Delhi High Court: The Division Bench comprising of S. Ravindra Bhat and Deepa Sharma, JJ. held that demand for privacy by the spouse is not cruelty and also reiterated that High Court lacks the jurisdiction to dissolve a marriage on the doctrine of “irretrievable breakdown” under Section 13(1)(ia) of the Hindu Marriage Act. The Court held that “Privacy is a fundamental human right. So when a woman enters into matrimony, it is the duty of the family members of her matrimonial home to provide her with some privacy.”
In the present case, an appeal was filled by the appellant husband whose petition for dissolution of marriage under Section 13(1)(ia) was dismissed by the Family Court of Rohini, Delhi. The petition was filed on the ground of cruelty alleging that the respondent wife was pressurizing him to set up a separate home as she did not want to live in a joint family which the respondent husband couldn’t afford since he worked as a labourer. Other allegations were that she was not dispensing her duties as a wife, demanded a separate household for herself, abused him verbally and physically and even abandoned him for no reason.
The wife by disapproving all these allegations stated that it was the husband who had been cruel towards her and not her. She alleged that her husband had demanded for a dowry of Rs. 1 lakh to buy a motorbike and as her family couldn’t afford it, she was ousted from her matrimonial home and was never allowed to return. She also mentioned that the husband had taken up a separate accommodation from his family members after marriage where he resided with her and their child for two-three days and then abandoned them and never returned.
The Court rejected the petition of the appellant husband and said that Section 23(1)(a) of the Act makes it abundantly clear that a decree can be granted when the Court is satisfied that the petitioner is in no way taking advantage of his wrong. Such is not the case here, as it is the appellant who abandoned the company of his wife. The Court stated that the evidence clearly disproves the appellant’s contention that the respondent left her matrimonial home and never returned. The Court reaffirmed the findings of the Family Court that the respondent had no intention to desert her husband and there was no evidential backing to support that the appellant or his family members had provided requisite privacy to the respondent thus, holding that privacy demand was not unreasonable and as such did not constitute cruelty. Further, the allegation that the behaviour of the respondent caused mental cruelty was also disapproved.
It is pertinent to note that the counsel for appellant asserted that there is no life in the marriage bond and that it should be dissolved for this reason. Counsel relied on K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 in which it was held that “A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing.”
The Court relied on Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379 to hold that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act and on Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 to hold that the doctrine of irretrievable break-down of marriage is not available to the High Courts, lacking powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. The Court based on its reasoning finally held that the Family Court was correct in holding that such demand of separate room was not unreasonable and as such did not constitute cruelty and also dismissed the husband’s petition. [Mini Appa Kanda Swami v. M. Indra, 2016 SCC OnLine Del 5312, decided on September 21, 2016]
The Division Bench comprising S.S. Shinde and Sangitarao S. Patil, JJ. quashed and set aside the criminal proceedings instituted in the Court of the Judicial Magistrate First Class, Chalisgaon, against the petitioner for selling a drug without a valid licence as punishable under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940, since the said offence being non-cognizable, it’s cognizance could not have been taken on the basis of charge-sheet filed by the police officer.
The Assistant Commissioner, Jalgaon had passed an order suspending the petitioner’s licence to sell drugs from 1st October, 2013 to 15th October, 2013. It was alleged that on 10th October, 2013, the Assistant Commissioner and Drugs Inspector (Respondent 2) visited the petitioner’s store and without disclosing their identity, asked for a cough syrup, whereon the petitioner sold Alkof cough syrup to them while refusing to receive payment for the syrup. Thereafter, Respondent 2 lodged an FIR against the petitioner for the offence punishable under Section 27(b)(ii) of the Act. Subsequently, criminal proceedings were instituted on the basis of charge-sheet submitted by police.
