ADR Competition AnnouncementsLaw School News

The Centre for Law Justice and Development, National Law University Delhi in collaboration with the Department of Justice (Government of India) is working on a legal literacy and legal awareness program under Designing Innovative Solutions for Holistic Access to Justice in India Scheme (DISHA). To this end, CLJD invites students, scholars, and professionals (of any age group) and from any discipline to submit audio/visual content capturing the essence of women’s rights and prohibition of violence against women. The entries should seek to encapsulate and disseminate knowledge on laws and legal rights of women aggrieved by different forms of violence.

About Centre for Law, Justice and Development (CLJD):

Established in 2018, CLJD envisions revisiting, analysing, and engaging with the development discourse and its interface with the legal discourse. Through this engagement it seeks to influence the discourse in ways that are geared towards securing justice in varied arenas of our existence. It has been specifically working on the rights of the marginalised through empirical research, training, and creating resource material with regard to legal rights.

Objective of the Competition:

The competition opens up an opportunity to share your vision and raise awareness about violence against women, women’s legal rights, and access to justice for women. The goal is to disseminate legal awareness for creating gender sensitisation at the grass-root level. In pursuance of fulfilling these goals the centre has adopted an intersectional approach. Therefore, we seek entries that are inclusive and conscious of intersectional identities. The entries should seek to creatively classify and narrate laws and legal rights of women aggrieved by different forms of violence as well as highlight issues with regard to access to justice in such cases.

Who can apply?

1. Students including Research Scholars

2. Non- students from any field

Awards:

The most creative, engaging and engrossing audio/visual content will be awarded:

Rs. 5,000 (Non-Student category)

Rs. 5,000 (Student category)

Specifications:

1. The Audio/visual content may comprise of a short film, music video, animation, podcast or any other similar expression aligning with the theme of the competition.

2. The entries should have high resolution (Full HD) not exceeding a file size of 10 Gb.

3. The audio/visual content should not be longer than 5 minutes. Creators are expected to strictly adhere to the time limit.

4. Content not bearing legal awareness and legal rights pertaining to violence against women will not be considered.

Timeline:

Last date for submission of entries- 10th October 2022

Submission of Entries:

Submit your entries through this link HERE

Terms and Conditions:

1. The entries should not contain any form of seditious content, hate speech, insensitivity towards any group, organization, or community, and confidential information of any kind that should not be disclosed to another party.

2. The submission should be an original and unpublished work.

3. Multiple submissions by single creator will not be entertained.

4. Only shortlisted participants shall be contacted via email.

Any further query may be sent to cljd@nludelhi.ac.in

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case concerning attacks against doctors and medical institutions, Bechu Kurian Thomas, J., held that granting pre-arrest bail to an accused who is alleged to have committed violence against a healthcare professional will send a wrong message to the public.

Apprehending his arrest in a non-bailable case, the petitioner had approached the Court for pre-arrest bail.

The Petitioner was alleged to have wrongfully restrained a doctor, the de-facto complainant herein, and threatened her while she was on her way from the doctor’s room to the casualty of the hospital, thereby causing obstruction to her official duty and committing the offences under Sections 341, 353 and 506 of the Penal Code, 1860 and Sections 3 and 4(1) of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 (‘Healthcare Act').

Assailing the allegations, the petitioner contended that he had met with an accident on 10-04-2022 and due to persistent pain, was advised to obtain an X-ray report of his spine. However, despite waiting for more than 1½ hours, his X-ray was not taken, and unmindful of his condition, the de-facto complainant reacted in a hostile manner and threatened not to treat him. Later, he came to know that a complaint was filed against him, resulting in the registration of the present crime.

To ascertain the apprehension of offence against the petitioner, the Court relied on the definition of the word ‘violence’ under Section 2(e) of the Healthcare Act, which reads as below:

“Section 2(e) “violence” means activities causing any harm, injury or endangering the life or intimidation, obstruction or hindrance, to any healthcare service person in discharge of duty in any healthcare service institution or damage or loss to property in healthcare service institutions.”

Thus, the Court opined that every harm, intimidation, obstruction or hindrance to a healthcare service person, in discharge of duty is treated as violence. Noticing that Section 4(4) of the Healthcare Act, violence against healthcare service persons is made non-bailable, the Court held that the salutary objective behind the Healthcare Act and the wide meaning ascribed to the word violence, cannot be ignored while considering an application for pre-arrest bail.

The Court remarked,

“The statute regards even an obstruction or hindrance if committed on a healthcare person as a grave offence. Thus, it cannot be held that absence of an assault on the doctor entails a person accused of an offence under the Healthcare Act to be released on pre-arrest bail.”

Considering the wide definition of the term ‘violence’, nestled under the umbrella of a non-bailable offence, the Court held that granting pre-arrest bail to an accused who is alleged to have committed an offence under the Healthcare Act would be incongruous to the legislative mandate.

A physician with trepidation, a surgeon with trembling hands and a disquiet nurse can lead to the wrong diagnosis, failed surgeries and improper nursing care. Life of several patients could fall into peril. Consequently, the public at large can become prejudiced.”

Therefore, the Court denied granting pre-arrest bail to the petitioner. However, the Court added that if the petitioner surrenders himself before the Investigating Officer within seven days, the officer shall subject him to interrogation and if after interrogation petitioner is arrested, the Investigating Officer shall produce him before the jurisdictional Magistrate immediately, and if any application for bail is preferred, the same shall be considered by the Magistrate in accordance with the law.

[Arun P. v. State of Kerala, Bail Appli. No. 3186 of 2022, decided on 20-06-2022]


Advocates who appeared in this case :

R. Sreehari, Advocate, for the Petitioner;

Noushad K.A., Public Prosecutor, for the State of Kerala.


*Kamini Sharma, Editorial Assistant has reported this brief.

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: 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.”

The brief facts of the case are that the marriage of the appellant and respondent was solemnised in 1983 according to Hindu rites and ceremonies. However, on account of matrimonial discord, appellant filed a petition for divorce in the year 1985-86 which, however, was ultimately compromised.  Thereafter, the parties resided peacefully and out of wedlock two sons were born. But allegedly even after those differences continued which even took the shape of occasional violence. Both even accused each other of adultery. The Trial Court passed a decree of dissolution of marriage in favour of the husband. Aggrieved by the decree of divorce passed by the Trial Court below, the appellant – wife has filed the instant appeal.

Counsel for petitioner Suneet Goel submitted that the Trial Court erred in coming to the conclusion that the wife is living in adultery, which contention had already been negated by the Court while adjudicating the petition filed by the wife for maintenance under Section 125 CrPC.

Counsel for respondents Varinder Thakur submitted that as regards the findings recorded by Trial Court under Section 125 CrPC. the same were not binding on the matrimonial Court in the matrimonial disputes and secondly, there is ample amount of evidence available on record, which shows that wife was living in adultery

The Court relied on judgment Pranab Kumar Karmakar v. Aarti Karmakar, 2008 SCC OnLine Cal 833  and observed that the findings in a proceeding under Section 125 Cr.P.C. cannot be binding on matrimonial Court while dealing with an application for divorce on the ground of res judicata. A matrimonial Court is required to arrive at an independent finding based on a material laced before it.

