Know thy Judge

“When dealing with cases under Section 304-B IPC, a provision legislated to act as a deterrent in the society and curb the heinous crime of dowry demands, the shift in the approach of the courts ought to be from strict to liberal, from constricted to dilated. Any rigid meaning would tend to bring to naught, the real object of the provision. Therefore, a push in the right direction is required to accomplish the task of eradicating this evil which has become deeply entrenched in our society.”

Justice Hima Kohli

State of M.P. v. Jogendra, (2022) 5 SCC 401


Born on 02-09-1959, Justice Hima Kohli brought up in Delhi. She did her schooling from St. Thomas School and graduated from St. Stephens College, University of Delhi in 1979. After getting her postgraduate degree in History from the University of Delhi, she completed her degree in Law in 1984 from the Campus Law Centre, University of Delhi.

As an Advocate

Justice Kohli enrolled as an advocate in the Bar Council of Delhi in 1984 and started practicing at the Courts in Delhi. She joined the chambers of Mrs. Sunanda Bhandare who later was elevated to the position of a Delhi High Court Judge. On the recommendation of Justice Sunanda Bhandare, she joined the chamber of Mr. Y.K. Sabharwal. She then worked at the Chambers of Mr. Vijendra Jain till he himself was elevated as a Delhi High Court judge in 1992 and then continued her practice independently.

  • Did you know? All the three lawyers, i.e. Mrs. Sunanda Bhandare, Mr. Y.K. Sabharwal and Mr. Vijendra Jain, Justice Kohli worked with became High Court judges while she was working with them.[1]

In 1999, she was appointed as Standing Counsel for the New Delhi Municipal Council at the Delhi High Court. She held this position until she was appointed as Additional Standing Counsel Civil for the Government of NCT Delhi in 2004. She was also the Legal Advisor to various government and private corporations including Delhi Pollution Control Committee, the National Agricultural Co-operative Marketing Federation of India, and the National Co-operative Development Corporation. She also provided legal aid services with the Delhi High Court Legal Services Committee.

  • Did you know? During her practice, she worked with Dr. Justice M.K Sharma before he became the Chief Justice of Delhi High Court. He guided her through her first few judgements.[2]

Justice Hima Kohli had marked her presence in many cases as an advocate. Some of the significant cases represented by her are:

As a Judge

On 29-05-2006, Justice Kohli was appointed as an additional judge in the Delhi High Court she was made permanent judge on 29-08- 2007. During her tenure as a judge in Delhi High Court, she wrote several remakable orders and judgments, including protecting the identity of juveniles accused of crime, calling for inquiries into the detention of prisoners who had already been granted bail, provision of facilities to enable visually-challenged people to study in government educational institutions, etc

  • Did you know? Justice Hima Kohli was instrumental in passing directions to increase labs to conduct more COVID-19 tests in Delhi and to decrease the wait period for test results from three days to one day.

Justice Kohli was elevated as the Chief Justice of the Telangana High Court. She was elevated as a Judge of Supreme Court of India on 26-08-2021.

  • Did you know? Justice Hima Kohli was the 1st woman Chief Justice of Telangana High Court

Justice Kohli is also involved with legal education and legal aid in India. In 2017, she was on the General Counsel of the West Bengal National University of Juridical Sciences, in Kolkata. She also served on the council for the National Law University, New Delhi. She became the chairperson of the Delhi State Legal Services Authority from 20-04-2020.

Apart from performing her official duties as a Judge, she takes a keen interest in promoting mediation as an alternative dispute resolution forum, in highlighting the role of the judiciary in preservation of the ecology and environment and the role of Family Courts in resolving family disputes. She has participated in and presented papers at several National and International symposiums and conferences on these subjects.[3]

  • Did you know? Justice Hima Kohli wrote 21 judgements till date after been elevated to Supreme Court.1

Notable Judgements at Supreme Court

“Promise Of Freebies By Political Parties May Push State Towards Bankruptcy”, Says Supreme Court: 4 Issues Referred To A Larger Bench

The 3-judge bench of NV Ramana, CJ and Hima Kohli and CT Ravikumar, JJ has referred, the matter relating to promise of freebies by political parties as a part of their election manifesto or during election speeches, to a larger Bench after observing that,

“Freebies may create a situation wherein the State Government cannot provide basic amenities due to lack of funds and the State is pushed towards imminent bankruptcy. In the same breath, we should remember that such freebies are extended utilizing tax payers money only for increasing the popularity of the party and electoral prospects.”

[Ashwini Kumar Upadhyay v. Union of India, 2022 SCC OnLine SC 1098,]

Read More…

IBC prevails over Customs Act once moratorium is imposed; CBIC has limited jurisdiction, cannot initiate recovery of dues

The 3-judge bench of NV Ramana*, CJ and JK Maheshwari and Hima Kohli, JJ has held that the Insolvency and Bankruptcy Code, 2016 (IBC) would prevail over the Customs Act, 1962 to the extent that once moratorium is imposed in terms of Sections 14 or 33(5) of the IBC as the case may be, the Central Board of Indirect Taxes and Customs (CBIC) only has a limited jurisdiction to assess/determine the quantum of customs duty and other levies as it does not have the power to initiate recovery of dues by means of sale/confiscation, as provided under the Customs Act.

[Sundresh Bhat v. Central Board of Indirect Taxes and Customs, CIVIL APPEAL No. 7667 of 2021, decided on 26.08.2022]

Read More…

‘Nothing survives after filing of Closure Report’; Supreme Court dismisses plea on sanction to prosecute UP CM Yogi Adityanath in 2007 Hate Speech case

The 3-judge bench of NV Ramana, CJ and Hima Kohli and CT Ravikumar*, JJ has dismissed the Special Leave to Appeal in the hate speech case relating to Uttar Pradesh Chief Minister Yogi Adityanath.

[Parvez Parwaz v. State of Uttar Pradesh, 2022 SCC OnLine SC 1103]

Read More…

PM Modi Security Lapse: Justice Indu Malhotra headed Enquiry Committee submits report; Supreme Courts asks Central and Punjab Governments to take further action

After Enquiry Committee headed by Justice Indu Malhotra, former Judge of the Supreme Court of India, had submitted the report on the alleged breach of security that left Prime Minister Narendra Modi stuck on a highway in Punjab for 20 minutes on 05.01 2022, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has sent the report to the Central and State Government for appropriate action against delinquent officers.

“War of words between them is no solution. It may rather impair the need of a robust mechanism to respond at such a critical juncture.”

[Lawyers’ Voice v. State of Punjab, 2022 SCC OnLine SC 1096]

Read More…

Supreme Court directs Haryana Discoms to pay compound interest on carrying cost to Adani Power from the date of Change of Law

In a big win for Adani Power Limited, the 3-judge bench of NV Ramana, CJI and Krishna Murari and Hima Kohli*, JJ has directed Haryana Discoms to pay interest on carrying cost in favour of Adani Power for the period between the year 2014, when the FGD was installed, till the year 2021.

[Uttar Haryana Bijli Vitran Nigam Ltd v. Adani Power (Mundra) Ltd, 2022 SCC OnLine SC 1068]

Read More…

Pegasus| ‘National security cannot be the bugbear that the judiciary shies away from’. The initially reluctant Supreme Court finally decides to interfere

The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

“This Court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights.”

[Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985]

Read More…

Also Read | The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

Interpretation of Schedule X of the Constitution vis-à-vis Disqualification; Speaker/Governor’s powers; Judicial Review: CJI led 3-judge bench refers matter to 5-judge Constitution bench

The 3-judge bench of NV Ramana, CJI and Krishna Murari and Hima Kohli, JJ has referred the question relating to interpretation of Schedule X of the Constitution pertaining to disqualification, as well as the powers of the Speaker and the Governor and the power of judicial review thereof, to the 5-judge Constitution bench.

[Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2022 SCC OnLine SC 1062]

Read More…

Sections 3 and 5 of the 1988 Benami Property law “still-born” and “unconstitutional”; 2016 Amendment can only apply prospectively

In a big judgment on the Prohibition of Benami Property Transactions Act, 1988 [1988 Act], the 3-judge bench of NV Ramana, CJI* and Krishna Murari and Hima Kohli, JJ has held that Section 3 (criminal provision) read with Section 2(a) and Section 5 (confiscation proceedings) of the 1988 Act are overly broad, disproportionately harsh, and operate without adequate safeguards in place and were unconstitutional from their inception. The Court observed that both these provisions were still-born law and never utilized in the first place.

“The continued presence of an unconstitutional law on the statute book, or the claim that such law was not challenged before Constitutional Courts, does not prevent this Court from holding that such unconstitutional laws cannot enure to the benefit of or be utilized to retroactively amend laws to cure existing constitutional defects. If such curing is allowed, then Article 20(1) of the Constitution would be rendered nugatory.”

[Union of India v. Ganpati Dealcom (P) Ltd., 2022 SCC OnLine SC 1064]

Read More…

Lack of enthusiasm of ACB, ADGP not relevant for deciding bail application of accused; SC stays Karnataka HC order against ADGP Seemant Kumar Singh

In a bail application, after the single judge Bench of Karnataka High Court criticised the Anti-Corruption Bureau (ACB) and the Additional Director General of Police (ADGP) for their lack of enthusiasm, the 3-judge bench of NV Ramana, CJ and Krishna Murari and Hima Kohli, JJ has observed that the alleged involvement of the ADGP, and the enthusiasm (or lack thereof) of the ACB officers are irrelevant and beyond the ambit of bail proceedings.

