High Court Round UpLegal RoundUp

TOP STORY OF THE MONTH 


Marital Rape

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

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

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Allahabad High Court


Employees State Insurance Act

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

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

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Abetment of Suicide

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

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

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Loudspeaker

Use of loudspeaker in mosque is not a fundamental right

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

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Maintenance

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

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

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

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

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Taj Mahal

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

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

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Divorce

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

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

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Sexual Assault

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

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

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Andhra Pradesh High Court


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

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

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Bombay High Court


News Items

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

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

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

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Dying Declaration

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

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

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

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Medical Test

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

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

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Section 377 Penal Code, 1860

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

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

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Cruelty

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

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

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Maintenance to in-laws

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

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

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Bonafide Passenger

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

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

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Calcutta High Court


Spot Memos

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

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

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Ocular Testimony

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

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

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Vital Facts

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

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

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Bail

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

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

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Income Tax

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

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

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Conviction

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

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

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Chhattisgarh High Court


Irretrievable breakdown of Marriage

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

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

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Excise Act

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

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

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Negative Equality

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

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

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Appellate Tribunal

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

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

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Cruelty

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

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

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Delhi High Court


Shared Household

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

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

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Irretrievable Breakdown of Marriage

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

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

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Judicial Functions

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

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

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Negotiable Instruments Act

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

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

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Trademark Infringement

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

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

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

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

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

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

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Section 304B Penal Code, 1860

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

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

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Marital Rape

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

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

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Extradition

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

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

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

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Post-Decisional Hearing

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

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

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Ration Delivery Scheme

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

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

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Society

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

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

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Condonation of Delay

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

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

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Landlord-Tenant

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

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

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Custom Duty

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

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

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Maintenance

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

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

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Gauhati High Court


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

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

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Gujarat High Court


Gratuity

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

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

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Convict

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

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

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Motor Accident Claims Tribunal

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

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

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Himachal Pradesh High Court


Section 125 CrPC

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

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

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Jammu and Kashmir and Ladakh High Court


Freedom of Speech and Expression

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

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

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

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Bail

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

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

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Karnataka High Court


Lok Adalat

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

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

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Arbitration

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

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

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Maintenance

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

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

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Juvenile Justice Act

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

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

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Work From Home

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

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

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Industrial Disputes Act

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

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

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Indian Nursing Council

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

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

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Negotiable Instruments Act

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

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

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POCSO

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

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

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GST Act

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

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

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Kerala High Court


Suicide

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

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

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Maternity Benefits

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

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

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Floods

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

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

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Educational Loan

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

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

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Right of Press

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

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

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Promise to Marry

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

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

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Political Rallies

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

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

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Madras High Court


Legal Entity

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

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

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Right to Worship

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

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

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Negotiable Instruments Act

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

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

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Public Employments

Can appointments be claimed as a matter of absolute right?

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

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Madhya Pradesh High Court


Retiral Dues

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

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

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Section 311 CrPC

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

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

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Civil Suit

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

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

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Bail

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

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

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Police Protection

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

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

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Termination of Pregnancy

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

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

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Principles of Natural Justice

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

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

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Meghalaya High Court


Piling up Garbage

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

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

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Orissa High Court


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

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

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Section 37 IT Act

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

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

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Food License

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

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

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POCSO

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

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

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Industrial Disputes Act

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

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

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Contract

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

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

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Patna High Court


Negotiable Instruments Act

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

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

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Punjab and Haryana High Court


Protection of Life and Liberty

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

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

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Abetment of Suicide

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

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

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Maintenance Tribunal

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

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

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Mental Cruelty

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

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

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Sedition

Can an act of dissent be labeled as sedition?

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

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Rajasthan High Court


Remedy

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

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

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Sikkim High Court


Penetrative Sexual Assault

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

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

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Telangana High Court


Police Negligence

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

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

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Contempt of Court

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

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

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Uttaranchal High Court


POCSO

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

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

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Juvenile Justice Act

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

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

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Intra-Court Appeal

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

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

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Bombay High Court
Case BriefsHigh Courts

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

An application was filed by the applicant who was facing trial for offences under Sections 377, 384 and 420 of the Penal Code, 1860 and Sections 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The complainant alleged that, they found that some money from the cupboard was missing and upon inquiry, they came to know that the victim used to play online OLA PARTY game and he had paid the money to the applicant to recharge the said gaming App. The victim also told his parents that the applicant had sexually abused him.

As per the statement of the victim as well as the FIR report prima facie indicated that the applicant had touched the private parts of the victim and had kissed his lips.

Hence, in Court’s opinion, the above would not prima facie constitute offence under Section 377 of the IPC.

The offence under Sections 8 and 12 are punishable by maximum imprisonment upto 5 years. The applicant was in custody for almost one year and the charge has not yet been framed and trial not likely to commence in the immediate future.

Therefore, in view of the above applicant was granted bail on the following terms and conditions:

  • Furnish P.R. Bonds in the sum of Rs 30,000 with one or two solvent sureties in the like amount.
  • Applicant shall report once in two months on every 1st Monday
  • Applicant shall not interfere with the complainant and the other witnesses and shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case;
  • Applicant shall keep the trial Court informed of his current address and mobile contact number and/or change of residence or mobile details, if any, from time to time.
  • Applicants shall co-operate with the conduct of the trial and attend the trial Court on all dates, unless exempted.

In view of the above terms, bail application stands disposed of. [Prem Rajendra Prasad Dubey v. State of Maharashtra, Bail Application No. 3731 of 2021, decided on 5-5-2022]


Advocates before the Court:

Ms. Aneeta Vasani for the Applicant.

Ms. Rutuja Ambekar, APP for the State.

Mr. Praveen Kamble i/b. Mr. Pramod Kumbhar for the intervenor.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bambhani, JJ., while addressing a very unfortunate incident, involving sexual offences to the extent of rape and carnal intercourse with a child, expressed that,

“…to sexually violate an innocent child is in any case an abhorrent act; but, when that happens within the filial father-daughter relationship, of which purity of affection is a sine-qua-non, the act descends to a different depth of depravity.”