The Court further observed in light of the pleadings, evidence and subsequent events, that 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. Moreover, each of the parties is already residing with a partner of opposite sex as husband and wife. Their relations are so strained that there is no possibility of reconciliation and the marriage between them has broke down irretrievably.

Thus, It would be unrealistic for law to not take notice of the fact that the irretrievable broke down of marriage must be considered as a ground for divorce.

The Court held “I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.” [Sunita Devi v. Suresh Kumar, 2022 SCC OnLine HP 1968, decided on 03-03-2022]


Arunima Bose, Editorial Assistant has reported this brief

Case BriefsSupreme Court

Supreme Court: In a big development in the Lakhimpur Kheri violence, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has cancelled the bail of the accused Ashish Sharma after observing that the Allahabad High Court had shown a “tearing hurry” in entertaining and granting bail to Mishra.

What happened in Lakhimpur Kheri?

On 29.09.2021, several farmers had gathered in the Khairaitya village in Lakhimpur Kheri District to celebrate the birth anniversary of Sardar Bhagat Singh and to protest against the Indian Agricultural Acts of 2020. During this gathering, the farmers objected to certain comments made by Ajay Mishra, Union Minister of State for Home.

On 03.10.2021, an annual Dangal (wrestling) competition was being organised by the accused Ashish Mishra. The program was to be attended by Ajay Mishra, as well as Keshav Prasad Maurya, Deputy Chief Minister of Uttar Pradesh. A crowd of farmers started gathering near the helipad in the morning of 03.10.2021. The route of the Chief Guest was thus changed to take him by road. But the changed road route was also passing in front of the Maharaja Agrasen Inter College, where the protesting farmers had been gathering in large numbers. This led the authorities to take recourse to yet another alternative way to reach the Dangal venue.

In the meantime, some supporters of Ashish Mishra, who were travelling by a car to the Dangal venue, were statedly attacked by certain farmers. A hoarding board that displayed pictures of Ajay Mishra and the Accused was also damaged.

Agitated with these happening, Mishra had allegedly conspired with his aides and confidants, and had allegedly drove into the crowd of the returning farmers and hit them with an intention to kill. Resultantly, many farmers and other persons were crushed by the vehicles.

Accuses Mishra and his co¬accused Sumit Jaiswal then escaped by running towards a nearby sugarcane field while taking cover by firing their weapons.

As a consequence of this incident, four farmers, one journalist, the driver of one of the vehicles, and two others, were killed. Nearly ten farmers suffered major and minor injuries.

Supreme Court’s ruling

Victims not heard

Holding that, in the case at hand, the ‘victims’ have been denied a fair and effective hearing at the time of granting bail to the Accused, the Court expressed its disappointment with the manner in which the High Court failed to acknowledge the right of the victims.

It is important to note that the Counsel for the ‘victims’ had got disconnected from the online proceedings and could not make effective submissions before the High Court. Thereafter, an application seeking a rehearing was also moved on the same ground but the same was not considered by the High Court while granting bail to Mishra.

Relevant considerations overlooked by High Court

Instead of looking into aspects such as the nature and gravity of the offence; severity of the punishment in the event of conviction; circumstances which are peculiar to the accused or victims; likelihood of the accused fleeing; likelihood of tampering with the evidence and witnesses and the impact that his release may have on the trial and the society at large; the High Court adopted a myopic view of the evidence on the record and proceeded to decide the case on merits.

It took into account several irrelevant considerations, whilst simultaneously ignoring judicial precedents and established parameters for grant of bail.

“It has been ruled on numerous occasions that a F.I.R. cannot be treated as an encyclopaedia of events. While the allegations in the F.I.R., that the accused used his firearm and the subsequent post-mortem and injury reports may have some limited bearing, there was no legal necessity to give undue weightage to the same.”

Conclusion

The Court, hence, cancelled Mishra’s bail, without depriving him of his legitimate right to seek enlargement on bail on relevant considerations. The following factors weighed in with the Court:

  • irrelevant considerations having impacted the impugned order granting bail;
  • the High Court exceeding its jurisdiction by touching upon the merits of the case;
  • denial of victims’ right to participate in the proceedings; and
  • the tearing hurry shown by the High Court in entertaining or granting bail to the respondent/accused.

“This Court is tasked with ensuring that neither the right of an accused to seek bail pending trial is expropriated, nor the ‘victim’ or the State are denuded of their right to oppose such a prayer. In a situation like this, and with a view to balance the competing rights, this Court has been invariably remanding the matter(s) back to the High Court for a fresh consideration.”

The Court was also of the view that ends of justice would be adequately met by remitting this case to the High Court for a fresh adjudication of the bail application of the Accused, in a fair, impartial and   dispassionate manner.

Mishra has to surrender within a week.

[Jagjeet Singh v. Ashish Mishra, 2022 SCC OnLine SC 453, decided on 18.04.2022]


*Judgment by: Justice Surya Kant


Counsels

For Appellants: Senior Advocate Dushyant Dave

For Accused: Senior Advocate Ranjit Kumar

For State: Senior Advocate Mahesh Jethmalani

 

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The Division Bench comprising of Sudhanshu Dhulia, CJ, and Manash Ranjan Pathak, J., directed to connect CCTV cameras of Hospitals to the nearest Police Station to put a check on increasing instances of violence against medical practitioners amid Covid-19.

The instant petition was heard along with a suo motu case registered with regard to the barbaric incident which took place in Assam’s Hojai district. According to reports[i], family members of the deceased patient brutally thrashed a young doctor following the patient’s demise at a Covid care centre.

As far as the abovementioned incident was concerned, the police had completed its investigation, charge-sheet had been filed and as many as twenty-four persons had already been arrested so far. Evidently, in its earlier order, the Court had directed the authorities concerned to ensure installation of CCTV cameras in hospitals, where no CCTV camera has been installed.  And provide compensation to the Medicare Service Persons, who may be the victims of violence during discharge of their duties.

The Court, on being informed that almost all the Government Medical Colleges and the District Government Hospitals except some government and Model Hospitals were having CCTV cameras, directed that mere installation of CCTV cameras in the hospitals concerned was not enough and the CCTV cameras have to be connected to the nearest Police Station for further monitoring.[Asif Iqbal v. State of Assam, 2021 SCC OnLine Gau 1529, decided on 30-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioner: S Islam

Counsel for the Respondent: D. Saikia

For the Gauhati High Court: S. Kalita, Standing counsel

[i] https://www.indiatoday.in/india/story/arrested-attack-junior-doctor-assam-hojai-ima-1809795-2021-06-02

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Anjani Kumar Mishra and Shekhar Kumar Yadav, JJ., expressed on what constitutes as ‘Gang’ under Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986

Petitioner sought to quash an FIR that gave rise to a case under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

Order passed by District Magistrate granting approval to the Gang Chart – Annexure 5 to the writ petition was also sought to be quashed.

