Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: While deciding the instant application seeking regular bail for offences under the provisions of Prohibition of Child Marriage Act, 2006* and Protection of Children from Sexual Offences Act, 2012 (POCSO), the Bench of Rajendra Badamikar, J., held that POCSO Act is a special legislation, and it overrides any personal law.

Facts and Contentions: The accused/petitioner is the husband of a 17-year-old Muslim girl, who came to know about her pregnancy when she visited a Primary Health Centre for a check-up. A complaint was thus lodged against the accused/petitioner by the Sub-Inspector of R.K. Puram Police Station, based on information furnished by the Medical Officer who examined the victim-wife. It was alleged that the victim’s marriage to the petitioner was solemnized when she was still a minor. Sexual intercourse with her husband resulted in her pregnancy.

The complaint was filed under Sections 9 and 10 of the Prohibition of Child Marriage Act and Sections 4 and 6 of the POCSO Act. The petitioner’s application for bail was rejected by the Sessions Judge, therefore, he approached the High Court in the instant petition.

The petitioner’s counsel argued that under Muslim Law, the consideration for marriage is puberty and the normal age of puberty is treated as 15 years; hence, it was contended that no offence was committed under the provisions of POCSO Act and Prohibition of Child Marriage Act, 2006.

  • Decision of the Court: Perusing the facts and contentions of the case, the Court held as follows: The Court held that POCSO, being a special law, will override any personal law and the age of consent for sexual activity is 18 years.

  • However, the Court noted that the victim-wife is 17 years old and capable of understanding things. Even though she asserted that the marriage with the accused/petitioner was solemnized without her consent, there is no evidence showing that the victim raised any objections. Hence, there was prima-facie evidence of the victim being a consenting party and that there is no dispute regarding the marriage between the accused/petitioner and the victim-wife. The Court also took into consideration that the victim now being pregnant required care and the petitioner if enlarged on bail could take care of herUnder these circumstances the Court granted bail with strict conditions.

[Aleem Pasha v. State of Karnataka, 2022 SCC OnLine Kar 1588, decided on 12-10-2022]


Advocates who appeared in this case :

Basavanna M.D., Advocate, for the Petitioner;

K. Nageshwarappa, HCGP, for the Respondent.


*Editorial Note: The text of the High Court’s Judgment mentions “Child Marriage Restraint Act”, however, the Statute involved in the petition is Prohibition of Child Marriage Act, 2006. The Child Marriage Restraint Act, 1929 has been repealed.

**Sucheta Sarkar, Editorial Assistant has prepared this brief.

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: In an appeal filed under Section 19 of the Family Courts Act, 1984 for setting aside the judgment dated 04.08.2022 and the decree dated 12.08.2022 by the Family Court, whereby the appellant’s suit for restoration of conjugal rights, has been dismissed, the division bench of Surya Prakash Kesarwani and Rajendra Kumar-IV, JJ. has held that in the absence of any cogent explanation for the second marriage to the first wife, the action of the husband would amount to cruelty to his first wife. Therefore, it would be inequitable to compel the first wife against her wishes to live with such a husband and it would also amount to breach of her fundamental rights guaranteed under Article 21 of the Constitution of India.

The appellant/husband has contracted a second marriage and suppressed the fact from the respondent/wife. Further, the husband has admittedly told the wife neither about his intention to contract a second marriage nor explained to her that he shall give equal love, affection and treatment to both the wives.

The Court referred to the decision in Dilbar Habib Siddiqui v. State of U.P., 2010 SCC OnLine All 965, and observed that Sura 4 Ayat 3 of the Holy Quran provides for giving due care and provisions for a muslim woman, thus, bigamy is not sanctified unless a man can do justice to orphans, who in the present case are the wife and her children, and the Ayat mandates all muslim men to deal justly with orphans and then they can marry women of their choice two or three or four, but if they fear that they will not be able to deal justly with them, then in such circumstances a muslim man must prevent himself to perform second marriage, if he is not capable of fostering his wife and children.

It further referred to the decision in Itwari v. Asghari, 1959 SCC OnLine All 150 , wherein it was held that in a suit for restitution of conjugal rights by a Muslim husband against the first wife after he has been married to his second wife, if the Court after a review of the evidence feels that in taking a second wife, the husband has been guilty of such conduct as to make it inequitable for the Court to compel the first wife to live with him, it will refuse relief. Muslim law as enforced in India has considered polygamy as an institution to be tolerated but not encouraged and has not conferred upon the husband any fundamental right to compel the first wife to share his consortium with another woman in all circumstances.

The Court held that if the husband, after taking a second wife against the wishes of the first, also wants the assistance of the Civil Court to compel the first wife to live with him, the Court will respect the sanctity of the second marriage, but it will not compel the first wife, against her wishes, to live with the husband under the altered circumstances and share his consortium with another woman, if it concludes, on a review of the evidence, that it will be inequitable to compel her to do so; and even in the absence of satisfactory proof of the husband’s cruelty, the Court will not pass a decree for restitution in favour of the husband if, on the evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel the wife to live with him

[Azizurrahman v. Hamidunnisha, First Appeal No. – 700 of 2022, decided on 19.09.2022]


Advocate who appeared in this case :

Mahendra Pratap Yadav, Advocate, Counsel for the Appellant.

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.


High Court Round UpLegal RoundUp

The High Court Roundup brings a curated list of the top stories of the month to ensure readers do not miss any important updates. This month’s roundup covers the stories of Rights of LGBTQIA+, Bigamy & Talaq under Muslim Law, Non-payment of GST, Deceased’s right to dignity, WhatsApp’s Privacy Policy, Trademark Infringements, and many more:

Allahabad High Court

Top Story—Deceased’s Right to Dignity

The Court in Suo-Moto v. State of U.P., 2020 SCC OnLine All 1088 while dealing with the extremely sensitive matter of Hathras gangrape where dead body of the victim was taken to her native village but surprisingly and painfully enough it was not handed over to the family members so that the last rites of the deceased victim could be performed as per prevalent customs and religious inclinations in a decent and dignified manner but it was cremated with the help of some other persons at about 2- 2.30 a.m.

“The right of dignified life under Article 21 of the Constitution of India is not only available to a living person but also to the ‘dead’. These rights are not only for the deceased but, his family members also have a right to perform last rites as per religious traditions.” Read more…

On the trend of Compromise

Allahabad High Court points out the trend of compromise after receiving the compensation from the State; Suggests disbursement only after conviction. The Court opined,

“Taxpayers’ money is being misused in this process. It would be appropriate to disburse the compensation only on conviction of the accused and not filing of the FIR and submission of the charge-sheet.” Read more…

On Trade Tax

Allahabad High Court upholds order by Trade Tax Tribunal holding insulated glass as taxable unclassified commodity @ 10%. Read more…

On Sidhique Kappan Bail

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]. Read more…

On Age Relaxation in Recruitment

Over-aged candidates can neither claim participation in selection process nor seek conduct of recruitment every year as a matter of right. Read more…

On PIL in Service Matters

“PIL in service-related matters ought not to be entertained”; Allahabad High Court dismisses PIL seeking increase in retirement age of PwD. Read more…

On Social, Moral Responsibility to Maintain Wife

Allahabad High Court | Social, Legal and Moral Responsibility of a man to maintain his wife; Appeal dismissed. Read more…

