Case BriefsSupreme Court

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

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

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

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

Considering the contentions of the parties, the Court said,

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

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

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

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


Advocates who appeared in this case :

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

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


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

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: Sathish Reddy, J., while addressing a maintenance case, expressed that, the wife’s earning capacity cannot be a bar from awarding her maintenance.

Factual Background


Instant case was filed by the petitioners to set aside the order of the lower Court wherein the said petition was filed by the petitioners under Section 125 (1) CrPC seeking interim maintenance which was allowed directing the first respondent to pay Rs 7,000 per month each to petitioners 2 and 3.

Petitioner 1 was the wife and petitioners 2 and 3, children of the first respondent. Further, the petitioners a petition before the lower Court was filed seeking interim maintenance of Rs 12,000 per month to each of the petitioners 2 and 3 and Rs 10,000 per month to petitioner 1.

Further, the Family Court directed the first respondent, the husband of petitioner 1, to pay Rs. 7,000/- per month each to petitioners 2 and 3 towards interim maintenance from the date of the petition, pending disposal of maintenance case. The petition to the extent of petitioner 1 was dismissed. Aggrieved by the said order, the petitioners preferred this revision.

Analysis, Law and Decision


High Court stated that the Supreme Court decision in Rajnesh v. Neha, (2021) 2 SCC 324, made it amply clear that,

“If wife is earning, it cannot operate as a bar from awarding maintenance to suit the lifestyle of her husband in the matrimonial home.”

In the present matter, Family Court had only dismissed the interim application filed by the first petitioner on the ground that she herself had mentioned that she was earning Rs 20,000/- per month.

In Court’s opinion, Family Court had passed a well-reasoned order which required no interference. [Nikhat Fatima v. Syed Razi Ahmed, 2022 SCC OnLine TS 911, decided on 21-4-2022]

Case BriefsHigh Courts

Rajasthan High Court: Pushpendra Singh Bhati J. modified the impugned order and enhanced the compensation to Rs 75000/- (for wife) and Rs 25000/- (for son).

The facts of the case are such that the marriage was solemnized and a son was born out of the said wedlock. It was further submitted that, on account of the alleged disharmony the wife left her matrimonial home and came back to India along with the son. Thus, the wife filed an application against the husband under Section 125 CrPC before the Court, which was allowed vide the impugned order, while awarding the monthly maintenance to the wife and the son . The petitioner-husband (respondent herein) preferred the petition against the order seeking quashing and setting aside of the said order. The petitioner-wife (respondent herein) preferred instant revision petition challenging the order praying for enhancement of monthly maintenance.

It was submitted that the wife is earning Rs 85, 000/- per month and staying at Hyderabad, and thus, competent to earn her own livelihood, while the husband does not oppose the maintenance granted to the son vide the impugned order. Counsel also submitted that the wife deserted the husband of her own sweet and free will, and thus, she is not entitled to any kind of maintenance.

The Court relied on Supreme Court judgment in Rajnesh v. Neha, (2021) 2 SCC 324, even if the wife is earning, then also she is entitled to the determination of maintenance, in accordance with the lifestyle of her husband in the matrimonial home.

It was submitted that the sustenance does not mean and cannot be allowed to mean a mere survival, and the lifestyle at Hyderabad, where the wife alongwith her son is presently residing, is very costly, and the son is also going in a good and reputed school at Hyderabad, the expenditure whereof is also too high. Thus, even if the wife is earning something, then also she is entitled to claim the necessary and adequate maintenance from her husband.

It was noted that the husband himself took divorce; therefore, the charge of desertion cannot become a ground so as to enable the husband to disqualify the wife from claiming the amount of monthly maintenance, in any manner whatsoever.

This Court finds that the husband is earning about Rs.12,00,000/- per month and the wife is earning Rs.85,000/- per month, and therefore, a very reasonable capacity of the husband to pay the maintenance should be 1/12th of his income, which shall take care of the husband’s claim for the high cost of living in the USA.

The Court thus held “the amount of monthly maintenance as awarded by the learned court below, vide the impugned order dated 30.08.2018, to the wife and the son, is enhanced to Rs.75000/- (for wife) and Rs. 25000/- (for son).”[Neha Mathur v. Arvind Kishore, 2022 SCC OnLine Raj 943, decided on 26-05-2022]


 Appearances

For Petitioner(s): Mr Parvej Moyal (for wife)

For Respondent(s): Mr Shadan Farasat a/w Mr Harshit Bhurani (for husband)


Arunima Bose, Editorial Assistant has reported this brief.

High Court Round UpLegal RoundUp

TOP STORY OF THE MONTH 


Marital Rape

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

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

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Allahabad High Court


Employees State Insurance Act

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

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

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Abetment of Suicide

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

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

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Loudspeaker

Use of loudspeaker in mosque is not a fundamental right

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

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Maintenance

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

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

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

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

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Taj Mahal

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

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

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Divorce

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

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

Read more, here…

Sexual Assault

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

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

Read more, here…


Andhra Pradesh High Court


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

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

Read more, here…


Bombay High Court


News Items

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

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

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

Read more, here…

Dying Declaration

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

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

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

Read more, here…

Medical Test

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

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

Read more, here…

Section 377 Penal Code, 1860

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

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

Read more, here…

Cruelty

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

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

Read more, here…

Maintenance to in-laws

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

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

Read more, here…

Bonafide Passenger

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

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

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Calcutta High Court


Spot Memos

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

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

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Ocular Testimony

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

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

Read more, here…

Vital Facts

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

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

Read more, here…

Bail

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

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

Read more, here…

Income Tax

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

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

Read more, here…

Conviction

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

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

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Chhattisgarh High Court


Irretrievable breakdown of Marriage

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

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

Read more, here…

Excise Act

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

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

Read more, here…

Negative Equality

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

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

Read more, here…

Appellate Tribunal

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

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

Read more, here…

Cruelty

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

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

Read more, here…


Delhi High Court


Shared Household

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

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

Read more, here…

Irretrievable Breakdown of Marriage

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

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

Read more, here…

Judicial Functions

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

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

Read more, here…

Negotiable Instruments Act

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

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

Read more, here…

Trademark Infringement

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

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

Read more, here…

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

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

Read more, here…

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

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

Read more, here…

Section 304B Penal Code, 1860

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

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

Read more, here…

Marital Rape

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

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

Read more, here…

Extradition

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

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

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

Read more, here…

Post-Decisional Hearing

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

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

Read more, here…

Ration Delivery Scheme

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

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

Read more, here…

Society

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

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

Read more, here…

Condonation of Delay

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

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

Read more, here…

Landlord-Tenant

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

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

Read more, here…

Custom Duty

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

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

Read more, here…

Maintenance

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

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

Read more, here…


Gauhati High Court


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

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

Read more, here…


Gujarat High Court


Gratuity

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

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

Read more, here…

Convict

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

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

Read more, here…

Motor Accident Claims Tribunal

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

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

Read more, here…


Himachal Pradesh High Court


Section 125 CrPC

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

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

Read more, here…


Jammu and Kashmir and Ladakh High Court


Freedom of Speech and Expression

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

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

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

Read more, here…

Bail

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

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

Read more, here…


Karnataka High Court


Lok Adalat

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

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

Read more, here…

Arbitration

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

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

Read more, here…

Maintenance

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

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

Read more, here…

Juvenile Justice Act

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

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

Read more, here…

Work From Home

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

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

Read more, here…

Industrial Disputes Act

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

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

Read more, here…

Indian Nursing Council

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

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

Read more, here…

Negotiable Instruments Act

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

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

Read more, here…

POCSO

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

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

Read more, here…

GST Act

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

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

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Kerala High Court


Suicide

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

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

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Maternity Benefits

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

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

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Floods

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

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

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Educational Loan

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

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

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Right of Press

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

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

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Promise to Marry

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

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

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Political Rallies

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

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

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Madras High Court


Legal Entity

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

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

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Right to Worship

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

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

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Negotiable Instruments Act

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

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

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Public Employments

Can appointments be claimed as a matter of absolute right?

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

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Madhya Pradesh High Court


Retiral Dues

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

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

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Section 311 CrPC

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

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

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Civil Suit

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

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

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Bail

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

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

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Police Protection

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

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

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Termination of Pregnancy

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

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

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Principles of Natural Justice

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

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

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Meghalaya High Court


Piling up Garbage

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

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

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Orissa High Court


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

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

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Section 37 IT Act

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

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

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Food License

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

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

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POCSO

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

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

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Industrial Disputes Act

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

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

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Contract

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

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

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Patna High Court


Negotiable Instruments Act

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

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

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Punjab and Haryana High Court


Protection of Life and Liberty

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

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

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Abetment of Suicide

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

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

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Maintenance Tribunal

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

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

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Mental Cruelty

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

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

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Sedition

Can an act of dissent be labeled as sedition?

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

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Rajasthan High Court


Remedy

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

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

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Sikkim High Court


Penetrative Sexual Assault

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

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

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Telangana High Court


Police Negligence

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

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

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Contempt of Court

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

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

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Uttaranchal High Court


POCSO

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

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

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Juvenile Justice Act

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

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

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Intra-Court Appeal

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

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

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Gauhati High Court
Case BriefsHigh Courts

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

Petitioner has challenged the judgment passed by the Sub-Divisional Judicial Magistrate, in a case filed by the petitioner/wife under Section 125 of the CrPC, rejecting her prayer for maintenance by the impugned judgment.