The submission was made that the facts alleged in the FIR do not make out any violence, threat or show of violence intimidation, coercion etc. which would amount to disturbing public order. No temporal, pecuniary, material or other advantage having been procured by the petitioner, was alleged in the criminal cases lodged against him. Therefore, the requirements of Section 2(b) & 2(b) (viii) of the Act were not made out.

From the allegations made in the FIR, it appears that the petitioner was intervening in a dispute between the first informant and the other accused, pertaining to an electricity connection.

Senior Advocate, V.P. Srivastava was on the words “with object of disturbing public order” used in Section 2(b) of the Act, which defines a Gang.

(b) “Gang” means a group of persons, who acting either singly or collectively, by violence or threat or show of violence, or intimidation, or coercion, or otherwise, with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage of himself of any other person, indulge in anti-social activities”.

 Bench dismissed the petitioner’s contention that to constitute a Gang, the member of the Gang should be operating only with the object of disturbing public order.

To the above, Court added that the definition of “Gang” no doubt includes within its ambit acts of violence or threat, or show of violence, carried out with the object of disturbing public order. However, this is just the first part of the definition. The second part, which starts with the word ‘or of gaining any as of undue temporal, pecuniary, material or other advantage of himself of any other person, indulge in anti-social activities.

High Court opined that the definition of a Gang is in two parts, and both are mutually exclusive. Each one of the two parts by itself would be enough to bring a case within the ambit of the term Gang.

Further, the Court added that,

Section 2(b) provides that a group of person, singly or collectively would constitute a gang in either of the two conditions below-

(i) by violence, or thereat or show of violence or intimidation or coercion, or otherwise try to disturb public order,

OR

(ii) by violence or threat or show of violence or intimidation or coercion or otherwise try to obtain undue temporal, pecuniary, material or other advantages for himself or any other person.

Hence, in the present matter, the contention that the impugned FIR deserves to be quashed as it does not fall within the purview of the definition of a ‘Gang’ in Section 2(b) of the Act cannot be accepted.

Adding to the above, Court stated that the allegations were that the petitioner interfered in a private dispute between the two parties, with which, he prima facie had no connection. It is, therefore, clearly a case of coercion, intimidation and use of force against a person, who is alleged to have refused to provide electricity to his neighbour, who is stated to be a friend of the petitioner.

Concluding the matter, Court held that no ground for quashing of impugned FIR existed.

In view of the above petition was dismissed. [Pramod Singh v. State of U.P., 2021 SCC OnLine All 480, decided on 16-7-2021]


Advocates before the Court:

Counsel for Petitioner:- Ashish Mishra, Arun Kumar Mishra

Counsel for Respondent:- G.A.

Kerala High Court
Case BriefsCOVID 19High Courts

Kerala High Court: K.Haripal, J., granted bail to the Police Officer accused of manhandling a doctor and subjecting him to violence. The Bench, though, stated,

“It is quite unfortunate that in spite of attending the duties in most diligent manner, they (doctors) have to suffer such indignation which go to the extent of suffering physical and verbal assault.”

 Background

The facts of the case were such that an FIR was registered under Sections 341, 294(b), 323, 332 read with 34 of the Penal Code,1860 and Sections 3 and 4 of the Kerala Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012, against the petitioner-a civil Police officer for man handling a doctor.  The case of the complainant doctor- Dr. Rahul Mathew was that he had been on night duty on  13-05-2021, when at about 04.15 A.M., a lady by name Laly was taken to the casualty for treatment. As it was reported that she was tested covid positive and was undergoing quarantine, though the complainant had rushed to the patient even without being in PPE kit; taking into consideration the urgency of the matter, but unfortunately, by the time he reached to the patient, she had died.

Alleging that there was delay in attending the deceased, the petitioner-son of the deceased abused the complainant and tried to manhandle him. Later, at about 7.30 A.M., two persons entered the complainant’s room, abused him, caught hold of his neck and slapped him. The complainant contended that the patient had died due to Covid complications. Even though her oxygen level was low, she was not taken to hospital on time.

On the other hand, the case of the petitioner was that the entire incident had happened due to the shock of death of his mother, that his mother did not get prompt medical attention when she was taken to hospital in a breathless condition. It was submitted by the petitioner that even after 10 to 15 minutes of their reaching the hospital, attention was not given; finally only with the help of an acquaintances, who was working as a helper in the hospital, the deceased was given oxygen; and by the time the doctor and nurses came, his mother had died.

Findings of the Court

Opining that, though the incident had happened in an emotionally charged stage, still the action of the petitioners could not be justified, the Bench stated,

“Even if they had a case that there was negligence on the part of the medical officer and hospital staff, that cannot be addressed by showing muscle power and manhandling the doctor in charge.”

The Bench stated that the version of the complainant indicated that on realising the seriousness of the situation, he had rushed to the place where the patient was brought even risking his own life without wearing a PPE kit. Thereafter, he suffered indignation and also physical assault.

“The petitioner is not an ordinary person but is part of the police department, a uniformed force, is expected to show utmost discipline. But he was taking law into his hands and was thrashing the medical officer in his room.” 

Considering the above mentioned, the Bench remarked that, “We cannot forget the sacrifices and devotion to the duty exhibited by the medical officers and health staff especially during the trying times when the pandemic condition was at its peak. The worsening situation could be bridled in our State only because of the devoted discharge of duties in a most religious manner by the medical staff. The huge pressure of work in a Government hospital is seen to be believed.”

However, noticing that the petitioner was a Civil Police Officer on probation, who was already under suspension due to his conduct and that the prosecution had no contention that he may flee from justice and will not make himself available for investigation and Trial, if found necessary; the Bench granted pre-arrest bail to the petitioner on condition to execute bond for Rs.50,000.[Abhilash Chandran v. State of Kerala, 2021 SCC OnLine Ker 2649, decided on 25-06-2021]


Kamini Sharma, Editorial Assistant ahs reported this brief.


Appearance before the Court by:

For the petitioner: Sr. Adv. P.Vijaya Bhanu, Adv. Nirmal V Nair, Adv. P.M.Rafiq, Adv. Manu Tom and Adv.  Sruthy N. Bhat

For the respondents: PP Santosh Peter and Adv. P. Sreekumar

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Sudhanshu Dhulia, CJ., and Manash Ranjan Pathak, J., addressed the issue of violence against doctors. The Bench ordered the State to ensure that no medical practitioner is manhandled or abused in any manner.

In the instant PIL, concern had been raised about the doctors and paramedics, who are the frontline warriors and also about the incident where a Doctor was manhandled and beaten up by a mob in Udali Model Hospital. The petitioner had sought for issuance of directions to the State to take suitable measures to ensure safety and security of medical practitioners.