Andhra Pradesh High Court

On Abetment of Suicide

Subba Reddy Satti J. granted anticipatory bail to the Chief Executing Officer (applicant-accused) as on perusal of complaint there was no sign of instigation and abetment and mere allegation of harassment will not attract offence under Section 306 Penal Code, 1860 (‘IPC’) unless such actions compelled the victim to commit suicide. Read more…

Bombay High Court

Top Story—Environment Protection

While perusing the newly framed Policy for Environmentally Safe Making and Immersion of Idols/Tazia and its Enforcement (‘the Policy’), as drafted by Maharashtra Government’s Environment and Climate Change Ministry, the Division Bench of A.S. Chandurkar and Urmila Joshi-Phalke, JJ., observed that the presented Policy which will be operational for this year (2022), must be given adequate publicity so as to create awareness in the public. The Bench also expressed its hope that the local authorities will also take necessary steps to dutifully follow the Policy, so that it achieves its intended targets for this year. Read more…

On Unhygienic Sanitary Conditions of Schools

DLSA’s to conduct surprise inspections in Government schools over unclean and unhygienic sanitary conditions. Bombay High Court takes cognizance of a PIL alleging unclean and unhygienic state of affairs in the washrooms and toilets for the young girl students in Government aided schools. Read more…

On wrongful Arrest of Nigerian National

Bombay High Court grants bail to Nigerian national who spent 2 years in jail on NDPS charges due to a typing error in forensic report; asks State to come up with compensation proposal. Read more…

On Abetment to Suicide

Sudden reaction of a 19-year-old boy to the news of pregnancy, May fall short of the essential ingredients required to form the offence of abetment to suicide: Bombay High Court Read more…

On Rape

Once prosecution has proved the offence of rape, there is no reason for the Trial Court to award a lesser sentence than what the statute prescribes: Bombay High Court Read more…

On SARFAESI

S. 14 of SARFAESI Act empowers the Designated Authority only to assist secured creditors in taking possession of secured assets and nothing more: Bombay High Court Read more…

Calcutta High Court

Top Story—Non-payment of GST

Calcutta High Court stays any coercive action until final decision in matter of arbitrary action of State for non-payment of GST on contracts executed prior GST regime. Md. Nizamuddin, J. directed the respondents authority concerned to consider neutralizing the impact of unforeseen additional tax burden on Government contracts since the introduction of GST w.e.f. 01-07-2017 for ongoing contract awarded before the said date and to update the State SOR incorporating applicable GST in lieu of inapplicable West Bengal VAT henceforth. Read more…

On Arbitration

Conduct of Parties — not a substitute for an arbitration agreement| Calcutta High Court holds the court cannot substitute arbitration agreement with conduct of parties while exercising powers under Section 11 of the Arbitration and Conciliation Act, 1996. Read more…

Illegal procedure for appointment of Arbitrator does not render Arbitration agreement illegal in toto; Guiding Principles for Appointment of Arbitrator reiterated Read more…

Chhattisgarh High Court

On Election

Chhattisgarh High Court declares election null and void for non-disclosure of criminal antecedents, including acquittal in criminal case. In a case where an election was declared null and void on the grounds of non-disclosure of criminal antecedents by the winning candidate, Deepak Kumari Tiwari J dismissed the revision petition being devoid of merit. The Court stated that non-disclosure of criminal antecedents amounts to undue influence and interferes with the free exercise of electoral right. Read more…

Delhi High Court

Top Story—Anti-competitive WhatsApp Terms

Delhi High Court upholds CCI’s direction to investigate alleged anti-competitive WhatsApp Terms of Service and Privacy Policy, 2021; Prima facie case established to investigate; FB a proper party. The appeals were filed by WhatsApp and its parent company Facebook challenging the jurisdiction of Competition Commission of India (CCI) to direct investigation into the 2021 Terms of Service and Privacy Policy of the Appellant on the ground that it violates the provisions of the Competition Act, 2002, when the matters arising from the same issue is pending before Supreme Court. Read more…

On Copyright Infringement

Delhi High Court denies injunction against News Laundry Media on allegations of copyright infringement, defamation and commercial disparagement by TV Today Network. Commenting on commercial disparagement, the Court said,

“Commercial Disparagement would occur when one player in the field derides a rival and belittles or discredits or detracts from the reputation of such a rival in respect of its products, services or business. While claiming to be the best, any statement about a competitor’s goods, which could be untrue or misleading and is made to influence or tend to influence the public, would amount to disparagement”. Read more…

On False Rape

Delhi High Court reprimands filing false FIR alleging rape charges; Directs woman to work at blind school; Directs man to plant 50 trees as punitive measure. Read more…

On Trademark Infringement

Theo recognizes Theobroma as owner and proprietor of mark “THEOBROMA”; Settlement terms agreed between parties. Read more…

Delhi High Court injuncts Royal Champ from using Royal Stag/ Seagram marks; Similar label also amounts to copyright infringement; Directs Rs 20 lakh as damages . Read more…

Delhi High Court grants ad-interim injunction against Bikaner’s Madhav Namkeens having deceptively similar logo as of Pepsico’s Lays. Read more…

Delhi High Court injuncts myshoeshop from violating trademark rights by selling first copy shoes of NB Device mark as well as Adidas, Nike, Louis Vuitton etc. Read more…

On Flipkart’s “Latching On” Feature

Delhi High Court restrains Flipkart from allowing third-party sellers to ‘latch on’ to mark ‘V Tradition’; Directs to ensure ‘Latching On’ feature is disabled. Read more…

On Chinese Manjha

Delhi High Court denies complete ban on kite flying but directs to comply directions already in place against use of Chinese Maanjha. Reade more…

On Non-compliance of Sports Code

Compliance with Sports Code non-negotiable; Delhi High Court warns IOA of derecognition if compliance with Sports Code is not made; Temporary CoA constituted. Read more…

On Criminal Liability of Intermediary

Intermediary entitled to claim protection u/s 79 IT Act for criminal liability unless ‘active role’ is disclosed; Delhi High Court quashes FIR against Flipkart. Read more…

On Legitimate Expectations of Students

Delhi High Court grants relief to a student seeking admission in BITS Pilani after CBSE violates ‘legitimate expectation of the students’. Read more…

On POCSO

Judicial scrutiny of date of birth for establishing consensual sexual relation not necessary; Delhi High Court grants bail in light of accused being honey trapped Read more…

Gujarat High Court

Top Story—On Right to Medical Claim

Gujarat High Court reiterates right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order; Reimbursement directed. The Court stated,

“The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds.” Read more…

On Electricity

‘Occupier’ of the land cannot be denied electricity connection only because land is in dispute. Read more…

On Pharmacy Diploma

Students of Diploma in Pharmacy Course can’t be denied registration as Pharmacists on Council’s failure to approve medical stores for training. Read more…

Himachal Pradesh High Court

Top Story—Family Pension to Second Wife

In a petition related to family pension, Jyotsna Rewal Dua, J has held that the second wife of a deceased employee is not entitled to family pension under the Central Civil Services (Pension) Rules, 1972 unless the personal law of the deceased employee allows more than one subsisting marriage. Read more…

On MV Compensation

Himachal Pradesh High Court | Inability to produce documentary evidence of deceased’s income may not justify adoption of lowest tier of minimum wage for computing Motor Vehicle Accident compensation. Read more…