Factual Background


After three months of the marriage of petitioner/wife and respondent/husband, the family members of the respondent started to torture the petitioner, both physically and mentally and demanded 5 lakhs dowry but as she could not fulfil their demand, the respondent abused the petitioner.

Petitioner also stated that the sister-in-law of the respondent also used to abuse the petitioner by using filthy language, assaulting her by pulling her hair and preventing her from talking to her husband.

On being aggrieved with husband’s behaviour, the petitioner lodged an FIR which was registered but on assurance of the family members of the respondent that they won’t harass her in future, the case was compromised, and she was allowed to stay at her parental house for the completion of her studies. Though the respondent never provided any maintenance, nor contacted her and since the petitioner had no income it became difficult for, her to bear the daily expenses.

In view of the above-said grievances, a petition under Section 125 CrPC was filed.

Husband’s Counsel submitted that there was no irregularity in the order so passed by the trial Court in as much as the petitioner herself resided in the parental house, admittedly by making an agreement that during her stay, her maintenance will be borne by her parents.

Analysis and Decision


High Court noted that the uncorroborated testimony of the 1st party and her witnesses established the fact that the 1st party was subjected to torture in her matrimonial house which gave her sufficient ground to live separately from the 2nd party.

The Bench noted that the respondent/husband in his cryptic written objection had not narrated any detail as to under what circumstances, the petitioner began to reside in the parental house and as to why the FIR was also against him and imply it was stated that the matter had been settled between the parties.

In Court’s view, such evasive denial on the part of the husband indicated that he had not taken proper care of his wife, while she was in her parental house.

Since after filing of the FIR, she began to reside in her parental house and that does not itself absolve the respondent/husband to provide maintenance to his wife, even though her parent might have maintained her.

On perusal of the facts and circumstances of the case, it was found that the petitioner had entered into marriage at her tender age, while she was a college-going student and due to some household conflict, the relation between the parties turned sour, as a result of which she returned to her parental house and also filed an FIR.

High Court expressed that,

“…the statutory right of a wife of a maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision. Therefore, giving effect to an agreement, which overrides this provision of law, that is, Section 125 of Cr.P.C. would tantamount to not only giving recognition to something, which is opposed to public policy, but would also amount to negation of it.”

In the present matter, the respondent/husband could not prove that he had no sufficient means to discharge his obligation and that he did not neglect or refused to maintain his wife, whereas the petitioner had been able to prove that there was neglect on the part of the respondent.

Therefore, the trial Court’s decision was set aside, and a fresh Judgment will be passed in the instant case. [Bulbuli Saikia v. Jadav Saikia, 2022 SCC OnLine Gau 820, decided on 17-5-2022]


Advocates before the Court:

Advocate for the Petitioner: MR. A DUTTA

Advocate for the Respondent: MR. K K BHATRA

Case BriefsHigh Courts

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

In the present matter, the petitioner and respondent 2 were husband and wife and multifarious litigation was going on between them, one before the MM under the Protection of Women from Domestic Violence Act, 2005 and the other before the Family Court under Section 125 CrPC.

Instant petition was preferred against the orders passed by the ASJ, Saket Court in an application preferred by respondent 2 under Section 5 of the Limitation Act against the order of the MM condoning a delay of three years and ninety-nine days in filing an appeal against the order.

Analysis and Decision

High Court observed that the present case appeared to be a case where different avenues for relief caused enough confusion, which both, the Family Court as well as the ASJ, tried to sort out.

“The D.V. Act is, without doubt a piece of welfare legislation, to protect the interests of women in a domestic relationship and shared household, against not just physical abuse but also emotional and financial abuse.”

Hence, the ASJ was right in dealing with the condonation of application in that perspective and not choosing to dismiss the appeal on procedural technicalities.

Law of Limitation and DV Act, both have to be balanced out.

Further, the Bench expressed that,

“No doubt, inordinate delay would vest certain rights in the opposite party but when it comes to the question of maintenance and welfare of family members protected by the D.V. Act, there can be no vesting of such rights that would result in the divesting of rights assured by a special piece of legislation.”

In the present matter, respondent 2 did not resort to dilatory tactics to file an appeal in order to harass the petitioner, instead, she continued to pursue her right to maintenance before the Family Court under Section 125 CrPC.

High Court noted that the Courts always held that “sufficient cause” under Section 5 of the Limitation Act, 1963 was elastic enough to be applied by the Courts in a meaningful manner, which subserved justice.

Elaborating further, the Court stated that the facts, as brought as the explanation for the delay, and the intent of the party seeking condonation as evidenced by the circumstances, would guide the court in the exercise of its discretion to condone the delay in family matters.

Settled Law

Under Section 482 CrPC, this Court will not act as a Court of appeal and only if perversity or non-application of mind is disclosed in the impugned order or the impugned order results in a grave miscarriage of justice, that the court would interfere with it in the exercise of these powers. Though the present case does not disclose any such circumstance.

Hence, in view of the above, the pending application was dismissed. [Jagmohan Kashyap v. Govt. of NCT of Delhi, 2022 SCC OnLine Del 1609, decided on 27-5-2022]


Advocates before the Court:

For the Petitioner:

Ashish Upadhyay, Advocate

For the Respondents:

Meenakshi Chauhan, APP for R-1/State

S.S. Wani and Hasnain Khwaja, Advocates, for R-2

Case BriefsHigh Courts

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

Instant revision was preferred to set aside the decision passed by the Principal Judge under Section 125 CrPC after summoning the records of the lower Court with a prayer to stay implementation and operation of the said order and to direct the OP-2 to provide Rs 10,000 per month towards interim maintenance to revisionist and Rs 40,00,000 for the purpose of marriage and education during the pendency of revision.

The revisionist had filed through her mother for granting maintenance of Rs 5,000 per month to be paid by her father, the OP 2.

Analysis and Decision

High Court took note of the settled law enunciated by the Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 324, that both, the working mother and working father have to take the liability of the child and if the mother is working, it does not mean that the father will be absolved from taking responsibility of his child. The father is legally bound to maintain his child according to the status and lifestyle.

The Court stated that in the present matter, lower Court’s finding that the revisionist was not showing emotional feeling and compassion towards her father on the dates when the case was fixed for hearing, has got no legs.

It is the duty of the father to maintain her child and the revisionist being daughter is entitled to seek maintenance from her father. 

Further, this court opined that the lower Court committed an error while making an observation that the mother was working in H.A.L, therefore, she must maintain the revisionist. The finding was further incorrect, wherein, it was observed that the mother was maintaining her daughter since 1991 and thus it was presumed that all the needs of the child were being fulfilled.

It was also noted that OP 2 indicated that his total salary was Rs 78, 825 out of which he had deposited Rs 45,000 in PF just to show that he was getting a lesser income of Rs 23,025 per month. He deposited the heavy amount in the PF so that the revisionist may not claim the appropriate maintenance amount.

In view of the above findings, Court did not find the order passed by the lower Court to be sustainable. Hence, the revision was allowed. [Ankita Dikshit v. State of U.P., Criminal Revision No. 398 of 2016, decided on 13-5-2022]


Advocates before the Court:

Counsel for Revisionist:- Mohammad Aslam Beg

Counsel for Opposite Party:- Govt. Advocate, Akhilesh Kumar Srivastava

Case BriefsHigh Courts

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

A revision petition was preferred to quash the judgment and order passed by the Family Court so far as it related to the rejection of the application under Section 125 of the Criminal Procedure Code in respect of revisionist 1 and also enhance the amount of maintenance awarded to revisionist 2.

 The wife and daughter filed an application under Section 125 CrPC.

The husband argued that as per Muslim Personal Law revisionist 1 was divorced Muslim wife, therefore, she had to pursue the maintenance case before the Muslim Women (Protection of Rights on Divorce) Act, 1986. Further, he argued that after divorce she was not entitled to maintenance.

The High Court stated that the OP 2’s argument that the revisionist was entitled to seek remedy as provided in Act, 1986 was not sustainable in the eyes of law.

In Court’s opinion, the proceeding under Section 125 CrPC is available to revisionist once she had taken resort to proceed under Section 125 CrPC.

It is true that the wife was divorced but as per the Supreme Court decision in Shayara Bano v. Union of India, (2017) 9 SCC 1, wherein it had been pronounced that if the divorce is declared in one go and the Fatava is issued, the same cannot be legal divorce and it has no legal force.

Bench stated that since the divorce given by OP 2 was not in accordance with the Quoran, hence the divorce given by OP 2 was not in accordance with law. In view of the judgment of the Supreme Court passed in the case of Iqbal Bano v. State of U.P., (2007) 6 SCC 785, it was not in accordance with law and the opposite party 2 could not prove the divorce as per law.