Instant two appeals arose from a judgment and a sentencing order.

The present matter concerned sexual offences against a ‘minor’, the names of the prosecutrix, of one of the convicts and some key witnesses were anonymized in keeping with the verdict of the Supreme Court in Nipun Saxena v. Union of India, (2019) 13 SCC 715, and Section 228 (A) of the Penal Code, 1860 and Section 327 (2) of the Criminal Procedure Code, 1973.

Appellants impugned judgment whereby they were convicted by the trial court for offences under Sections 376(2)(g) and 377 read with Section 34 IPC. They also challenged the sentencing order.

Background of the Matter

Prosecutrix had alleged that her father (A1) and his friend (A2) committed upon her offences as defined under Sections 376(2)(g) and 377 IPC.

Prosecution case before the trial court was that the prosecutrix used to ordinarily stay in the care and custody of her bua, who subsequently appeared as PW-9 at the trial and that on the commencement of the prosecutrix’s summer holidays in 2012, her father took her from the care and custody of her bua to the house of Manorama Begum where A1 and A2 inter alia committed gang-rape and sodomy upon the prosecutrix.

Prosecutrix revealed the said incident to her teacher who happened to be the daughter of the prosecutrix’s bua and appeared as PW-1 at the trial. The prosecutrix also informed the counsellor/coordinator working in the said NGO about the offences committed upon her.

Upon registration of the FIR under Sections 376(g) and 377 IPC, the prosecutrix was taken to the All India Institute of Medical Sciences (AIIMS) New Delhi for medical examination. Subsequently, A1 and A2 were arrested.

During the course of the trial, the prosecution cited 17 witnesses, while the appellants led no defence evidence.

Analysis, Law and Decision

Statement of Prosecutrix | Section 164 CrPC

High Court firstly noted that, the prosecutrix’s version in her statement under Section 164 CrPC, as also in her examination-in-chief and cross-examination in court, remained consistent and unwavering.

In Court’s opinion, the examination-in-chief of the Investigating Officer, PW-15 elicited nothing that materially impacted the evidence that came on record either for or against the appellants.

Bench further expressed that,

Where the evidence of the prosecutrix inspires confidence, it must be relied upon, without seeking corroboration of her statement in material particulars.

Medical Evidence

From the MLC it was gathered that the hymen of the prosecutrix who was only about 10 years of age, was found torn, there was redness around her vaginal introitus (opening of the vagina) and there was redness in the vaginal area.

For the sake of completeness, the two appellants were put through a medical examination at AIIMS, and it was opined that there was nothing to suggest that either of them was incapable of performing sexual intercourse under normal circumstances, nor was any other abnormality noticed that would in any manner preclude the commission of the offence by either of the appellants.

In view of the above Court reached the following conclusion:

  • The prosecutrix’s statement recorded under Section 164 CrPC and her deposition in court, in which she says that appellant A2 committed upon her the carnal acts as described in her own wording, are cogent, credible and trustworthy. Furthermore, the prosecutrix’s statement, as recorded under Section 164 CrPC as also in her deposition in court, in relation to what her father appellant A1 did to her is also cogent, credible and trustworthy.
  • Bench stated that they are not depending solely on the prosecutrix’s statement under Section 164 CrPC or on her deposition in Court but are also supported in its inferences by the medical evidence that came on record, by way of the MLC of the prosecutrix. This made the allegations against the appellant all the more plausible, absent any other explanation and in fact, no explanation or evidence had been brought forth by the defence in the said behalf.

Hence, Bench found nothing erroneous or amiss in the conclusions arrived at by the trial court, that both appellants were guilty of the acts alleged against them.

Question to be addressed:

On the basis of evidence on record, what offences are made out and stand proved against the appellants?

High Court stated that the appellants were charged with offences punishable under Sections 376(2)(g) and 377 read with Section 34 IPC. It is important to note here that the offences are alleged to have been committed on various dates on or before 22.07.2012, by reason of which they would be covered by the IPC as it existed prior to its amendment by the Criminal Law (Amendment) Act, 2013 (Act 13 of 2013) with retrospective effect from 03.02.2013. Accordingly, Section 376(2)(g) as it existed prior to amendment by Act 13 of 2013 needs to be considered in light of the definition of “rape” as contained in the unamended Section 375 of the IPC.

Court observed that the expanded definition of rape as contained in amended Section 375 with retrospective effect from 3-3-2013, did not exist on the statute book at the time of the commission of the offence by the appellants i.e., on or before 22-7-2012 and there was neither any allegation nor had anything come forth in evidence to show that the appellants committed any penetrative sexual intercourse with the prosecutrix.

Therefore, in Court’s view, the finding of the trial court that the appellants were guilty of the offence under Section 376(2)(g) was untenable and accordingly set aside.

Moving further, the Court stated that while amending Sections 375 and 376 (2) (g) by the amending Act 13 of 2013, the Legislature had not made any amendment to Section 377 IPC which continues to read as under:

“377. Unnatural offences. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

(emphasis supplied)

What does the phrase ‘carnal intercourse against the order of nature’ appearing in Section 377 IPC mean?

Bench elaborated stating that Section 377 IPC referred not to sexual intercourse but to carnal intercourse, whereby the intention of the legislature was to engraft a different offence in Section 377 IPC vis-à-vis Section 375 IPC, which is why a different phrase was employed.

High Court opined that ‘carnal intercourse against the order of nature’ appearing in Section 377 must have the following ingredients:

  1. it must have to do with flesh and sensuality, namely it must be carnal;
  2. there must be intercourse between individuals, without restricting it only to human-to-human intercourse;
  3. it must involve penetration other than penile-vaginal penetration, since by the very nature, intent and purpose of Section 377, it must refer to an unnatural act, such as ‘penile-anal penetration’, ‘digital penetration’ or ‘object penetration’.

“…we however completely agree that attempting to define the phrase ‘carnal intercourse against the order of nature’ with exactitude is neither possible, and perhaps not even desirable.”