Jammu & Kashmir and Ladakh High Court

Top Story—Right to Property

While deciding the instant petition wherein the issue was that whether misuse of a building from residential to commercial or vice versa in violation of the permitted land use as per the master plan would fall within the ambit of unauthorized ‘erection or re-erection’; the Division Bench of Wasim Sadiq Nargal and Tashi Rabstan, JJ., observed,

“In a democratic polity governed by the rule of law, the State by no stretch of imagination, can deprive a citizen of his/her property without the sanction of law, besides complying with the procedure envisaged in the statutory provision.” Read more…

On Matrimonial Crimes

Courts must carefully scrutinize the allegations of matrimonial crimes against a husband’s relatives. Read more…

On Compassionate Appointments

Compassionate Appointments are not for conferring status on a family; Jammu and Kashmir and Ladakh High Court holds an applicant has no right to claim a compassionate appointment in a particular class or group and it is not for conferring status on the family. Read more…

Jharkhand High Court

On Renewal of Competency Certificate

Past record of competent person for renewal of competency certificate held to be a relevant consideration for renewal; Petition dismissed. Read more…

On Income Tax

Liability cannot be fastened upon the company for delay in TDS when it had taken steps within time. Read more…

Karnataka High Court

Top Story—Eidgah Maidan Controversy

In a case where the State has filed an appeal to seek modification in an interim order passed by Single Judge giving permission for using Eidgah Maidan, the land under challenge for title, for celebrating Independence Day/Republic Day or as a public playground or for offering prayers by Muslim community only in Ramzan and Bakri Eid festivals, a Division Bench of Abhay Shreeniwas Oka CJ., and Vishwajith Shetty J. permitted the State Government to consider applications filed by organizations seeking use of the land in question for holding religious and cultural activities. Read more…

On Bhang under NDPS Act

In a case where the applicant-accused seeks bail on being apprehended by police, having possession of Ganja and Bhang together, K Natarajan, J. granted bail to the applicant as Bhang will not be considered along with Ganja to measure commercial quantity. The Court held that until forensic science lap report does not confirm that Bhang is prepared out of charas or ganja, it is not safe to conclude the same. Read more…

On Azan & Fundamental Right to Faith

A Division Bench of Alok Aradhe CJ., and S. Viswajith Shetty, J., held that azan or the contents of azan does not violate fundamental rights of petitioner of any person from a different faith. The use of loudspeakers, however, must be ensured to be within permissible limits from 10pm to 6 am in accordance with law. Read more…

On Wrongful Arrest

Karnataka High Court appalled to see a case of wrongful arrest as fathers’ name was similar; Directs DGP to issue SOP/Guidelines if not in place; Compensates aggrieved. Read more…

On POCSO

Pulling down pants of kid forcefully as a punishment measure; Karnataka High Court denies relief u/s 482 CrPC to the female teacher. Read more…

On Minimum Wage

Whether Head cooks and cooks employed under Mid-Day Meal Scheme covered under Minimum Wages Act, 1948? Karnataka High Court analyses Read more…

Kerala High Court

Top Story—Mental Cruelty

In a divorce case, Anil K. Narendran and C. S. Sudha, JJ., held that constant and repeated taunts by the husband towards his wife that she is not a wife of his expectations; the comparisons with other women, etc. would certainly be mental cruelty which a wife cannot be expected to put up with. Read more…

On Transgenders Right to Participation in Sports

In a case where a transgender person was declined participation in District Judo Competition, V.G. Arun, J., held that if the organisers have not made arrangements for participating transgenders, they have to allow the petitioner to participate in her chosen category. Read more…

On Talaq and Bigamy under Muslim Law

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.” Read more…

On Road Safety

Can’t let the roads of Kerala be a killing field; Kerala HC issues directions to NHAI and District Collectors to ensure the roads are craters & potholes free. Read more…

On Medical Termination of Pregnancy

Kerala HC allows a 14-year-old girl to get medical termination of her 28-week pregnancy. Read more…

On Offence of Insulting National Flag

Kerala HC grants anticipatory bail to BJP State General Secretary accused of insulting National Flag by holding it upside down. Read more…

On Rights of PWD

Kerala HC issues notice to Centre & State in a PIL seeking extension of facilities to every person with disability in need of special assistance irrespective of percentage of disability. Read more…

Madhya Pradesh High Court

Top Story—Order XLVII Rule 9

The Division Bench of Ravi Malimath, CJ. and Vishal Mishra, J. dismissed a second review petition holding that pursuant to the provision under Order XLVII Rule 9 Civil Procedure Code, 1908 (CPC), a review of an order passed in a review petition is not maintainable. Read more…

On Illegal Detention

Madhya Pradesh High Court directs State to pay 3 lacs as compensation for illegal detention; Registrar to conduct an inquiry Read more…

On Modification of Criminal Charges

Madhya Pradesh High Court| Charge of Murder added at the time of framing of charge based on Hospital’s MLC can be altered only after further examination. Read more…

Madras High Court

Top Story—Medical Examination for Impotency

In a case where husband 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. Read more…

On Removal of Husband from Matrimonial Home

n 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 Court said,

“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.” Read more…

On Virtual Wedding

Virtual wedding would meet the requirements of law under S. 12 of Special Marriage Act, 1954. Read more…

On Doctrine of Substantial Compliance

Madras High Court applies doctrine of ‘substantial compliance’ to determine implications of limitation period in the Customs Act, 1962. Read more…

On Nalla Thangal Syndrome

Madras High Court condemns a scornful society that sees misfortune with the birth of a girl child and reduces punishment in the instance of ‘Nalla Thangal Syndrome’. Read more…

On Colonial Slavery

Extracting household work by trained uniformed Police personnel in the residences of the higher Police officials; Madras High Court calls it ‘colonial’ and slap on Constitution and democracy. Read more…

On Orderly System

‘Orderly system’ unconstitutional: Madras High Court directs Tamil Nadu government to eradicate it completely in four months. Read more…

On Appointment of Archaka

Madras High Court holds the temple or group of temples which were constructed as per the Agamas would be governed by the custom and practice, not only in respect of the worship of the deity, but in all respects, which includes even the appointment of Archakas, and not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. Read more…

On Rights of LGBTQIA+

Madras High Court| LGBTQIA+ community sidelined from society’s mainstream for too long; Time for Tamil Nadu Government to frame guidelines to protect their rights. Read more…

On Criminal Procedure

PT warrant can never be converted into regular warrant in a case where the accused person is already on bail; opportunity should be given to the accused to explain his non-appearance Read more…

Meghalaya High Court

On Consensual Sex with Minor Wife

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. The Court opined that it would be an injustice to separate or to divide a well knitted family unit. Read more…

Manipur High Court

On Accused’s Right to Dignity

In a case where the criminal appeal was pending and the applicant convicted under Section 6 of the Protection of children from sexual offences Act, 2012 (POCSO Act) filed an application for the suspension of sentence, on the ground of ill-health, M.V. Muralidaran, J. observed,

“Under-trial prisoner’s right to life does not diminish even a wee bit when in jail as an accused/convict for an offence and such person’s health concerns have to be taken care by the State and if not done so, by the judiciary. The right to dignity of an accused does not dry out with the Judges. Rather, it subsists beyond the prison gates and operates until his last breath”. Read more…

Orissa High Court

On Tortious Liability of State

Unfortunate death of 7-year-old girl by collapse of newly constructed kitchen wall in school; Orissa High Court directs compensation to the family of the deceased. The Court noted,