The High Court added that Section 125 CrPC is to be read in harmonious construction, but only on the basis of Section 125(4) CrPC the lower court came to the conclusion that revisionist 1 was deserted because she could not produce the evidence of physical assault and cruelty.

where the wife states that she has great hardships in maintaining herself and daughters, while her husband’s economic condition is quite good, wife would be entitled to maintenance.

High Court opined that revisionist 1 was entitled to maintenance under Section 125 CrPC.

The application for maintenance filed by revisionist 1 was allowed and it was observed that she would be entitled to Rs 7,000/- per month as maintenance. [Arshiya Rizvi v. State of U.P., 2022 SCC OnLine All 318, decided on 13-5-2022]


Advocates before the Court:

Counsel for Revisionist:- Nadeem Murtaza, Mohd. Mohsin

Counsel for Opposite Party:- Govt. Advocate, Purnendu Chakravarty

Case BriefsHigh Courts

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

The instant revision was preferred to set aside the decision of the Family Court in a criminal case under Section 125 of the Criminal Procedure Code and to direct the OP to pay at least Rs 10,000 as monthly maintenance.

Background

The wife submitted that she was married to OP 1 prior to 40 years and out of the wedlock three children were born. The OP 2 had provided maintenance to her till 1983, but thereafter it was stopped by him. Further, she stated that she was dependent on her brother who used to provide financial assistance but suddenly had gone missing. She had filed the application as she has no source of income, and hence needed maintenance from her husband.

Point Wise Discussion

  • Revisionist stated that the OP 2 had performed second marriage and had deserted her, but the said fact was not dealt with by the lower Court and the finding had been recorded that she was unable to show why she was living separately.
  • The fact that some property was sold by the revisionist and out of that money she was maintaining her children, could not be inferred that the revisionist had lost her opportunity for grant of maintenance under Section 125 CrPC.
  • The finding that revisionist was unable to state as to whether her children were literate or illiterate or how much they were educated, would be a perverse finding for determination of maintenance under Section 125 CrPC.
  • The court below has further recorded a finding that all the three children were settled by her; thus, she was having means to sustain herself. If some income was received by her out of sold property, it does not mean that she would sustain throughout life.
  • The court below has further recorded a finding that the opposite party 2 stated the fact that revisionist had illicit relation with Ram Singh @ Manjeet Singh and the said fact was not denied by her. The said finding is also perverse because statement of fact cannot be relied on because it will have serious repercussions unless it is proved.

In Court’s opinion, the lower Court had rejected the application without application of mind, hence the matter was remanded to the Court below to take a fresh decision. [Krishna Devi v. State of U.P., 2022 SCC OnLine All 303, decided on 4-5-2022]

Saket Court
Case BriefsDistrict Court

Saket Courts, Delhi: While addressing a maintenance matter, Anuj Agrawal, Additional Sessions Judge-05, expressed that, it can not be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income.

A complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed by the respondent/wife against the appellant/husband on the ground that she had been subjected to domestic violence by the husband and his father. The said complaint was accompanied with an application under Section 23 of the DV Act seeking interim maintenance, which was disposed of by the Trial Court.

Analysis, Law and Decision

The Court stated that while fixing interim maintenance, Court has to take a prima facie view of the matter and need not critically examine the claims of parties regarding their incomes and assets because for deciding the same, the evidence would be required.

“…an aggrieved person cannot be rendered to lead a life of a destitute till completion of trial.” 

The Bench expressed that for computing the maintenance, a test had been laid by the Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7.

Wife Well Qualified

The Court while citing the Supreme Court decision in Rajnesh v. Neha, 2020 SCC OnLine SC 903 reiterated that,

The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband.

Husband’s Income

In the present matter, the respondent/wife claimed that the monthly income of the respondent was Rs 1.5 lakhs, however, the said claim of the respondent/wife was not supported by any material on record.

The Bench stated that it came on record that the appellant/husband was a well-qualified person having qualification of BUMS and was in the profession of ‘Hakim’, hence even is his income was NIL, but his earning capacity could not be lost sight of.

Further, the Court added that, it could not be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income. Hence, the Trial Court’s approach while assessing the monthly income of the husband was correct.

Settled Law

A wife is entitled to the same status and lifestyle that she was enjoying prior to severing the relationship.

Therefore, interim maintenance has to be commensurate with her needs as well as the income of her husband.

On finding no impropriety in the impugned order, the appeal filed by the husband stood dismissed. [Amjad Ali v. Sufia Chaudhary, 2022 SCC OnLine Dis Crt (Del) 13, decided on 5-5-2022]

Case BriefsHigh Courts

Delhi High Court: In a maintenance matter, Subramonium Prasad, J., expressed that, if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities

A petition was filed challenging the order wherein the Family Courts directed the petitioner/husband to pay interim maintenance of Rs 20,000 per month to the respondent/wife.

Analysis, Law and Decision


Section 125 CrPC was enacted to ensure that women and children are provided maintenance by the husband so as to protect them from a life of potential vagrancy and destitution.

Supreme Court had consistently upheld that the conceptualization of Section 125 was meant to ameliorate the financial suffering of a woman who had left her matrimonial home; it is a means to secure the woman’s sustenance, along with that of the children, if any.

“…if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities.”

The underlying purpose and social context of Section 125 CrPC was examined by the Supreme Court in Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.

Hence, the Court expressed that the purpose of Section 125 CrPC is to provide a speedy remedy for the supply of food, clothing and shelter to the deserted wife.

With regard to interfering with the order of the Courts below, the Bench stated that,

Judicial discipline, circumspect this Court from interfering in an Order rendered by the Courts below and only justifies interference if the Order is egregious in nature and suffers from legal perversity.

Bench found the impugned order passed by the Family Court to be well reasoned, hence it did not warrant any interference. [Jitendra Kumar Garg v. Manju Garg, 2022 SCC OnLine Del 1180, decided on 26-4-2022]


Advocates before the Court:

For the Petitioner:

Mr. Rajinder Mathur and Akshat Singhal, Advocates

For the Respondent:

None

Case BriefsHigh Courts

Delhi High Court: While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Factual Matrix


A criminal petition was filed seeking to set aside the decision by Family Court.

Instant petition had been filed against the order of the Additional Principal Judge filed by the respondent under Section 125 of the CrPC, whereby the Additional Principal Judge granted maintenance.

Petitioner impugned the order dated 31-7-2020, which enhanced the maintenance amount.

Analysis, Law and Decision


In the present matter, the maintenance order was challenged on the grounds of cruelty, adultery, desertion without reason as well as the fact that the wife was capable enough of maintaining herself.

Various Supreme Court and High Court decisions have established the position of payment of maintenance holding that the ground of cruelty does not disentitle the wife of her right to maintenance. In fact, in cases where divorce is granted on the ground of cruelty, Courts have awarded permanent alimony to the wife.

Hence,

Ground of cruelty and harassment do no stand ground for non-payment of the maintenance amount.

The Bench expressed that the codified law and judgments of various High Courts settle the position with respect to the bar of adultery for grant of maintenance in favour of the wife.

Law mandates that in order to extract the provision under Section 125(4) CrPC the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount o ‘living in adultery’.

The Bombay High Court decision in Pandurang Bakru Nathe v. Leela Pandurang Nathe, 1997 SCC OnLine Bom 264 made an observation with regard to the provision under Section 125(4) CrPC was relied on by the Court.

Another decision of the Kerala High Court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 was also relied on.

High Court found that the law as interpreted by the High Courts, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

The petitioner could not establish prima facie that the respondent was living in adultery, hence the respondent was not entitled to any maintenance.

Concluding the matter, Court declined to allow the instant petition, since the petitioner had failed to show any ground for challenging the order under the revisional jurisdiction of this Court.

Therefore, Bench did not find any cogent reason to interfere with the impugned order and judgment. [Pradeep Kumar Sharma v. Deepika Sharma, 2022 SCC OnLine Del 1035, decided on 13-4-2022]


Advocates before the Court:

For the Petitioner:

Annu Narula, Vishal Singh, Ravi Kumar and Shiva Chauhan, Advocates

For the Respondent:

Shamikh, Advocate

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., expressed that,

“If the husband keeps another lady; gives shelter to her; and proceeds to have child with the said lady and for that reason if the first wife has to leave the matrimonial home because of physical and mental torture meted out to her it cannot be presumed as a desertion on the part of wife.”

Husband was rejected decree of divorce on the ground of desertion by the Family Court’s order, but the said decision has been challenged.

Factual Matrix

Husband/Appellant was married to respondent/wife prior to 26 years from the filing of the suit. He submitted that for the last 25 years the wife had been living in the village and had deserted him without any lawful cause, in view of which he was entitled to get a divorce decree.

Whereas, the wife pleaded that she was subjected to physical and mental torture, she also added that the husband kept one lady as his wife and asked the wife to go away and stay at her parental village.

Analysis

It was noted that the appellant came to know on 10-1-2014 that the respondent’s name i.e. his wife is recorded in the service book though she left him 25 years back and was residing at a different place.

Wife submitted that the husband had kept one concubine, which led to the family dispute and forced the respondent to stay at her parental village along with her three children, she maintained the stand that she had not deserted the husband and because of the fact that she was mentally and physically tortured she was forced to stay separately.

Another pleading was that in proceedings under Section 125 CrPC an amount of Rs 500 was granted towards her maintenance.