The stand taken by State was that as far as the incident of Udali was concerned, twenty-four people were arrested and lodged in jail within twenty-four hours. The State assured the Bench that due process of law was being followed as far as the incident was concerned. Moreover, the Government itself was conscious about the care it had to give to its doctors and paramedics and it was open for any suggestions and guidelines in this regard.

In view of the above, the Bench granted two weeks time to the State to inform the Court about the progress made and steps taken to avoid occurrence of such incidence in future. The State was also directed to ensure with immediate effect that no weapon/firearms are allowed to be taken inside a hospital and proper notice of warning is given in every hospital and medical colleges about the consequences to be followed in law if Medicare Service Persons, which include Doctors, Nurses, Para-medical, medical students, nursing students and any other worker employed and working in Medicare Service Institutions [as defined under Assam Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Act, 2011], are manhandled or attacked.[Suo Motu v. State of Assam, PIL (Suo Moto) No.4 of 2021, Order dated 14-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the High Court: Sr. Adv. V. Hansaria with Adv. S. Kalita,
For the State of Assam: AG D. Saikia,

Hot Off The PressNews

Around 2100 women advocates have written to the Chief Justice of India and other judges of the Supreme Court, drawing their attention towards the constitutional crisis and deplorable condition of the citizens residing in the State of West Bengal due to the post poll violence continuing since 02.05.2021.

Highlighting that the perpetrators of violence have not even spared women and children, the letter states that,

“The police is hand in gloves with the goons and the victims are not in a position to even register their complaints. There is a complete breakdown of the constitutional machinery in the State. Even the media is silent for past few days and not showing the true and current picture of the State of West Bengal.”

2093 women advocates from across the nation, joined the cause in a short spell of about 60 hours. By way of the letter, the advocates prayed before the judges to,

  1. Take cognizance of the matter and constitute a Special Investigation Team to register FIRs and investigate into the deaths and other vengeful attacks as being reported in news;
  2. Direct a nodal officer to be appointed (not belonging to West Bengal Police) to register the complaints of the victims;
  3. Direct court monitored investigation in a time bound manner, trial by specially constituted fast track court wherever charge sheet is filed by the SIT regarding cases emanating from the post poll violence in the State of West Bengal;
  4. Issue Directions that all post poll violence victims/family members may be duly compensated for death /injuries, loss of property etc. by the State of West Bengal;
  5. Director General of Police of the State of West Bengal may kindly be directed to set up an effective complaint mechanism at all levels on priority basis and to file a daily report before the Hon’ble Supreme Court, regarding the complaints received by Police Department from all channels;
  6. Direction may be issued to the Director General of Police of the State of West Bengal to provide full protection to the victims;
  7. Directions may be issued to all Commissions i.e National Human Rights Commission, National Commission for Women, National Commission for protection of Child Rights, Commission of Scheduled Castes and
  8. Scheduled Tribes, National Commission for Backward classes to appoint competent nodal officers to record the statements of victims through virtual mode and contact numbers of those nodal officers be widely circulated

Photo credit: PTI

Case BriefsHigh Courts

Calcutta High Court: The Full Bench of Rajesh Bindal, C.J. (A), I. P. Mukerji, Harish Tandon, Soumen Sen, Subrata Talukdar, JJ., took upon a series of petitions which were filed in the matter pertaining to post-poll violence in the State of West Bengal.

On the last date of hearing, the Court had requested the Advocate General to apprise the Court about any designated e-mail id to enable the aggrieved persons to lodge their complaints online. It was on the allegation of the petitioners that they were not permitted to lodge complaints in the police station and in some cases they were unable to do so as that they had to run away from their places of residence. This information could not be furnished and more time has been sought to furnish the same.

The Court in the meantime directed that if any person has suffered on account of post-poll violence, he shall be at liberty to file complaint along with the supporting documents to the National Human Rights Commission, West Bengal Human Rights Commission, National Commission for Women and National Commission for Scheduled Castes and Scheduled Tribes. The same can be either by way of hard copy or online. The aforesaid commissions in turn will forward those complaints to the Director General of Police, West Bengal immediately.

[Anindya Sundar Das v. Union of India, 2021 SCC OnLine Cal 1637, decided on 18-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Rajesh Bindal, CJ. (A), and Arijit Banerjee, J., on 07-05-2021 had entertained the PIL which was filed in public interest regarding violence which was taking place in various parts of the State after Assembly Elections, 2021. The PIL had emphasized on the inaction of the police which was causing danger to the life and liberty of the people.

Considering the importance where life and liberty of the people in the State of West Bengal was at stake and the issues sought to be raised by the petitioner, Larger Bench was constituted to hear the present petition which will include Rajesh Bindal, C.J.(A), I.P. Mukerji, Harish Tandon, Soumen Sen, Subrata Talukdar, JJ.,.

Mr Kishore Dutta, Mr Abhratosh Majumdar and Mr Sayan Sinha counsel for the State had sought adjournment to file affidavit of the Home Secretary of the State specifying the areas where the violence has taken place and the steps taken to prevent or control the same. The matter was further adjourned to be taken up on 10-05-2021.

On 10-05-2021 the report in the form of an affidavit was filed. However, the counsel for the petitioner Mr Bikash Ranjan Bhattacharyya, Mr Pronay Basak,Ms  Debapriya Samanta and Mr Santanu Maji, the counsel for Union of India, Mr Y. J. Dastoor ( Additional Solicitor General) and Mr Arijit Majumdar  and counsel for the respondent 2 Mr Dipayan Choudhury and Mr Suvrodal Choudhury submitted that they have not been served with the copy of the affidavit. Hence, they were not able to respond to the same. Mr Dastoor further had submitted that in number of cases the complaints were not registered by the police stations concerned when approached and that there is no online mechanism available in the State of West Bengal where a complainant can file a complaint to the police. On contrary Mr Dutta submitted that the allegations made by the counsel that the complaints filed to the police were not entertained, was false and he cannot respond to this allegation, as there were no details available. He further submitted that from 09-052021 onwards there was no violence reported in the State.

The Court directed that the copies of the affidavit be furnished to the counsel of the petitioner, learned Additional Solicitor General of India and the counsel appearing for the Election Commission of India. The matter is adjourned to be heard on 17-05-2021.

[Anindya sundar Das v. Union of India, 2021 SCC OnLine Cal 1614, 07-05-2021, 10-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V, J., addressed the instant petition alleging illegal and unorganised exercise of right to strike. The Bench stated,

“In the guise of a strike, the union leaders as well as the striking workers cannot resort to strong arm tactics and violence to intimidate and force the management to succumb to their demands.”

The petitioner, Bharat Serum Vaccines Ltd., was a company engaged in manufacturing and marketing pharmaceutical and lifesaving products. Though their Regional Office was situated at Ernakulam, the company had business interest in all districts in the State of Kerala. In October, 2020, on account of administrative reasons as well as business exigencies, the petitioners had to redeploy their Territory Branch Managers to other parts of the country. The petitioner submitted that the service conditions clearly stated that the employees were transferable, the transfer being an incidence of service. Though most of the employees accepted the transfer and joined the respective stations, the respondents had refused to oblige.