“The negligence of the State authorities in using defective materials to construct a kitchen on the school premises has already been established during the enquiry. The death of the young child was totally avoidable. The responsibility for death definitely rests with the State. The death would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed.” Read more…

Punjab and Haryana High Court

Top Story—Downgrading of VIP security Cover

Withdrawal/Downgrading of VIP security cover: Punjab and Haryana High Court directs State to make fresh assessment of security threats; Provide one security personnel until then. The Court said,

“Security issue is not a static phenomenon, rather it is a dynamic process. The security reviews have to be done on a periodical basis by assessing the security threat of the protectees with the passage of time on the basis of official inputs provided by the different agencies including State and Central agencies”. Read more…

On Arbitration

Merely showing existence of another reasonable interpretation not sufficient to allow for interference; Punjab and Haryana HC refuses to interfere with arbitration award. Read more…

On Co-ownership

Possession of joint land by one co-owner valid in absence of proof showing disagreement between other co-owners. Read more…

Rajasthan High Court

On Arms License

Vijay Bishnoi, J. held the appeal filed by District Magistrate before Divisional Commissioner under Section 18 of Arms Act, 1959 challenging the issuance of arms license in favour of the petitioner who was the holder of license, as non — maintainable. The Court noted that a bare perusal of Section 18 Arms Act, 1959 clearly reveals that there is no provision where appeal can be entertained under Section 18 of the Arms Act against the order of issuance of arms license. Read more…

Tripura High Court

On Allotment of Land

In suit for recovery of possession of land, the Tripura High Court observed that,

“It is not for this Court to decide the validity of the allotment of land by the Government in favour of the respondents in this second appeal. If there is any violation of conditions or attraction of disqualifications, it is for the appropriate authorities to look into the matter.” Read more…

On Conviction

Mere presence of the accused person and last seen of the offence cannot draw an inference to committing of the crime ; Conviction reversed Read more…

On Employees’ Dues

Tripura High Court directs TSECL to pay all the cumulative dues to employee who suffered accident while discharging duty. Read more…

Uttaranchal High Court

On Service Rules

Uttaranchal High Court holds non-communication of all the Service Rules does not indicate that there are no Rules. The Division bench of Vipin Sanghi, C.J., and R.C. Khulbe, J., had held that merely because the communication sanctioning a post does not indicate the promotion rules, does not mean that there are no Rules framed or applicable for promotion, requiring minimum service in the feeder cadre. Read more…


*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.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A writ petition was filed seeking the relief of protection of life and liberty at the hands of family members after the petitioners got married against their will. Considering the competency of the petitioners to enter into a valid contract of marriage and addressing the apprehension raised by them, Jasjit Singh Bedi, J, directed the Senior Superintendent of Police to decide the representation of the petitioners regarding danger to their life and liberty.

In the present case, both the petitioners were Muslims. They fell in love and decided to get married. The boy was 21 years of age while the girl was of 16 years as per their Aadhaar Cards. Both the petitioners solemnized their marriage on 08.06.2022 as per Muslim rites and ceremonies.

The counsel for the petitioners while placing reliance on Kammu v. State of Haryana[1], Yunus Khan v. State of Haryana[2]  and Mohd Samim v State of Haryana[3]submitted that under Muslim law, puberty and majority are one and there is a presumption of majority at the age of 15 years and a Muslim boy or a Muslim girl who has attained puberty is at liberty to marry one he or she likes and the guardian has no right to interfere. The petitioners, however, limited their prayer to the issuance of direction for deciding the representation made to the superintendent of police for protection of their life and liberty which was not acted upon by him earlier. The counsel for respondents 1 to 4 accepted the notice of motion.

Placing reliance on the case of Yunus Khan (supra) and Article195 from the book ‘principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’ as was reproduced in the said case, the Court noted that the marriage of a Muslim girl is governed by the personal law of Muslims, which proposition has been made clear in the above mentioned various judgments. The Court addressed the issue of providing protection to the petitioners as envisaged under Article 21 and held that-

“…merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.” and disposed off  the petition directing the senior superintendent of the police to decide the representation made by the petitioners.

[Gulam Deen v. State of Punjab, 2022 SCC OnLine P&H 1485, decided on 13.06.2022]


Appearnces:

For Petitioner: Advocate Sanjeev Kumar

For State: AAG Bhupender Beniwal


[1] 2010(4) RCR(Civil) 716]

[2] 2014(3) RCR(Criminal) 518]

[3] 2019(1) 1 RCR (Criminal) 685

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit dismissed the petition being devoid of merits.

 The facts of the case are such that the parties are Sunni Muslims who contracted marriage in March 1991 and the marriage was a short lived one as the wife complained of dowry harassment and the petitioner husband uttered talaq and paid 5000 to her as mehr amount and additional 900 as her maintenance amount during iddat. The ex wife filed a civil suit for maintenance on grounds that the ex husband got married and has a child too wherein he was acquitted. A suit was thus instituted by the wife where the decree was given in favour for which she sought enforcement by filing an execution petition wherein the petitioner husband was sent to civil prison due to non payment but was later released. The petitioner husband then filed the instant writ petition after his interim application under Order XXI Rule 37 Civil Procedure Code, 1908 i.e. CPC seeking determination of his financial capacity got rejected.

Issues:

  1. Whether a Muslim is duty bound to make provision for his ex wife beyond iddat despite paying paltry Mehr if she remains un-remarried and is incapable of maintaining herself?
  • Contention: In Islam, Marriage is a civil contract.

The Court observed that marriage in Islam is not a sacrament unlike a Hindu marriage as it crowns the parties with status like husband, wife, in-laws, etc; if children are born, they earn the promotional status of father and mother and of grandparents and even when marriage is dissolved only the spousal tie is torn and the status comes to an end however the blood of divorced spouses flows in the veins of their children and grandsire, and demise of a spouse renders the other a widow/widower and succession also gets effected. Hence all the above shows that marriages even in Islam begins with the contract but graduates to the status as in any other community and thus gives rise to certain justifiable obligations and they are ex contractu.

Thus, even on dissolution by divorce will not annihilate all the duties and obligations of parties by lock, stock & barrel in law and new obligations may arise including providing sustenance to the ex wife who is destituted by divorce.

  • The Holy Quran also suggests to the fact that a pious Muslim owes a moral/religious duty to provide subsistence to his destitute ex wife:

“When you divorce women, and they (are  about to) fulfill the term of their (iddat), either take them back on equitable terms or set them free on equitable terms, but do not take back to injure them (or) to take undue advantage, if anyone does that, he wrongs his soul…”(Surah Al Bakhra Aiyat No.231);

“There is no sin on you, if you divorce women while you have not touched (had sexual relation with) them nor appointed them unto their Mehr, but bestowed on them (as suitable gift) the rich according to his means and the poor according to his means, a gift reasonable amount is a duty on  the doers of good” (Surah Al Bakhra Aiyat No.236). 

