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., Criminal Revision No. 763 of 2018, 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]

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

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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Case BriefsHigh Courts

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

Instant petition was directed against the decision of Family Court wherein it dismissed the application filed by the petitioner husband under Section 126 CrPC stating that based on the documents submitted by the respondent wife, she is presumably staying in Delhi, and therefore, the jurisdiction for purposes of maintenance under Section 125 CrPC would be Delhi. The petitioner stated that the matrimonial home was in fact in Faridabad.

Analysis, Law and Decision

Section 125 of the Code of Criminal Procedure pertains to the Maintenance that is to be given by a man to their wife, parents and children in order for them to sustain themselves.

It is a tool for social justice enacted to ensure that women and children are protected from a life of potential vagrancy and destitution.

The Supreme Court has consistently upheld that the conceptualisation 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.

The statutory provision entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities.

In the Supreme Court decision of Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, Supreme Court examined the underlying purpose as well as the social context of Section 125 of the Code.

Further, while deciding the matter of maintenance, it is important for the Court to bear in mind that technicalities such as jurisdiction should not impede the object that is sought to be achieved by a provision such as Section 125 CrPC which is essentially social welfare legislation.

The Bench stated that the Principal Judge carefully analysed the material on record before coming to the conclusion that territorial jurisdiction of the Court can be conferred in the case which has been instituted by the respondent/wife.

Adding to the above, Court noted that as per Section 126 CrPC, proceedings under Section 125 CrPC may be instituted against any person in any district where he is, or where he or his wife resides, or where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

Lastly, while concluding the matter, High Court expressed that as per the impugned Order herein, the fact that the parents of the Respondent/wife have two houses, i.e. one in Faridabad and the other in Vasant Kunj, Delhi, can only mean that territorial jurisdiction can be conferred in both Faridabad as well as Delhi.

Hence, the Court opined that the decision of Principal Judge was well-reasoned and there was no legal infirmity in the same. [Shikhar Goel v. Robina Kaushik, 2021 SCC OnLine Del 4989, decided on 16-11-2021]


Advocates before the Court:

For the Petitioner: Roma Bhagat, Advocate along with petitioner-in person

For the Respondent: None

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., reversed the order of the Family Court which had granted maintenance to the respondent under Section 125 CrPC.

Instant petition was filed for setting aside the Family Courts order wherein the trial court granted maintenance of Rs 4,200 per month to be paid by the petitioner to the respondent.

Analysis, Law and Decision

Section 125 CrPC is a tool for social justice enacted to ensure that women and children are protected from a life of potential vagrancy and destitution.

High Court observed that the Supreme Court has 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.

Statutory provision entailed that if the husband had sufficient means, he was obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities.

In the decision of Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, Supreme Court examined the underlying purpose as well as the social context of Section 125 of the Code.

Therefore, while adjudicating matters pertaining to the stated statutory provision, it must be borne in mind that the same was enumerated to further the cause of social justice and that the interpretation of the said Section should be done in a manner to prevent a situation wherein the wife or children are inadvertently nudged into vagrancy and destitution.

“…a speedy remedy for the supply of food, clothing and shelter to the deserted wife.”

In the instant matter, it was noted that the petitioner and respondent were already married to other individuals when their alleged marriage took place.

A decree of divorce can only be granted by the Courts and divorce by panchayat is not valid in the eyes of the law. Hence, it can be deduced that at the time of alleged marriage, petitioner and respondent were already married to other people and their spouses were alive.

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.

Concluding the matter, High Court expressed that under Section 125 CrPC does not envisage a situation wherein both the parties in the alleged marriage have living spouses, this Court opined that the respondent herein could not seek maintenance from the petitioner under the said provision.

Bench found it unfortunate that many women, especially those belonging to the poorer strata of society, were routinely exploited in this manner and that legal loopholes allow the offending parties to slip away unscathed.

“…while the Court sympathises with the position of the Respondent, it is constrained to deny her maintenance as per the law of the land which stands as of today.”

In view of the above, Court allowed the present petition. [Sunder Lal Saini v. Meena Saini, 2021 SCC OnLine Del 4930, decided on 9-11-2021]


Advocates before the Court:

For the Petitioner:

Ram Kishan Saini, Advocate

For the Respondent:

Upasana Nath, Advocate

Case BriefsHigh Courts

Delhi High Court: 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.