[Seemant Kumar Singh v. Mahesh PS, Diary No(s).20525/2022, order dated 18.07.2022]

Read More…

Confessional Statements made under Section 67 of NDPS Act inadmissible

In a case relating to a drug racket spread across three States namely, U.P., Punjab and Rajasthan, the 3-Judge Bench of N. V. Ramana, CJ., and Krishna Murari, Hima Kohli*, JJ., reversed the impugned order of Delhi High Court releasing the respondent-accused on post-arrest bail.

“The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.”

[Narcotics Control Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891]

Read More…

Madras High Court’s decision to keep enquiry report in a sealed cover in SP Velumani graft case doesn’t sit well with Supreme Court

In the case where the Madras High Court had ordered an enquiry and obtained a report without furnishing a copy thereof to Tamil Nadu Minister SP Velumani in a corruption case and unceremoniously closed the writ petition, the 3-judge bench of NV Ramana, CJ* and Krishna Murari and Hima Kohli, JJ has held that when the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover.

“It was the High Court which had ordered that a preliminary enquiry be conducted and a report be submitted by the special investigating officer. However, once the enquiry was completed, the High Court failed to even peruse the said report. Rather, the High Court left the decision completely in the hands of the State Government. Such an approach, as adopted by the High Court in the present matter, cannot be countenanced in law.”

[S.P. Velumani v. Arappor Iyakkam, 2022 SCC OnLine SC 663]

Read More

Allahabad HC grants bail to a history sheeter only on the basis of parity; prompts SC to lay down illustrative circumstances for cancellation of bail

In a murder case where the Allahabad High Court had granted bail to the main accused only on the basis of parity, the 3-judge bench of NV Ramana, Krishna Murari* and Hima Kohli, JJ has cancelled the bail after observing that the High Court should have taken into consideration factors like the criminal history of the accused, nature of crime, material evidences available, involvement of accused in the said crime, recovery of weapon from his possession, etc.

“There is certainly no straight jacket formula which exists for courts to assess an application for grant or rejection of bail but the determination of whether a case is fit for the grant of bail involves balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. This Court does not, normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with basic principles laid down in a catena of judgments by this Court.”

[Deepak Yadav v. State of U.P., 2022 SCC OnLine SC 672]

Read More

Beyond Reasonable Doubt versus Preponderance of Probabilities: Supreme Court explains why circumstances guide the Courts in deciding Right to Private Defence cases

The bench of BR Gavai and Hima Kohli*, J has held that while deciding a case relating to right to private defence, the Court’s assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up resulting the in knee jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc.

“The underlying factor should be that such an act of private defence should have been done in good faith and without malice.”

[Ex. Ct. Mahadev v. Border Security Force, 2022 SCC OnLine SC 739]

Read More…

More than one chargesheet is necessary for invoking provisions of Gujarat Control of Terrorism and Organised Crime Act, 2015

The Division Bench comprising B.R. Gavai and Hima Kohli, JJ., (Vacation Bench) reversed the order of the Gujarat High Court, by which the applicant was denied the benefit of bail under the Gujarat Control of Terrorism and Organised Crime Act, 2015 (GCTOC Act). The Court held that existence of more than one charge sheet against the accused is essential for invoking the provisions of GCTOC Act.

[Mohamad Iliyas Mohamad Bilal Kapadiya v. State of Gujarat, 2022 SCC OnLine SC 713]

Read More…

Amazon-Future-Reliance Dispute| SC allows Future Group to approach Delhi HC for continuation of merger deal with Reliance Group

The 3-judge bench of NV Ramana, CJ and AS Bopanna and Hima Kohli, JJ has granted liberty to Future Retail Limited (FRL) to approach the Delhi High Court by filing an application seeking continuation of the NCLT proceedings beyond the 8th Stage i.e. Meeting of Shareholders and creditors.

[Future Coupons (P) Ltd. v. Amazon.com NV Investment Holdings LLC., 2022 SCC OnLine SC 188]

Read More…

Is Arbitration Tribunal empowered to award compound interest?

The 3-judge Bench comprising of N.V. Ramana, CJ., A.S. Bopanna and Hima Kohli*, JJ., held that Arbitral Tribunal is empowered to award interest on post award interest.

The instant appeal was filed by UHL Power Co. Ltd. against the order of the Himachal Pradesh High Court disallowing it pre-claim interest i.e., interest from the date when expenses were incurred, till the date of lodging the claim.

[UHL Power Co. Ltd. v. State of H.P., 2022 SCC OnLine SC 19]

Read More…

Can Demand of Money for Construction of a House be Treated as a Dowry Demand? SC answers in a 2002 case where a 5-months pregnant woman set herself on fire

In a case where the Madhya Pradesh High Court had held that demand of money for construction of a house cannot be treated as a dowry demand, the 3-judge bench of NV Ramana, CJ and AS Bopanna and Hima Kohli*, JJ has found the said observation erroneous and has held that the word “Dowry” ought to be ascribed an expansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a valuable security of any nature.

“Dowry must first consist of any property or valuable security— the word “any” is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.”

[State of M.P. v. Jogindra, 2022 SCC OnLine SC 33]

Read More…

Sedition Law under scanner| All pending cases to be kept in abeyance; Centre/States urged not to register fresh cases till Section 124A is reviewed

In the petitions challenging the Constitutionality of Section 124-A of the Penal Code 1860 dealing with the offence of Sedition, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has urged the State and Central Governments to restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the sedition law is under consideration.

[S.G. Vombatkere v. Union of India, 2022 SCC OnLine SC 609]

Read More…

From investigation till culmination of appeal/revision, victim has right to be heard at every step post the occurrence of an offence

In the Lakhimpur Kheri violence case, where the Allahabad High Court had granted bail to the accused Ashish Mishra despite the fact that the ‘victims’ had got disconnected from the online proceedings and could not make effective submissions, the 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ had the occasion to decide whether a ‘victim’ as defined under Section 2(wa) CrPC is entitled to be heard at the stage of adjudication of bail application of an accused.

“Victims cannot be expected to be sitting on the fence and watching the proceedings from afar.”

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

Read More…

Wife goes missing from matrimonial home; body found a week later: Circumstances unerringly point to husband’s guilt despite slipshod investigation

Despite a slipshod investigation in a case, the 3-judge bench of NV Ramana, Surya Kant and Hima Kohli*, JJ has upheld the conviction of a man guilty of killing his wife within a few months of the marriage on her failing to satisfy the demands of dowry. The deceased Fulwa Devi had gone missing from her matrimonial home and her body was found on the bank of river Barakar after a week.

[Parvati Devi v. State of Bihar, 2021 SCC OnLine SC 1285]

Read More…

Notable Judgements at High Court

While religious sentiments of society must be respected, right to life & health of public at large can’t be sacrificed at altar of right to celebrate a festival: HC refuses permission to celebrate Chhat Puja at public places

A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while addressing the instant matter observed that, “while religious sentiments of all sections of the society must be respected, the right to life and health of the public at large cannot be sacrificed at the altar of a right to celebrate a festival, however, significant it may be for a particular community.”

“This is the time to scale down to contain the infection and not to escalate the same.”

[Shri Durga Jan Seva Trust v. GNCTD, 2020 SCC OnLine Del 1456]

Read More…

Is the liability of Principal Borrower and Guarantor co-extensive? Court reiterates SC’s position on continuation of SARFAESI proceedings against Guarantor by banks

A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while considering the question whether a bank/financial institution can institute or continue with proceedings against a guarantor under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), when proceedings under the Insolvency and Bankruptcy Code 2016 (IB Code) have been initiated against the principal borrower and the same are pending adjudication, found no merit in the petition and dismissed it.

[Kiran Gupta v. State Bank of India, 2020 SCC OnLine Del 1390]

Read More…

Husband citizen and domicile of USA, Can he raise objections on divorce proceedings filed by wife in India? Court decrypts the law in light of catena of SC’s decisions

A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while observing a matrimonial application, observed that divorce petition filed by the respondent/wife read as a whole, does disclose a valid cause of action that can be entertained by the Family Court in India.

“The plaint must be read as a whole to determine as to whether it discloses a cause of action.”

[Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319]

Read More…

NLU-Delhi succumbed to GNCTD’s pressure | Notification providing 50% horizontal reservation to candidates having passed qualifying exam from NCT of Delhi — Stayed

A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while addressing the matter with regard to domicile reservation policy for the candidates who have passed qualifying examination from Delhi appearing held that,

“It is well settled that when a statute provides for a thing to be done in a particular manner, it has to be done in that manner only.”

[Balvinder Sangwan v. State (NCT) of Delhi, 2020 SCC OnLine Del 674]

Read More…

Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery; Divorce petition dismissed

A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial appeal filed on behalf of the husband, held that,

“Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery.”

[Vishal Singh v. Priya, 2020 SCC OnLine Del 638]

Read More…

Re-opening of country in a phased manner is not a decision, to have been taken in haste; Costs imposed on finding wastage of judicial time

The Division Bench of Hima Kohli and Subramonium Prasad, JJ. while dismissing a petition that challenged the MHA Notification of phased reopening of the country after nationwide lockdown, imposed a cost of Rs 20,000 due to wasting judicial time.

[Arjun Aggarwal v. Union of India, 2020 SCC OnLine Del 642 ]

Read More…

Non-Provision of Ration | “It is most unacceptable that e-coupons have been distributed in such a large number and yet e-coupon holders are left high and dry”

A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while dealing with the issue of non-provision of ration to e-coupon holders directed GNCTD to ensure that ration to be supplied to the said people by evening of 21-05-2020.