  • The Court relied on Danial Latifi v. UOI, AIR 2001 SC 3958, observed that in Islamic jurisprudence, ordinarily, the right of an ex-wife to maintenance does not extend beyond iddat however this norm has to be subject to the rider that the amount paid to the ex-wife, be it in the form of mehr or be it a  sum quantified on the basis of mehr, or otherwise, is not an  inadequate or illusory sum; it is a matter of common  knowledge that more often than not, mehr is fixed  inadequately, bride-side lacking equal bargaining power inter  alia because of economic & gender-related factors; this is not  to say that the inadequacy of mehr would affect the validity of nikah, that being altogether a different matter. It was further observed that for how long the right to maintenance enures to a  divorced muslim wife, largely is no longer res integra; subject  to all just exceptions, the duty of a muslim to provide  sustenance to his ex-wife is co-extensive with her requirement, the yardstick being the life essentials and not  the luxury. Hence a muslim is duty bound to make a reasonable & fair provision for the future of his divorced wife, and this duty, as of necessity, extends for a period beyond iddat.
  • The Court relied on Keshvananda Bharati v. State of Kerala, AIR 1973 SC 1461 and observed that if an illusory compensation for the public acquisition of private property is ‘no compensation’, then the reason & justice tell us that an illusory mehr cannot be the basis for the quantification of the amount of maintenance nor for limiting its duration to iddat. The analogy of “illusory compensation” is logically invocable since the payment of amount by the husband as mehr on talaq, by its very nature has compensatory elements. The tokenistic amount of Rs.5,000/- paid by the husband to the ex-wife as mehr or its quantification on  the basis of mehr, is militantly unjust and illusory; the  petitioner has paid another paltry sum of Rs.900/- to the  respondent ex-wife as maintenance during iddat i.e., for a  period of about three months, only celebrates the inadequacy & illusoriness; this amount will not be sufficient to buy a cup  of popcorn a day from the street carter too.
  1. Whether a decree for maintenance like any other money decree can be resisted on the ground of lack of financial capacity of the judgment debtor?

The Court observed that the decree in question is not a money decree and the decree holder is not a ‘money lender’ instead it is a hapless divorced woman who has secured a decree for her maintenance after years of struggle; she is relentlessly battling for its enforcement; it is a distinct case involving the jural correlatives resting on the shoulders of ex-spouses by virtue of Talaq. Hence, the maintenance jurisprudence as developed by legislative & judicial process in this country shows that this right to sustenance is not founded on contract; courts have repelled the argument of financial incapacity while awarding maintenance when the husband has an able body; therefore, the pecuniary incapacity of the judgment debtor that ordinarily avails as a ground for resisting the execution of a money decree does not come to the rescue of the petitioner.

  1. Whether a Muslim contracting another marriage and begetting children from it can resist execution of the maintenance decree obtained by his ex wife, on that ground per se?

The Court observed that a Muslim hurriedly contracting another marriage after pronouncing talaq upon his first wife, cannot be heard to say that he has to maintain the new spouse and the child begotten from her as a ground for not discharging the maintenance decree; he ought to have known his responsibility towards the ex-wife who does not have anything to fall back upon; the said responsibility arose from his own act of talaq and prior to espousing another woman; the responsibility & duty owed by a person to his ex-wife are not destroyed by his contracting another marriage.

The Court held this Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, with a cost of Rs.25,000/-; the learned judge of Court below is requested to accomplish the execution on a war footing and report compliance to the Registrar General of this Court within three months.”

[Ezazur Rehman v. Saira Banu, Writ Petition No. 3002 of 2015, decided 08-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


For Petitioners: Mr. K N Haridasan Nambiar

For Respondents: Mrs. Rashmi C

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.Muhamed Mustaque and Sophy Thomas set aside the findings of Family Court wherein it had held rejected to grant divorce holding that providing maintenance is sufficient for husband to meet marital obligations. Opining that unequal treatment between wives is sufficient ground to dissolve marriage under muslim law, the Bench remarked,

“Refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which commands equal treatment of the wives if the husband contracts more than one marriage.”

The parties married on 04-08-1991 and 3 children were born from the wedlock. The parties were Muslims and they married in accordance with the personal law applicable to them. However, after moving abroad, the respondent contracted another marriage with a lady namely Hajira during the subsistence of marriage with the appellant. The claim of the respondent was that he contracted second marriage as the appellant refused to have a sexual relationship with him.

The appellant-petitioner filed a divorce petition in the Family Court on enumerated grounds of the Dissolution of Muslim Marriages Act, 1939 for divorce. In the petition, the grounds under the specific head of Section 2(ii), 2(iv) and 2(viii) of the Act alone were referred. However, the pleadings in the petition indicated the ground for divorce under Section 2(viii) (f) as well.

Grounds for Divorce

The appellant-petitioner relied on following grounds, as stipulated under Act, 1939 for seeking divorce:

Section 2(ii): “that the husband has neglected or has failed to provide for her maintenance for a period of two years.”

Section 2(iv): “that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.”

Section 2(viii) (a) and (f): “that the husband treats her with cruelty, that is to say- (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran.”

Erroneous Findings of the Family Court

The Family Court formulated the points for consideration on three different heads except with reference to sub clause (f). It had come out in the evidence that the respondent used to provide maintenance. The appellant had a case that that amount was in fact the money collected from abroad due to the intervention of local politicians to meet the marriage expenses of the daughter and not the maintenance provided, however, there was no evidence to that effect.

“The Family Court carried on an assumption that providing maintenance would be sufficient to prove that the husband performed marital obligations. This finding, according to us, is erroneous and cannot stand the scrutiny of the law.”

Analysis and Observation

The appellant had stated in the petition that from 21-02-2014 onwards, the respondent husband stopped visiting her. On the other hand, according to the respondent, he was forced to marry another lady for the reason that the appellant failed to co-operate with him on his physical needs. Rejecting the contention of the respondent, the Bench stated,

“We are not persuaded to believe the version of the respondent in this regard. Three children were born in the wedlock. Two of them got married. Absolutely, there was no evidence to show that the respondent was willing to cohabit with the appellant. That means, he failed to perform the marital obligations.”

Further observing that the couple was living separately at least for a period of five years prior to filing the petition, the Bench opined that the appellant made out a ground for divorce under Section 2(iv) of the Act. The next ground was under Section 2(viii) (a) of the Act, which referred to the physical and mental cruelty of the wife.

We noted that the parties are living separately for more than five years before the institution of the petition. That would show that there was no cohabitation. In such circumstances, we will not be able to justify the case put forward by the appellant-wife in regard to the physical or mental cruelty.

Unequal Treatment of Wives as a ground for Divorce

The next ground was under Section 2(viii) (f) of the Act. Though in the petition, this provision had not been specifically mentioned, the Bench opined that mere omission to quote a statutory provision would not disentitle the claim for divorce on that ground if there were sufficient averments in the petition. The Bench added,

“If there exists a marriage with another lady during the subsistence of the previous marriage, the burden is on the husband to prove that he had treated both wives equitably in accordance with the injunctions of Quran. Staying away from the first wife for five years itself would show that he had not treated them equally.”

The respondent had no case that he lived with the appellant after 2014. Hence, the Bench held that the refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which commands equal treatment of the wives if the husband contracts more than one marriage.

Conclusion

In the light of above, the Bench held that the appellant-wife was entitled to get a decree of divorce. Accordingly, the appeal was allowed and impugned judgment was set aside. The Bench declared that the marriage between the appellant and the respondent stood dissolved. [Ramla v. Abdul Rahuf C.K., Mat.Appeal No.431 of 2021, decided on 01-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: C.Ijlal and Ummul Fida, Advocates

For the Respondent: T.P.Sajid and Shifa Latheef, Advocates

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., issued detailed guidelines for Family Courts for speedy disposal of petitions seeking the judicial endorsement of extra-judicial divorce.