The High Court observed that the petitioner’s licence had been suspended by Assistant Commissioner himself, and Respondent 2 was serving as Drugs Inspector since 2012. Therefore, it cannot be accepted that Drugs Inspector and Assistant Commissioner were not known to the petitioner. It was natural on the part of the petitioner to hand over the cough syrup on being asked by a Drugs Inspector, and his refusal to receive payment for the cough syrup indicates that he was not intending to sell the same. Lastly, the Court found that since the offence punishable under Section 27(b)(ii) of the Act has not been included in Section 36-AC(1)(a) of the Act that enumerates the offences which have been made cognizable, the said offence is non-cognizable. Therefore police was not empowered to conduct an investigation without the Magistrate’s order. It was thus held that the cognizance of the said offence taken on the basis of the charge-sheet filed by the police officer was illegal and criminal proceedings instituted thereof are to be quashed and set aside. [Rajendra v.State of Maharashtra, Criminal Writ Petition No. 846 of 2016, decided on October 10, 2016]
Examining the aspects of prison punishment granted to prisoners, the Division Bench comprising of V.K. Tahilramani and Mridula Bhatkar, JJ., held that the prison punishment could be reduced on humanitarian grounds in case the prisoner overstayed the period granted in furlough. Ruling in favour of the petitioner, the Court reduced the punishment of a prisoner who, overstayed the period of furlough leave granted to him, by 93 days, as his wife was not keeping well and had to undergo hysterectomy.
The petitioner was granted 14 days furlough leave pursuant to his application and was released on March 20, 2004, however,the petitioner did not present himself on time i.e. on April 4, 2004 before the jail authorities. Hence he was arrested and brought back to jail on July 7, 2004. In reply to the show-cause notice issued to the petitioner requiring explanation for the over-stay, the petitioner submitted that his wife was sick and required hysterectomy, hence he was unable to surrender himself before the jail authorities on time. Thus prison punishment was imposed on the petitioner to forfeit his remission in the ratio of 1:5 i.e. for each day of overstay, 5 days of remission would be cut. The petitioner being aggrieved by the prison punishment contends it to be harsh and that it should be set aside.
The Court held that the prison punishment ought to be reduced on account of humanitarian grounds in case the prisoner overstayed the period granted in furlough and thus on hearing the explanation submitted by the petitioner, reduced the prison punishment of the petitioner in the ratio of 1:3 i.e. for every day of overstay, 3 days of remission would be cut, instead of the original punishment in the ratio of 1:5. [Takku Singh v. State of Maharashtra, 2016 SCC OnLine Bom 8834, decided on September 22, 2016]
Observing that construction of illegal shrines on pathways and streets was in no way an integral part of any religion so as to be protected under Article 25 of the Constitution, a Bench comprising of Abhay Oka and Ahmed Sayed, JJ ordered the State Government to demolish all such structures that have been identified as “illegal” by the year end. The Court was hearing a PIL which sought implementation of a 2009 Supreme Court order which said that the State must demolish or regularise illegal shrines.
The Bench stated that Article 25 of the Constitution, which pertains to practise and propagation of religion, does not confer the right to offer worship at any place which has been built illegally. The Bench also made reference to the Supreme Court ruling in Sodan Singh v. NDMC, (1989) 4 SCC 155, wherein the Court had expressly stated that no one can create any unreasonable obstruction on the road, which may cause inconvenience to other persons having a similar right to pass. The Court reiterated that structures that cause inconvenience to public, violate Article 21 of the Constitution.