“Any non-compliance shall be viewed seriously.”

[Shabnam v. State (NCT) of Delhi, WP(C) No. 3205 of 2020, decided on 10-05-2020]

Read More…

Second marriage of a mother is by itself not sufficient to deprive her of custody of her biological child

A Division Bench of Hima Kohli and Asha Menon, JJ. dismissed an appeal filed by the appellant-father against the judgment of the Family Court whereby his application under Section 25 of the Guardians and Wards Act, 1890 seeking custody of his minor son was rejected.

“The respondent’s remarriage can hardly be a ground for the appellant to claim that being the natural guardian of the child, he has a better right to claim his custody, over the respondent. At the end of the day, the court must examine the facts and circumstances of the case and then come to a conclusion as to whether it would be in the better interest of the minor child to remain in the custody of the father or the mother.”

[Faisal Khan v. Humera, 2020 SCC OnLine Del 572]

Read More…

A typical case that showcases as to what would amount to cruel behaviour on part of one spouse to utter detriment of other

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.

[Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571]

Read More…

Student not to be deprived of fruits of labour because of unavoidable medical concerns; order granting gold medal upheld: Delhi HC

The Division Bench comprising of Hima Kohli and Rekha Palli, JJ., maintained the decision of a Single Judge in which it was decided “to award a Gold Medal to the respondent for his remarkable academic performance”, which was being denied by the appellant, i.e. Guru Gobin Singh Indraprastha University.

[Guru Gobind Singh Indraprastha University v. Abhinav Pandey, 2018 SCC OnLine Del 11915]

Read More…

Cancellation of candidature of an IIT Qualified engineer at the final stage of induction into Civil Services held disproportionate to bonafide omission

The Division Bench comprising of Rekha Palli and Hima Kohli, JJ., allowed an appeal and set aside the order passed by Principal Bench, Central Administrative Tribunal, New Delhi concerning the cancelling of candidature for Civil Services Examination 2017 by UPSC.

“Error on the part of the petitioner could not be treated as a misrepresentation or suppression of facts.”

[Anuj Pratap Singh v. Union of India, 2018 SCC OnLine Del 10982]

Read More…


* Judge who has penned the judgment.

[1] Lexi Insider, https://lexinsider.com/justice-hima-kohli-a-self-made-woman-in-a-mans-world/

[2] Lexi Insider, https://lexinsider.com/justice-hima-kohli-a-self-made-woman-in-a-mans-world/

[3] High Court for the State of Telangana, https://tshc.gov.in/judprofile.action?judcode=1011


1. SCC Online, https://www.scconline.com/Members/SearchResult.aspx

Call For PapersLaw School News

The GNLU Centre for Women and Child Rights is organizing a two-day “Right to Education Conclave” on 8th – 9th October 2022 at Gujrat National Law University, Gandhinagar. The RTE Conclave is a first-of-a-kind conference that seeks to bring academicians, students, practitioners, activists, and policymakers together to work towards the effective implementation of the RTE Act, both in essence and spirit. The Conference aims to set a reference point for future discourse on the RTE Act by identifying and addressing some of the contemporary issues and challenges. The Two-days Conclave is expected to witness many participants, including students, renowned keynote speakers, practitioners, and academicians from different parts of the country.

Main sub-themes of the Conclave are:

  1. Role of Legal Professionals and students of law in improving access to education in India.

  2. NEP 2020 and RTE Act 2009: Issues, challenges, and way forward.

  3. Implementation of Section 12(1)c of the RTE Act, 2009 in India.

  4. Understanding RTE in light of specially-abled children.

  5. Reforms in the school examination system.

  6. Education as a subject under the concurrent list: Emerging issues between Centre and States.

  7. Economic Analysis of RTE Act, 2009.

  8. Regulation of Private Unaided Schools in India.

  9. Role of RTE in addressing challenges for doubly oppressed and marginalized sections.

  10. Education and Gender. Re-imagining Indian Education Laws in light of global standards.

  11. Impact of social media on the Right to education.

  12. The future of Ed-tech in the development of the Education Centre in India.

  13. Please note that the list of sub-themes is merely suggestive and non-exhaustive in nature. The authors can choose to submit manuscripts on other relevant and contemporary topics under the broad theme.

It is also pertinent to point out that the top three papers will be awarded a cash prize as well as a certificate of merit. Further, the conclave shall also ensure ample opportunities to interact with professionals and practitioners in the RTE sector. The last date for the submission of abstracts for the conclave is 31st July, 2022. The communication of acceptance of the abstracts shall be done by the 8th of August, 2022. The last date for the final paper submission is the 8th of September,2022. The communication of acceptance of full paper shall be done by the 15th of September, 2022. The payment of conference fee must be cleared by the 17th of September 2022.

Please find attached herewith the Conclave brochure as well as the link for abstract submission.  The GNLU Centre for Women and Child Rights look forward to positive responses and participation.

Link for Abstract Submission: HERE

Legal RoundUpSupreme Court Roundups

Year 2021! The year that started with the hope of the COVID-19 Pandemic nearing an end with countries starting vaccination, ended up becoming deadlier than the year gone by. A year of losses for many, 2021 was also the year when the Supreme Court judges lost one of their own. Justice MM Shantanagoudar, a sitting judge of the Supreme Court, breathed his last on April 24, 2021.

Read: The Judicial Legacy of Justice MM Shantanagoudar

As the Nation was crippled with hardship and adversity, the Supreme Court refused to bog down and went on to deliver 865 judgments, which is a lot more than the number of judgments delivered in the 2020.

The year also witnessed the appointment of 9 judges, including 3 women judges and if all goes well, Justice BV Nagarathna, might take oath as the first woman Chief Justice of India in 2027!  Read more…

5 judges, including the former CJI Justice SA Bobde, retired. Justice NV Ramana took oath as the 48th Chief Justice of India. Read more…

Also read:

·        Chief Justice SA Bobde retires: A look at his legacy and justice in the time of COVID-19

·        A Winner All Along – Justice Indu Malhotra

·        Messiah of the sufferers: Bidding adieu to Justice Ashok Bhushan

·        A Multifaceted Expert — Justice Rohinton Fali Nariman

·        A Champion who applied technology to optimize human potential and capabilities – Justice Navin Sinha

Let’s go through the most important of the 865 judgments delivered by the Supreme Court in the year 2021. 

CONSTITUTION BENCH VERDICTS

Only 3 Constitution Bench judgments were delivered in the year 2021. Read all about them here.


THE MOST TALKED ABOUT CASES

Central Vista Project

The year began with the Supreme Court giving a go-ahead to the Central Vista Project in a 2:1 verdict. While the majority found itself compelled to wonder if it can dictate the government to desist from spending money on one project and instead use it for something else, Justice Khanna, in his dissenting opinion, observed that citizens have the right to know and participate in deliberation and decision making. [Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7]

Read: Supreme Court gives a go-ahead to Central Vista Project in a 2:1 verdict

Also read: Justice Khanna dissents in 2:1 verdict clearing the Central Vista Project

Farm Bill and Farmer Protest

While the repeal of the Farm laws came at the fag end of the year, the Supreme Court stayed the implementation of these Laws right in the beginning of the year after noticing that despite the peaceful protest, a few deaths had already taken place as Senior Citizens, youth and children were exposing themselves to not just the cold weather but also to COVID-19. [Rakesh Vaishanv v. Union of India,  (2021) 1 SCC 590]

Read: Supreme Court stays implementation of Farm Laws

Also read: Farmer Protests| Shashi Tharoor and 6 journalists not to be arrested for now over tweets on protester’s death during Republic Day Tractor Rally

Here’s a list of some more unmissable high-profile cases:


THE WAY FORWARD

The structures of our society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless, are a reflection of the insidious patriarchal system.

Nitisha v. Union of India

2021 SCC OnLine SC 261

In 2021, the Supreme Court showed the way forward by giving many progressive orders/judgments. One of the top stories from the year 2021 was where the Court said that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch was arbitrary and irrational.

In another important ruling, before taking the oath as the Chief Justice of India, Justice NV Ramana noticed that the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome. He added that the issue of fixing notional income for a homemaker, therefore, served extremely important functions.

Here is the list of all the judgments that take us as a nation a step forward:


SEDITION AND FREE SPEECH

By way of a series of judgments and orders on free speech, the Supreme made clear that, a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries.

In a big move, the Supreme Court also agreed to decide the constitutionality of Section 124A IPC after it was submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 required reconsideration. [Kishorechandra Wangkhemcha v. Union of India, (2021) 6 SCC 177]

Read everything here:


IBC – THE IMPERFECT LAW?

While stating that “there is nothing like a perfect law and as with all human institutions, there are bound to be imperfections”, the Supreme Court, in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. [Manish Kumar v. Union of India,  (2021) 5 SCC 1]

Read: IBC (Amendment) Act, 2020 upheld, albeit with directions

This judgment was followed by a series of judgments and orders on IBC. Check out the list below to read more:


RIGHTS OF PERSONS WITH DISABILITIES

“In their blooming and blossoming, we all bloom and blossom.”

Vikash Kumar v. Union Public Service Commission,

(2021) 5 SCC 370

This year witnessed many Supreme Court Judgments and orders on the Rights of Persons with Disabilities.