The unilateral extrajudicial divorce under Muslim Personal law is complete when either of the spouse pronounce/declare talaq, talaq-e-tafweez or khula, as the case may be, in accordance with Muslim Personal Law. So also extrajudicial divorce by mubaarat mode is complete as and when both spouses enter into mutual agreement. The seal of the Court is not necessary to the validity of any of these modes of extra judicial divorce.

The instant petition questions the scope and nature of enquiry to be undertaken by the Family Court in a petition filed u/s 7(d) of the Family Courts Act, 1984 to endorse an extrajudicial divorce under the Muslim Personal Law and to declare the marital status of the parties to the marriage.

The petitioner was the wife of the respondent, and both the parties were Muslims. The respondent divorced the petitioner by pronouncing talaq in accordance with Muslim Personal Law. However, the petitioner disputed the legal validity of the pronouncement of talaq and filed a petition in the Family Court for restitution of conjugal rights.

Thereafter the respondent filed original petition at the Court below to declare the marital status of the petitioner and the respondent on the ground that the marriage had been dissolved by pronouncement of talaq. The petitioner appeared at the Court below on 13-09-2021. The court below adjourned the case to 10-11-2021. However, due to application filed by the respondent to advance hear the case and it was advanced to 25-09-2021 and was later adjourned to 28-09-2021. The case was taken for judgment to 30-09-2021. The grievance of the petitioner was that she was not given proper opportunity by the Court below to contest the original petition on merits.

Reliance was placed by the Court on the decision in X v. Y, 2021 (2) KHC 709 wherein it had been held that the Family Court in exercise of the jurisdiction under Explanation (d) of S.7 of the Act is competent to endorse an extrajudicial divorce to declare the marital status of a person. It was made clear in the said judgment that in the matter of unilateral dissolution of marriage invoking khula and talaq, the scope of enquiry before the Family Court is limited and in such proceedings, the Court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. In the matter of mubaraat, the Family Court shall declare the marital status without further enquiry on being satisfied that the dissolution was affected on mutual consent. It was observed that such matter shall be disposed treating it as uncontested matter without any delay by passing a formal order declaring the marital status. It was further held that if any person wants to contest the effectiveness of khula or talaq, it is open for such person to contest the same in appropriate manner known under the law.

In the above backdrop, the Bench stated,

The endorsement of extrajudicial divorce and consequential declaration of the status of the parties by the Family Court invoking S.7(d) of the Act is contemplated only to have a public record of the extrajudicial divorce. Hence, detailed enquiry is neither essential nor desirable in a proceeding initiated by either of the parties to endorse an extrajudicial divorce and to declare the marital status.

Therefore, the Bench held that the Family Court has to simply ascertain whether a valid pronouncement/declaration of talaq or khula was made and it was preceded by effective attempt of conciliation. In the case of khula, it has to be further ascertained whether there was an offer by the wife to return the “dower”. No further enquiry as in the case of an adversarial litigation like chief examination and cross-examination of the parties are not at all contemplated in such proceedings.

In the light of above, the Bench proceeded to formulate the following guidelines to be followed by the Family Court in a petition filed u/s 7(d) of the Act to endorse an extrajudicial divorce under Muslim Personal Law and to declare the marital status of the parties to the marriage:

  1. On receipt of the petition, the Family Court shall issue notice to the respondent.
  2. After service of summons or appearance of the respondent, the Family Court shall formally record the statement of both parties. The parties shall also be directed to produce talaq nama/khula nama (if pronouncement/declaration is in writing)/mubaarat agreement.
  3. On prima facie satisfaction that there was valid pronouncement of talaq, khula, talaq-e-tafweez, or valid execution of mubaarat agreement, the Family Court shall proceed to pass order endorsing the extrajudicial divorce and declaring the status of the parties without any further enquiry.
  4. The enquiry to be conducted by the Family Court shall be summary in nature treating it as an uncontested matter.
  5. The Family Court shall dispose of the petition within one month of the appearance of the respondent. The period can be extended for valid reasons.
  6. If any of the parties is unable to appear at the Court personally, the Family Court shall conduct enquiry using video conferencing facility.

Accordingly, the Bench directed the Court below to record the statement of the parties, and pass final orders in the light of the observations made in this judgment. [ASBI.K.N v. HASHIM.M.U, 2021 SCC OnLine Ker 3945, decided on 12-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate C.Dilip Anushka Vijayakumar, Advocate P.N.Vijayan Nair and Advocate R.Pradeep

For the Respondent: Advocate Alexander Joseph Akhilasree Bhaskaran

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Sanjay Dhar, J., held that it is not open to a father or relatives of a girl to take law into their own hands and it is the duty of the Court to protect life and liberty of a major girl who, out of her own volition, wants to reside separately from her father.

The petitioners had approached the Court seeking a direction upon respondents to ensure safety of their life and honour. The case of the petitioners was that they had entered into wedlock out of their free will and volition against the wishes of the father of petitioner 1.

The petitioner 1 contended that her father was a ill repute who had entered into wedlock four times and had divorced her mother. It was further averred that her father wanted to give her in marriage to an illiterate truck driver and the same was resisted by her and she had even lodged a complaint with Women’s Commission in this regard.

Further, the petitioners alleged that private respondents i.e., respondents 6 to 9, invaded their house and raised a hue and cry over there and in case petitioners are not protected from the said respondents, they apprehend that they would be killed.

The respondents contested the petition for protection on the ground that the petitioner 1 had entered into a wedlock by suppressing the fact that there was already a restraint order passed by the Sub Judge, whereby she had been restrained from contracting marriage. According to the respondents, as per Shariat, consent of father his very important for marriage of daughter and without the consent of father, marriage is incomplete.

The Bench observed that the question whether the sub judge was justified in passing an order of restraint on marriage of petitioner 1 could be decided in appropriate proceedings, however, even if the petitioner 1 had violated the said order, it was not open to her father and his associates to harass the petitioners or to intimidate them. The proper course for them was to approach the concerned court seeking action for breach of its order. The Bench stated,

“No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person.”

Hence, the writ petition was partly allowed and the State was directed to ensure that the petitioners were not harassed at the behest of respondents. [Anjum Afshan v.  State of J&K, 2021 SCC OnLine J&K 884, decided on 10-11-2020]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the petitioners: Mr. S. H. Thakur, Advocate

For the State: Mr. Sheikh Feroz, Dy. AG, vice

For the Respondents: Mr. B. A. Dar, Sr. AAG, for R1 to R6. and Mr. M. S. Reshi, Advocate-for R7 to R9.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and C. S. Dias, JJ., addressed the controversial question regarding rights of Muslim women, i.e.  Have Muslim women lost their right to invoke extra-judicial divorce, after the coming into force of the Dissolution of Muslim Marriages Act, 1939? A number of women had approached the Court for seeking to validate their extra-judicial divorce by obtaining a declaration to that affect. The Bench expressed,

“These cases speak in abundance about the patriarchal mind-set followed in the Society for decades depriving Muslim women their right to invoke extra-judicial divorce. The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India.”

Controversy before the Court

The controversy came into force when a Single Judge of Kerala High Court in K. C. Moyin v. Nafeesa, 1972 KLT 785 negated the right of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Act, 1939. It was held that under no circumstances, a muslim marriage could be dissolved at the instance of wife, except in accordance with the provisions of the Act.