No religion encourages its followers to construct illegal shrines or offer prayers at illegally-constructed shrines, the Court stated and thereby directed the government to initiate criminal action against people, especially religious or political leaders, who try to obstruct the demolition. The Court also asked the Police Commissioners of Mumbai and other cities to provide adequate protection to the civic staff during the demolition. [Mahesh Vijay Bedekar v. State of Maharashtra, Public Interest Litigation No. 173 of 2010, decided on 16th August, 2016]
Charges of anti-competitive practices leveled against Gurgaon-based realty firm Bestech India Pvt. Ltd. has been dismissed by CCI as the Commission observed that Bestech India was not in a dominant position in the relevant market and no cogent material evidence was provided to substantiate the allegations. The said order was passed by the Commission while hearing an information vide which it was alleged that Bestech India was imposing unfair and discriminatory conditions on buyers of office space at its cyber complex in Gurgaon. It was also alleged that the company not only failed to deliver the possession of a flat booked by the informant in due time but and also unilaterally cancelled the allotment and forfeited the amount paid. Allegations of luring customers with false offers by similar terms and condition in the buyer’s agreements were also leveled against Bestech India in the information. After perusal of material on record and hearing both the parties, Commission noted, “The presence of a large number of players with projects of varying magnitude acts as a competitive restraint upon OP from acting independently of the market forces in the relevant market. Thus, OP does not appear to be dominant in the relevant market. In the absence of dominance, the Commission is of the view that, no case of contravention of Section 4 of the Act is made out against OP in the present case.” Regarding the terms and conditions in the flat buyers’ agreement, Commission observed that, “Even though the Informant has alleged existence of an arrangement amongst the real estate developers in relation to stipulation of similar terms and conditions in the flat buyers’ agreement/ application form for booking flats, no cogent material evidences have been provided to substantiate the allegations.” While rejecting the allegations against Bestech India, CIC added that similar terms and conditions in the flat buyer agreement and other similar practices by the real estate developers may be common industry practices, not necessarily because of arrangement or understanding amongst the real estate developers. [Sameer Agarwal v. Bestech India Pvt. Ltd., Case No. 59 of 2016, decided on September 6, 2016]
Deciding the question that arose for consideration, the Court held that a complaint lodged under the Domestic Violence Act would amount to an abuse of process of law in case it is filed as a legal remedy to claim right over property. A Single Bench comprising of S. Vimala, J. quashed the impugned order D.V.O.P No. 10 of 2015 of the learned Judicial Magistrate, Dindigul as illegal relying on the contentions of the counsel for the petitioner that the complaint filed by the respondent was not maintainable as it did not disclose any act of domestic violence as contemplated under the said Act and the respondent was not residing in the property as a shared household but rather as a tenant .
The Court observed that a dispute regarding property rights needs to be resolved by a civil court and if it is given the colour of domestic violence, then it is a case of abuse of the process of law and it needs to be quashed. The Court further observed that instead of establishing the rights in the civil court if a complaint is filed under the Domestic Violence Act as an outcome of personal animosity, grudge and only to extract money then such complaint is not maintainable under the Act and has to be quashed. [B. Sakunthala v. Vasantha, 2016 SCC OnLine Mad 9109, decided on September 7, 2016]
Patna High Court: While answering a plethora of important questions regarding the sustainability of a decree for judicial seperation, the Division Bench of I.A. Ansari, C.J., and Nilu Agarwal, J., observed that a decree of judicial separation only lays down the foundation for making an application for the grant of divorce and does not entitle one to a decree of dissolution unless the statutory grounds under Section 13 of the Hindu Marriage Act, 1955 are satisfied. The Bench further observed that unless a decree of divorce is not challenged in appeal, such a decree subsists and once the statutory period for preferring an appeal expires, a party can then go for a second marriage without any legal hassles.
In the present case, the petitioner had applied for divorce on grounds of cruelty and desertion; however after several failed attempts for reconciliation a decree for judicial separation was passed by the Family Court concerned . Afterwards the petitioner again sought a decree for divorce when there was no resumption of cohabitation between the parties for 1 year after the aforementioned decree for judicial separation. This time however, the respondent abstained from attending the proceedings and as a result an ex parte divorce decree was passed. The petitioner solemnised his second marriage after the statutory limitation period for filing an appeal against the divorce decree expired. The aggrieved respondent filed a suit to set aside the ex parte decree which was accepted by the court concerned . The petitioner thus filed this present petition to review the aforementioned decision on the ground that the Court concerned had ignored the fact that the limitation period for preferring an appeal against the divorce decree had already expired.