 Bench held that,

“…any physical act answering to all the above-stated ingredients committed upon a minor is per-se ‘carnal intercourse against the order of nature.”

 What did the prosecutrix state in her testimony?

The Bench noted that the prosecutrix’s testimony was clear, cogent and unwavering insofar as it concerns the allegation against appellant A2, that he committed digital penetration of the prosecutrix’s anus.

In her statement under Section 164 CrPC and in her deposition in court, the prosecutrix stated that appellant A2 would gag her mouth with cloth, bind her limbs and then do ‘batamizi’ with her.

On further elaboration, she said that appellant A2 would remove her clothes and then lie on top of her and touch her chest, vagina and anus. He would then put his penis against her vagina and anus and also insert his finger into her anus. She had deposed that the whole ordeal would last about half an hour.

The prosecutrix alleged that after appellant A2 was finished, her father appellant A1, would commit all the aforesaid acts upon her other than the act of digital penetration.

Therefore, in view of the above, no further analysis was required that offences under Section 377 read with Section 34 IPC were made out against the appellant A2.

In Court’s opinion, the actions of the father were covered under Section 34 IPC, namely the acts done by him in furtherance of a common intention to commit the offence and would make him liable for all acts committed by appellant A2 in the same manner as if the acts were done by appellant A1 himself.

Hence the trial court’s conclusion was correct except the conclusion with regard to the offence under Section 376(2)(g) IPC was flawed.

In the present matter, the offending acts went beyond the physical element of sexual assault but would have severely damaged the mind and psyche of the victim which trauma may linger for very long.

Without at all appearing to be Biblical, crime in society is one thing; but crime within the closest confines of the family, adds to it the element of sin.

 In view of the above discussion and modification to the judgment and conviction and sentencing order, the appeal were dismissed. [A v. State, 2021 SCC OnLine Del 5396, decided on 20-12-2021]


Advocates before the Court:

For the Appellant: Mr. Chinmoy Pradeep Sharma, Senior Advocate with Ms. Rakhi Dubey and Mr. Himanshu Gera, Advocates.

For the Respondent: Mr. Ashish Dutta, APP for the State.

Case BriefsHigh Courts

Allahabad High Court: 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. 

Lower Court’s decision whereby the appellant was convicted and sentenced under Sections 377, 506 of Penal Code, 1860 and under Section 6 of the POCSO Act was challenged.

Prosecution’s Case

Complainant lodged an FIR against the appellant stating therein that the appellant came to complainant’s house and took his son aged about 10 years in a temple and gave Rs 20 to the complainant’s son and said to suck his penis.

Further, the appellant put his penis into the mouth of the victim and thereafter, the victim came to the house having that Rs 20. On being asked about the said money, the victim told the entire incident.

Analysis, Law and Decision

It was noted that the informant and victim supported the prosecution story, and the evidence of prosecution witnesses were cogent, trustworthy, credible and probable, hence finding with regard to conviction was confirmed.

Whether offence under Section 5/6 POCSO Act or Section 9/10 POCSO Act was made out against the appellant?

Proved facts of the case were that the appellant had put his penis into the mouth of the victim aged about 10 years and discharged semen therein.  

Bench stated that the offence committed by the appellant would neither fall under Section 5/6 of the POCSO Act nor under Section 9(m) of the POCSO Act because there was penetrative sexual assault in the present matter as appellant had put his penis into the mouth of the victim.

The above-said act comes under the category of penetrative sexual assault punishable under Section 4 of the POCSO Act.

Therefore, High Court convicted the appellant under Section 4 of the POCSO in place of Section 6 of the POCSO Act.

In view of the above conclusion, the appeal was partly allowed. [Sonu Kushwaha v. State of U.P., 2021 SCC OnLine All 810, decided on 18-11-2021]


Advocates before the Court:

For the appellant: Anil Kumar Verma, Noor Muhammad, Yogesh Kumar Srivastava

For the Respondent: GA

Case BriefsHigh Courts

Chhattisgarh High Court: N K Chandravanshi, J. partly allowed the revision petition by discharging the applicant of charge under Section 376 Penal Code, 1860 and upheld the charges framed under Sections 377 and 498/34 Penal Code, 1860.

The instant criminal revision was preferred by the applicants against the order dated 22-1-2021 passed by Addl. Sessions Judge, Bemetara, Distt. Bemetara by which charges under Sections 498-A, 34, 376 and 377 of the Penal Code, 1860 have been framed against the applicant 1 and charge under Section 498-A of the IPC has been framed against applicants 2 and 3.

The main accusations are that the applicants started harassing complainant on demand of dowry and used to abuse her and commit marpeet with her (battery). The applicant 1/husband also had made unnatural physical relation with her on many occasions by inserting his fingers and radish in her vagina, despite her protest.

Counsel for the applicant submitted that the complainant and the applicant 1 are legally wedded wife and husband, and, in India, marital rape is not recognized and the same is not an offence in view of Exception II of Section 375 of the IPC, therefore, none of the ingredients to constitute the offence punishable under Sections 376 and 377 of the IPC are spelt out against applicant 1.  It was further submitted that carnal intercourse against the order of nature with any man; woman or animal voluntarily is necessary ingredient of Section 377 of the IPC which is not present in this case. Therefore, the order of framing of charges against the applicant 1/ husband under Sections 376, 377 and 498 A of the IPC is illegal and erroneous and not sustainable.

The Court observed that Exception II of Section 375 IPC makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape. In the present case, complainant is legally wedded wife of applicant 1, therefore, sexual intercourse or any sexual act with her by the applicant 1/husband would not constitute an offence of rape, even if it was by force or against her wish. Therefore, charge under Section 376 of the IPC framed against the applicant 1/husband is erroneous and illegal.

The Court observed that in regard to charge framed under Section 498-A of the IPC, the written report and the statements of the complainant show that she was subjected to cruelty by all the applicants by abusing and committing marpeet on demand of dowry, money and other articles from her parents. Therefore no infirmity in framing charges was found under Section 498-A/34 of the IPC against the applicants.