Check out this list to know more:


DEMOCRACY AND TRANSPERANCY

No-one is above law; this was the Supreme Court message as it stressed on importance of transparency by Political Parties and Government Institutions.

Read here:


THE CONSTITUTIONAL RIGHT TO PROPERTY

In a case where State took possession of surplus land in absence of surplus land, this Supreme Court’s verdict served as a reminder that right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. [Bajranga v. State of Madhya Pradesh,  2021 SCC OnLine SC 27]

Read: Right to property is still a constitutional right under Article 300A of the Constitution


WHEN A CONSTITUTIONAL AMENDMENT WAS STRUCK DOWN

In a rare move, the Supreme Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B was ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. [Union of India v. Rajendra N. Shah2021 SCC OnLine SC 474]

Read: Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid: SC


THE “EVEN MORE DESERVING PARTIES”

Section 89 of CPC and Section 69-A of Tamil Nadu Court Fees and Suit Valuation Act, 1955 contemplate the refund of court fees in all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at and not just to those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC.

The Court observed that the parties agreeing to out-of-court settlement are “even more deserving”. [High Court of Madras v. MC Subramaniam(2021) 3 SCC 560]

Read: Parties agreeing to out-of-court settlement without judicial intervention under Section 89 CPC can’t be denied benefit of refund of court fees


BANKS AND BANKING

While the Constitution bench looked down upon the “mechanical” conversion of complaints under Section 138 NI Act from summary to summons trial and directed that the magistrates “must” record reasons, many other important decisions were given in 2021.

Read here: 


CONSUMER PROTECTION

The Supreme Court took cognizance of Government’s lackadaisical attitude towards consumer empowerment and observed that the ground reality is quite different as there is little endeavour to translate this Legislative intent into an administrative infrastructure with requisite facilities, members and staff to facilitate the decision on the consumer complaint.

Here are the important rulings on Consumer Protection that you cannot miss:


FROM “DEATH” TO “LIFE”

In 3 cases, the Supreme Court commuted the death sentences of the convicts to Life Imprisonment and in one case, 3 death row convicts were acquitted of all charges.

Read here:


MOTOR ACCIDENTS CLAIMS

Read how a one-stop online platform for all parties involved and Motor Vehicle Appellant Tribunals will help in achieving a hassle free disposal of Motor Vehicle Accident claims:


ARBITRATION

No year goes by without the Supreme Court delivering some important ruling on Arbitration and the year 2021 was no different.

Read the updates here:


A GUIDE FOR THE BENCH!

“The Magistrates are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant.”

Krishna Lal Chawla v. State of U.P.,

2021 SCC OnLine SC 191

In 2021, the Court also delivered a number of judgments on the issues of pendency of cases, judicial vacancies and overall standard to be followed by the members of bench while dealing with case.

Read all about these judgments here:


COVID-19

As the second wave of COVID-19 brought the nation to its knees, the Supreme Court did everything in it’s power to ensure that the loss is minimized.

Read all the important judgments here:

High Court Round UpLegal RoundUpSupreme Court Roundups

One of the most popular and auspicious festivals of India, Navratri or Durga Pooja is being celebrated in the country since time immemorial. The legend of Navratri and its origin revolves around the mighty demon, Mahishasura who, having obtained the blessing of immortality from lord Shiva started aiming to win Trilokas (Prathvi, Narka, and Swarg). The might of Mahishasur could be imagined by the saying that he had made even the Devine Trinity/Tridevas (Brahma, Vishnu, and Shiva) helpless as only a woman could defeat him.

To redeem the world from the atrocities of Mahishasura the Trinity created goddess Durga to win over the demon. The battle between goddess Durga and Mahishasur continued for 9 nights, where the devil kept changing his forms to confuse the goddess and at the end of the ninth night, Goddess Durga beheaded Mahishasura and marked her victory over the evil. These nine nights are known as Navratri, while the tenth day is Vijayadashmi, the tenth day that brought the morning of victory.[i]

Interestingly, this year the President had appointed 9 Supreme Court Judges, including 3 women. Therefore, to celebrate the Shakti of Women and her remarkable triumph over the devil of patriarchy, we have curated the 9 remarkable judgments from the Supreme Court of the country to the High Courts that strengthen the path of women empowerment:

1. ‘Not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces’; Army’s evaluation of Women SSC Officers for grant of permanent commission arbitrary: SC

In major win for women Officer in Indian Army, the division bench of Dr. DY Chandrachud* and MR Shah, JJ has held that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is arbitrary and irrational.

Read More…

2.Supreme Court issues interim direction allowing women to participate in NDA exams

Taking a significant step towards gender equality, the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., issued interim direction permitting the women candidates to take part in the National Defence Academy (NDA) examination.

Read More…

3. Raj HC directs State to take necessary steps for constitution of Rajasthan State Commission for Women as mandated by S. 3 of Rajasthan State Commission for Women Act, 1999

A Division Bench of Manoj Kumar Garg and Sangeet Lodha JJ. directed State to take necessary steps for constitution of Rajasthan State Commission for Women(‘the Commission’) as mandated by section 3 of the Rajasthan State Commission for Women Act, 1999.

Read More…

4. Bom HC | Can a transgender contest election from a seat reserved for women candidate? HC espouses transgender people’s “Right to Self-Perceived Gender Identity”

A Vacation Bench of Ravindra V. Ghuge, J., allowed the petitioner, a transgender person, to contest the panchayat elections from a seat reserved for women candidate.

“It is quite apparent that the Returning Officer was handicapped insofar as the knowledge of law was concerned while deciding the fate of the nomination form of the petitioner….(and had) opted to reject the form believing that the petitioner can neither be a male nor a female and the ward has been reserved for women general category. There is no ward reserved for the transgender.”  

Read More…

5. Kar HC | “The best thermometer to the progress of a nation is its treatment of its women” Court quoted Swami Vivekananda and Bhagavad Gita while confirming sentence of acid attack accused

A Division Bench of B. Veerappa and V. Srishananda, JJ., allowed the appeal in part and confirmed impugned judgment of conviction and order of sentence. The Court observed that the Court cannot shut its eyes to obnoxious growing tendency of young person like accused resorting to use corrosive substances like acid for throwing on girls, causing not only severe physical damage, but also mental trauma to young girls.

Read More…

6. Ker HC| Muslim women’s right to Khula (extra-judicial divorce) revived; Patriarchal decision in K. C. Moyin overruled.

The Division Bench of A. Muhamed Mustaque and C. S. Dias, JJ., addressed the controversial question regarding rights of Muslim women, i.e.  Have Muslim women lost their right to invoke extra-judicial divorce, after the coming into force of the Dissolution of Muslim Marriages Act, 1939? The Bench expressed,

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

Read More…

7. Del HC | PIL seeking paid leave to women employees during menstruation: Centre & State Govt. to consider PIL as representation

In the PIL, it was sought that 4 days leave be granted to all classes of women employees and to pay overtime allowance to menstruating women employees if they opt to work during that period. Various other reliefs such as period rest, clean and separate toilets along with the provision of sanitary napkins be provided to women during their menstruation period.

About the daily wage, muster roll, contractual and outsourced workers, the plea had said they also face severe difficulties during menstruation as their work places lack adequate sanitation and clean toilets and they are not given the facility of earned or sick leave by their employers.

Read More…

8. Ori HC | Same-sex couple have a right to live together outside wedlock; Rights of a woman enshrined in Protection of Women from Domestic Violence Act, 2005 to apply on the “lady” in the relationship

A Division Bench of S. K. Mishra and Savitri Ratho, JJ. allowed a same-sex couple to live in together and to provide them with all kinds of protection as enshrined in Part III of the Constitution. The Bench held,

“Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation…”

Read More…

9. Ker HC| [Transgender in NCC] “We cannot take recourse to the outdated provisions of 1948 to deal with the realities of life in the year 2021”; Kerala HC directs NCC to consider enrolment of a trans woman in the female wing

“The continued actions on the part of the respondents in perpetuating discrimination against persons like the petitioner only for the reason that she was born with the characteristic of a gender which did not match her self-perceived gender identity amounts to violation of the petitioner’s valuable rights guaranteed under Article 14, 15, 19 and 21 of the Constitution of India.”

Read More…


† Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 

[i] https://festivals.iloveindia.com/navratri/navratri-history.html

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., refused to grant relief to the petitioner against orders of the lower court restraining him from dispossessing the respondent from the subject property and also directing him to pay monthly maintenance to her.

Factual Matrix

Respondent had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It was stated that the respondent met petitioner in the year 2009 when she was already married. In the year 2014 after obtaining divorce, the respondent got married to the petitioner.

It is further stated that the petitioner in order to induce respondent to marry him did not disclose his marital status to her. Though petitioner executed a Marriage Agreement to how his genuineness and responsibility towards the respondent and her child from a prior marriage.

Respondent was subjected to physical and mental abuse by the petitioner. Hence, respondent had filed an FIR against the petitioner. Respondent also sought a restraining order from being evicted from the rented accommodation.

Analysis, Law and Decision

High Court expressed that DV Act is meant to provide for the rights of women to secure housing.  The Act also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household.

What does the aggrieved have to show?

Aggrieved person has to show that the aggrieved person and the respondent (man) lived together in a shared household.

Marriage Deed was filed which recorded that after the marriage parties will reside together as husband and wife and will be faithful towards each other. There were photographs of the petitioner and respondent that gave the impression that the parties were living together as husband and wife and had married each other.

As per the school record of the child, petitioner was the father of the child. Copies of the bank accounts were filed wherein the petitioner has been shown as a nominee of the account held by the respondent.