In the instant case a woman, ‘Y’  ‘Y’ had instituted divorce petition on the grounds that her husband ‒ ‘X’, was impotent and treated her with cruelty and was granted a decree of divorce by the Family Court. The grounds were challenged before the High Court and though the X was willing to prove his potency the Court granted ‘Y’ leave to pronounce Khula (exta-judicial divorce) on her request. Y stated that she was prepared to return the dower to ‘X’. However, ‘X’ had declined to accept the dower, which had raised a question mark on validity of Khula.

Observations and Analysis

 Chapter IV: Verse 28 of Quran states that,

“Man was created weak, to mean that his decisions are vulnerable. The very concept of institutionalizing marriage in Islam through a contract is to remind that the parties to the marriage may error in their decision and they may fall apart in conflict to remain as united. Marriage as a contract guarantees both parties permanent rights and obligations. The Holy Quran, therefore, recognizes the right to divorce equally for both men and women.”

The Bench observed, the Holy Quran gives a clear guidance as to the areas of family law, it does not by itself constitute a system. While conferring rights on spouses for divorce, it did not lay down exhaustive procedure to give effect to dissolution of marriage. This approach clearly gives an indication that areas related to divorce are amenable to change with regard to procedure and process without prejudice to the right conferred on a spouse to separate or severe the marital knot. The Bench noticed, many modes of dissolution of marriage existed prior to Islam which were accepted by the Prophet with certain refinement and modifications. The Prophet always had taken a liberal view in the matter of divorce in the best interest of the parties.

The Legal Conundrum and K. C. Moyin v. Nafeesa Case

The legal conundrum that has resulted from K.C. Moyin’s case wherein the Court in unequivocal terms declared that Muslim wife cannot repudiate a marriage dehors the provisions of the Dissolution of Muslim Marriages Act (the Act). The Single Judge was of the view that unilateral repudiation of marriage by Faskh without the intervention of court under the Dissolution of Muslim Marriages Act was opposed to the law of the land and when a particular branch of law is codified, it was not possible to travel beyond the same and decide the rights of the parties.

To assess the validity of abovementioned decision the Bench pursued to examine the reasons and objects of enactment of the Act. Accordingly, the Bench observed that Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 (the Shariat Act) specifically recognized all modes of extra-judicial divorce except Faskh for which intervention of an authority like Qazi was mandatory. In Section 5 of the Shariat Act a provision was made to dissolve marriage by the District Judge on a petition made by Muslim married women. This would show that the intention of the Shariat Act was to entrust the mode of dissolution of marriage by Faskh through the court. Thus, under the Shariat Act, Muslim women retained the right of all modes of extra-judicial divorce recognized under their personal law Shariat, except Faskh. Later on, after observing that inspite of Shariat Act, Hanafi women were not allowed to obtain decree from the court to dissolve their marriage. Therefore, the Dissolution of Muslim Marriages Act, 1939 was enacted to consolidate and clarify the provisions of the Muslim law relating to the suit for dissolution of marriage by married Muslim women. By the said Act Section 5 of the Shariat Act was repealed, which consolidated the law relating to Faskh alone and the Act, 1939 never intended to do away with the practice of extra-judicial divorce otherwise available to a Muslim woman. Hence,

On an overall analysis of the scheme of the Shariat Act as well as the Dissolution of Muslim Marriages Act as above, we are of the considered view that the Dissolution of Muslim Marriages Act restrict Muslim women to annul their marriage invoking Faskh except through the intervention of the Court. All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to Muslim women. We, therefore, hold that the law declared in K.C.Moyin’s case (supra) is not good law.”

Khula: Whether Consent of Husband a prerequisite?

The right to invoke khula conferred upon married Muslim women is an absolute right; akin to talaq conferred upon the married Muslim men. It was submitted by the Amicus Curiae that like talaq, there are no specific stages or procedures to be complied by the wife before seeking divorce invoking khula. The Bench opined that the idea of justice in Quran is rooted in fairness and Chapter IV verse 1 Quran which refers to mutual obligation has to be read into the right conferred on the wife to invoke khula. The Quranic verse as referred in verses 228 in Chapter II in clear terms confers absolute right on the wife to annul the marriage with her husband. Therefore, husband’s consent is not a precondition for validity of khula.

Khula: If Valid When the Wife fails to Return Dower?

The Bench opined that in Hadith, the direction of the prophet to the wife to return or pay compensation to the husband had to be understood to ensure fairness of justice. The right of the husband to claim back what was given in marriage could not be construed to mean khula can be effective only when the husband had consented to the offer made by the wife. Such an approach would deny the right conferred upon wife under Quran in unequivocal terms. The Bench remarked, the procedural equity to be followed cannot override such substantial right. Insistence to return dower or payment of compensation, therefore, were to be understood as husband is legitimately entitled to claim back what is otherwise due to him on account of unilateral invocation of khula by wife and can very well approach the court of law for the return of the same. Reliance was placed on the decision of Supreme Court in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736, wherein the Court while considering extra-judicial divorce of khula had held that, “This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The `Khula’ is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return.”

Validity of Khula without Attempts for Reconciliation

Human minds are vulnerable. Quran itself describes a human as fallible. Sometimes, a decision to invoke khula by wife may be due to perceptible differences she had in the relationship with her husband. Quran, therefore, thrusts on conciliation as a medium of dispute resolution before taking a concrete decision. Since, if an unbridled power to invoke khula is given to a Muslim wife, it may result in untold miseries and hardships to both.

Shayara Bano v. Union of India (2017) 9 SCC 1 it was held that triple talaq invoked without any attempt for reconciliation is arbitrary and violative of fundamental right contained in Article 14 of the Constitution. Hence, the Bench held that though there need not be any specific reasons to invoke khula, the procedure of reconciliation itself become a reasonable cause in as much as that it would reflect an attempt to resolve the disputes amicably between parties.  Hence, any invocation of khula without there being an attempt for reconciliation was held to be bad in law.

Jurisdiction of Family Court In Matters Related to Extra-Judicial Divorce

In the matter of unilateral dissolution of marriage, invoking khula and talaq, the scope of inquiry before the Family Courts is limited. In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. The Family Court therefore, shall restrain from adjudicating upon such extra-judicial divorce unless it is called upon to decide its validity in appropriate manner.

In the light of above, Khula pronounced by Y was held to be valid in law. However, X, the husband of Y was granted liberty to approach the Family Court for the demand of consideration or dower. Accordingly, the case was disposed of.

[X v. Y, Mat.Appeal.No.89 of 2020, Decided On 09-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before The Court By:

Amicus Curiae: Adv.K.I.Mayankutty Mather

Counsels for the Petitioners: Sri.Babu Karukapadath, Smt.M.A.Vaheeda Babu
Shri.P.U.Vinod Kumar, Sri.Avinash P Raveendran, Smt.Arya Raghunath
Smt.Sneha Sukumaran Mullakkal And Sri.Shelly Paul

Counsel for the Respondent: Sri.P.Narayanan And Smt.P.Sheeba

Counsel for Kerala Federation Of Women: Adv. Shajna

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Rajnesh Oswal, J., heard the instant petition against the order of the Trial Court whereby the petitioner had been directed to pay maintenance to the allegedly divorcee lady. The Bench stated that,

“The petitioner had not led any evidence as to who sent the divorce to the respondent (wife) to prove the plea of Talak. Otherwise also a meager amount of Rs.2000 as has been awarded to the respondent 1 herein, that in the present era of inflation can in no way be termed as either exorbitant or excessive.”