While dealing with charge framed under under Section 377 of the IPC the Court relied on judgment Momina Begum v. Union of India dated 4-3-2013 in Criminal Petition No. 98/2012 wherein it was held

“18. As a matter of fact penetration of any object by the offender into the sex organ with an intention to derive sexual pleasure is sufficient to constitute the sexual connection against the order of nature necessary to constitute the offence under Section 377 of the I.P.C.

…Use of sex organ by the offender is essential to commit an unnatural offence against the nature, in terms of Section 377 of the I.P.C. where dominant intention of the offender is to derive unnatural sexual satisfaction. If the offender with intention to derive sexual satisfaction repeatedly inserts any object in the sex organ of the victim and consequently derives sexual pleasure, such act would constitute as a carnal intercourse against the order of nature. Therefore, if dominant intention of the offender is to derive sexual satisfaction by unnatural way, such act of the offender would attract the ingredient of offence under Section 377 of the I.P.C.”

The Court further relied on Nimeshbhai Bharatbhai Desai v.  State of Gujarat 2018 SCC Online Guj 732 wherein it was held that “a wife can initiate proceedings against her husband for unnatural sex under Section 377 of the I.P.C. Section 377 of the I.P.C. does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under Section 377 of the I.P.C.”

The Court observed that charge framed under Section 377 of the IPC cannot be said to be erroneous at the stage of framing of charge, especially, in terms of Section 377 of the IPC where dominant intention of the offender is to derive unnatural sexual satisfaction by repeatedly inserting any object in the sex organ of the victim and consequently deriving sexual pleasure, such act would constitute as carnal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the IPC.

The Court thus held “the instant revision is partly allowed. The applicant No. 1 is discharged from the charge framed against him under Section 376 of the I.P.C. This Court finds that trial Court has not committed any illegality in framing the charge under Section 377 of the I.P.C. against the applicant No. 1 and under Section 498-A/34 of the I.P.C. against all the applicants.”

[Dilip Pandey v. State of Chhattisgarh, CR.R. No. 177 of 2021, decided on 23-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Applicant: Mr. Y.C. Sharma and Mr. Sachin Nidhi

For respondent: Mr. Devesh Chandra Verma

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., in regard to quashing of FIRs expressed that:

“High Court cannot mechanically quash FIRs for non-compoundable offences by exercising powers under Section 482 CrPC just because parties have decided to bury their hatchets.”

The instant petition was filed for quashing of an FIR for offences under Section 377 of Penal Code, 1860 read with Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act).

Respondent 2/Complainant stated that after completion of his work when he reached home, he saw his 7 year old son crying, who told him that the accused who stayed in the same building had come and sodomosied him.

It was further stated that the underwear of the child was wet with blood. On completion of investigation, there was enough material to proceed against the petitioner for offences under Section 377 IPC and Section 4 POCSO Act.

The reason that has been stated for quashing of the FIR was due to the intervention of the elders of the society and friends. In view of the same, parties decided to put an amicable end to the disputes.

Analysis and Decision

Bench while analysis the facts and circumstances of the case, stressed that Section 377 IPC and Section 4 of the POCSO Act are non- compoundable offences and while exercising powers under Section 482 CrPC to quash criminal proceedings for non-compundable offences on the basis of compromise, the High Court should scan the entire facts to find out the thrust of allegations and the cruxof the settlement.

While stating the above position, Court referred to the decision of Supreme Court in State of Maharashtra v. Vikram Anantrai Doshi, (2014) 15 SCC 29.

Bench also referred to the following decisions of the Supreme Court:

The offence in the instant case was of grave nature.

POCSO Act was enacted only because sexual offences against children were not being adequately addressed by the existing laws and the purpose of the Act was to provide protection to children from sexual assault and sexual harassment and for safeguarding the interest and well being of children.

While noting the above stated objective of the POCSO Act, Bench stated that permitting such offences to be compromised and quashing FIRs would not secure the interest of justice.

Calling out the impact of such offences to be a serious one, Court also stated that, an offence under Section 377 IPC committed on a child of 7 years or an offence under Section 4 of the POCSO Act shows the mental depravity of the offender and cannot be said to be private in nature.

Hence, Court opined that the father of the victim cannot be permitted to settle the dispute and the Bench cannot lose sight of the fact that the accused was being prosecuted for an offence that shocks the value system of a society.

Deterrence to others committing similar offence is a must and they cannot get a signal that anything and everything can be compromised.

Therefore, Bench dismissed the petition in view of the above discussion. [Sunil Raikwar v. State, 2021 SCC OnLine Del 258,  decided on 29-01-2021]


Advocates for the parties:

Petitioner: Amit Gupta, Advocate

Respondents: Kusum Dhalla, APP for the State and Rahul Raheja, Advocate for R-2

Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while partly allowing the appeal modified the offence to fall under Section 354 of the Penal Code 1860 from Section 377 IPC.

The instant appeal was filed against the conviction and sentence imposed on the appellant.

Trial Court found the appellant not guilty for the offence under Section 376 of Penal Code, 1860 but found him to be guilty for the offence under Section 377 IPC.

Appellant filed the instant appeal against the trial court’s decision.

Prosecutions’ Case

Victim who has been stated to be partially deaf and completely dumb was aged 37 years at the time of occurrence and also unmarried.

While the victim was taking bath in the pump set, the accused went behind and hugged her with an intention to commit rape.

Analysis

Though the accused attempted to rape the victim girl, she escaped from such an attempt.

Considering the evidence of the Doctor [PW8] that there was no external injury, other than the injury noted in the shoulder of the victim and also considering the evidence of the Doctor [PW8] and the certificate issued by the Doctor, this Court opined that the said act of the appellant would fall under Section 354 IPC and not under Section 377 IPC.

Bench noted that no material on record was placed to show that the accused had committed an unnatural offence.

PW4 an innocent victim thwarted on the accused, the moment he hugged her from back and therefore, she did not suffer any injury on her private parts.