High Court noted that the couple held themselves out in the society as being akin to spouses which fact was evident from marriage-cum-agreement deed, affidavits, the school records of the child and the bank statements of the respondent.

In the present matter, respondent was told that the wife of the petitioner was on dialysis and that she would die soon.

Petitioners’ contention was that he had not entered into any rental agreement and the agreements, affidavits and the photographs produced by the respondent were not genuine.

Bigamous and Adulterous Relationship?

Bench expressed that question as to whether the respondent herein has been duped by the petitioner or whether she was a party to an adulterous and bigamous relationship or not and whether her conduct would not entitle her to any protection under the DV Act can be determined only after the evidence is led.

Metropolitan Magistrate, after the evidence led, had concluded that the respondent was not entitled to the protection of the DV Act and hence shall return the respondent the amount received by her as interim maintenance.

High Court held that the matter be heard by the trial court and should be decided finally within a period of 1 year. [Parveen Tandon v. Tanika Tandon, 2021 SCC OnLine Del 3044, decided on 7-06-2021]


Advocates before the Court:

For the Petitioner: Utkarsh and Anshu Priyanka, Advocates.

For the Respondent: Kamal Anand, Advocate

Op EdsOP. ED.

“Unwomanly” and “arrogant”: These were some of the comments which Valli Arunachalam, the fourth-generation scion of the Murugappa group (Group), would have to face when she presented her candidature for possibly becoming the first woman director at Ambadi Investments Limited (AIL), the holding company of the Group. As Valli rested her candidature on the combined 8.15% stake inherited from her father in light of Vineeta Sharma v. Rakesh Sharma[1], her campaign came to an abrupt end when 91% of the Board voted against[2] her  candidature in its 79th AGM held on 21-9-2020. While such gender disparity scandals on the Boards of Indian family conglomerates are not unheard of, the issue seems grave when viewed in light of the oft-flouted corporate governance policies established for the same with regards to the listed entities.

The policy measures adopted by the Indian Government and the Securities and Exchange Board of India (SEBI) have led to an increment[3] in the number of women Board members in India from a lowly 5% in 2013 to a moderate 15% in 2019. However, Indian companies have rarely inducted more women on their Boards than the minimum stipulated requirement; only 2.2%[4] of the Nifty-500 firms had more than three women in their boardrooms (2019). Despite various studies[5] showing a positive correlation between the number of women in senior positions and the firm’s performance, there were less than 5% women CEOs in India in 2019[6]. As per the NSE (National Stock Exchange) Infobase (data as on 21-4-2021), there are presently only 2044 women directors in NSE-listed companies as compared to 11416 directors in total. 1235 out of 5524 independent directors are female while 75 NSE-listed companies have no women directors on their Boards.[7]

Apropos of the above, the authors have herein tried to highlight the current mandate of gender diversity in Indian boardrooms and the shortfalls in the present framework along with providing probable suggestions to promote gender diversity at the top echelon of Indian corporate structures.

Extant framework

As examined below, the current framework is a mix of statute, rules and guidelines:

(a)  The Companies Act, 2013 (Act) first introduced a provision mandating a woman director and laid the groundwork for the beginning of adequate representation in Indian boardrooms. The second proviso to Section 149(1) of the Act specifies that such class or classes of companies as may be prescribed shall have at least one-woman director.[8]

(b)  The Companies (Appointment and Qualification of Directors) Rules, 2014 (Rules) elucidates on the statutory provisions enshrined in the Act and specifies the classes of companies that shall have at least one-woman director. As per Rule 3[9], these are:

  1. Every listed company.
  2. Every other public company with either a paid-up capital of INR 100 crores or more, or a turnover of INR 300 crores or more.

A specified company under the provisions of the rule has six months from the date of incorporation to comply with the provisions. Furthermore, in case such a woman director resigns then the company has to fill the vacancy at the earliest but not later than 3 months or the next meeting of the Board, whichever is later.

(c) Section 450 of the Act deals with “punishment where no specific penalty or punishment is provided”.[10] While the second proviso to Section 149(1) and Rule 3 both do not specify any penalty or punishment for non-compliance, Section 450 prescribes punishment for contravention of such provisions. It lays down a structure of fines for companies, officers of such companies or any other person which can extend to INR 2 lakhs for companies and INR 50000 for individuals/officers.

(d) An Equity Listing Agreement is a 54-clause agreement executed between the stock exchange and the entity which is being listed on it. The main purpose of this agreement is to ensure that companies follow good corporate governance practices. The stock exchange on behalf of the market regulator (SEBI) ensures that listed entities comply with the agreement. Clause 49(II)(A)(1) of the agreement specifies that the Board of Directors (BoD) of the company shall have at least one-woman director.[11] The timeline to comply with the same was till 31-3-2015. SEBI vide its circular dated 8-4-2015 prescribed a fine structure for non-compliance with Clause 49(II)(A)(1).[12] Pursuant to this circular, several listed entities were fined by stock exchanges.[13]

(e) The market regulator, SEBI, has a series of regulations to govern and regulate listed entities. Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 (Regulations) is one such set of regulations used by SEBI to regulate listed entities. Regulation 17(1)(a) provides that a listed entity should have at least one-woman director on its Board.[14]

To facilitate the implementation of these Regulations, SEBI released a circular dated 22-1-2020 on streamlining of fines for non–compliance of listing obligations and disclosure requirements (LODR) by listed entities and standard operating procedure (SoP) for suspension and revocation of trading of specified securities (circular).[15] Annexure I of this circular prescribes a fine of INR 5000 per day for non-compliance by a listed entity with the provisions of Regulation 17(1). As per Annexure II, non-compliance, and non-payment of fine can result in freezing of shares of the promoter(s). Non-compliance with the provisions of Regulation 17(1) for two consecutive quarters can result in the scrip (share/stock of a listed entity) of the entity being placed in category Z. This means that the scrip is suspended from trading and cannot be traded intraday. The scrip is thus traded on a “trade for trade” basis only on selected days which are specified by the regulator. Pursuant to this, a number of entities were fined[16] under a previous version[17] of these SOPs issued in 2018 for not complying with the Regulations.

The way forward

Based on the above regulatory framework, the authors have observed certain areas which, if given further focus, could help in moving the mandate beyond mere representation, towards equality.

(a) The Ministry of Corporate Affairs, by way of a notification dated 4-1-2017 excluded “Specified International Financial Services Centres (IFSC) Companies” from the purview of the second proviso to Section 149(1) of the Act.[18] While the overall purpose of the said notification was to reduce statutory compliances/hurdles that specified IFSC Companies have to deal with, the issue of ensuring adequate representation of women in BoD should not be reduced to something that is looked upon as a mere statutory compliance/hurdle for a company.

(b) As per the second proviso of Rule 3 of the Rules, any intermittent vacancy of a woman director shall be filled-up by the Board at the earliest but not later than immediate next Board meeting or three months from the date of such vacancy, whichever is later. A maximum period of 120 days is permissible between two board meetings. Thus, any intermittent vacancy of a woman director must be filled up between 90-120 days by the Board. However, Annexure II, Paragraph 2 point (a) of the SEBI circular dated 22-1-2020[19] allows listed companies a period of 180 days (two consecutive quarters) to not comply with LODR Regulation 17(1) before action is initiated for suspension of trading of shares of the said entity. This period in the circular should be reduced to be in consonance with the period stated in Rule 3.

(c) Although the provisions for both independent and women directors are corporate governance measures, however, the dissonance therein is apparent. Rule 3 of the Rules mandates that every public company with either a paid-up capital of INR 100 crores or more or a turnover of INR 300 crores or more must have at least one female director. Rule 4 mandates that every public company with either the paid-up share capital of INR 10 crores or more or turnover of INR 100 crores or more must have independent directors.[20] Thus, in order to widen the base of companies having the gender diversity mandate, it is advisable to lower the pecuniary threshold limits in Rule 3 in a phased manner to a level similar to that in Rule 4.

(d) At present, the Companies Act, associated rules, and SEBI Regulations prescribe one woman director. To increase the number of women directors, this number can be revised to a proportion or a fraction of the Board for certain specified entities.

Concluding remarks

As is indicated from the aforesaid discussion, a holistic framework has been developed in the nation to encourage the representation of women in key positions at corporates. However, the latest figures given by the NSE suggest a stark contrast between the ideated measures and ground realities. The need of the hour is strict implementation of the above framework and modification of the same to increase compliance and coverage rates.


4th year BA, LLB (Hons) student at Rajiv Gandhi National University of Law, Punjab.

†† 4th year BA, LLB (Hons) student at Rajiv Gandhi National University of Law, Punjab.

[1] (2020) 9 SCC 1

[2] See, “Murugappa Group Family Feud Rages On; Valli Arunchalam Denied Board Position

[3] See, “More Women are Joining Boards but Few Get Corner Office

[4] Ibid.

[5] See, IMF Working Paper titled “Gender Diversity in Senior Positions and Firm Performance: Evidence from Europe

[6] Supra note 3.

[7] See, NSE Infobase

[8] S. 149(1), Companies Act, 2013

[9] R. 3, The Companies (Appointment and Qualification of Directors) Rules, 2014

[10] S. 450, Companies Act, 2013 

[11] Cl. 49(II)(A)(1), Equity Listing Agreement

[12] SEBI Circular dated 8-4-2015

[13] See, “Woman Directors: 1,375 BSE, 191 NSE Companies Fined for Non-Compliance”

[14] Regn. 17(1)(a), Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015

[15] SEBI Circular dated 22-1-2020

[16] See, “NSE Penalises 250 Companies for Non-Compliance with Listing, Disclosure Norm”

[17] SEBI Circular dated 3-5-2018

[18] Ministry of Corporate Affairs Notification dated 4-1-2017

[19]Supra note 15.