Considering the facts of the case, the Court delved at length upon the principles of review and appeal, and observed that a Court’s power to review is a statutory power and can be used in exceptional cases. Further perusing Section 13(1-A) of the Hindu Marriage Act, it was observed by the Court that a party seeking to set aside the decree of judicial separation, (there is no order to a stay of the decree of judicial separation in this duration) has to prove the non-resumption of cohabitation for 1 year or more and if proved, the decree for divorce can be granted. In the present case, the petitioner being married and having fathered two children from his second wife, the Court cannot ignore the interest of the third party. The Court held that the petitioner’s second marriage is not a nullity even when the ex parte divorce decree had been set aside as the second marriage very well took place after the divorce decree was granted and statutory period of appeal expired. [Rajesh Kumar v. Pushpa Rani, 2016 SCC OnLine Pat 4639 , decided on 16.09.2016]
While deciding a petition against the inaction on part of the State Government in denying the benefit of the welfare schemes to the petitioner, whose husband died due to injuries in 1990 sustained at the hands of terrorists in 1988, the Court awarded costs of Rs 30,000 and directed the State Government to release financial help in the form of subsistence allowance along with arrears from the dates the amounts become due under the various policies till the actual dates of payment.
Late Sardar Santokh Singh succumbed to the injuries sustained during a terror attack on March 5, 1988 and was awarded Rs 10,000 during his lifetime by the then Deputy Commissioner of Amritsar for his bravery. The Superintendent of Police had recommended his case for financial relief under the welfare scheme. After his death, the petitioner’s claim was rejected by the Deputy Commissioner, Amritsar. The Bench of Rameshwar Singh Malik, J. observed that since the Deputy Commissioner, Amritsar proceeded on a wholly misconceived and perverse approach, without even considering the strong recommendations made by the Senior Superintendent of Police, the impugned order cannot be sustained. The petitioner was found and declared entitled for the financial help as per the different policies issued by the State Government of Punjab.
The Court observed that “the citizen who laid his life for the welfare of his fellow citizens, as he was made the target by the terrorists because he developed an enmity with the terrorists acting against them with a view to help the State agencies, his widow, as petitioner herein, was entitled for a special award including the minimum financial help, at the hands of the State Government. However, since the respondent authorities proceeded on an arbitrary approach, forcing the petitioner to file the present writ petition for pursuing her genuine claim, her writ petition deserves to be allowed with costs.” [Surjit Kaur v. State of Punjab, CWP No. 1557 of 2014, decided on September 8, 2016]
Supreme Court: Dealing with an interesting question as to the retrospective applicability of the 1997 Amendment to Section 28 of the Contract Act, 1872, the Bench of C. Nagappan and R.F. Nariman, JJ, answered in the negative and said that Section 28 of the Contract Act, being substantive law, operates prospectively as retrospectivity is not clearly made out by its language as the Amendment does not purport to be either declaratory or clarificatory.
In the present case, the bank guarantees dated 31.1.1996 which restricted the period within which they could be invoked were in question and it was contended by the Union of India that such Bank Guarantees would not be affected by an amendment made one year later i.e. on 8.1.1997 and the relevant date and the relevant law applicable would be as on 31.1.1996, which would be the unamended Section 28. Accepting the aforementioned contention, the Court said that the unamended Section 28 would be the law applicable as on 31.1.1996, which is the date of the agreement of bank guarantee.