“Section 375 IPC: Rape

A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

First — Against her will.

Secondly — Without her consent.

Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly — With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly — With or without her consent, when she is under sixteen years of age.”

Section 377 IPC deals with the unnatural offence.

In accordance with the medical evidence, the victim girl suffered an abrasion on her shoulder in the scuffle to protect her from the accused, but no injury on her private parts was caused.

In view of the above, the question for consideration was whether the said act of the accused would amount to the commission of offence under Section 377 or 375 IPC or will it fall under Section 354 IPC?

Court held that the overt act attributed as against the accused does not fall under the ingredients for the offence under Sections 375 or 377 IPC. Whereas, the appellant attempted to outrage the modesty of the victim, who is partially deaf and dumb.

Section 354 IPC: Assault or criminal force to woman with intent to outrage her modesty

“Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

In view of the above position, Supreme Court’s decision in Aman Kumar v. State of Haryana, (2004) 4 SCC 379 was referred.

Supreme Court’s decision in Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), (2006) SCC 8 560 was referred in regard to the issue that in the absence of charge under any other section, whether the accused should be acquitted or convicted for outraging the modesty of a woman. In this decision of the Supreme Court, Section 222 of the CrPC was invoked, which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it.

In the present case, Court states that though the appellant was prosecuted for the offence under Section 376 IPC, he was convicted and sentenced for the offence under Section 377 IPC.

In view of the occurrence of the incident, the Court held that the said act of the appellant as discussed above would fall under Section 354 IPC.

Hence the appeal was partly allowed. [Vairamuthu v. State, Crl. A (MD) No. 357 of 2015, decided on 01-10-2020]

Case BriefsForeign Courts

Kenya of High Court, Nairobi: A Full Bench of Roselyne Aburili, E.C. Mwita and John M. Mativo, JJ. dismissed a petition regarding the removal of the ban on same-sex relations.

The petitioner had challenged the constitutionality of Sections 162 and 165 of the Penal Code, 1930 which prohibited unnatural offences in the form of carnal intercourse against the order of nature and indecent practices between males, whether in public or in private. The petitioners contended that the two provisions violated the right to privacy and dignity of the Kenyans guaranteed under the Constitution of Kenya as it made the Lesbians, Gay, Bisexuals, Transgender, Intersex and Queer (LGBTIQ) community in Kenya perpetually exposed to risk of arrest, prosecution, denial of liberty, intimidation and mistreatment. The impugned penal provisions were stated to be violative of Article 27 (equality and freedom from discrimination), Article 28 (human dignity), Article 29 (freedom and security of the person), Article 31 (privacy), Article 32 (freedom of conscience, religion, belief and opinion), Article 43 (highest standard of health) and Article 50 (the right to fair hearing).

The petitioner also argued that the petition neither concerns same-sex marriage, nor does it seek to legalize same-sex marriage; and, if successful, it will not have the effect of mandating or requiring Kenya to recognize same-sex marriage. He maintained that the petition only challenged the criminalization and severe punishment provided under the criminal law for the fundamental and inborn characterization of their sexual orientation.

The counsel for the petitioners argued that Section 162 of the Penal Code did not define the phrases ‘unnatural offences’, ‘against the order of nature’; and it was unclear whether the phrases meant sexual intercourse or include oral, anal, vaginal sex, or whether they include any other contact with the genital organ of another person. Regarding Section 165 of the Code, it was submitted that the phrases ‘indecency with another male person’ and ‘any act of gross indecency with another male person’ were unclear. The counsels placed relied on the cases of US, UK, Ireland, South Africa, and also on Indian cases Naz Foundation v. Govt. (NCT of Delhi), (2016) 15 SCC 619, decided by the Delhi High Court and Navtej Singh Johar v. Union of India, (2018) 1 SCC 791 decided by the Supreme Court of India, where the constitutionality of Section 377 of the Indian Penal Code, 1860 was under challenge. The said Section 377  was similar to the disputed Sections herein and was also a colonial-era law that criminalized homosexual acts as an unnatural offence. The counsel also stated that many other countries around the world had decriminalized homosexuality.

The Court opined that the phrase ‘carnal knowledge’ had been judicially defined in Gaolete v. State to mean “penetration through the anus that makes the intercourse ‘against the order of nature’ and therefore provides the other element of the offence.” It was further observed that ‘unnatural offence’ was defined in Law Dictionary; and ‘indecent act’ was defined under Section 2 of the Sexual Offences Act, 2006. Thus, the Court refused to strike down the impugned provisions as unconstitutional on the basis of ambiguity and vagueness, opining that the impugned phrases had been clearly defined in law dictionaries and in a catena of judicial pronouncements.

While dealing with impugned provisions’ consonance with Constitution, it was opined where there is a legitimate reason, then, the conduct or the law complained of cannot amount to discrimination. It was held that the impugned provisions apply equally to heterosexuals and was not targeted at a particular community (LGBTIQ herein).

The Court further held that petitioners had not produced any tangible evidence to support the alleged violation of the Constitution. It was opined that he who makes an allegation, has the onus to prove every element constituting his or her cause of action, and this includes sufficient facts to justify a finding that his rights have been violated.

The Court opined that the foreign judgments relied on in support of their case by the petitioners, were only of persuasive value and caution must be exercised while placing reliance on foreign jurisprudence in cases alleging infraction of Constitutional rights. The Court observed that decriminalizing homosexuality would pose a threat to the institution of marriage protected under Article 45 of the Constitution of Kenya, which provided that family was a natural and fundamental unit of society and a necessary basis for social order, and shall enjoy the recognition and protection of the State; and, that, “every adult had a right to marry a person of the opposite sex, based on the free consent of the parties.”  Hence, the contention that the petitioners do not seek recognition of same-sex marriages, did not guarantee the authenticity of the institution of marriage as adopted by the Kenyan society.