[20] R. 4, Companies (Appointment and Qualification of Directors) Rules, 2014

Kerala High Court
Case BriefsHigh Courts

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

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

Controversy before the Court

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

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

Observations and Analysis

 Chapter IV: Verse 28 of Quran states that,

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

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

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

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

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

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

Khula: Whether Consent of Husband a prerequisite?

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

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

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

Validity of Khula without Attempts for Reconciliation

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

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

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

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

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

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


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before The Court By:

Amicus Curiae: Adv.K.I.Mayankutty Mather

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

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

Counsel for Kerala Federation Of Women: Adv. Shajna

Op EdsOP. ED.

Every year, the 8th Day of the month of March is celebrated as International Women’s Day; but what is significance of this day? In order to know more about the evolution of this day, let’s take a trip down the alleyway of history!


United States of America: A Movement is Born[1]


In 1848, United States of America, Elizabeth Cady Stanton and Lucretia Mott, indignant over women being barred from speaking at an anti-slavery convention, gathered over a few hundred people at their nation’s first women’s rights convention in New York. Together they demanded civil, social, political and religious rights for women in a Declaration of Sentiments and Resolutions.

In the year 1909, the Socialist Party of America observed for the first time the “National Women’s Day” on 28th February, in order to honour of the garment workers’ strike in New York, where women protested against working conditions.


The flame spreads to Europe


Inspired by the American Socialists, in 1910, German delegates Clara Zetkin, Käte Duncker and Paula Thiede, proposed the observance of an annual “Women’s Day” with the idea to promote equal rights including “Right To Vote”  for women.  The Socialist International, meeting in Copenhagen, Denmark established a Women’s Day, international in character, to honour the movement for women’s rights and to build support for achieving universal suffrage (voting rights) for women.[2]

In the year 1911, International Women’s Day was marked for the first time, by over a million people in Austria, Denmark, Germany and Switzerland. Women demanded that they be given the right to vote and to hold public office. They also protested against gender discrimination in employment.

International Women’s Day also became a mechanism for protesting World War I. Russian women observed their first International Women’s Day in February 1913.

In 1914, International Women’s Day was held on 8th March in Germany[3] dedicated to women’s right to vote, which German women did not win until 1918.

On March 8th, 1917, in Petrograd, the capital of the Russian Empire, women textile workers began a demonstration, covering the whole city. Women in Saint Petersburg went on strike that day for “Bread and Peace”[4] demanding the end of World War I, ending of Russian food shortages, and the end of Czarism (Russian Emperorship). Four days later, the Czar abdicated and the provisional Government granted women the right to vote.


The 70s Era and United Nations


In the 1970s, Women’s Day re-emerged as a day of activism with several women’s groups calling for equal pay, equal economic opportunity, equal legal rights, reproductive rights, subsidized child care, and the prevention of violence against women. After the Second World War, 8th March as Women’s Day started to be celebrated in a number of countries.

In 1975, during the International Women’s Year, the United Nations began celebrating 8th March as International Women’s Day. Two years later, in December 1977, the General Assembly adopted a resolution proclaiming a United Nations Day for Women’s Rights and International Peace to be observed on any day of the year by Member States, in accordance with their historical and national traditions.[5]


International Women’s Day- India’s Tryst


Everywhere in Europe while the women were coming out on the streets demanding their rights, meanwhile in contemporary India, in the year 1917, Margaret Cousins founded the Women’s Indian Association in Adyar, Madras, to create a vehicle for women to influence government policy and focus on equal rights, educational opportunity, social reform, and women’s suffrage.[6]

The British Parliament passed the Representation of the People Act 1918, enfranchising women over the age of 30, who were entitled to be, or who were married to someone entitled to be, a local government elector. Madras was the first province to grant women the “Right to Vote” in 1921.[7]

In 1927, the All India Women’s Conference (AIWC) was formed to advocate for women’s education and was helpful in the passage of the Hindu Code of Bills between 1952 and 1960.

In 1950, the Constitution of India granted voting rights to all women and men. The Constitution of India guaranteed to all Indian women equality; equal opportunity; equal pay for equal work. The Constitution also renounced practices derogatory to the dignity of women; and also allowed for provisions to be made by the State for securing just and humane conditions of work and for maternity relief.

The Government of India declared 2001 as the Year of Women’s Empowerment[8]

Women’s organisations in India first began to emerge in the early 1800s, and later in the 1970s after a period of limited activity from the 1950s to 1970s. India has one of the highest numbers of female politicians in the world. Women have held high offices in India including that of the President, Prime Minister, Speaker of the Lok Sabha and Leader of the Opposition

The Indian Armed Forces began recruiting women to non-medical positions in 1992[9]. The Border Security Force (BSF) began recruiting female officers in 2013. On 24th October 2015, the Indian government announced that women could serve as fighter pilots in the Indian Air Force (IAF)[10].


†Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] https://www.un.org/en/observances/womens-day/background

[2] https://womenwatch.unwomen.org/international-womens-day-history

[3] https://www.dw.com/en/berlin-marks-first-official-womens-day-holiday/a-47811363

[4] The Guardian, Women -protest sparked Russian revolution

[5] https://www.un.org/en/observances/womens-day/background

[6] The Hindu, Emancipation of Women

[7] Political Participation of Women in India

[8] https://pib.gov.in/newsite/erelcontent.aspx?relid=1039

[9] Reuters, Indian Armed Forces to recruit women for all combat roles

[10] Digital Journal, India paves way for women in army combat

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has held that there is no bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail.

Background

On 27 August 2020, a Muslim woman lodged a first information report, complaining of offences under the provisions of Section 498-A read with Section 34 of the Indian Penal Code and the Muslim Women (Protection of Rights on Marriage) Act 2019, alleging that in December 2019, her husband pronounced talaq three times at their house. Following this, he entered into a second marriage.

The Kerala High Court, on November 2, 2020, while declining to grant anticipatory bail observed:

“If the prosecution case is correct, the 1st petitioner is now enjoying with his second wife when the matrimonial relationship with the de facto complainant is in existence.”

However, the order of the High Court contained no reason why the appellant, i.e. the mother-in-law of the complainant, was being denied anticipatory bail.

The first petitioner is the spouse of the complainant and second petitioner is the mother of the first petitioner. Supreme Court had, on December 3, 2020, refused to entertain the Special Leave Petition by the first petitioner and he was granted time to surrender before the competent court of jurisdiction and apply for regular bail.

The Court was now called upon to decide whether the High Court was right in refusing to grant anticipatory bail to the appellant i.e. the mother-in-law of the complainant.

Analysis

Who is punishable for the offence of pronouncement of triple talaq?

The Muslim Women (Protection of Rights on Marriage) Bill 2019 was introduced in the Parliament to give effect to the ruling of this court in Shayara Bano v. Union of India, (2017) 9 SCC 1, and “to “liberate” Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men.”

The provisions of Section 7(c) apply to the Muslim husband. The offence which is created by Section 3 is on the pronouncement of a talaq by a Muslim husband upon his wife. Section 3 renders the pronouncement of talaq void and illegal. Section 4 makes the Act of the Muslim husband punishable with imprisonment.

“Thus, on a preliminary analysis, it is clear that the appellant as the mother-in-law of the second respondent cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man.”

Does Section 7(c) of the Act bars the power of the court to grant anticipatory bail under Section 438 of the CrPC?

Under clause (c) of Section 7, Parliament has provided that no person who is accused of an offence punishable under the Act shall be released bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom the talaq is pronounced, is satisfied that there are reasonable grounds for granting bail.

The statutory text indicates that Section 7(c) does not impose an absolute bar to the grant of bail. On the contrary, the Magistrate may grant bail, if satisfied that “there are reasonable grounds for granting bail to such person” and upon complying with the requirement of hearing the married Muslim woman upon whom talaq is pronounced.

Hence, though Section 7 begins with a non obstante clause which operates in relation to the CrPC, a plain construction of Section 7(c) would indicate that it does not impose a fetter on the power of the Magistrate to grant bail, save and except, for the stipulation that before doing so, the married Muslim woman, upon whom talaq is pronounced, must be heard and there should be a satisfaction of the Magistrate of the existence of reasonable grounds for granting bail to the person.

“This implies that even while entertaining an application for grant of anticipatory bail for an offence under the Act, the competent court must hear the married Muslim woman who has made the complaint, as prescribed under Section 7(c) of the Act. Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused.”

Further, the legislature has not expressly barred the application of Section 438 of CrPC. The provisions of Section 7(c) of the Act must be distinguished from provisions which are contained certain other statutes which expressly exclude the provisions of Section 438 of the CrPC.

Hence, on a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, it was held that there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman.

[Rahna Jalal v. State of Kerala, 2020 SCC OnLine SC 1061, order dated 17.12.2020]


*Justice Dr. DY Chandrachud has penned this order. Read more about him here

Advocates who appeared in the matter:

For Appellant: Advocate Haris Beeran,

For Second Respondent i.e. the complainant: Senior Advocate V. Chitambaresh, and advocate Harshad V. Hameed,

For State of Kerala: Advocate G. Prakash

Also read:

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

Law made Easy

[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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Cabinet DecisionsLegislation Updates

The Union Cabinet has approved a historic bill for the welfare of Women in the Country – the Assisted Reproductive Technology Regulation Bill, 2020.