Instant petition was filed under Article 227 of the Constitution of India impugning the decision of Additional District Judge-I, whereby the application filed by the petition wife under Section 26 of the Protection of Women and Domestic Violence Act, 2005 was dismissed.

Petitioner wife had filed a suit under the Hindu Adoptions and Maintenance Act, 1956 as an indigent person, claiming maintenance before the Court. Family Court had granted maintenance @ Rs 10,000 per month. Petitioner wife stated that she was not paid the stated amount by her husband, hence she filed execution proceedings before the Family Court.

Later, a civil suit was filed by the respondent-husband against the petitioner wife seeking damages of Rs 20,00,000 along with an interest and for pendente lite and future interest in the account of malicious prosecution.

The suit was premised on the discharge of the respondent-husband in a criminal complaint lodged by the petitioner wife against the respondent-husband under Sections 498A and 406 of the Penal Code, 1860.

Further, the petitioner wife filed an application under Section 26 of the DV Act in the said civil suit seeking a direction to respondent-husband to pay the sum of Rs 10,000 as interim maintenance and R 1 lakh towards litigation expenses.

Though Trial Court dismissed the above application.

Analysis, Law and Decision

In Court’s opinion, petitioner wife would be entitled to invoke the provisions of Section 26 read with Section 20 of the Domestic Violence Act to seek monetary relief including maintenance, which would be in addition to the maintenance granted to her vide the Family Courts Order.

Supreme Court in its decision Rajnesh v. Neha, (2021) 2 SCC 324, observed in light of the question of overlapping jurisdictions for grant of maintenance that Section 20(1)(d) of the DV Act makes it clear that the maintenance granted under the DV Act would be in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (Cr.PC) and any other law for the time being in force. It was observed by the Supreme Court that the legislative mandate envisages grant of maintenance to wife under various statutes. There is no bar to seek maintenance both under the DV Act and Section 125 of the Cr.PC or the Hindu Marriage Act, 1955 or the Hindu Adoption and Maintenance Act, 1956.

Therefore, impugned order by the trial court was clearly erroneous inasmuch as it dismissed the application filed by the petitioner wife under Section 26 of the DV Act only on the basis that it has been filed towards execution of the maintenance already granted to the petitioner wife vide the order dated 28th March, 2018. The Trial Court has failed to appreciate that the aforesaid application was an independent remedy invoked by the petitioner wife under the provisions of the DV Act.

Hence, the impugned order was set aside. Matter was remanded back to the trial court. [Mamta Bhardwaj v. Vinod Kumar Bharadwaj, 2021 SCC OnLine Del 4841, decided on 29-10-2021]


Advocates before the Court:

For the Petitioner:

L.K. Singh with Saira Parveen, Advocates

For the Respondents:

Sanjeev Salhan, Advocate

Case BriefsHigh Courts

Delhi High Court: Expressing that husband must also carry the financial burden of making certain that his children are capable of attaining a position in a society wherein they can sufficiently maintain themselves, Subramonium Prasad, J., stated that,

In households wherein the women are working and are earning sufficiently to maintain themselves, it does not automatically mean that the husband is absolved of his responsibility to provide sustenance for his children. 

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

Instant application under Section 482 Criminal Procedure Code had been filed seeking the review of this Court’s order, wherein this Court had granted a sum of Rs 15,000 as interim maintenance to the revisionist/Petitioner 1 till Petitioner 2 completes his graduation or starts earning, whichever is earlier.

Analysis, Law and Decision

High Court expressed that the embargo contained in Section 362 CrPC, which prohibits the Court from altering or reviewing its judgment or final order disposing of the case was inapplicable to the maintenance order passed under Section 125 CrPC.

In the Supreme Court decision of Sanjeev Kapoor v. Chandana Kapoor, (2020) 13 SCC 172, the Supreme Court had observed that the legislature was aware that there were situations where altering or reviewing of criminal court judgment were contemplates in the Code itself or any other law for the time being in force.