In view of the above, the Court upheld the constitutionality of the impugned penal provisions.[EG v. Attorney General, Petition No. 150 of 2016, decided on 24-05-2019]

Case BriefsForeign Courts

“Criminalising consensual same sex in private, between adults is not in the public interest. Such criminalization….disproportionally impacts on the lives and dignity of LGBT persons. It perpetuates stigma and shame against homosexuals and renders them recluse and outcasts…. Such penal provisions exceed the proper ambit and function of criminal law in that they penalise consensual same sex, between adults, in private, where there is no conceivable victim and complainant.”

Botswana High Court: In a landmark ruling which came as a big victory for LGBTQ rights in Africa, a Full Bench of M. Leburu, A.B. Tafa, J. Dube, JJ. decriminalized homosexuality and struck down provisions prohibiting consensual sexual intercourse between homosexuals, holding the same to be discriminatory and ultra-virus.

Applicant herein, was a university student and a homosexual, who questioned Sections 164(a), 164(c) and 165 of the Penal Code, 1964 as being discriminatory and ultra-virus as these sections prohibited him from enjoying and engaging in sexual intercourse with a man. Botswana’s Penal Code, 1964, drawn up under British rule, outlawed “carnal knowledge of any person against the order of nature”(Section 164), with those convicted facing up to seven years in prison; as well as “indecent practices between persons” in public or private (Section 167), punishable with up to two years in prison.

Applicant’s case was that the impugned provisions were unconstitutional and vague as they were not made for the peace, order and good governance and lacked clarity on the exact type of conduct that was being criminalized. He also contended that the impugned provisions violated his right and freedom to liberty, as they prohibited him from using his body from expressing sexual affection by the only means which was available to him as a homosexual. Applicant submitted that the impugned provisions perpetuated negative stigma against homosexuals and urged that the impugned sections should be struck down as unconstitutional and vague, particularly with respect to the meaning of “carnal knowledge” and “against the order of nature”.

Whereas the respondent’s case was that Sections 164 (a) and 164(c) of the Penal Code were not discriminatory as they were of equal application to all sexual preferences, and sexual orientation or being homosexual was not criminalized, rather it was certain sexual acts that were deemed against the order of nature were criminalized. The Attorney General’s contention was that the words used were clear and not vague and that they simply mean “anal penetration”, as was defined by the Court of Appeal in the case of Kanane v. State, [2003] (2) BLR 67 (CA). He submitted that applicant was free to engage in sexual activity as long as it was not sexual intercourse per anus; and this was a valid restriction as Section 15 of the Constitution of Botswana provided limitations on the enjoyment of fundamental rights.

Botswana High Court noted that same-sex activity was deemed morally unacceptable by the British and was hence, prohibited. Macaulay’s draft of Indian Penal Code, 1860 and particularly Section 377 IPC was copied in a large number of British territories, including Botswana. It was only after recommendations of the Wolfenden Committee Report, that the United Kingdom decriminalized same-sex sexual intercourse.

The Court observed that privacy is a cherished fundamental human right, and an important element of personal autonomy as it gave person space of being himself or herself without any judgment and allowed him to think freely without hindrance. It relied on Articles 1, 2 and 3 of the United Nations Declaration of Human Rights 1948 which protect the right to human dignity. It also referred Article 17 of the International Covenant on Civil and Political Rights 1966, which provide that- “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”

The Court opined that while public opinion is relevant in matters of constitutional adjudication, but it is not dispositive; as such public opinion is trumped by the colossal human rights “triangle of constitutionalism”, namely liberty, equality and dignity. It observed that this triumvirate formed the core values of fundamental rights, as entrenched in Section 3 of the Constitution. Court also observed that it had been already settled principle that there must remain a realm of private morality and immorality which should not be the province of the law, where there was no victim or complainant and when such conduct was consensual.

Court relied on various judgments of the United Kingdom, the United States of America, Canada and also relied on the decision of Supreme Court of India in Navtej Singh Johar v. Union of India, (2018) 10 SCC 791, in which Section 377 of the Indian Penal Code 1860, dealing with unnatural sex laws was read down and homosexuality was decriminalised. It was held in this case that sexual orientation of a person is an essential attribute of privacy and its protection lies at the core of fundamental rights guaranteed by Articles 14, 15 and 21 of Constitution of India.

Court also observed that the choice of a partner, the desire for personal intimacy, and the yearning to find love and fulfillment had universal appeal, and the State has no business to intrude into these personal matters and held that respondent gave no justification as to why a person’s right to privacy and autonomy was ought to be curtailed in relation to consensual acts done in private: and accordingly ordered that the word “private” must be severed and excised from Section 167 of the Penal Code.

Reliance was also placed on the UK’s Wolfenden Committee Report, on the basis of which it was opined that consensual adult sexual intercourse, between homosexuals, lesbians, transgenders, etc. do not trigger any erosion of public morality for such acts are done in private. It was observed that the realm of private morality and immorality should not be the province of the law, particularly where there is no victim or complainant and when such conduct is consensual.

In view of the aforesaid, Sections 164(a), 164(c) and 165 of the Penal Code were declared as ultra-virus to the Constitution, for being violative of Section 3 (liberty, privacy, and dignity), Section 9 (privacy) and Section 15 (discrimination) of the Constitution. The Court opined that the impugned provisions did not satisfy the proportionality test, and struck down those provisions. [Letsweletse Motshidiemang v. Attorney General Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), 2019 SCC OnLine BWHC 1, decided on 11-06-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttarakhand High Court: Ravindra Maithani, J. has asked the State of Uttarakhand whether an Investigating Officer, by conducting DNA tests, has the right to determine the gender or sex of a transgender person who underwent a gender reassignment surgery.

The petitioner, in this case, had filed an FIR alleging she was raped, but the FIR was registered by the police under Section 377 (unnatural offences) of the Penal Code, 1860. She had identified herself as a female and also claimed that she had undergone gender reassignment surgery and had obtained a certificate declaring that she may be addressed as a “she”. She approached the High Court, contending that she had been harassed by the investigating officers by lodging the FIR as an unnatural offence instead of rape and addressing her as a male.