The Bench remarked, when the marriage was solemnized 26-27 years back and three children were born thereafter, how it can be presumed that the wife deserted the husband for 25 years i.e. immediately after marriage.

Husband also admitted the fact that he kept Urmila as second wife and out of that relationship he was blessed with two children.

Therefore, it was clear that during the subsistence of the first marriage, husband kept another lady as his wife and as per the provisions of the Hindu Marriage Act, 1955 keeping another lady during subsistence of first marriage is illegal, however, Court denied to deliberate on the said issue.

Decision

High Court held that the wife was subjected to mental and physical cruelty and was forced to leave her matrimonial home as the husband had kept one concubine, hence the said was a reasonable cause for the wife to stay at the village of her parents though she was not intending to do so and hence the same cannot be stated that the desertion was made by the wife.

In Court’s opinion, no ground for desertion was made out by the husband, therefore the lower Court’s decision warranted no interference. [Uttamram v. Kayaso Bai, 2022 SCC OnLine Chh 255, decided on 7-2-2022]


Advocates before the Court:

For Appellant Mr. Parag Kotecha, Advocate

For Respondent Mr. Sachin Singh Rajput, Advocate

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., while addressing a matter regarding recovery of maintenance amount, expressed that,

“Sentencing to jail can only be seen as a means of recovering the amount of arrears and not a mode of discharging liability.” 

High Court also observed that, scope of Sections 125(3) and 128 of the Code being different and the first proviso to Section 125(3) creating an interdict only on issuance of warrant for recovery under Section 125(3), the said period of limitation of one year cannot be held to create a fetter on the right to claim enforcement under Section 128.

An application under Section 482 of the Code of Criminal Procedure, 1973 was filed to quash the proceedings of Execution Case under Section 128 of the Code passed by Additional Principal Judge, Family Court.

Factual Matrix

An application under Section 125 of the Code was filed by OP 2 and it was allowed by means of an ex parte order with a direction to make payment of a monthly allowance of Rs 1,000 for life to the OP 2 and a monthly allowance of Rs 500 each to OPs 3,4,5 and 6 till they attain majority.

Proceedings for enforcement of the aforesaid order of maintenance under Section 128 of the Code were initiated pursuant to an application registered as Execution Case wherein a prayer was made for recovery of the amount.

Pursuant to a recovery warrant issued in the execution proceedings, the applicant appeared before the court and filed an application expressing his willingness to deposit fifty per cent of the amount due and order was passed directing that 50% of the amount due be deposited and the remaining amount be deposited in instalments. Subsequently, order in respect of recovery of balance amount was also passed.

In view of the above background, the present application had been filed seeking quashing of the subsequent orders and the entire proceedings of the execution case.

Crux of the matter

Order under Section 125(1) CrPC having been passed, the proceedings for enforcement of the order initiated under Section 128 of the Code pursuant to the application would be barred by limitation being beyond the period of one year from the date of order under Section 125(1).

Question for consideration

Whether the limitation prescribed under proviso to Section 125(3) would be applicable in respect of proceedings under Section 128 of the Code?

Analysis and Discussion

High Court noted that in Supreme Court’s decision of Kuldip Kaur v. Surinder Singh, (1989) 1 SCC 405, considered the distinction between the mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which had fallen in arrears on the other, in the context of Sections 125(3) and 128 of the Code.

In the above-referred decision, it was held that,

“…sentencing a person to jail as per terms of Sections 125(3) of the Code is a ‘mode of enforcement’ and not ‘mode of satisfaction’ of the liability, which can be satisfied only by making actual payment of the arrears.” 

The provisions contained under Section 125(3) of the Code and the first proviso thereto again came up for consideration in Poongodi v. Thangavel, (2013) 10 SCC 618, and it was held that the first proviso to Section 125(3) does not create any bar or fetter on claiming arrears of maintenance and it neither extinguishes nor limits entitlement to arrears of maintenance.

High Court observed that,

The proceedings for maintenance under Section 125 of the Code are of a summary nature and the purpose and object of the same is to provide a simple and speedy remedy, and to ensure that the deserted wife, children and parents are not left destitute and without any means for subsistence.

Further, the Court added that,

The provisions contained under Section 125(3), as aforesaid, would indicate that the issuance of warrant or the imprisonment of the person concerned, is only a mode of recovery of the amount due in terms of the order made under sub-section (1) to Section 125 for payment of monthly allowance. The mode of recovery by issuance of a warrant or by imprisonment of the person as per terms of Section 125(3), has been held distinct from actual satisfaction of the liability. 

Mode of Enforcing has been held to be not a Mode of Satisfaction

The purpose of imprisonment would not be to wipe out the liability which a person has refused to discharge; the imprisonment of the person concerned being in no way a substitute for the recovery of the amount of monthly allowance which has fallen in arrears.

Further, elaborating the provision, Court added that Section 125(3) of the Code circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. The first proviso to Section 125(3) prescribing limitation of one year to seek recovery of arrears of maintenance, is only in respect of the procedure for recovery of maintenance as per terms of the sub-section, by construing the same to be a levy of fine.

Section 128 of the Code provides for enforcement of the order of maintenance against the person against whom the order of maintenance has been made.

Limitation

The entitlement to claim enforcement of the order of maintenance under Section 128 by seeking discharge of the liability as per terms of the order of maintenance granted under Section 125, therefore cannot be held to be extinguished in terms of the one-year limitation prescribed under the first proviso to Section 125(3), High Court noted.

The Bench further referred to the decision of Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, with regard to the scope of a proviso as an internal aide to the interpretation of statutes. In the said decision it was held that a proviso must be limited to the subject matter of the enacting clause and must be read and considered in relation to the principal matter to which it is a proviso.

“Section 125 (3) of Code would have to be held to be confined to the Section which precedes it.”

Hence, the limitation of one year provided in terms thereof would have to be read in relation to issuance of a warrant for recovery of an amount due in terms of an order of maintenance passed under sub-section (1) of Section 125. The aforesaid limitation of one year under the proviso to Section 125 (3) cannot be held to travel beyond or stretch to an extent so as to being within its ambit the powers relating to enforcement of an order of maintenance under Section 128 of the Code. 

Therefore, concluding the decision, Court held that the proceeding for the enforcement of the order under Section 128 cannot be assailed on the ground that the same would be barred by limitation as provided under the proviso to Section 125(3) of the Code

In view of the above discussion, present application failed and was dismissed. [Mohammad Usman v. State of U.P., 2021 SCC OnLine All 640, decided on 31-8-2021]


Advocates before the Court:

Counsel for Applicant: Triloki Nath

Counsel for Opposite Party: G.A.

High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

“For a contract to be enforceable, the restraint of trade clause must be reasonable.”

[Rajesh Kumar Gandhi v. Mukesh Dutt]


Read the interesting picks from the stories eported in first week of February.


Delhi High Court


Baazi v. WinZo| Trademark is used by a manufacturer or service provider to distinguish products from those of competitors: Here’s how Winzo appeared dishonest and unfair in adopting Baazi

Explaining the significance of a trademark, Asha Menon, J., observed that,

When people are satisfied with the products supplied by a manufacturer or service provider, they buy them on the basis of the trade mark and over time it becomes popular and well known. Thus, the use of a similar or identical trademark by a competitor in the same product would lead unwary customers to believe that it originates from the same source.

Read full report here…

Whether a ‘blade’ would be covered under S. 397 IPC as a deadly weapon? Del HC explains in view of settled position of law

Mukta Gupta, J., explained under what circumstances would Section 397 of penal Code, 1860 would be attracted.

Rae full report here…

Court under maintenance proceedings under S. 125 of CrPC, can usurp jurisdiction of Civil Courts? Del HC decides

Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,

“…there is no straight jacket formula for judging the validity of the marriage between the parties.”

Read full report here…


Kerala High Court


Is not taking treatment for mental illness to bring out a peaceful family atmosphere a form of cruelty and thus, a ground for divorce? Kerala HC answers

In an interesting case the Division Bench of A.Muhamed Mustaque and C.R. Sophy Thomas, JJ., held that not taking treatment for mental illness in order to bring out a peaceful and harmonious family atmosphere can also be counted as cruelty to the persons at the receiving end. Upholding the Family Court’s order granting divorce on the ground of cruelty, the Bench remarked,

“There is no merit in preserving intact a marriage, when the marital tie becomes injurious to the parties. When there is no rose, and only thorns left, and there is no scope for the plant to sprout again, there is no meaning in watering the same, knowing that it is dead forever.”

Read full report here…


Andhra Pradesh High Court


LGBTQ+ community’s right to reservation; Can a transgender claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? AP HC answers 

In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denied to issue direction to the State in favour of the petitioner. The Bench, however, remarked,

“The State is unconscious of the directions issued by NALSA and failed to provide a specific column meant for gender identity for transgender in the proforma of application in the Notification dated 01.11.2018 and did not provide any reservation to transgenders, as they are socially and educationally backward and not in a position to compete with ordinary men and women.”

