily.

There should be no strict guidelines for which cases are to be referred to mediation. Cases should not be divided into the category of compoundable and non-compoundable. What is really essential is to distinctly look at the facts of each case individually to see whether mediation would be a viable option for the parties or not. Domestic violence cases cannot be decided through precedents unless the facts appear to be identical. Each case is of different magnitude and must be judged by scrutinising the facts of the case and discomfort caused to the victim carefully. The Indian courts are headed in the right direction in dealing with cases of this nature.

* 3rd year student, BA LLB (Hons.), Jindal Global Law School, Sonepat.
[1] Pandey, V. (2010), 55,000 couples waiting for divorce in India/Latest News & Updates at Daily News and Analysis, available at <http://www.dnaindia.com/india/report-55000-couples-waiting-for-divorce-in-india-1400514> (accessed on 3-10-2017).

[2]  (2015) 3 AIR Kant R 363.

[3]  Criminal Petition No. 7258 of 2014, order dated 20-11-2014.

[4] Pandey, G.. (2014), India “fails” victims of abuse, BBC News, available at <http://www.bbc.com/news/world-asia-india-29708612> (accessed on 7-10-2017).

[5]  (2013) 5 SCC 226, 241-242 : AIR 2013 SC 2176.

Case BriefsSupreme Court

Supreme Court: In the matter revolving around allowing video conferencing in matters relating to marital disputes, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ gave a 2:1 decision and held that the discretion as to allowing Video Conferencing has to rest with the Family Court and it is to be exercised after the court arrives at a definite conclusion that the settlement is not possible and both parties file a joint application or each party filing his/her consent memorandum seeking hearing by videoconferencing.

Majority Opinion:

CJI, writing the majority opinion for himself and Khanwilkar, J, said:

“The procedure of video conferencing which is to be adopted when one party gives consent is contrary to Section 11 of the 1984 Act. There is no provision that the matter can be dealt with by the Family Court Judge by taking recourse to videoconferencing.”

Stating that video conferencing may create a dent in the process of settlement, it was held that what one party can communicate with other, if they are left alone for some time, is not possible in videoconferencing and if possible, it is very doubtful whether the emotional bond can be established in a virtual meeting during videoconferencing. CJI, writing the majority opinion for himself and Khanwilkar, J, went on to say:

 “the statutory right of a woman cannot be nullified by taking route to technological advancement and destroying her right under a law, more so, when it relates to family matters.”

CJI and Khanwilkar, J, stating that the order will prospectively, gave the below mentioned directions:

  • In view of the scheme of the Family Courts Act, 1984 and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.
  • After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer.
  • After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct.
  • In a transfer petition, video conferencing cannot be directed.

The decision in Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150, was, hence, overruled to the extent, where, in order to provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence which will eventually result in denial of justice, the Court recommended the availability of video conferencing facility.

Minority Opinion:

Writing down his minority opinion, Chandrachud, J, said that whether video conferencing should be allowed in a particular family dispute before the Family Court, the stage at which it should be allowed and the safeguards which should be followed should best be left to the High Courts while framing rules on the subject. Subject to such rules, the use of video conferencing must be left to the careful exercise of discretion of the Family Court in each case.

He added:

“The Family Courts Act, 1984 has been enacted at a point in time when modern technology which enables persons separated by spatial distances to communicate with each other face to face was not the order of the day or, in any case, was not as fully developed. That is no reason for any court – especially for this court which sets precedent for the nation – to exclude the application of technology to facilitate the judicial process.”

Disagreeing with the proposition that video conferencing can be permitted only after the conclusion of settlement proceedings, and thereafter only when both parties agree to it, he said that it does not accord either with the purpose or the provisions of the Family Courts Act 1984. He said that the exclusion of video conferencing in the settlement process is not mandated either expressly or by necessary implication by the legislation. On the contrary the legislation has enabling provisions which are sufficiently broad to allow video conferencing. Confining it to the stage after the settlement process and in a situation where both parties have agreed will seriously impede access to justice. It will render the Family Court helpless to deal with human situations which merit flexible solutions. [Santhini v. Vijaya Venketesh, 2017 SCC OnLine SC 1080, decided on 09.10.2017]

Case BriefsHigh Courts

Madras High Court: While examining the validity of certificates issued by the Kazis in the country in general and in Tamil Nadu in particular in respect of Talaq, the Division Bench of Sanjay Kishan Kaul, C.J., and M.M. Sundresh, J., held that for purposes of the courts and legal proceedings, the certificate in respect of Talaq issued by Chief Kazi is only an opinion and has no legal sanctity in view Section 4 of the Kazis Act, 1880 according to which the office of Kazi does not confer on the person any judicial or administrative power.

The Court further allowed the Muslim Personal Law Board to take some time to clarify the format in which these certificates are to be issued and asked Board to submit before it a new format which may remove the ambiguity before ant legal forum and which would be made open to stakeholders for suggestions. In the meantime no Talaq certificate by Muslim Personal Law Board can be issued as an opinion of Chief Kazi.

The instant writ petition was  supported by the Women Lawyers Association. It was prayed before the Court to forbear the Kazis from issuing Talaq certificates and other documents certifying or approving Talaq. It was also contended that the certificates so issued are causing immense confusion in the matrimonial proceedings and also in the understanding by the spouses as to the effect of such a certificate being issued by the Chief Kazi. [Bader Sayeed v. Union Of India, 2017 SCC OnLine Mad 74, decided on 10/01/2017]