The petitioner contended that he had already divorced his wife vide “Talaq Nama‟ dated 02-08-2011 which was sent to her through registered post. The facts of the case were such that the  wife of the petitioner had filed a petition for interim maintenance before the Trial Court, wherein the petitioner had claimed that he had already divorced her and as such, he was not under any obligation to maintain the divorced lady. The Trial Court, after relying on the verdict of Supreme Court in Shameem Ara v. State of U.P., AIR 2002 S.C. 355,  and considering the evidence on record granted maintenance of Rs.2000 (Rupees Two thousand) per month to the wife.

Referring to the observations of the Trial Court and Sessions Court, the Bench stated that the Magistrate had held that the petitioner had miserably failed to prove the requisites of Talaq and also that Talaknama was sent to the respondent. The petitioner had not been able to prove as to on which date the divorce was pronounced upon the respondent(wife). The delivery of the envelope was also doubtful as the postman had not seen any such record in which he had obtained signatures of the respondent. Moreover, none of the witnesses produced by the petitioner had stated whether any-one tried to reconcile the parties before the divorce. Needless to mention here that if the plea of Talak is taken then the same is required to be proved like any other fact.

The Bench stated that there was not even an iota of evidence that any reconciliation efforts were made by two arbiters one chosen by the wife from her family and the other by the husband from his family. So there was no perversity in the finding returned by the Magistrate and upheld by the Court of revision that the petitioner had not been able to prove the plea of Talak taken in his objections. Furthermore, the petitioner had not led any evidence as to who sent the divorce to the respondent (wife) to prove the plea of Talak. Otherwise also a meager amount of Rs.2000/- (Rupees Two thousand) as has been awarded to the respondent no.1 herein, that in the present era of inflation can in no way be termed as either exorbitant or excessive.

In view of the above, the Court denied to interfere with the orders impugned and the petition was dismissed for being devoid of merit.

[Abdul Majeed Dar V. Hafiza Begum 2021 SCC OnLine J&K 294, Decided On 26-03-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner/Applicant(s): Adv. Parvaiz Nazir

For the Respondent(s): Adv. Shabir Ahmad

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Alka Sarin, J., while addressing the present matter made an observation that:

The alleged illegality of the marriage of the petitioners having been solemnized without the consent of the first wife is not to be gone into in the present proceedings which are only regarding providing of protection to the petitioners.

In the instant case, petitioners were both Muslim. Petitioners solemnized their marriage as per Muslim rites and rituals and a translated copy of the Nikahnama has been attached.

Marriage was solemnized against the wishes of respondents 4 to 7 who are the relatives of petitioner 2.

Petitioners Counsel submitted that the petitioners apprehended danger to their life at the hands of respondent 4 to 7.

Counsel for the petitioners submitted that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere.

Bench noted that the girl s aged more than 18 years in the instant case. In the decision of Yunus Khan v. State of Haryana,  [2014(3) RCR (Criminal) 518] it was observed that the marriage of a Muslim girl is governed by the personal law of Muslims. Article 195 from the book Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla has also been reproduced in the said decision which article reads as under :

“195. Capacity for marriage – (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.

(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is brought about without his consent.
Explanation – Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.”

Court held that both the petitioners in the instant were of marriageable age as envisaged by Muslim Law. The issue in hand was not the validity of the marriage but the fact that the petitioners were seeking protection of life and liberty as envisaged under Article 21 of the Constitution of India.

Bench held that:

The Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed.

Merely because the petitioners have got married against the wishes of their family members they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.

In view of the above discussion, Court disposed of the petition with a direction to Superintendent of Police to take the necessary action as per law.[Jakar v. State of Haryana,  2020 SCC OnLine P&H 2266, decided on 16-12-2020]


Advocates who appeared before the Court:

Vishal Garg Narwana, Advocate, for the petitioners.

Naveen Singh Panwar, DAG, Haryana.

Vipul Aggarwal, Advocate for respondent 4

Sunita Gupta, Advocate for Warisa (first wife of petitioner 1)

Hot Off The PressNews

Supreme Court: The bench of NV Ramana and Ajay Rastogi, JJ has agreed to examine the validity of a newly enacted law which makes the practice of instant divorce through triple talaq among Muslims a punishable offence entailing imprisonment of up to three years. It issued notice to the Centre on a batch of petitions seeking to declare The Muslim Women (Protection of Rights on Marriage) Act 2019 as “unconstitutional” on grounds that it allegedly violates the provisions of the Constitution.

Senior advocate Salman Khurshid said there were many dimensions, including making the practice a punishable offence and jail term of up to three years, which need to be examined by the top court. He said the petitioners were concerned about making the practice of triple talaq among Muslims an offence as the apex court had already declared it to be null and void. Referring to a five-judge Constitution bench verdict which had declared the practice of triple talaq among Muslims as null and void,

“If there is no such thing as triple talaq then what are they making an offence,”

To this the bench asked, suppose if a religious practice is declared as null and void and it is declared as an offence like dowry and child marriage, but if it still goes on then what is the remedy. Responding to the query, Khurshid said several aspects have to be examined and in the triple talaq matter the Constitution bench had already said the practice is void. He said it has to be examined whether the religious practice denies the rights to the woman.

The bench, while agreeing to examine the validity of the 2019 Act, observed that petitioners have also raised the issue of punishment of up to three years and grant of bail to the husband only after the woman is heard by the court.

In the plea filed through advocate Ejaz Maqbool, Jamiat Ulama-I-Hind has claimed that since the pronouncement of talaq by a Muslim husband upon his wife had already been declared “void and illegal”, there was no requirement to enact the law.

“However, the impugned Act criminalises the act of pronouncement of talaq by a Muslim husband and makes it a cognizable offence, without appreciating that such pronouncement had already been declared unconstitutional and amounted to nullity in the eyes of law,”

Referring to the provision of the Act which stipulates punishment of up to three years jail along with fine, the plea said it is an “ill-conceived provision which imposes excessive and disproportionate punishment.”

It claimed that “criminalising a mode of divorce in one particular religion while keeping the subject of marriage and divorce in other religions only within the purview of civil law, also leads to discrimination, which is not in conformity with the mandate of Article 15”.

Article 15 of the Constitution deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(Source: PTI)


Also read:

Triple Talaq void & illegal | Parliament passes the Muslim Women (Protection of Rights on Marriage) Bill, 2019!

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Case BriefsSupreme Court

Supreme Court: The bench of NV Ramana and MM Shantanagoudar, JJ, on the issue relating to legality of the marriage of a Muslim man with an idolater or fireworshipper, said that such marriage “is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage.”

In the present case, the plaintiff had claimed his share in property of his Muslim father, who had married his Hindu mother. However, the defendants argued that the plaintiff’s mother was not the legally wedded wife of Mohammed Ilias and that she was a Hindu by religion at the time of marriage. She had not converted to Islam at the time of her marriage, and thus the plaintiff was not entitled to any share in the property in question.

The Court, however, after considering that the marriage in question was an irregular marriage, noticed:

“the legal effect of a  fasid marriage is that in case of consummation, though the wife is entitled to get dower, she is not entitled to inherit the properties of the husband.  But the child born in that marriage is legitimate just like in the case of a valid marriage, and is entitled to inherit the property of the father.”

Based on the finding that any child born out of a fasid  marriage is   entitled   to   claim   a   share   in   his   father’s property, the Court held that the plaintiff was entitled to his share in his father’s property. [Mohammed Salim v. Shamsudeen, 2019 SCC OnLine SC 52, decided on 22.01.2019]