Read full report here…


National Company Law Tribunal


Operational Creditor is under obligation to recover money from its client and not agent: NCLT decides while dismissing a petition filed under S. 9 IBC

The Coram of H.V. Subba Rao (Judicial Member) and Chandra Bhan Singh (Technical Member) dismissed a petition filed under Section 9 of the IBC while noting that no operational debt existed under Section 5(8) and expressed that,

“Operational Creditor being the principal was always under obligation to recover the money from the client and not from his agent unless the agent failed to perform his duties.”

Read full report here…


Tis Hazari Court


For a contract to be enforceable, restraint of trade clause must be reasonable: Post-termination non-compete clauses are permissible in employment contracts under S. 27 of Contract Act? District Court explains

Holding that, post-termination non-compete clauses in employment contracts are “restraint of trade” and it is impermissible under Section 27 of the Act, Richika Tyagi, C.J-02, expressed that such agreements of restraint are vid because of being unfair and depriving an individual of his or her fundamental right to earn a living.

Read full report here…


Information Commissioner’ Office


Unsolicited marketing calls causing distress to people and disregard to their privacy rights: Would it lead to imposition of monetary penalty? Detailed decision of Information Commissioner’s Office

Andy Curry, Head of Investigations, on noting serious contravention of regulations 21 and 24 of the Privacy and Electronic Communication Regulations 2003 (PECR) has issued Home2sense Limited with a monetary penalty under Section 55A of the Data Protection Act, 1998.

“Home2sense’s dismissive and troubling response, coupled with its failure to disclose any details of its CDRs or any other information which might assist the Commissioner’s investigation shows, in the Commissioner’s view, a complete disregard for the privacy rights of the individuals whom it sought to contact.”

Read full report here…

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,

“…there is no straight jacket formula for judging the validity of the marriage between the parties.”

A petition was filed under Section 397/401 of the Code of Criminal Procedure, 1908 seeking setting aside of the decision passed by the Family Court whereby the petitioner was directed to pay maintenance of Rs 4,000 to respondent 1 and Rs 3,000 to respondents 2 and 3 till attaining the age of maturity.

Petitioner’s counsel argued that he was never married to respondent 1 and the trial court committed a grave error in granting maintenance in favour of respondents towards whom he had no obligation of maintenance.

Analysis, Law and Decision

High Court noted that the Magistrate has a discretionary power that is to be exercised while appreciating the evidence and material on record when awarding maintenance to the parties.

Essentials of a Valid Marriage

The Bench observed that there is no straight-jacket formula for judging the validity of the marriage between the parties. Every case has to be judged on its own merits depending upon the conditions provided under the statutory or personal law for solemnization of marriage.

The legal standard for determining the marital status of the parties in maintenance proceedings has been set out by the Supreme Court in the case of Santosh v. Naresh Pal, (1998) 8 SCC 447.

Further, a Coordinate Bench of this Court had also dealt with the issue of marital status in maintenance matter in the case of Nasir Khan v. Sarphina George, 2019 SCC OnLine Del 8467, wherein the Petitioner husband impugned the order granting maintenance in the revisional jurisdiction. It was contended that the Trial Court erred in passing the order on maintenance since the respondent was not her legally wedded wife. Further, he argued that no witnesses were produced to establish the factum of marriage between the parties. Court negated the contentions of the Petitioner mainly on the ground that the parties to the marriage were living together for several years and this raised a reasonable presumption in favour of the accused.

 Several other decisions were referred for the above-stated.

This Court observed elaborated stating that the Court in proceedings under Section 125 CrPC was required to merely decide the quantum of maintenance based on the prima facie evidence regarding the marital status of the parties.

The task of deciding the marital status of the parties has been conferred with the Civil Courts and the Court under maintenance proceedings under Section 125 of the Cr.P.C. may not usurp the jurisdiction of the Civil Courts.

Therefore, the litmus test for determining the marital status of the parties in maintenance proceedings was prima facie satisfaction of the Magistrate concerned and nothing more.

Section 125 CrPC and Revisional Jurisdiction

 Established Law:

The Revisional Court need not re-assess or re-appreciate the material and evidence on record before the Trial Court. A Revisional Court is to limit its jurisdiction for adjudicating upon the material illegalities and irregularities apparent in the impugned orders.

The conclusive determination of marital status in cases of maintenance under Section 125 of the CrPC, shall, therefore, be declared by the Civil Court and the Revisional Court shall restrain itself to the questions before it without reopening the evidence.

In the Supreme Court decision of Pyla Mutyalamma v. Pyla Suri Demudu, (2011) 12 SCC 189, the Court had set out the standards of revisional jurisdiction to be exercised by the High Courts in maintenance proceedings under Section 125 of the CrPC.

Decision

High Court noted that respondents produced 10 witnesses during evidence to establish their relationship with the petitioner. Court stated that the statements of the witnesses/neighbours, clearly imply that the parties were living together for a long time and were known to be husband and wife to the people residing in their neighbourhood.

Adding to the above, documentary evidence was also produced.

Production of the ration card as a documentary proof of marital relation between the parties met the requirement of prima facie evidence in establishing the matrimonial relationship between the parties.

With regard to the DNA test, Court explained that after more than 10 years of adjudication into the question of subsistence of a marital relationship between the Petitioner and Respondent 1, it was not necessary to go into the legitimacy of the birth of the children, when prima facie proof was already produced in their favour.

Therefore, High Court found no substantial ground for invoking the revisional jurisdiction to interfere with the impugned judgment. [Mohd Shakeel v. Sabia Begum, 2022 SCC OnLine Del 271, decided on 28-1-2022]


Advocates before the Court:

For the petitioner: Salim Malik and Shavana, Advocates

For the respondent: Aditya Gaur, Advocate

Case BriefsHigh Courts

Allahabad High Court: Syed Aftab Husain Rizvi, J., addressed a revision petition filed by the husband who claimed that the Family Court could not have granted maintenance to wife under Section 125 CrPC when divorce was already granted in his favour under Section 13 of Hindu Marriage Act.

Instant criminal revision was directed against the decision of the Family Court. By the said impugned order, maintenance application under Section 125 CrPC of OP 2 was allowed and a maintenance amount of Rs 25,000 was awarded.

OP 2 submitted that she was mentally and physically tortured and later was left at her maternal house with her father. Opposite Party started ignoring her and not maintaining her, in fact deserted her. Further, she added that she had no source of income while the opposite party was Squadron Leader in Air Force, and his salary was Rs 80,000 per month. Hence, OP 2 had claimed a maintenance allowance of Rs 40,000.

Jurisdiction

High Court stated that, an application under Section 125 CrPC can be moved at a place where the applicant was temporarily residing. It had been alleged in counter affidavit that applicant was temporarily residing at Gautam Budh Nagar and pursuing a course in J.P. Institute of Information Technology at Gautam Budh Nagar. Hence, the ground that Court at Gautam Budh Nagar lacked jurisdiction had no force.

Permanent Alimony

The revisionist husband contended that Family Court, Meerut in divorce petition under Section 13 of Hindu Marriage Act had granted divorce decree in favour of the revisionist and had also awarded Rs 25 lacs as permanent alimony under Section 25 of the Hindu Marriage Act while passing the decree of divorce and hence, no maintenance under Section 125 CrPC could be awarded and application was not maintainable.

Hence, OP 2 had Rs 25 lakhs at her disposal and it could not be said that there were no financial resources and there was no question of non-sustenance.

The Court below lost its sight in not considering the legal proposition that a divorced wife can claim maintenance under Section 25 of the Hindu Marriage Act and not under Section 125 CrPC. 

When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled marriage can claim maintenance under Section 25 of Hindu Marriage Act.

It is only such court which passed the divorce decree who is alone competent to grant maintenance under Section 25 of the Hindu Marriage Act.

Therefore, the impugned order was absolutely illegal, arbitrary and against the said principles of law.

As per the Supreme Court’s decision in Rajnesh v. Neha, (2021) 2 SCC 324, a wife can make a claim for maintenance under different statutes and there was no bar to seek maintenance both under the protection of Women against Domestic Violence Act, 2005 and Section 125 of CrPC or under Hindu Marriage Act.

Bench noted that, in the present set of facts, it was clear that the wife did not accept the alimony as she had challenged the divorce decree and the same was pending and in those circumstances, she could not have accepted the amount of alimony.

In view of the above, she had no source of income and financial support to maintain her and hence came under the category of destitute. Therefore, the impugned order did not suffer from any illegality or infirmity.

Since no infirmity was found in the order of the Court below, the revision was liable to be dismissed. [Tarun Pandit v. State of U.P., 2022 SCC OnLine All 38, decided on 6-1-2022]


Advocates before the Court:

Counsel for Revisionist:- Amit Krishna

Counsel for Opposite Party :- G.A., Siddharth Khare

Case BriefsHigh Courts

Delhi High Court: While addressing a matter with regard to maintenance to wife, Subramonium Prasad, J., held that the fact that the wife is capable of earning is no ground to deny interim maintenance to her. Many a times wives sacrifice their career only for the family.

Instant petition was filed by an Indian Army colonel to set aside the order passed by Family Court wherein the Court passed an order under Section 125 CrPC directing the petitioner to pay monthly maintenance of Rs 33,500 to the respondent.