This follows the introduction in Parliament of the Surrogacy Regulation Bill 2020, and the approval of the Medical Termination of Pregnancy Amendment Bill 2020.  These legislative measures are path-breaking steps to protect women’s reproductive rights.

          Once the Bill is enacted by the Parliament, the Central Government shall notify the date of the commencement of the Act. Consequently, the National Board will be constituted.

The National Board shall lay down code of conduct to be observed by persons working at clinics, to set the minimum standards of physical infrastructure, laboratory and diagnostic equipment and expert manpower to be employed by clinics and banks.

The States and Union Territories shall constitute the State Boards and State Authorities within three months of the notification by the Central Government.

The State Board shall have the responsibility to follow the policies and plans laid by the National Board for clinics and Banks in the State.

The Bill also provides for National Registry and Registration Authority to maintain a Central database and assist the National Board in its functioning.  The Bill also proposes for a stringent punishment for those practising sex selection, sale of human embryos or gametes, running agencies/rackets/organisations for such unlawful practices.

Benefits

          The major benefit of the Act would be that it will regulate the Assisted Reproductive Technology services in the country.  Consequently, infertile couples will be more ensured/confident of the ethical practices in ARTs.

Background

          The Assisted Reproductive Technology Regulation Bill 2020 is the most recent, in a series of legislations approved by the Union Cabinet to protect and safeguard the reproductive rights of women. The bill makes provisions for safe and ethical practice of assisted reproductive technology services in the country. Through the bill, the National Board, the State Boards, the National Registry and the State Registration Authorities respectively will regulate and supervise assisted reproductive technology clinics and assisted reproductive technology banks.

Assisted reproductive technology (ART) has grown by leaps and bounds in the last few years. India has one of the highest growths in the ART centers and the number of ART cycles performed every year. Assisted Reproductive Technology (ART), including In-Vitro Fertilization (IVF), has given hope to a multitude of persons suffering from infertility, but also introduced a plethora of legal, ethical and social issues. India has become one of the major centres of this global fertility industry, with reproductive medical tourism becoming a significant activity. Clinics in India offer nearly all the ART services—gamete donation, intrauterine insemination (IUI), IVF, ICSI, PGD and gestational surrogacy. However, in spite of so much activity in India, there is yet no standardisation of protocols and reporting is still very inadequate.

The need to regulate the Assisted Reproductive Technology Services is mainly to protect the affected Women and the Children from exploitation. The oocyte donor needs to be supported by an insurance cover, protected from multiple embryo implantation and children born through Assisted reproductive technology should be provided all rights equivalent to a Biological Children. The cryopreservation of sperm, oocytes and embryo by the ART Banks needs to be regulated and the bill intends to make Pre-Genetic Implantation Testing mandatory for the benefit of the child born through assisted reproductive technology.

Surrogacy Regulation Bill 2020

The Surrogacy (Regulation) Bill, 2020 proposes to regulate surrogacy in India by establishing National Board at the central level and State Boards and Appropriate Authorities in the States and Union Territories. The Bill has been examined by the Select Committee and the report has been tabled in the Rajya Sabha on the 5th of February 2020.

The major benefit of the Act would be that it will regulate the surrogacy services in the country. While commercial surrogacy will be prohibited including sale and purchase of human embryos and gametes, ethical surrogacy to the Indian Married couple, Indian Origin Married Couple and Indian Single Woman (only widow or Divorcee) will be allowed on fulfillment of certain conditions. As such, it will control the unethical practices in surrogacy, prevent commercialization of surrogacy and will prohibit potential exploitation of surrogate mothers and children born through surrogacy.

Medical Termination Pregnancy Amendment Bill 2020

The Medical Termination of Pregnancy Act, 1971 (34 of 1971) was enacted to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. The said Act recognised the importance of safe, affordable, accessible abortion services to women who need to terminate pregnancy under certain specified conditions. Besides this, several Writ Petitions have been filed before the Supreme Court and various High Courts seeking permission for aborting pregnancies at gestational age beyond the present permissible limit on the grounds of foetal abnormalities or pregnancies due to sexual violence faced by women.

Taken together, the three proposed legislations create an environment of safeguards for women’s reproductive rights, addressing changing social contexts and technological advances.


Cabinet

[Source: PIB]

[Press Release dt. 19-02-2020]

Hot Off The PressNews

Supreme Court on Thursday refused to entertain a plea seeking a CBI probe into the alleged molestation of students during a cultural festival at the all-woman Gargi College here last week. A 3-judge bench of S A Bobde, CJ and BR Gavai and Surya Kant, JJ asked lawyer M L Sharma, who mentioned the matter seeking urgent hearing, to move the Delhi High Court with his plea.

“Why don’t you go to the Delhi HC. If they dismiss the petition then you come here,”

The Court said it would like to have advantage of Delhi HC’s view on this matter.

Advocate Sharma expressed apprehension that electronic evidence related to the case might be destroyed.

On this, the Court said,

“Delhi High Court can also pass order like the Telangana High Court in the police encounter case to preserve electronic evidence”.

(Source: PTI)

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference has held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction. The bench had, on February 6, 2020, reserved it’s order on the said legal issue while hearing the Sabarimala reference after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

The Court also framed 7 seven questions that are to be decided by the 9-judge bench in the Sabarimala reference and has proposed a day-to-day hearing in the matter from February 17, 2020. The issues to be heard relate to:

  • What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
  •  What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
  • Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
  • What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
  • What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
  • What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
  • Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing. The Counsels were, however, unabale to reach a consensus on the issues to be argued. 

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.

[Kantaru Rajeevaru v. Indian Young Lawyers Assn, 2020 SCC OnLine SC 158 , decided on 10.02.2020]

Also read:Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference has reserved it’s order on the legal issue of whether the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction. The bench will pronounce the order on February 10, 2020 and will accord a day-to-day hearing from February 12, 2020 on issues relating to discrimination against women at various places of worship including the Sabarimala temple.

Solicitor General Tushar Mehta submitted before the Court that the 5-judge bench in Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461 was right in referring the questions of law to the larger bench. He said,

“As custodian of fundamental rights, it was the duty of the court to lay down an authoritative pronouncement on these questions of law.”

Senior advocate Fali S Nariman opposed the submission and said that only the President can ask questions of national importance, not the court.

Earlier, the bench had agreed to hear the argument on the issue whether the court can refer questions of law to a larger bench on a review petition after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

In our report dated 14.11.2019, we had pointed out that the order passed by the 5-judge bench in Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461 was debatable as involved a reference to a larger bench in a review petition. We wrote,

“If it is believed that a reference has indeed been made in the majority verdict, it will again be debatable on the ground that a reference cannot be made in a review petition. A judgment of the Supreme Court of is final, and a review of such judgment is an exception. Whatever the Court decides in a Review Petition become the law. So will a reference of a review petition to a larger bench mean creation of a new forum? Too many loose ends have been left in the majority verdict that the Court will have to tie up sooner or later.”

The bench is hearing matters relating to discrimination against women in various religions including Kerala’s Sabarimala temple, mosques, the practice of female genital mutilation in the Dawoodi Bohra community and Parsi women married to non-Parsi men being barred from its holy fire temple.

Overlapping or related issues pending before the Supreme Court

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.

(With inputs from News18)


Also read:

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: A nine-judge Constitution bench of the Supreme Court will hear on February 6 argument on the issue whether the court can refer questions of law to a larger bench on a review petition after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

CJI asked,

“Are you saying that when hearing the review of one judgment [Sabarimala in this case], we cannot refer such larger questions to a larger Bench?”

To which Mr. Nariman responded,

“Yes, that is absolutely right. It will be outside your jurisdiction to do that,”

Finding a formidable point in Mr. Nariman’s arguments, CJI said that the nine-judge Bench would not “abort the hearing” now but the objections raised by Mr. Nariman would be framed as an “issue” to be decided by the Bench.

In our report dated 14.11.2019, we had pointed out that the order passed by the 5-judge bench in Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461 was debatable as involved a reference to a larger bench in a review petition. We wrote,

“If it is believed that a reference has indeed been made in the majority verdict, it will again be debatable on the ground that a reference cannot be made in a review petition. A judgment of the Supreme Court of is final, and a review of such judgment is an exception. Whatever the Court decides in a Review Petition become the law. So will a reference of a review petition to a larger bench mean creation of a new forum? Too many loose ends have been left in the majority verdict that the Court will have to tie up sooner or later.”

The bench is hearing matters relating to discrimination against women in various religions including Kerala’s Sabarimala temple, mosques, the practice of female genital mutilation in the Dawoodi Bohra community and Parsi women married to non-Parsi men being barred from its holy fire temple.

Overlapping or related issues pending before the Supreme Court

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.


Also read:

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: The nine-judge bench of Supreme Court will hear the Sabarimala  matter again on Thursday after hearing the matter today.

Solicitor General (SG) Tushar Mehta told the Court that the issues can be framed in the chambers itself. He stated that there is no need to frame the questions and other issues if relevant, in an open court. After hearing Mehta’s submissions, CJI SA Bobde observed that there are questions that arose in Sabarimala, and also there are questions that are there in other cases such as Muslim women’s demand to enter mosques, and the FGM in Dawoodi Bohras and whether Parsi women married to non-Parsis lose religion.

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.