The Court took into consideration the matter being one of social importance and hence it needs to be observed strictly as it is not only touching the petitioner alone but many others who have faced such an issue. The Court reiterated what has been laid down in the landmark case National Legal Services Authority v. Union of India, (2014) 5 SCC 438, wherein the petitioner’s “right to self-identification of gender” was denied and the Supreme Court rejected the age-old principle laid down in Corbett v. Corbett, (1970) 2 All ER 33 that an individual’s sexual constitution is fixed at birth and cannot be changed. The Hon’ble Supreme Court went on to prefer the “psychological test” instead of “biological test”. It stated “When we examine the rights of transsexual persons, who have undergone SRS, the test to be applied is not the “biological test”, but the “psychological test”, because psychological factor and thinking of transsexual has to be given primacy than binary notion of gender of that person. Seldom people realize the discomfort, distress and psychological trauma, they undergo and many of them undergo “gender dysphoria” which may lead to mental disorder. Discrimination faced by this group in our society, is rather unimaginable and their rights have to be protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role.”

The Court questioned the acts of Investigating officers and the public servants and stated they have not taken into consideration the Supreme Court judgment. It asked the Home Secretary of the State of Uttarakhand to file an affidavit answering various questions as to how the Investigating Officer had the right to determine the sex or gender of the petitioner how could the Investigating Officer apply the “biological test” instead of the “psychological test” in light of the Supreme Court judgment.[Shilpi Lawrence Elenjikal v. State of Uttarakhand, Writ Petition (Criminal) No. 28 of 2019, decided on 29-04-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of Mridula Bhatkar, J. quashed and set aside the order passed by Additional Sessions Judge,  refusing to discharge the petitioner/accused from offence punishable under Section 377 of Penal Code, 1860.

The present petition was filed in respect of challenging the order passed by the Metropolitan Magistrate, Girgaon, Mumbai rejecting the discharge of petitioner under Section 377 IPC.

Petitioner in the present case is a co-accused prosecuted under Sections 498-A, 377, 323, 504  r/w Section 34 of IPC. The facts of the case are that the complainant is married with a son of 6 to 7 years old. Complainant states that after 4-5 years of marriage she realised that her husband was gay, and on realising that she refused the parallel relationship of her husband. She also stated that she was ill-treated by her husband due to which she had left for her father’s house but later agreed to come back to her husband’s place when she again witnessed no change and continuation of the gay relationship of her husband with different males.

On realising the fact that her husband was not ready to stop his relationship with the petitioner/accused and being ill-treated a number of times, she finally lodged an FIR. Later, the Additional Sessions Judge partly allowed the revision application but maintained the charge under Section 377 IPC against the accused. Aggrieved by the same, the present petition was filed.

High Court while placing reliance on the Apex Court’s judgment in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held that though the ground for divorce could be the extramarital consensual sexual relationship as cruelty to the complainant, but it does not constitute an offence under Section 377 IPC, because both are adults and had a consensual sexual relationship.

Thus, in the present case, no victim exists and the order of the Additional Sessions Judge is quashed. [Daniel Crasto v. State of Maharashtra, 2019 SCC OnLine Bom 188, dated 30-01-2019]


Note: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. [2018 SCC OnLine SC 1350]

Case BriefsSupreme Court

  What nature gives is natural. That is called the nature within.

                                                                       C.J. Dipak Misra and A.M. Khanwilkar, J.

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. The Bench which delivered three opinions along with the leading judgment, reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation,(2014) 1 SCC 1  which in turn had reversed the judgment of a Division Bench of Delhi High Court in Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762. The Delhi High Court in Naz Foundation had declared Section 377 violative of Articles 14, 15 and 21 of the Constitution insofar as it criminalised consensual sexual acts of adults in private.

 I am what I am, so take me as I am.

                                                          –Johann Wolfgang von Goethe

The present judgment can be said to be a watershed moment in India’s journey to gender equality and social justice. The judgment not only emancipates the LGBTQ community from the shackles of gender inequality; it not only gives them the freedom of individuality, Right to privacy, life and liberty, freedom of choice; but also the Right to freedom of self-expression. The decision can fairly be looked upon as a classic example of how the Indian Judiciary time and again rises to the injustice suffered by the discriminated strata of the society. The judgment more than anything gives identity.

The Court considered the validity of the section by analysing it in juxtaposition to Section 375 which defines rape. Drawing an analogy, the Court held that if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be designated as an unnatural offence under Section 377 IPC. The expression against the order of nature has nowhere been defined. The non-consensual acts which have been criminalised by the section, have already been designated as penal offences under Section 375 and POCSO Act. If the section remains on the statute book in its present form, it will allow harassment and exploitation of LGBT community to prevail. It abridges both human dignity and fundamental right of privacy and choice of the citizenry, however small. Right to privacy takes within its sweep the right to every individual including that of the LGBT to express their choices in terms of sexual inclination. The section does not survive the trinity test of Articles 14, 19 and 21. Freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on mercurial stance of majoritarian perception. To understand the scope of the judicial pronouncement by the sentinel of the qui vive – as our Judiciary has stood always — it is pertinent to delineate the observations made by the Hon’ble Judges in their opinions.

CJ Dipak Misra (for himself and A.M. Khanwilkar, JJ.)

                                                   One defines oneself. That is the glorious form of individuality

  •  It is only where each individual is liberated from the shackles of bondage of social exclusion, identity, seclusion and isolation from the mainstream, that we can call ourselves a truly free society.
  • Through its dynamic purposive interpretive approach, the judiciary must strive to breathe life into the Constitution and not render the document of collection of mere dead letters.
  • Ours is a transformative Constitution. It will become a dead testament without dynamic; vibrant and pragmatic interpretation.
  • Constitutional morality embraces within itself virtues of ushering a pluralistic and inclusive society.
  • Expression of choice is a facet of human dignity and is essential component of liberty.
  • To compel a person having a certain sexual expression to proselytize to another is like asking a body part to perform a function it was never meant to perform.

R.F. Nariman, J.