Revisionist Petitioner submitted that there were glaring inconsistencies that were in the order as a result of suppression of facts made by the respondent. He contended that the respondent was disqualified from being given maintenance as she was in an adulterous relationship and was living in adultery with an army senior of the petitioner.

Further, he submitted that the respondent and her paramour were having an affair behind his back and the paramour was known to the couple as a family friend from the time they had gotten married in 2002.

Adding to the above, it was submitted that Section 125(4) CrPC was attracted which stated that a person living in adultery would not be eligible for claiming maintenance from her separated spouse.

Petitioner submitted that the respondent was disqualified from receiving maintenance on the ground that she was employed as a teacher previously and was making a living. Respondent had an earning capacity and could maintain herself without the financial support of the petitioner as sanctioned by law.

Submission of the respondent’s maintenance claim was to be decided in accordance with the Army Order, the same would be decided by the Army Officials of the Armed Tribunal and the jurisdiction exercised by the Family Court was wrong and improper. Hence, the entire proceedings before the family court were null and void.

Petitioner lastly submitted that the respondent had suppressed the fact that she was capable of earning.

Analysis, Law and Decision

While analyzing the matter, High Court noted that the material on record disclosed that the children were with the petitioner from 2015 and hence the respondent was not entitled to two shares and Trial Court ought to have granted Rs 14, 615 per month as interim maintenance to the respondent.

Bench expressed that the petitioner’s contention that he was covered by the Army Order and therefore trial court fixing maintenance was contrary does not hold water.

It cannot be said that the Army Order would override the provisions of Section 125 Cr.P.C and that the Army personnel are covered only by the Army Order and that Section 125 Cr.P.C would not apply to Army Personnel.

 With regard to the contention of the wife living in adultery, she raised a very interesting counter-argument that one incident of adultery cannot lead to a conclusion that she is living in adultery.

Court referred to the decision dated 22-8-2020 regarding custody of children to the father which did not conclusively prove that the wife committed adultery or was living in adultery.

Examining the above contention further, High Court stated that it will not go into the issue of whether the wife is living in adultery or not.

The Bench added that if it was conclusively proved that the respondent was living in adultery and was not entitled to maintenance at all, the trial court could pass appropriate order for the return of the maintenance amount if it deemed it fit and keeping in mind the object of Section 125 CrPC was to prevent vagrancy and destitution of a deserted wife.

Hence, revision petition was allowed in part and the petitioner was directed to pay a sum of Rs 14, 615 as interim maintenance to the wife.

“This Court is not inclined to disturb the portion of the impugned order which has directed the petitioner herein to pay a sum of Rs 9,000/- per month to the respondent herein w.e.f. date of filing of the petition till December, 2016.”

In view of the above, a revision petition was allowed in part. [Col Ramnesh Pal Singh v. Sugandhi Aggarwal, 2021 SCC OnLine Del 5497, decided on 21-12-2021]


Advocates before the Court:

For the Petitioner: Petitioner-in-person

For the Respondent: Respondent -in-person

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., while addressed an issue with regard to maintenance and stated that,

There may be alternative jurisdictions available to the person seeking execution of order of maintenance and it is upon the meeting of the requirements of the provisions that the person “may” approach the concerned court in the appropriate jurisdiction.

Instant petition was filed to set aside the order passed by the Family Court.

Petitioner 1 and respondent were wife and husband while petitioners 2 and 3 were the daughter and son respectively.

Factual Background

Petitioner had filed maintenance petition under Section 125 CrPC vide an order whereby the respondent was directed to pay Rs 1000 to the petitioner 1 and Rs 500 per month to petitioner 2, 3 and the third daughter.

Further, the petitioner moved the Court for the execution of the Order which withdrawn on account of the settlement between the parties before the Mediation Centre, Dwarka Courts. However, the respondent did not comply with the terms laid down in the settlement agreement and hence the petitioner filed another execution petition before the Family Court, Dwarka for the execution of the maintenance order.

Respondent in compliance with the maintenance order was paying a certain amount in pursuance of which the petitioners sought liberty from the trial court to amend/withdraw and refiled the petition with the prayer of payment of arrears of maintenance amount and warrants of attachment in case of failure on part of the respondent.

Trial Court passed the impugned order whereby it noted that Memo of Parties in the Execution Petition indicated that the respondent resided at Bharti Nagar, District Shaharsa, Bihar and that the petitioner can seek execution of the maintenance order before the Courts in Shaharsa, Bihar. Hence, the trial court directed that a transfer certificate may be issued for execution against the respondent.

Petitioner through the present petition has sought to set aside the said order of the trial court.

Analysis, Law and Decision

High Court expressed that from a bare reading of Section 126 read with Section 128 of the CrPC, it is apparent that a person may file for maintenance and have the proceedings initiated under Section 125 of the CrPC before the Magistrate concerned in any district where the husband is, where he or the wife resides or where they have last resided.

The Code gives ample prerogative with respect to the jurisdiction where the person seeking maintenance may file for the same and its subsequent execution.

The words used are, ‘where the person against whom it is made may be’ and not where he is residing or where his permanent property is. The material fact, hence, would be the presence of the person at the preferred jurisdiction at the time of the application for maintenance.

Section 125(3) CrPC, empowers the Magistrate to issue a warrant for levying the amount due in the manner provided for levying fines, where there is default of payment in contravention of the orders of maintenance by the Magistrate. The same is guided by the provisions under Section 421 and 422 of the CrPC., which authorize the Court concerned to sell or attach a property even outside its jurisdiction.

In the present matter, it is evident that, if required, a property situated in Bihar, may be attached for the purposes of obtaining maintenance upon the order passed by the Courts in Delhi.

The Bench stated that as per the provisions under the CrPC and the findings of the Courts clear on the issue of jurisdiction in cases of maintenance under Section 125 of the CrPC.

Court makes available the option to the wife to proceed before a Court for maintenance and its execution where either the husband is, or where either of the parties resides as well as the place where they used to reside.

Supreme Court had even ruled that a judicial process may be enforced against a person even when he is in abroad.

In the present matter, while the Petitioner-wife may have approached the Courts concerned in Bihar, where the Respondent was alleged to have his permanent residence and the immovable property, simultaneously, her right to approach a Court in New Delhi also subsisted.

The rights of the Petitioners were in consonance with the provisions of the law, since the respondent used to reside in Delhi at the time of application. Moreover, the Petitioners had the opportunity to execute within the jurisdiction of the Court where the order of maintenance was passed.

Further, the Bench stated that the order of maintenance was passed in the year 2005 and now the trial court had after 16 years of the order and 4 years into the matter of execution taken up the issue of maintainability, despite the clear mandate of the CrPC.

Examining further, the Court added that it is unfortunate that a woman and her children have to run pillar to post to avail their rights to which they are entitled under the law of the country.

In view of the above discussion, the petition was allowed.

Trial Court erred while giving its finding as the petitioner was well within her right under the law for having the maintenance order executed in her favour within the jurisdiction of Delhi.

The matter has been remanded back to the family court with direction for fresh adjudication of the execution petition. [Asha Devi v. Muneshwar Singh, 2021 SCC OnLine Del 5452, decided on 17-12-2021]


Advocates before the Court:

For the Petitioners: Mallika Parmar, Advocate (DHCLSC)

Fort Respondent: Kunal Malhotra and Ravinder Gaur, Advocates

High Court Round UpLegal RoundUp

Allahabad High Court


POCSO

Putting penis into mouth will fall under which category – Aggravated Sexual Assault or Penetrative Sexual Assault?

 Anil Kumar Ojha, J., while addressing a matter of child sexual assault, expressed that,

Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of POCSO Act.

Read more…

Workman

Can workman who was employed for particular project be considered employee of the company and given permanent status after project is over?

Siddhartha Verma, J. reiterated the law laid down by the Supreme Court in Lal Mohammad v. Indian Railway Construction Co. Ltd.(2007) 2 SCC 513, wherein it was decided that when a workman is employed for a particular project then the services of that employee came to an end as soon as the project was over and he could not be given permanent status. It was also held that shortfall of period of notice or compensation, after completion of the project would not render the termination bad on that count.

Read more…

Arbitration

If arbitrator becomes functus officio, can provisions under Ss. 14 and 15 of the A&C Act to appoint substitute arbitrator be invoked?

Noting the significance of Sections 14 and 15 of the Arbitration and Conciliation Act, 1996, Jayant Banerji, J., expressed that,

If the arbitrator had been rendered functus officio, there existed no occasion to invoke the provisions of Sections 14 and 15 of the Act for appointing a substitute arbitrator.

Read more…

 Guardianship Rights v. Welfare of Minor 

What is more significant: Competing rights of guardianship or Welfare of minor?

Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care. 

Read more…

Auction

Property of dead person sold in auction: Is it bad in law?

Siddhartha Varma, J., while deciding a matter with regard to the auction of the property of a dead person held that the proceeding conducted against a dead person is bad in law.

Read more…


Bombay High Court


 NDPS

Whether the blotter paper forms an integral part of the LSD drug when put on a blotter paper for consumption?

Addressing a very crucial question having relevance with the Narcotics Drugs and Psychotropic Substances cases, Revati Mohite Dere, J., decided whether blotter paper forms an integral part of the LSD Drug when put on blotter paper for consumption.