The Court considered the Statements of Object and Reasons of the Amendment as stated in the 97th Law Commission Report where it was stated that the Amendment seeks to bring about a substantive change in the law by stating, for the first time, that even where an agreement extinguishes the rights or discharges the liability of any party to an agreement, so as to restrict such party from enforcing his rights on the expiry of a specified period, such agreement would become void to that extent. The Amendment therefore seeks to set aside the distinction made in the case law up to date between agreements which limit the time within which remedies can be availed and agreements which do away with the right altogether in so limiting the time. The Court, hence, noticed that these are obviously substantive changes in the law which are remedial in nature and cannot have retrospective effect. [Union of India v. Indusind Bank Ltd., Civil Appeals Nos. 9087-9089 of 2016, decided on 15.09.2016]
Delhi High Court: Hearing an appeal against the Family Court’s order dismissing the appellant husband’s petition for dissolution of marriage on grounds of cruelty, the Court observed that the law pertaining to cruelty is if by resuming cohabitation the spouse claiming victim of cruelty forgives the other spouse who commits the cruelty, the alleged act of past cruelty cannot be relied upon to seek divorce on account of the cruelty unless they are revived by subsequent acts of cruelty.
The appellant/husband got married to the respondent/wife on November 22, 2004 according to Hindu rites and ceremonies and a son was born on January 01, 2006. The husband filed a petition under Section 13(1)(i-a) of Hindu Marriage Act, 1955 citing several instances of cruelty stated to have been committed by the respondent/wife.
While observing that there was no allegation of physical cruelty being committed by the wife and divorce is being sought on the allegations of mental cruelty, held that the appellant husband failed to prove that he was treated with cruelty.
The Bench of Pradeep Nandrajog and Pratibha Rani, JJ observed that the respondent did not seek dissolution of marriage on account of desertion under Section 13(1)(i-b) of the Hindu Marriage Act but on account of the mental cruelty being committed by the respondent wife. The Court agreed with the findings of the Family Court that none of the incidents enumerated except the accusation of illicit relationship with his bhabhi or creating a scene when he was alleged to be in his bhabhi’s room, amounted to mental cruelty of a level envisaged under Section 13(1)(i-a) of the Hindu Marriage Act. The Court held that it was not a case of dissolution of marriage on the ground of cruelty being caused to the appellant husband. Even if there was any act of mental cruelty, the same was condoned by the appellant by cohabiting till his wife left on April 06, 2008. There was no instance of cruelty being committed by the respondent wife thereafter.
The appellant also urged that the marriage had broken down irretrievably as more than eight years had passed since the respondent wife had left the matrimonial life, hence the marriage may be dissolved by a decree of divorce. Dismissing the appeal, the Court observed that the wife had nowhere expressed her desire to seek a divorce, besides no sincere effort was made by the appellant to save the marriage by remaining in touch with his wife and son or to provide some amount for better upbringing of their son. The case was to seek dissolution of marriage on account of cruelty and not on desertion, hence the appellant was not entitled to seek a decree of divorce claiming that the marriage had broken down irretrievably. [Neeraj Kumar v. Pooja Verma, 2016 SCC OnLine Del 4625, decided on August 19, 2016]
Wed, 20 Jul 2016 15:07:15 IST
National Green Tribunal (NGT) has issued orders to de-register all diesel vehicles that older than 15 years and those that comply with BS-1 and BS-2 standards.
Wed, 20 Jul 2016 10:28:58 IST
SC has directed Supertech to deposit Rs 5 crore in its Registry as a part of refund to homebuyers for project in which Allahabad High Court had ordered demolition of twin towers of Emerald Court in Noida.
Wed, 20 Jul 2016 10:26:52 IST
Rajya Sabha has passed The Child Labour (Prohibition and Regulation) Amendment Bill, which prohibits employment of children below 14 years in all occupations except in family business, with the provision for imprisonment of up to two years for any violation.
Wed, 20 Jul 2016 10:26:30 IST
Lok Sabha has passed The Indian Medical Council (Amendment) Bill and The Dentists (Amendment) Bill, which seek to amend The Indian Medical Council Act,1956 and The Dentists Act, 1948 to replace the National Eligibility cum Entrance Test (NEET) ordinances.
Tue, 19 Jul 2016 15:48:02 IST
Supreme Court has ruled that if a convict is awarded multiple life imprisonment then they shall run concurrently and not consecutively.