Noting that Section 125 CrPC was social justice legislation, the Supreme Court held that a closer look at Section 125 CrPC itself indicated that the Court after passing judgment or final order in the proceedings under Section 125 CrPC did not become functus officio, and that the Section itself contains express provisions wherein an Order passed under Section 125 CrPC could be cancelled or altered, and that this was noticeable from Sections 125(1), 125(5) and 127 CrPC. Therefore, the legislative scheme as delineated by Sections 125 and 127 CrPC clearly enumerates circumstances and incidents provided in the Code where the Court passing a judgement or final order disposing of the case can alter or review the same. The embargo as contained in Section 362 is, thus, relaxed in proceedings under Section 125 CrPC.

Bench stated that Supreme Court has 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.

The dominant purpose of Section 125 of the Code was discussed in the Supreme Court decision of Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479.

High Court added to its analysis, that it is true that in the majority of households, women are unable to work due to sociocultural as well as structural impediments, and, thus, cannot financially support themselves. However, in households wherein the women are working and are earning sufficiently to maintain themselves, it does not automatically mean that the husband is absolved of his responsibility to provide sustenance for his children.

Father has an equal duty to provide for his children and there cannot be a situation wherein it is only the mother who has to bear the burden of expenses for raising and educating the children.

 Court cannot shut its eyes to the reality that simply attaining majority does not translate into the understanding that the major son is earning sufficiently.

To elaborate more, High Court added that,

At the age of 18, it can be safely assumed that the son is either graduating from 12th standard or is in his first year of college. More often than not, it does not place him in a position wherein he can earn to sustain or maintain himself. It further places the entire burden on the mother to bear the expenses of educating the children without any contribution from the father, and this Court cannot countenance such a situation.

It was also noted that the Supreme Court and High Courts in a slew of judgments upheld the maintenance allowance granted to a son post attaining majority on the ground that the father has a duty to finance basic education of the child and that the child cannot be deprived of his right to be educated due to his parents getting divorced.

Present Matter

In the present matter, the challenge to the maintenance granted for the education of the major son has been mounted by the respondent on the ground that it is contrary to the relevant statutory provision i.e. Section 125, and that it diametrically opposes the interpretation of Section 125 as has been laid down in Amarendra Kumar Paul v. Maya Paul, (2009) 8 SCC 359.

High Court noted that statutes or provisions, which are particularly for the furtherance of social welfare, must be construed liberally.

In Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 589, the Supreme Court had observed that the best textual interpretation of legislation or a statutory provision would be one that would match the contextual. Therefore, in this context, social welfare legislation cannot and should not be interpreted in a narrow manner because doing so will defeat the purpose for the enactment of such legislation and will become counterproductive.

Context of Section 125 CrPC is to ensure that the wife and the children of the husband are not left in a state of destitution after the divorce.

“Mother cannot be burdened with the entire expenditure on the education of her son just because he has completed 18 years of age, and the father cannot be absolved of all responsibilities to meet the education expenses of his son because the son may have attained the age of majority, but may not be financially independent and could be incapable of sustaining himself.”

 In view of the above, the application was dismissed. [Urvashi Aggarwal v. Inderpaul Aggarwal, 2021 SCC OnLine Del 4641, decided on 5-10-2021]


Advocates before the Court:

 For Petitioner: Praveen Suri and Komal Chhibber, Advocates

For Respondent: Digvijay Ray and Aman Yadav, Advocates

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J. remarked “There is neither any illegality nor the maintenance beyond the petitioner’s means; as such, there are no merits in the present petition.”

The facts of the case are such that the petitioner persuaded and married the respondent when she was a widow with three children. In the beginning, her marital life was good, but later on, his attitude changed, which led to discord, and he even withdrew his financial support. He would spend money on liquor instead of giving it to her and her children. Furthermore, he would abuse, assault, and beat the petitioner on trivial matters. Given such behavior and the absence of financial support, it became impossible for her to reside with him in his house. Consequently, she was forced to shift to the house of her first husband, where Subhash Chand neither paid visit nor gave any money. The petitioner’s wife filed an application under Section 125 Criminal Procedure Code i.e. CrPC, seeking monthly maintenance from the petitioner-husband which was thereby allowed. The petitioner stated that she is still drawing benefits, which is being given to widows, and, as such, her drawing such benefits would show that she never solemnized marriage with him. The husband challenged the said order by filing criminal revision before Sessions Judge, Bilaspur which was dismissed too. Challenging both the orders, the husband filed the instant petition under Section 482 of CrPC.