  • The present definition of mental illness in Mental Healthcare Act, 2017 makes it clear that homosexuality is not considered a mental illness.
  • Viewed in light of the principles contained in Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender of Identity, Section 377 will have to be declared unconstitutional.
  • When it is found that privacy interests came in and the State has no compelling reason to continue an existing law which penalises same-sex couples who cause no harm to others, it is transgression of Articles 14, 15, 19 and 21.
  • LGBTQ are entitled to protection of equal laws and we are entitled to be treated in the society as human beings.

Dr D.Y. Chandrachud, J.

It is difficult to right the wrongs of history. But we can certainly set the course for the Future.

  • The case involves much more than mere decriminalising certain conduct. The case is about aspiration to realise constitutional rights.
  • Section 377 is unconstitutional in so far as it penalises a consensual relationship between adults of the same gender. Constitutional values of dignity and liberty can accept nothing less.
  • LGBT have a constitutional right to citizenship in all its manifestations.
  • It is difficult to locate any intelligible differentia between indeterminate terms such as natural and unnatural. It is even more problematic to say that the classification between individuals who engage in natural intercourse and those engaging in carnal intercourse against the order of nature can be legally valid.
  • Constitution protects fluidities of sexual experience and leaves it to the consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and infinite ways of love and longing.
  • By application of Section 377, MSM and transgender persons are excluded from access to health care due to social stigma attached to their sexual identity. Being particularly vulnerable to contraction of HIV, this deprivation can only be described as cruel and debilitating. The indignity suffered by sexual minority cannot stand the test of constitutional validity.

Indu Malhotra, J.

  • Homosexuality is not an aberration but a variation of sexuality.
  • Sexual orientation is not a choice. It manifests in early adolescence.
  • Sexual expression and intimacy of consensual nature, between adults in private, cannot be treated as carnal intercourse against the order of nature.
  • LGBT is a sexual minority and is equally entitled to protection afforded by Article 15.
  • LGBT are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21.
  • Section 377 compels LGBT persons to live in a closet. They are seriously disadvantaged and prejudiced when it comes to access to healthcare facilities.
  • The Section cannot be justified as reasonable restriction under Article 19(2) on basis of public or societal morality as it is inherently subjective.

The Judgment that was delivered, joins the plethora of authorities – including, inter alia, National Legal Services Authority v. Union of India, (2014) 5 SCC 438; K.S Puttaswamy v. Union of India, (2017) 10 SCC 1; Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755; etc.- that were referred to be the Bench in the case herein. The petitions were disposed of observing and holding all that is mentioned hereinabove. [Navtej Singh Johar v. Union of India, 2018 10 SCC 1, decided on 06-09-2018]    

Hot Off The PressNews

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., likely to pronounce the judgment concerning the constitutionality of Section 377 Indian Penal Code, 1860 today, i.e. 06-09-2018.

The judgment was reserved by the Constitution Bench on 17-07-2018, after a 4-day hearing covering the different standpoints on Section 377 and further Nariman J., on the last day of hearing stating that “If we are convinced that it is unconstitutional, it is our duty to strike it down’.

Background:

Several pleas were filed challenging the re-criminalization of sex between consenting adults of the same sex by holding it as “illegal”. Therefore, the Supreme Court stated that the Naz Foundation v. State (NCT of Delhi)2009 SCC OnLine Del 1762 case requires re-consideration not only on the ground of Constitutional morality but also social morality as social morality also changes from age to age.

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. addressed the petitions challenging Section 377 of IPC, 1860, which criminalises unnatural sex between two consenting adults while revisiting its December 2013 verdict in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 which upheld the criminalisation of gay sex.

“As the protector of fundamental rights, the Supreme Court has the duty to protect the LGBTQ community.”

Supreme Court began the hearing with two issues open which were: Sex against the order of nature whether retrograde and can sexual rights to persons be denied just because they are the minuscule minority?

Appearing for one of the petitioners, Mukul Rohatgi contended that the rights of the gay community are protected under Article 21 and “Being gay or lesbian is not a matter of choiceIt is innate, inborn and actually has to do something with the genes.” He stated that a gay man or gay woman shouldn’t be identified as something else.
As stated by learned advocate Mukul Rohatgi on stressing the criminalisation of Section 377 IPC, he quotes that “This is a case of Constitutional morality v. Others” also Section 377 is based on Victorian morality.”Ancient India was different.”

He referred to the following cases in support of his contentions which were:

Senior Advocate Datar began with his arguments by stating that Section 377 IPC is pre-constitutional, not in conformity with the Constitution. Further argued, that one of the Law Commission Reports had also recommended repealing the said section. He also stated that if a person has a different type of sexual orientation to which he has expressed, then it can’t be treated as a crime, to which he also stated that Article 21 of the Constitution includes my choice of sexual orientation and DY Chandrachud, J. accepted the said proposition.

Datar contended that there is no such thing as “Order of nature” and concluded his arguments by seeking a declaration to protect the rights of LGBT community through striking down Section 377 IPC.

The proceedings concluded for the day, Constitution Bench to resume the hearing from tomorrow i.e. July 11, 2018, in Navtej Singh Johar v. Union of India, WP(Crl.) No. 76 of 2016, order dated 10-07-2018.

[Source: The Hindu]

Op EdsOP. ED.

 “If we just hold privacy is a fundamental right, Naz judgment may become vulnerable”, Dr. D.Y. Chandrachud, J while hearing the issue of ‘right to privacy’.

On 18.07.2017, the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ referred the issue involving violation of right to privacy due to Aadhaar-PAN linkage to a 9-judge Constitution bench as the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., have earlier held that Right to Privacy is not a fundamental right.

Chandrachud, J was a part of this 9-judge bench when he said that holding that ‘right to privacy’ is a fundamental might right will mean that the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, where it was held that Section 377 IPC does not violate a person’s right to privacy, will no more be a good law.

This one remark by Chandrachud, J on the first day of hearing is a silver lining for the LGBT community. If ‘right to privacy’ is declared to be a fundamental right, the decision will be binding on the bench hearing the curative petition in the Naz Foundation case.