Tue, 19 Jul 2016 15:46:47 IST
Delhi HC has dismissed petition seeking a court-monitored inquiry into alleged tapping, interception and recording of phone calls of politicians, government officials and business houses by Essar Group between 2001 and 2006.
Tue, 19 Jul 2016 10:36:29 IST
SC has rejected a plea seeking revocation of conferment of Bharat Ratna to Sachin Tendulkar on ground of alleged misuse of the highest civilian honour.
Tue, 19 Jul 2016 10:36:07 IST
SC has dismissed plea of convicts in Nirbhaya rape and murder case for changing two senior lawyers Raju Ramachandran and Sanjay Hedge, appointed as amicus curiae to assist the court.
Tue, 19 Jul 2016 10:35:22 IST
Supreme Court has accepted recommendations made by the Justice Lodha panel and ordered several changes in the working of the Board of Control for Cricket in India (BCCI).
Fri, 15 Jul 2016 11:02:25 GMT
Fri, 15 Jul 2016 11:01:42 GMT
Delhi HC has restrained two Indian auto spare parts manufacturers from infringing on trademarks like Prius and Innova of Japanese car-maker Toyota and directed them to pay Rs 10 lakh as damages to the auto giant for "knowingly and intentionally" using its brands to earn "undue profits".
Thu, 14 Jul 2016 15:14:36 GMT
Securities and Exchange Board of India (SEBI) has notified new norms restricting transfer of Participatory Notes (P-Notes), offshore instruments only to entities authorized for their use and that too after prior consent from the issuer foreign investor.
Wed, 13 Jul 2016 15:17:21 GMT
Delhi HC has stayed summons issued by a trial court against Chief Minister Arvind Kejriwal in a criminal defamation case for allegedly making derogatory remarks against a local policemen.
Wed, 13 Jul 2016 10:21:26 GMT
SC, while hearing petitions seeking ban on circulation of jokes about Sikh community, has asked bodies representing the community to create a mechanism to create a mechanism to stop them within six weeks.
Wed, 13 Jul 2016 10:19:50 GMT
Madras HC has held that suspecting wife's fidelity, questioning her for moving about with almost every other person, including her father, also amounts to domestic violence, entitling her subjected to "emotional abuse" under Protection of Women from Domestic Violence Act 2005.
Tue, 12 Jul 2016 10:47:09 GMT
National Green Tribunal (NGT) has issued show cause notices to Secretary, Ghaziabad Development Authority (GDA), District Magistrate and Additional Municipal Commissioner on issue of waste dumping in Hindon river and burning of waste in open.
Mon, 11 Jul 2016 11:40:42 GMT
SC has held that a farmer, who is in possession of leased land even after expiry of lease period, cannot be evicted if owner either acknowledges tenancy or is accepting rent.
Gujarat HC Grants Bail to Hardik Patel
Mon, 11 Jul 2016 11:39:25 IST
Gujarat High Court has granted bail to Patel quota agitation leader Hardik Patel in two sedition cases, with a rider that he will have to stay outside State for the next six months.
A consumer forum has directed a Delhi hospital to pay over Rs. 7 lakh to a Delhi Police personnel for wrongly transplanting a pacemaker which was not needed, saying it was "against all medical ethics".
Reserve Bank of India (RBI) has allowed startups with an overseas subsidiary to open foreign currency accounts abroad to credit foreign exchange earnings from exports and sales made by them.
Central Board of Excise and Customs (CBEC) has issued a notification granting exemption from Krishi Kalyan Cess (KKC) for services rendered and invoiced on or before May 31.
Gujarat HC has allowed a minor rape survivor to get her 22-week pregnancy terminated after a lower court had earlier denied permission on health grounds.
SC has declined to take plea seeking a stay on release of film Udta Punjab and asked it to approach the Punjab and Haryana High Court, which is seized of the matter.
Supreme Court, while expanding scope of the right to self-defence, has ruled that a person would be right in taking the law into his hands if he witnessed his parents or relatives being assaulted.