Read more…

Did Aryan Khan with other two accused hatch a conspiracy to commit offence under NDPS Act?

Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants.

Read more…

Documents

Does accused has right to demand production of documents withheld by investigator at framing of charge? Does S. 91 CrPC include witness statement?

Sandeep K. Shinde, J., expressed that it is settled law that at the stage of framing the charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, trial court is required to consider only police report referred to under Section 173 of the Code and documents sent with.  

Read more…

Rape & Murder

‘Hang by neck till dead’: Bom HC confirms death sentence in a rarest of rare cases for committing rape and murder of a 3-years 9-months old child

 While confirming the death sentence in this rarest of rare cases, the High Court observed:    

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

Read more…

Abetment of Suicide

Is it possible to frame a charge against accused for abetment of suicide and in the alternative for committing murder?

Sandeep K. Shinde, J., explained as to when a charge in the alternative can be framed against an accused and when it is not permissible to do so.

Read more…

Bail

Bom HC discusses law where accused already granted bail but further non-bailable offences are added by prosecution

Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand(2019) 17 SCC 326 wherein it was held:

“where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

Read more…


Calcutta High Court


 Anticipatory Bail

‘Citizens must refrain from taking law in their own hands’: Cal HC observes while granting anticipatory bail to petitioners apprehending arrest for rioting, vandalism, etc.

 Expressing that, “Time has come that every dutiful citizen of the country must realize their duties and accountability to the society and must refrain from taking the law in their own hands”, Division Bench of Harish Tandon and Rabindranath Samanta, JJ., held that,

Destruction of public property has a ramification on society and the taxpayers are burdened for no fault on their part. The charging sections would evince that not only the Public Officers but the public properties have also been destroyed.

Read more…

Rape

Court explains “Intelligible testimony” and “reverse burden of proof”; dismisses appeal of accused charged for raping 3 year old girl under S. 6, POCSO Act

The Division Bench of Soumen Sen and Rabindranath Samanta, JJ., dismissed a criminal appeal which was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge–cum-Special Judge under POCSO Act, 2012 whereby the appellant had been convicted for commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 376 (2) (i), Indian Penal Code and sentenced to suffer rigorous imprisonment for life without remission and to pay a fine of Rs. 2,000,00.

Read more…

Fundamental Rights

Festival of lights would spread joy, but few are deprived of basic necessities: Is Aadhaar the only criteria for identification of beneficiaries under National Food Security Act?

The Division Bench of Prasanna B. Varale and Madhav J. Jamdar, JJ., while addressing a petition expressed that,

It is disheartening situation for us when we the fortunates are eagerly awaiting as the festive season is approaching and the festival of lights would spread joy and happiness in the society throughout the State or the whole nation, here are the few petitioners who are the members of the marginalised section in general and tribals in particular who have approached this Court on a grievance that they are deprived of the basic requirement of human life, i.e., food, only on account that the State machinery is not technically equipped to give them the benefits flowing from the scheme formulated and floated by the Union of India and to be implemented and executed by the respective States.

Read more…

State Machinery 

13-years of long fight, yet State’s investigation unsatisfactory: Whether exemplary costs to a wife fighting for a decade to secure her missing husband’s presence would be granted or not?

 While noting the failure of State Machinery in securing the presence of a person for 13 years, Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., expressed that,

Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to a procedure established by law. Right to life and personal liberty is the primordial right which every human being everywhere at all times ought to have it.

Read more…


Delhi High Court


 Contempt of Court

Husband stubbornly and obstinately refused to comply with the orders of the Court; No full disclosure of income

While addressing an issue of non-compliance of Court’s order with regard to paying maintenance to wife, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

The actions/ omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted, it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned.

Read more…

Role of Advocate 

An advocate engaged by a client, can he also act as his power of attorney in the proceedings and verify pleadings?

Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

Read more…

Kalkaji Temple

Del HC issues directions for removal of unauthorized shopkeepers, Sanitation facilities, Potable Drinking Water, Garbage Disposal, etc.

The shopkeepers or their families also cannot reside in the Mandir complex. The same is impermissible and is nothing but unauthorized encroachment and trespass into the Mandir’s premises.

Read more…

Right to demand Respect & Inter Cadre Transfers

Significance of ‘cogent reason’ while declining inter-cadre transfer

Addressing a grievance with regard to the denial of inter-cadre transfer Division Bench of Rajiv Shakdher and Talwant Singh, JJ., held that, denial with no cogent reasons impinges upon such person’s right to demand respect for her/his family life.

Read more…

Territorial Jurisdiction

Where can a petition under S. 125 CrPC be filed?

Subramonium Prasad, J., reiterated the law relating to the territorial jurisdiction of the court to entertain a petition under Section 125 CrPC.

Read more…

Section 125 CrPC

Can wife claim maintenance under S. 125 CrPC where she as well as husband had spouses living at the time of alleged marriage?

A second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision.

Read more…

Maintenance can be claimed under DV Act even if already granted under S. 125 CrPC: Del HC reiterates

Amit Bansal, J., reversed the order of the trial court as it dismissed the application filed by the petitioner under Section 26 of the Protection of Women from Domestic Violence Act only on the basis that it had been filed towards execution of maintenance already granted.

Read more…

Cruelty

Wife made serious criminal allegations against husband and his parents but couldn’t prove: Would this amount to cruelty against husband to grant divorce?

While addressing a matrimonial matter wherein a wife caused cruelty to husband, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

For a man to see his parents to be taken into custody and being incarcerated even for a single day would have caused immense and untold pain and agony to him.

Read more…

Can allegations of demand of dowry and alcohol consumption made by wife amount to ‘cruelty’?

Expressing that, allegations made by the wife with regard to the husband demanding dowry and indulging in alcohol consumption, do not tantamount to making serious allegations impinging on the character of the husband, to such an extent, that they would be the cause of immense mental agony and cruelty, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., dismissed the petition.

Read more…

INX Media Case

Can accused be allowed to inspect documents kept in “malkhana”?

Mukta Gupta, J., expressed that,

“…while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on.”

Read more…

Arbitration

What happens if parties fail to agree on arbitrator within 30 days from receipt of request by one party?

Sanjeev Narula, J., allowed an arbitration petition by appointing a sole arbitrator to adjudicate the disputes between the contesting parties.

Read more…

What is the remedy against an order allowing application under S. 8 of Arbitration Act, where existence of arbitration clause is not disputed?

Amit Bansal, J., dismissed a petition challenging the order passed by the lower court whereby respondent’s application under Section 8 of Arbitration and Conciliation Act, 1996 was admitted.

Read more…

Assault by Policemen

Law does not permit people to be beaten-up in police custody or during interrogation

While addressing a very unfortunate incident of police assault, Najmi Waziri, J., expressed that

Let no one have to repeat the tragic last words like George Perry Floyd, Jr.: “I can’t breathe”.

Read more…

Law on Offences against property

While committing the act of robbery, if revolver is brandished, would that be an offence under S. 397 IPC?

Subramonium Prasad, J., addressed a very pertinent question of whether brandishing a revolver during the act of robbery be covered under Section 397 of Penal Code, 1860.

Read more…

Dissolution of Marriage

Materialistic attitude of husband considering wife as cash cow: Is it a ground to dissolve marriage?

The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., noted in a matrimonial matter that the wife was being viewed as a cash cow and the husband became interested in her only after she got a job with Delhi Police.

Read more…


Jammu and Kashmir and Ladakh High Court


Preventive Detention

“No Court should tune out terrorist activities”; HC refuses to interfere with preventive detention of man involved in Pulwama conspiracy

While dismissing the petition seeking release from preventive detention to the detenu involved in Pulwama conspiracy, Tashi Rabstan, J., remarked,

“Acts or activities of individual or a group of individuals, prejudicial to the security of the State or public order, has magnitude of across-the boarder disfigurement of societies. No court should tune out such activities, being swayed by passion of mercy.”

Read more…

Selection

“Neither irrational, unreasonable nor arbitrary”; HC holds higher qualification than the maximum qualification prescribed is not suitable qualification

The Division Bench of Ali Mohammad Magrey, Sanjay Dhar, JJ., held that in case of appointments to Class-IV posts, higher qualification than the prescribed 10+2 may not be suitable for many reasons.

Read more...

Run Away Couple

No law or religion gives a license to a father to harass his daughter”

“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.”

Read more…


Jharkhand High Court


Specific ingredients must clearly asserted in the notice so that the noticee has an opportunity to explain and defend himself in accordance with S. 74 of JGST Act, 2007

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and directed the respondents to initiate fresh proceedings from the same stage in accordance with law.

Read more…

“Petitioner cannot be treated as a consumer of bulk supply of electricity”; Term “bulk supply” is confined to energy supplied to industrial units and consumers engaged in mining only

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and sets aside the impugned assessment orders as well as demand notices arising therefrom, which has been passed by treating the petitioner as a consumer of bulk supply of electricity.