The petitioners contended that the respondents, with aid of Kerala Medical and Sales Representatives Association, caused obstruction to the managerial staff, Regional Business Managers and Sales Representatives in carrying on their business. The petitioners further submitted that on 23-11-2020, the Regional Business Manager was obstructed while he was discharging his duty along with one Aneesh. Moreover,

The Union had raised an open threat that the petitioners would not be permitted to carry on their business activities in the State unless their demands were met with.  Threats were also made that the entire business of the petitioners will be brought to a standstill.

In spite of several complains no assistance was rendered by the police and the party respondents were having a field day intimidating and threatening the employees of the petitioners and disrupting their business.

The Bench, after considering above mentioned facts stated that there could not be any doubt that the workers had right to resort to strike or dharna to effectively bargain with the management and to ensure that unfair labour practices were avoided. However, in the guise of a strike, the union leaders as well as the striking workers could not resort to strong arm tactics and violence to intimidate and force the management to succumb to their demands. The Court expressed, even if the demand was legitimate if the management for one reason or the other did not accede to their demand, the only option was to resolve the dispute in a manner known to law,

Under no circumstances can the respondents resort to violence to further their cause. That would infringe the rights of the petitioners to carry on their business.

 In the light of above, the instant petition was disposed of with the direction to the petitioners to approach the jurisdictional police station, if any threat or intimidatory tactics is adopted by respondents and the officer concerned was directed to enquire the same and take appropriate action.[Bharat Serum Vaccines Ltd. v. State of Kerala, WP(C). No. 29084 of 2020, decided on 15-02-2021]


Appearance before the Court by:

For the Petitioners: Adv. K.Praveen Kumar

For the Respondents: Adv. PP Thajudeen


Kamini Sharma, Editorial Assistant has put this story together

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[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

Introduction

The patriarchal setup has been deeply rooted in Indian society since time immemorial. It may be believed that this system laid the foundation stone for the abuse of women. Domestic violence affects women from every social background irrespective of their age, religion, caste, or class. It is a violent crime that not only affects a person and her children but also has wider implications for society. Although the root behind the crime is hard to decipher, certain reasons behind the violence can be traced to the stereotyping of gender roles, and the distribution of power.

The definition of violence has evolved over the years to an extent it not only includes physical forms of violence but also emotional, mental, financial, and other forms of cruelty. Thus, the term domestic violence includes acts which harm or endangers the health, safety, life, limb, or wellbeing (mental or physical) of the victim, or tends to do so, and includes causing: physical abuse, sexual abuse, verbal abuse, emotional abuse, and economic abuse, perpetrated by any person who is or was in a domestic relationship with the victim.

Before the enactment of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), the victim could approach the court under Section 498-A of the Penal Code, 1860 which provides for ‘husband or relative of husband of a woman subjecting her to cruelty’ wherein only a certain set of offence dealing with cruelty to married women was the only recourse. All other instances of domestic violence within the household had to be dealt with under the offences that the respective acts of violence constituted under the IPC without any regard to the gender of the victim.

Protection of Women from Domestic Violence Act, 2005: Meaning, Intent, and Objective

To minimize the cumbersome position of law, be it procedural or substantive, the Protection of Women from Domestic Violence Act, 2005 was enacted to protect the women from acts of domestic violence. The legislative intent was further emphasized by the Supreme Court of India in the case of Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 wherein it was stated that the DV Act is enacted to provide a remedy in civil law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society. Other legislations like CrPC, IPC, etc., where reliefs have been provided to women who are placed in vulnerable situations were also discussed.

The objective of the Act lays down “An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.”[1] The Madras High Court in Vandhana v. T. Srikanth, 2007 SCC Online Mad 553 in one of the early cases since the enactment of the DV Act, observed that the Act was formulated to implement Recommendation No. 12 of United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 1989 and which was ratified by India in June, 1993. Interpretation of the DV Act should conform to international conventions and international instruments and norms. The Bombay High Court in the case of Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC Online Bom 412 reiterated that the object of the DV Act is to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights. The Act provides for security and protection of a wife irrespective of her proprietary rights in her residence. It aims at protecting the wife against violence and at the prevention of recurrence of acts of violence.

Key Definitions under the Domestic Violence Act

  • Aggrieved Person

According to the definition provided under the DV Act in Section 2(a), an “aggreived person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Therefore, any woman who is or has been in a domestic relationship is entitled to make a complaint invoking provisions of the Act.

The amount or period of time lived together by the petitioner and respondent is not necessary in terms of that the petitioner and respondent should live or have lived together for a particular period of time. Hence, application by lady, for maintenance, from a man with whom she shared a close relationship is maintainable, M. Palani v. Meenakshi, 2008 SCC Online Mad 150.

The Supreme Court had observed in one of the cases that judicial separation does not change the status of the wife as an “aggrieved person” under Section 2(a) read with Section 12 and does not end the “domestic relationship” under Section 2(f). It stated that judicial separation is mere suspension of husband-wife relationship and not a complete severance of relationship as happens in divorce, Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705.

  • Domestic Relationship

According to Section 2(f) of DV Act, “domestic relationship” means a relationship between two persons living in a shared household. Domestic relationship can be through marriage such as wives, daughters-in-law, sisters-in-law, widows and any other members of the family; or blood relationship such as mothers, sisters or daughters; and other domestic relationships including through adoption, live-in relationships, and women in bigamous relationship or victims of legally invalid marriages. The law addresses the concerns of women of all ages irrespective of their marital status. The definition of “domestic relationship” under the DV Act is exhaustive: when a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive, Indra Sarmav. V.K.V Sarma, (2013) 15 SCC 755.

The Supreme Court further stated that the word domestic relationship means a relationship that has some inherent or essential characteristics of marriage though not a marriage that is legally recognized. Expression “relationship in the nature of marriage” cannot be construed in the abstract. It is to be taken in the context in which it appears and to be applied bearing in mind the purpose and object of DV Act as well as meaning of the expression “in the nature of marriage”, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755.

  • Shared Household

According to Section 2(s) of DV Act 2005, a shared household is where the aggrieved person or a woman lives in a domestic relationship, either singly, or along with the man against whom the complaint is filed. It may also imply a household where a woman has lived in a domestic relationship but has been thrown out. This may include all kinds of situations whether the household is owned by the respondent or it is rented accommodation. It also includes a house either owned jointly by the aggrieved person and the respondent or both may have jointly or singly, any rights, titles or interests. The DV Act recognizes a woman’s right to reside in a shared household. This means a woman cannot be thrown out of such a household except through the procedure established by the law. In case she is thrown out she can be brought back again after obtaining the order from the court. A woman to claim the protection of right in “shared household” has to establish (a) that the relationship with the opposite party is “domestic relationship”, and (b) that the house in respect of which she seeks to enforce the right is “shared household”. In Indian society, there are many situations in which a woman may not enter into her matrimonial home immediately after marriage. A woman might not live at the time of the institution of proceedings or might have lived together with the husband even for a single day in “shared household” should not be left remediless despite valid marriage. Narrow interpretation of “domestic relationship” and “shared household” would leave many a woman in distress without remedy. Hence the correct interpretation of aforesaid definition including the right to live in “shared household” would be that words “live” or “have at any point of time lived” would include within its purview “the right to live”, Vandhana v. T. Srikanth, 2007 SCC Online Mad 553.