The Court relied on judgment Ramesh Chander Kaushal v. Veena Kaushal, AIR 1978 SC 1807, wherein it was observed regarding Section 125 CrPC as under:

 “[9]. this provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15 (3) reinforced by Article 39. We have no doubt that section of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to the selective in picking out that interpretation out of two alternatives which advances the cause – the cause of the derelicts.”

The Court observed that S. 125 (1) (a) of CrPC provides grant of maintenance to the wife, unable to maintain herself. Proviso to S. 125 CrPC empowers the Magistrate to order monthly allowance for the interim maintenance and also the expenses of such proceeding during its pendency. The foundation of the measures of social Justice enacted by the Legislature lay beneath the sweep of Article 15 (3) of the Constitution of India. It fulfills the concept of a welfare State in a vibrant democracy by safeguarding wives and children and preventing them from the modes of vagrancy and its consequences. Given above, it would be appropriate for the Courts to direct the person against whom an application is made under S. 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application.

The Court further observed that the contents of the wife’s application, which is supported by her affidavit, prima-facie make out just grounds for the wife to live separately and that she could not sustain financially, making out a case for interim maintenance.

The Court thus held “There is neither any illegality nor the maintenance beyond the petitioner’s means; as such, there are no merits in the present petition. Furthermore, if the Court concludes that Krishani Devi played fraud upon Subhash Chand, it would undoubtedly have consequences. Given above, the impugned orders are well reasoned and call for no interference.”

[Subhash Chand v. Krishani Devi, 2021 SCC OnLine HP 7309, decided on 20-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Petitioner- Adv. T S Chauhan

For Respondent- Adv. Seema Azad

Case BriefsHigh Courts

Andhra Pradesh High Court: While explaining the law on whether father is obligated to provide maintenance to his daughter irrespective of the fact that she has turned major, Joymalya Bagchi, J., refused to interfere with the decision of lower court.

Issue:

The father challenged the lower court’s decision for recovery of maintenance to the tune of Rs 22,000 for a period of 11 months on the ground that 2nd respondent, his daughter, had attained majority.

Court took note of the fact that the maintenance order passed in favour of 2nd respondent-daughter was not modified under Section 127 CrPC and she was unmarried and had no source of income.

It was argued that maintenance order would not survive as the daughter had attained the age of majority and this Court in the exercise of its inherent jurisdiction ought to set aside the order directing realization of dues payable to 2nd respondent after her attaining majority.

Crux:

Whether Magistrate was justified to order recovery of maintenance due to 2nd respondent, who was unmarried and pursuing her education, and who had had attained majority.

Supreme Court in the decision of Abhilasha v. Parkash,2020 SCC OnLine SC 736, observed that though a Family Court is entitled to grant maintenance to a major in-married girl by combining the liabilities under Section 125 CrPC and Section 20(3) of the Act of 1956, a Magistrate exercising powers under Section 125 CrPC was not authorized to do so.

Bench stated that Magistrate is entitled to entertain an application under the Protection of Women from Domestic Violence Act, 2005 and grant monetary relief to meet expenses incurred and losses suffered by an aggrieved person under Section 20 of the DV Act, in the event of domestic violence by way of economic abuse is established.

Conjoint reading of Section 2(a) and 2(f) of the DV Act would show that a daughter, who is or was living with her father in a domestic relationship by way of consanguinity, is entitled to seek reliefs including monetary relief on her own right as an aggrieved person under Section 2(a) of the DV Act irrespective of the fact whether she is a major or minor.

In the present matter, the relation between the parties as father and daughter was admitted and they both had stayed together in a shared household.

Hence, in Court’s opinion, the decision of the Magistrate directing recovery of maintenance was not illegal on the mere ground that she turned major.

Further, the Court clarified that in Abhilasha v. Parkash,2020 SCC OnLine SC 736, the power of the magistrate to grant monetary relief under the DV Act did not fall for consideration and further the Bench added citing the Supreme Court’s decision in Rajput Ruda Meha and v. State of Gujarat, that it is settled law that a judgment is not an authority for a proposition which was neither raised nor argued.

Therefore, Court concluded by denying to interfere with the impugned order. [Menti Trinadha Venkata Ramana v. Menti Lakshmi, 2021 SCC OnLine AP 2860, decided on 9-09-2021]


Advocates before the Court:

For the Petitioner: T.V. Sridevi

For the Respondent 3: Additional Public Prosecutor