(With inputs from ANI)



Read more about the opinions of all the judges in the 4:1 majority verdict here.

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: A three-judge bench of the Supreme Court, headed by CJI Sharad Arvind Bobde has fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari. The bench was hearing the petitions pertaining to the discrimination against women at places of worship.

Solicitor General Tushar Mehta mentioned the matter before the Court and said that all the lawyers from various parties in the case sat together and discussed the issue but could not reach a consensus on the matter, which is to be heard by a 9-judge constitution bench.
The Supreme Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.

(With inputs from ANI)



Read more about the opinions of all the judges in the 4:1 majority verdict here.

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: A nine-judge Constitution bench headed by Chief Justice S A Bobde will hear from January 13 the issue of allowing women and girls of all ages to enter Kerala’s Sabarimala temple, along with the other contentious issues of alleged discrimination against Muslim and Parsi women.

The other judges on the bench are Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant. Interestingly, none of the nine judges has previously been a part of any bench hearing the Sabarimala issue.  

The nine-judge bench has been set up after a five-judge bench headed by then CJI Ranjan Gogoi, by a 3:2 majority verdict, suggested that the matter be referred to a seven-judge bench while examining the review petition filed against the historic September 28, 2018 judgement which had allowed women of all ages to enter Sabarimala temple. The judgment dated 14.11.2019, delivered right before the retirement of the then CJI Justice Ranjan Gogoi, said,

“This Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges.”

Referring the issues connected to the case at hand, CJ Gogoi wrote that it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of JudgesHe, hence, ‘suggested’ that a 7-judge bench be formed to decide the abovementioned issues.

Besdies Justice Gogoi, Justices A M Khanwilkar and Indu Malhotra (the lone woman judge on the bench) were in majority while Justices R F Nariman and D Y Chandrachud had penned a minority verdict on November 14, 2019.

The top court had on Monday issued a notice informing about listing of the petition filed by Indian Young Lawyers Association seeking review of the 2018 judgement.

However, the names of the judges were announced today.

Questions that the Larger Bench ‘may’ take up for consideration as suggested in the November 14, 2019 verdict

  • Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
  • Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
  • Sweep of expression ‘morality’ or ‘constitutional morality. Is it over arching morality in reference to preamble or limited to religious beliefs or faith? There is need to delineate the contours of that expression, lest it becomes subjective.
  • The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
  • Meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
  • Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
  • What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The majority verdict also suggested that the Larger Bench may also decide the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the Sabarimala temple at all.

(With inputs from PTI)

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ has referred certain seminal issues to a larger bench in a 3:2 verdict. CJI Gogoi, Khanwilkar and Malhotra, JJ gave the majority opinion of referring the the questions to larger bench, whereas Nariman and Chandrachud, JJ gave dissenting opinions.

Due to the reference being made to the larger bench, the subject review petitions as well as the writ petitions will remain pending until determination of the questions indicated hereunder by a Larger Bench.

Surprisingly, the majority verdict runs in only 6-pages in a 77-pages long verdict.

Majority Verdict by CJ Gogoi for himself & Khanwilkar & Malhotra, JJ

“This Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges.”

Referring the issues connected to the case at hand, CJ Gogoi wrote that it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. He, hence, ‘suggested’ that a 7-judge bench be formed to decide the abovementioned issues. 

Questions that the Larger Bench ‘may’ take up for consideration

  • Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
  • Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
  • Sweep of expression ‘morality’ or ‘constitutional morality. Is it over arching morality in reference to preamble or limited to religious beliefs or faith? There is need to delineate the contours of that expression, lest it becomes subjective.
  • The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
  • Meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
  • Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
  • What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The majority verdict also suggested that the Larger Bench may also decide the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the Sabarimala temple at all.

Overlapping or related issues pending before the Supreme Court

“The debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari.”

The Court also took note of other seminal issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque; Parsi Women married to a non-Parsi in the Agyari; and including the practice of female genital mutilation in Dawoodi Bohra community and said that these issues may be overlapping and covered by the judgment under review and hence, the prospect of the issues arising in those cases being referred to larger bench cannot be ruled out.

    • Muslim Women in Durgah/Mosque Case is pending before a 3-judge bench of SA Bobde, SA Nazeer and Krishna Murari, JJ. On November 5, 2019, the bench had adjourned the matter for 10 days which means that the matter will now be taken up after Justice Bobde takes charge of the CJI office.
    • Parsi Women married to a non-Parsi in the Agyari case was referred to a 5-judge bench by a 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ in October, 2017. The 5-judge bench of former CJ Dipak Misra and AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, JJ last heard the matter on December 14, 2017. [2017 SCC OnLine SC 1275]
    • Case relating to practice of female genital mutilation in Dawoodi Bohra community was referred to a larger bench on September 24, 2018 by a 3-judge bench of former CJ Dipak Misra and AM Khanwilkar and DY Chandrachud, JJ. The Constitution bench is yet to be formed. [2018 SCC OnLine SC 2667]

Stay on the 2018 verdict

The verdict is silent on whether there will be a stay on the 2018 Sabarimala Verdict which means that the said judgment will continue to hold ground till the review petitions are finally decided by the Court.

Why the majority verdict is debatable?

‘Suggestive’ reference

The verdict does not make a clear reference of issues to a larger bench. The wordsthe prospect of the issues arising in those cases being referred to larger bench cannot be ruled outused in the majority verdict may mean to imply that the reference made by the Court is merely ‘suggestive’.

Nariman, J’s minority opinion also talks about the ‘suggestive’ nature of the references when it says,

“if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras.”

Hence, it would not be completely wrong to say that this judgment merely suggests the Benches in the abovementioned 3 cases to refer the issues listed down by it to a larger bench if it thinks fit.

Reference of a review petition

If it is believed that a reference has indeed been made in the majority verdict, it will again be debatable on the ground that a reference cannot be made in a review petition. A judgment of the Supreme Court of is final, and a review of such judgment is an exception. Whatever the Court decides in a Review Petition become the law. So will a reference of a review petition to a larger bench mean creation of a new forum? Too many loose ends have been left in the majority verdict that the Court will have to tie up sooner or later.

It is also pertinent to note that in the majority verdict, no ‘error on the face of record’ has been pointed out. In fact, the majority verdict has not answered the review at all. Which explains why the majority verdict runs in only 6 pages and 9 paras.

Dissenting opinion by Nariman, J for himself and Chandrachud, J

“Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things.”

Disagreeing with the majority opinion that the Review Petitions be kept in a lurch while the larger bench decides the seminal issues concerning right to religion and women rights, Nariman and Chandrachud, JJ said that the only issue before the Court in the present case was the review petitions and the writ petitions that were filed in relation to the judgment in Indian Young Lawyers Association v. State of Kerala, 2018 SCC Online SC 1690.

Stating that if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras, Nariman and Chandrachud, J said,

“What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all.”

They, hence, went on to examine the issue at hand and noticed that there was a clear consensus on the following 3 issues:

  • The devotees of Lord Ayyappa do not constitute a separate religious denomination and cannot, therefore, claim the benefit of Article 26 or the proviso to Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.
  • The four majority judgments specifically grounded the right of women between the ages of 10 to 50, who are excluded from practicing their religion, under Article 25(1) of the Constitution, emphasizing the expression “all persons” and the expression “equally” occurring in that Article, so that this right is equally available to both men and women of all ages professing the same religion.
  • Section 3 of the 1965 Act traces its origin to Article 25(2)(b) of the Constitution of India, and would apply notwithstanding any custom to the contrary, to enable Hindu women the right of entry 18 in all public temples open to Hindus, so that they may exercise the right of worship therein. As a concomitant thereof, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is violative of Article 25(1) of the Constitution of India and ultra vires Section 3 of the 1965 Act.

Given the consensus on the three issues delineated above, Nariman, J, hence, wrote that no ground for review of the majority judgments was made out and the review petitions were hence dismissed.

Nariman and Chandrachud, JJ, hence, directed the State of Kerala to give wide publicity to the 2018 Sabarimala judgment through the medium of television, newspapers, etc. Pressing upon the need to implement the 2018 Sabarimala Verdict, they asked the government to take steps to secure the confidence of the community in order to ensure the fulfillment of constitutional values. The State government may have broad-based consultations with representatives of all affected interests so that the modalities devised for implementing the judgment of the Court meet the genuine concerns of all segments of the community, Nariman, J said in the minority opinion.

[Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461, decided on 14.11.2019]


Read more about the opinions of all the judges in the 4:1 majority verdict here.

Hot Off The PressNews

Supreme Court: A bench headed by Chief Justice Ranjan Gogoi dismissed a plea of a Kerala-based outfit challenging the constitutional validity of an ordinance which makes the practice of instant ‘triple talaq’ a punishable offence. The Court said that it would not like to interfere.

The Muslim Women (Protection of Rights on Marriage) Ordinance was first notified on September 19 last year, hours after the Union Cabinet had cleared it.

Instant ‘triple talaq’, also known as ‘talaq-e-biddat’, is an instant divorce whereby a Muslim man can legally divorce his wife by pronouncing ‘talaq’ three times in one go.

The ordinance making the practice of instant ‘triple talaq’ a punishable offence was issued for the third time in less than a year on February 21.

(Source: PTI)

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

Lok Sabha passes Bill making Triple Talaq unconstitutional

‘Triple Talaq Ordinance’ promulgated in wake of ending the arbitrary custom of oral unilateral divorce

The Triple Talaq Bill passed in Lok Sabha

Triple Talaq ordinance re-promulgated