This law does not alter the legality of ownership or transfer the ownership and a woman cannot claim that she owns a house; it only provides emergency relief to the victim in the sense that she cannot be thrown out of her house. For claiming ownership, a woman has to follow a separate legal procedure and has to file a separate application as per the provisions of laws whichever are applicable to her situation.

  • Domestic Violence

“Domestic violence” is a broad term that entails not only physical beating but also other forms of violence such as emotional violence, mental violence, sexual violence, financial violence and other forms of cruelty that may occur within a household. The definition provided in Section 3 of the DV Act includes the following as acts of domestic violence:

“Any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

The Section also defines the meaning of terms physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. It further enunciates that the overall facts and circumstances of the case shall be taken into consideration in order to determine whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under the said section.

Who can seek help or can claim reliefs under the Domestic Violence Act?

According to the provisions of this Act, any aggrieved woman who is in a domestic relationship with the respondent and who alleges to have been subjected to the act of domestic violence by the respondent can seek help. A woman can file a complaint against any adult male perpetrator who commits an act of violence. She can also file a complaint against any male or female relatives of the husband/ male partner (for example in a live-in relationship) who has perpetrated violence. The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165 struck down adult male from the definition of “respondent” stating that it is not based on any intelligible differentia having rational nexus with object sought to be achieved. The Supreme Court also explained in the said case that the categories of persons against whom remedies under the DV Act are available include women and non-adults. Expression “respondent” in Section 2(q) or persons who can be treated as perpetrators of violence against women/against whom remedies under the DV Act are actionable cannot be restricted to expression “adult male person” in Section 2(q). Thus, remedies under the DV Act are available even against a female member and also against non-adults.

Protection Officer

Under Section 8 of the DV Act, the Protection Officer is appointed by the State Government as per the provisions of the law. The Protection Officer acts as a facilitator between the aggrieved woman and the court. The Protection Officer aids the aggrieved woman in filing of complaints, and application before the Magistrate to obtain the necessary relief and also assists to obtain medical aid, legal aid, counselling, safe shelter and other required assistance.

Duties of Protection Officer

Section 9 of the DV Act lays down the duties of the Protection Officer as follows:

“(a) to assist the Magistrate in the discharge of his functions under this Act;

(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;

(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;

(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 and make available free of cost the prescribed form in which a complaint is to be made;

(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;

(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;

(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;

(h) to ensure that the order for monetary relief under Section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);

(i) to perform such other duties as may be prescribed.”

Service Providers

A victim of domestic violence may require various services such as shelter home or safe accommodation, medical aid, child care, legal aid services and other community services. According to Section 10(1) of DV Act, the Service Providers are the NGOs, Companies or voluntary organizations working in the field of domestic violence and are registered under the laws of the State. Service Providers are duty bound to provide assistance and support to women facing domestic violence. A woman can go to a registered Service Provider to make a complaint under the DV Act. The duty of the service provider, as provided under Section 6 of the DV Act, upon receipt of request should be to provide shelter to the aggrieved person in the shelter home.

Filing a Complaint of Domestic Violence

An aggrieved woman, in order to file a complaint for domestic violence may:

  • Approach the police station and register the complaint, or
  • File a complaint to a Protection Officer or Service Provider, or
  • Directly approach the Magistrate.

The duties of the police officers, Protection officer, Service Provider, or the Magistrate is laid down under Section 5 of the Act. It states that, upon receipt of complaint they shall inform the aggrieved person—

“(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;

(b) of the availability of services of service providers;

(c) of the availability of services of the Protection Officers;

(d) of her right to free legal services under the Legal Services Authorities Act, 1987 ;

(e) of her right to file a complaint under Section 498-A of the Indian Penal Code , wherever relevant”

The Supreme Court emphasised that the Police has to look into the complaint made under the DV Act seriously and it cannot submit a report that no case is made out without proper verification, investigation, enquiry not only from members of family but also from neighbours, friends and others, Santosh Bakshi v. State of Punjab, (2014) 13 SCC 25.

Which Court can decide the case

Section 27 of the DV Act provides that a first class magistrate or metropolitan court shall be the competent court to grant a protection order and other orders under the DV Act and to try offences under the Act within the local limits of which

(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or

(b) the respondent resides or carries on business or is employed; or

(c) the cause of action has arisen.

In a recent decision, the Supreme Court held that petition under DV Act can be filed in a court where “person aggrieved” permanently or temporarily resides or carries on business or is employed, Shyamlal Devda v. Parimala, (2020) 3 SCC 14.

Reliefs available under the Domestic Violence Act

The remedies available under the DV Act as provided from Section 18 to 23 for the aggrieved person are as follows:

The Magistrate after giving the aggrieved person and the respondent an opportunity of being heard and if satisfied that domestic violence has taken place or is likely to take place may pass a protection order and prohibit the respondent from

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

The Magistrate may pass a residence order

  1. a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.

The proviso clause for the section states that no order shall be passed under clause (b) against any person who is a woman.

The High Court of Madras opined that the Act contemplates two types of reliefs viz. (a) right to reside in shared household; and (b) right to seek residence orders under Section 19 of the Act—Section 19(1) of the Act empowers Magistrate to pass variety of residence order. Shared household would come into picture only when relief is sought in terms of Sections 19(1)(a) to (e) of the Act. Aggrieved woman can seek orders to enable her to continue to reside in shared household or protection order to enable her to reside in shared household, then property, which is subject-matter, should be shared household. Aggrieved woman can seek relief of alternate accommodation in terms of Section 19(1)(f) of the Act and in such case concept of shared household would not be attracted. Expression “shared household” occurring in Section 19(1)(f) of the Act is just for purpose of enabling aggrieved woman to seek alternative accommodation, which would be on par with shared household that she enjoyed at some point of time, M. Muruganandam v. M. Megala, 2010 SCC Online Mad 6012.

Under Section 20 of DV Act, an order for monetary relief can be passed by the court in case a woman has incurred expenditure as a result of violence. This may include expenses incurred by a woman on obtaining medical treatment, any loss of earnings, damage to property, etc. The aggrieved person can also claim for maintenance from her male partner.

The Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to,—

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force.

It has also been provided in the section that the monetary relief provided should be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. In case there is a failure in part of the respondent to make payment in terms of the monetary order, the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

The Magistrate may grant temporary custody of the children to the aggrieved woman or any person making an application on her behalf. This is to prevent a woman from being separated from her children, which itself is an abusive situation. Section 21 also states that the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent. However, the Magistrate may refuse such visit to such child or children, if it feels that any visit to the child or children by the respondent may be harmful.

The Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

  • Magistrate’s power to grant interim and ex parte orders (Section 23)

Section 23 gives power to the Magistrate to pass such interim order as he deems just and proper and also if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.

Conclusion

Although the major objective of this law, being to protect the women against domestic violence has been secured, certain portions of the law still remains to be developed. This law provides civil remedies to the victims of domestic violence. Before enactment of this law, in order to seek any civil remedies such as divorce, custody of children, injunctions in any form or maintenance, a woman only had the option of taking recourse to the civil courts. Therefore, the DV Act has certainly brought about the required and necessary change in the system.

Although the Act provides exhaustive remedies to counter the issue of domestic violence certain terms and its interpretation needs to develop. The Act falls short in providing any relief to the male members in the community who are subjected to domestic violence, being one of the areas where the law falls short. However, it also needs to be considered that no crime can be abolished from the society completely, it is only with stringent reforms and mechanism that it can be curbed.


[1] Protection of Women from Domestic Violence Act, 2005


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Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial application stated that,

“Marriage is no doubt a sacrament, but it cannot be a one sided affair.”

Present appeal has been preferred against the Judgment of Family Court wherein the marriage between the appellant/respondent and respondent/petitioner was dissolved as the same was sought on grounds of cruelty and desertion within the meaning of Section 13(1)(i–a) and (i–b) of Hindu Marriage Act.

Facts

Respondent/Petitioner alleged that the conduct of the appellant/respondent was extremely cruel and he possessed a callous and indifferent attitude since the initial years of marriage.

It was also discovered that he had many personality and behavioural problems, wife time and again tried to cope up with husband’s shortcomings an tried to help him acquire stability and status in life, many times forgiving his violence.

On repeated occasions, she found to her consternation, that the appellant/respondent made no effort to either settle down in his job or contribute to the household including taking care of their child’s educational needs.

Things reached a breaking point when despite the request of the respondent/petitioner not to invite his parents to their transit accommodation at Jawahar Lal Nehru University which had limited space and to request them to stay with his sister who was residing in Gurgaon, the appellant/respondent threw a tantrum and left the house in October 2011 without understanding that the reason for the said request was only the pre- board exams of their daughter.

Premised on the above-stated facts, respondent/petitioner filed for divorce.

Appellant/respondent preferred the present appeal on the ground that the petition for divorce has been filed by the respondent/petitioner after nearly 20 years of the marriage and therefore, it ought to have been dismissed.

Counsel for the appellant contended that, language used by respondent/petitioner in her letters does not demonstrates any hard feelings between the couple and thus the story of cruelty was just a figments of imagination of respondent/petitioner on which marriage could not have been dissolved.

Analysis and Decision

A drowning man clutching on to a straw

It is quite evident from the letters written by the respondent/petitioner that while she was doing her very best to preserve the marriage, there was no reciprocation from the appellant/respondent.

“I have been writing to you every week regularly. There is no reply from you? I have left 4-5 inlands in our room letter holder. Pick one of them and write back soon.” In the letter dated 29.07.2000, once again, it starts “how are you? There is yet no letter from you.” Therefore, to submit that these letters disclose a ‘happy family’ scenario, is to blink at the truth.

Bench while noting the log list of instances of cruelty, stated that,

repeated onslaught on her emotions even subsequent to these instances took a toll on the physical and mental health of the respondent/petitioner.

All the relevant events that have continuously occurred in the lives of the parties, reflect a one sided relationship where the appellant/respondent took everything for granted, with no sense of responsibility, while the entire burden of trying to keep the marriage alive was left for the respondent/petitioner to shoulder.

Court also added that, this is a typical case that showcases as to what would amount to cruel behaviour on the part of one spouse to the utter detriment of the other.

Material on record goes to amply demonstrate the sincere efforts made by the respondent/petitioner to salvage the marriage and show that she did more than what was her duty, to preserve it.

Thus in light of the above observations, Family Court’s decision is upheld. [Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571 , decided on 01-05-2020]

COVID 19Hot Off The PressNews

Under the directions of Union Minister for Home Affairs, Shri Amit Shah, Union Ministry of Home Affairs (MHA) has again directed all States/UTs today to ensure adequate security to healthcare professionals, medical staff & frontline workers to prevent violence against them. Strict action must be taken against those who obstruct performance of last rites of medical professionals or frontline healthcare workers succumbing to COVID19, while discharging their services.

MHA had issued advisories to all States/UTs on 24.03.2020, 04.04.2020 and 11.04.2020, requesting them to ensure adequate protection to healthcare professionals, medical staff and frontline workers by augmenting their safety and security cover. In spite of the said communications, some incidents of violence have been reported from different parts of the country against healthcare professionals/frontline workers. It is evident that at this time, any single incident of violence against healthcare professionals is likely to create a sense of insecurity amongst the entire healthcare community.

The Supreme Court of India, in its direction on 08.04.2020, has observed that the Government of India, respective States/Union Territories and respective Police authorities should provide necessary police security to doctors and medical staff in hospitals and places where patients who have been diagnosed COVID-19 or patients suspected of COVID-19 or those quarantined are housed. Further, the Court directed to provide necessary police security to doctors and other medical staff who visit places to conduct screening of people to find out symptoms of disease.

In line with the Supreme Court directions and provisions of the Disaster Management Act, 2005, MHA has urged upon all State/UT and District authorities to invoke the provisions of the Act, or any other law in force, to take strict penal action against the offenders, who obstruct Government health officials, or other health professionals and/ or related persons, who are authorized under the Disaster Management Act, 2005, in the discharge of their lawful services.

MHA has further requested State Governments/UT Administrations to appoint Nodal Officers at State/UTlevel and at District level, who would be available 24×7 to redress any safety issue on the functioning of medical professionals. They should also take immediate and strict action in case any incident of violence takes place, it was requested.

In addition to this, States/UTs have been requested to widely publicize details of preventive measures taken and appointment of Nodal Officers, amongst the medical fraternity, including the local chapters of the IMA, as well as to the public at large, to ensure compliance at ground level.

To read the detailed letter, please click the link below:

SECURITY TO HEALTHCARE PROFESSIONALS


[Dated: 22-04-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsCOVID 19High Courts

Jammu and Kashmir High Court: A Division Bench of Gita Mittal, CJ and Rajnesh Oswal, J. flagged certain important issues with regard to the present situation of pandemic COVID-19.

Healthcare Personnel

Personnel engaged in treatment of COVID-19 patients and prevention of the infection would be working beyond the call of their routine duties and also overtime. Administration may have accounted for such a contingency.

If the above has not been done, the administration may consider the possibility of running 24 hours canteens/kitchens in al hospitals/institutions to enable provision of the necessities of the healthcare and other personnel engaged in addressing the COVID-19 issues.