Read more…


Karnataka High Court


Value Added Tax

‘Common parlance test, ‘Marketability test’ are tools for interpretation to arrive at a decision on proper classification of a tariff entry

A Division Bench of S. Sujatha and Ravi V Hosmani, JJ., allowed the revision petition and set aside the impugned judgment by the Tribunal.

Read more…


Kerala High Court


Rape

Being in love isn’t synonymous to consent for sexual intercourse; HC upholds conviction for rape

While clarifying the difference between consent and submission, the Bench expressed,

“Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.”

Read more…

Duty of Police Officer

“Mere abusive, humiliating or defamative words by itself cannot attract an offence of obscenity under Section 294 (b) of IPC”; HC quashes proceedings against person who allegedly harassed the Police

Rejecting the allegation of obscenity against the petitioner for abusing and using humiliating words against the Police officer, the Bench clarified,

“It is to be noted that the test of obscenity under Section 294 (b) of the Indian Penal Code is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”

Read more…

Kidney Transplant

Swap Kidney Transplantation between non-relatives; HC removes legal hurdles

Nagaresh, J., allowed swap kidney transplant between non-relatives. Opining that any law prescribing procedure for organ transplantation should satisfy the test of reasonableness, the Bench remarked,

“When Section 9(3) permits transplant of organs to persons not being a near relative, with the prior approval of the Authorisation Committee, there is no logic or rationale to say that swap transaction will not be allowed when members of each pair are not near relatives, even if the Authorisation Committee approves such transaction.”

Read more…

Influence of Alcohol

Presence at a Police Station while being under influence of alcohol; will it attract any offence?

Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

Read more…

Child Molestation

“Child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused”

The Division Bench of K.Vinod Chandran and C. Jayachandran, JJ., acquitted the father accused of raping his own minor daughter. Considering the contention that the allegation was raised due to instigation by the stepmother, observing discrepancies in statements of victim and her stepmother and failure to prove age of the victim by the prosecution, the Bench remarked,

“Forensic and semantics apart, child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted.”

Read more…

Public Space

Ensure no new flag masts and posts be permitted to be brought on to the roads and public spaces; HC directs Kerala government

“This is an extremely unfortunate situation and it prevents a complete breakdown of law, because there can be no doubt that any such installation can be made on any public space or road only after obtaining necessary permission from the Local Self Government Institution or such other competent Authority.”

Read more…

Interim Orders

No appeals will lie against ad interim orders in a pending case

P.B. Suresh Kumar and C.S. Sudha, JJ., held that ad interim orders cannot be impugned in an appeal under Section 5(i) of the Act. The Bench stated,

 “If appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of the Court under Article 226 of the Constitution.”

Read more…

Animal Rights

“Illegal and Unconstitutional”; HC declares stipulations prohibiting residents from keeping pets void and unenforceable

The High Court of Kerala has once again advocated for animal rights and welfare as the Division Bench of A. K. Jayasankaran Nambiar and Gopinath P. JJ., held that stipulations in resident agreements prohibiting the residents from keeping pets of their choice in their individual apartments are unreasonable and unconstitutional. The Bench remarked,

“We believe the time has indeed come to nudge our citizenry into respecting the claims of other living beings that too have rights in our shared ecosystem. Compassion and empathy are the very essence of civilization and we must strive to preserve these values as part of our culture.”

Read more…


Madhya Pradesh High Court


Minor Wife

Does physical relationship with a minor wife come within the category of rape?

G.S. Ahluwalia J., rejected a bail application under Section 439 of CrPC. The appellant was arrested on 31-01-2021 in connection for offence under Sections 363, 376, 366 of IPC and Section 5/6 of POCSO Act.

Read more…

Contempt

“To err is human and to forgive is divine”; Court directs advocate to plant and take care of 20 saplings as punishment for contempt of female judge after unconditional apology

The Division Bench of Sheel Nagu and Anand Pathak, JJ., decided upon a petition which was in reference under Section 15(2) of The Contempt of Courts Act, 1971 sent by Judicial Magistrate First Class, Datia in respect of the conduct of respondent.

Read more


Meghalaya High Court


Bail

“Bail and not Jail” Court grants bail to accused charge sheeted for raping own mother

Diengdoh, J., allowed a bail application which was filed under Section 439 CrPC with a prayer for grant of bail wherein the petitioner was accused of raping his own mother.

Read more…

Public Interest Litigation

Court allows PIL highlighting delay in establishing comprehensive and modern cancer care facilities in the State

Read more…


Orissa High Court


Termination of Pregnancy

Infringement of fundamental right to life of the victim heavily outweighs the right to life of the child in womb; Ori HC refuses to terminate 24+ week pregnancy of a rape victim

K. Panigrahi, J. disposed of the petition and refused to terminate 24+ week pregnancy of a rape victim.

Read more…

Government Health Facilities

Ori HC issued directions regarding doctors being attached to Government Health Facilities and carrying on private practice without attending their duties at the Government Health Facilities

A Division Bench of S. Muralidhar, CJ and A. K Mohapatra, J., issued directions regarding Doctors being attached to Government Health Facilities and carrying on private practice without attending to their duties at the Government Health Facilities.

Read more…

Firecrackers

Burst only ‘green fireworks’, for 2 hrs only on Diwali

The Division Bench of Dr S. Muralidhar, CJ and B.P. Routray, J. disposed of a writ petition while noting with approval the directions issued by Special Relief Commissioner relating to bursting of green fireworks for a limited period on Diwali day.

Read more…


Patna High Court


Breach of Trust and Misappropriation of Client’s money; HC denies bail to Advocate booked for enchasing compensation granted to his client by Railway Claims Tribunal

Rajeev Ranjan Prasad, J., denied bail to the advocate booked for allegedly misappropriating his client’s money and committing breach of trust being an attorney. The Bench stated,

“Despite repeated caution made to learned counsel for the appellant that the appellant being an Advocate must come out with a fair stand even at this stage, there is no change of stand.”

Read more…


Punjab and Haryana High Court


Child Marriage

Marriage with a minor is valid if no attempt is made to declare it invalid once the child turns major

The Division Bench of Ritu Bahri and Arun Monga, JJ., held that marriage with minor is valid if no attempt is made to declare the same invalid once the child turns 18.

Read more…

NDPS

Challan filled without FSL report is not a complete challan under NDPS Act; HC grants bail to the man in alleged possession of 1.6 kg ganja

Anupinder Singh Grewal, J., granted bail to the person accused of carrying 1.6 kg of ganja on the ground that the challan filled without FSL report would not be a complete challan.

Read more…


Rajasthan High Court


Encroachment

Raj HC issued directions to provide a pan-Rajasthan solution for persisting problem of encroachment on the land of public way, johar paitan, river bed etc.

A Division Bench of Vinit Kumar Mathur and Sangeet Lodha, JJ., disposed of the petition and issued directions to the respondents to remove encroachments made over the land in question.

Read more…


Sikkim High Court


Rape

Prosecution not able to establish beyond a reasonable doubt that the Appellant was the perpetrator of rape of the minor; acquits accused

The Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., allowed an appeal which was filed in order for the Court to determine as to whether the Appellant was the perpetrator of the offence of rape.

Read more…


Telangana High Court


Education Institution

Educational Institution: Is it an ‘establishment’ under Telangana Shops and Establishments Act?

The Division Bench of Satish Chandra Sharma, CJ and B. Vijaysen Reddy, J. decides whether an educational institution is covered within the meaning and definition ‘establishment’ under the Telangana Shops and Establishments Act, 1988.

Read more…

Influence of Alcohol

Know the 9 directions that Police Officers have to follow on finding vehicle being driven under influence of alcohol

Lakshman, J., while addressing a very pertinent issue expressed that,

Intention of the Legislature is to reduce the accidents and deaths that may be caused due to driving of vehicles in intoxicated condition, and it is not the intention to harass the owners of the vehicles by detaining the vehicles for days together.

Read more…


Uttaranchal High Court


Judicial Order

Judicial order necessarily has to be a reasoned one; Court finds reasoning by the Single Judge cryptic, remands the case back

The Division Bench of Raghvendra Singh Chauhan, CJ. and Narayan Singh Dhanik, J. decided on a petition which was filed challenging the validity of the order passed by the Single Judge whereby the respondent-writ petitioner, M/s Kohli Enterprises, was not only blacklisted, but even its registration was cancelled by the appellants.

Read more…

Arbitration Agreement

Relief under S. 9 of the Arbitration and Conciliation Act: Can it be granted to a party who is not party to arbitration agreement?

Emphasizing on the purpose and object of Section 9 of the Arbitration and Conciliation Act, 1996, Division bench of Raghvendra Singh Chauhan, CJ and Alok Kumar Verma, J., held that,

A person not a party to an arbitration agreement cannot invoke jurisdiction of the Court for interim relief under Section 9 of the Act, 1996.

Read more…

Arrears

State directed to release the arrears of the deceased-in harness in the favour of the family along with interest

The Division Bench of Raghvendra Singh Chauhan, CJ. and Sanjaya Kumar Mishra, J., allowed a petition which was filed by the widowed wife of Mr. Babu Ram, who had died-in harness on 26-08-2020 for the release of gratuity, leave encashment, arrears of ACPs’, and the arrears of the 7th Pay Commission of her late husband in her favour.

Read more…