Secretary, Department of Health and Medical Education look into this matter and submit a report.

In order to ensure the full attention of the personnel addressing COVID-19 issues, it is necessary that they be kept free of any personal tensions and needs.

Thus in above view it is a necessity to create a network/body of person who would attend to the needs of the family members/dependents of all personnel attending COVID-19 issues.

Direction is issued to the Secretary, Department of Social Welfare to examine and take a decision on creation of machinery for addressing the said aspect.

Lockdown

It is essential to be prepared for the possibility of a partial or a full removal of the lockdown restrictions; Preparedness of public about permissible conduct upon removal of restrictions (partial or complete); progression of the COVID-19 virus infection and life of the virus; possibility of carriers existing and infecting despite the lockdown and all related information is required.

Thus, Secretary, Health and Medical Education Department; Secretary, Social Welfare Department; Director, Information Department; Member Secretary, JK State Legal Services Authority  is directed to immediately take such appropriate action as may be required on the above.

Personal Protection Equipments

Complaints about dearth of safety kits for healthcare have been received by the Court.

Thus , Health and Medical Education shall inform this court with regard to availability of personal protection equipments for the safety of all healthcare workers.

Jammu and Kashmir Suspension of Sentence Rules, 2020

Court has asked for the urgent implementation of the above rules for grant of special parole to prisoners.

Additional Secretary to the Government, Sajad Amin Shah stated that directions have been issued to the IGP (Jammu), IGP (Kashmir) and IGP (Ladakh) to ensure that complete safety and security is provided to the personnel who are serving at all government facilities.

One of significant issue noted by the Court was that of incidents of violence against healthcare professionals.

In the current situation, medical, nursing as also paramedical students may be roped in for assisting the efforts. Violence includes not only acts against these personnel but also damage to hospitals, clinics, ambulances etc.

Judicial notice can be taken of the fact that such violence is not new. 

Such violence at this time highlights dangerous consequences which can result as huge spread of the COVID-19 infection; imperil lives of healthcare personnel as also damage to public property earmarked as at present to meet the needs of the COVID-19 infection.

Pandemic and current crisis brings to the fore the critical issue of addressing the issues of violence to healthcare personnel and damage to the property of healthcare establishments.

Court notes that 19 states have enacted their own specific laws addressing violence against healthcare professionals and establishments specifically.

Bench was pained to note that such critical matter being randomly addressed and 19 legislation already in existence in separate States with reports on matter showing hardly any prosecutions.

Further the Court stated that,

these matters would need critical attention of the Central Government as well as the Governments of Union Territories of Jammu and Kashmir and Ladakh.

Possible impact of pollen/seeds with cotton fluffs released by poplar trees in Kashmir valley.

It was submitted that this pollen remains in air for between 25-30 days and created havoc so far as respiratory diseases were concerned.

It may also have the potential to hold the COVID-19 virus and resulted in aggravation of spread of this infection as well.

The above-said aspect is to be examined by Secretary, health and medical Education.

Pilgrims allegedly stranded at Katra

Bench was informed that so far as 400 stranded pilgrims from Bihar were concerned, these persons were camping at Shiv Market/Shiv Temple opposite Jammu Tawi Railway Station at Jammu and not in Katra.

Local administration had shifted these persons to an Ashram at Jammu. Boarding and lodging of these pilgrims/persons was to be taken care of by the District administration.

According to the Shrine board, no single Yatri is stranded at Katra now.

Bench also placed a word of appreciation on the unstinted efforts of Government of Union Territory of Jammu and Kashmir and Ladakh on COVID-19 issues.

Matter has been listed on 10-04-2020. [Azra usmail v. UT of J&K,  2020 SCC OnLine J&K 219, decided on 03-04-2020]

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Ministry of Information and Broadcasting issues advisory and reiterates that all TV Channels are advised to be particularly cautious with regard to any content which:

  • is likely to encourage or incite violence or contains anything against maintenance of law and order or which promotes anti-national attitudes
  • contains an attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes;
  • contains anything defamatory, deliberate, false and suggestive innuendos and half-truths

All private satellite TV Channels are requested to ensure strict compliance with the above.


Ministry of Information & broadcasting

[Advisory dt. 24-02-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., directed the State to remove from all Government portals and facebook sites of government institutions and departments the publications that are Anti Citizenship (Amendment) Act, 2019 and National Register of Citizens (NRC).

Court further asked the Eastern Railway and Southern-Eastern Railway to place reports with respect to actual details of loss caused to railway property and damages incurred therein. The reports will also contain a statement in regard to the action taken and the action to be taken for recovery of loss caused for such damages to the railway property.

The Bench decided to leave open the legal issue as to whether the State or the Government could issue such publications at State expense or using the government machinery.

Court also noted the Advocate General Kishore Datta’s response with respect restrictions on internet services, that the same have been lifted throughout the State and the publication material which is anti-CAA and NRC to be withdrawn from circulation.[Sri Surajit Saha v. State of W.B., 2019 SCC OnLine Cal 5228, decided on 23-12-2019]

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Editors Guild of India issues statement condemning the acts of violence and brutality committed by by police forces, in particular those in Karnataka and Uttar Pradesh, against media persons in dfferent parts of the country in last one week.

Guild reminds the police forces across the country that journalists are present at different venues, where protests are taking place, as part of their Constitutionality guranteed duties of gathering information and disseminating it among the people through tehir respective media platforms. Using force or physical volence against journalists on duty throttles the very voice of democracy and media freedom.

The Guild urges the Union Home Ministry to direct police forces in different states to offer adequate protection to journalists engaged in coverage of the ongoing protests. Instead of targeting them forphysical attack, the need of the hour is to ensure proper and reponsible coverage, a goal that cannot be achieved by by such acts of violence and brutality against journalists on duty.


Editors Guild of India

[Press Statement dt. 23-12-2019]

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Jamia Milia Violence | Jamia Protest | Citizenship (Amendment) Act, 2019

Sunday evening on 15-12-2019 turned out to be full of fear and violence on the campus of Jamia Milia Islamia University when police forces entered the campus and used tear gas along with lathi-charge on students.

It has been reported that, the students were detained and taken to two of the police stations where for a few hours no lawers, activists, media persons or anyone was allowed to enter. Students were beaten in the libraries, hostels, everywhere.

Several came out in support of the Jamia Students.

As reported by NDTV, Protests swept campuses across the country against the police crackdown at Jamia Millia Islamia after Sunday evening’s violence over the new citizenship law.

The police, which used batons and teargas to contain the violence, later barged into the university and detained around 100 students. All the detained students were released around 3:30 am.

Delhi High Court’s take on the incident:

As reported by All India Radio, A bench of Chief Justice D N Patel and Justice C Hari Shankar declined to list the plea for urgent hearing, saying there was no urgency in the matter.

The plea sought judicial inquiry into the action taken by the police, including allegedly firing at the students.  It also seeks proper medical treatment and compensation for the injured students.