Tuesday, April 23, 2019

‘Bride’ means trans woman too, rules Madras HC

In a landmark verdict, Madras high court has held that the term ‘bride’ mentioned in the Hindu Marriage Act would also mean transgender woman, and that it would not just refer to a born-woman on her wedding day.

The court also ordered the Tamil Nadu government to issue an order banning sex reassignment surgeries on intersex infants and children.

Justice GR Swaminathan, quoting from the Supreme Court judgments and epics like Ramayana and Mahabharata, said the expression ‘bride’ in the Hindu Marriage Act could not have a static or immutable meaning.

Holding that the expression ‘bride’ would have to include not only a woman, but also a trans woman, the judge directed the authorities to register a marriage between Arun Kumar and Sreeja, a trans woman. They had moved court after the registration department refused to register their marriage, held on October 31 at a temple in Tuticorin, and issue a certificate.

In the process, Justice Swaminathan also comprehensively rejected the government’s contention that the registrar of marriages had powers to refuse registration and stated that since one of them was a transwoman, they did not meet the statutory requirement of the Section 5 of the Hindu Marriage Act, as the term ‘bride’ can only refer to a 'woman on her wedding day.' In this regard, the judge referred to landmark judgment by the Supreme Court, which upheld transgender persons’ right to decide their self-identified gender.

Sunday, April 21, 2019

Driving In High Speed In A Very Busy Road Can Be Said To Be Rash & Negligent: Bombay HC

The Bombay High Court has observed that when a person drives his vehicle in a very high speed, in spite of knowing the fact that it is thickly populated and very busy road, it will be one of the shade of driving the vehicle in rash and negligent manner.
The Trial Court had convicted Popat Bhaginath Kasar under section 304A and Section 279 of the Indian Penal Code. On his appeal, the appellate court acquitted him for the offence under Section 279 of the Indian Penal Code, but affirmed the conviction under Section 304A IPC. The vehicle had hit a seven year old boy who died on the spot.
In his revision petition, Justice VM Deshpande observed that though the speed alone is not a criteria to reach to the conclusion about the rashness on the part of the driver of the offending vehicle, it will be one of the factor as an indicator to show that the driver was driving the vehicle in most rash and negligent manner if he is unable to control the speed of the vehicle.
The court also noticed that it has been brought on record that road on which the incident has occurred, is full of traffic. It said: 
"As seen from the evidence of the two prosecution witnesses, the incident in question has occurred, though at the outskirts of Ahmednagar city, it was thickly populated area and there was heavy rush of various vehicles. In that view of the matter, it was expected from a driver not to drive the vehicle at very high speed at such place. When the driver, inspite of knowing the fact that the spot of the occurrence is thickly populated and very busy road, still allows himself to drive the vehicle in very high speed, in my view, it will be one of the shade of driving the vehicle in rash and negligent manner. In the incident, had the driver at the relevant time, was driving the vehicle in not in rash and negligent manner, life of a boy, namely Neeraj, aged about seven years, could have been saved. Due to the rash and negligent act on the part of the Applicant, his precious life was cut-short."
Dismissing the revision petition, the court said:
In my view, driving the vehicle in a high speed in the area which is thickly populated and having too much movements, is one of the shade by which it could be said that it is a rash and negligent driving.

Saturday, April 20, 2019

Bom HC | Divorced wife cannot file application under Domestic Violence Act; application filed under Ss. 12 and 18 rejected in absence of “domestic relationship”

M.G. Giratkar, J. refused to interfere with an order of the Judicial Magistrate as confirmed by the Sessions Judge, whereby the application filed by the applicant under Section 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was dismissed.

The applicant married to the respondent in 1999, However, a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 had been passed by the family court in 2008 at the instance of the husband. The application under the DV Act was filed by the applicant in 2009, i.e., subsequent to the grant of divorce. The respondent resisted the application on the ground that there was no “domestic relationship” between them and therefore any application under DV Act was not maintainable. The application was rejected by the Judicial Magistrate as well as the Sessions Judge. Aggrieved thereby, the applicant filed the present revision application.

Amruta A. Ghonge, Advocate led arguments for the applicant. Per contra, R.N. Sen, Advocate appearing for the respondent, resisted the application.

After perusing a conspectus of decisions of the Supreme Court as well as High Courts, the Court came to the conclusion that no relief could be granted to the applicant. It was observed: “In the present case, divorce was granted by the family Court vide order dated 30-06- 2008. Application under the DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge, Nagpur in Criminal Appeal No. 235 of 2015 are perfectly legal and correct.” In such view of the matter, the revision application was dismissed. [Sadhana v. Hemant, Criminal Revision Application No. 121 of 2018, decided on 18-04-2019]

Tuesday, April 16, 2019

Election Poll code not applicable to cooperatives: HC

In an important order, the Gujarat high court on Tuesday held that the model code of conduct (MCC) for elections cannot be applied to a cooperative society since it is not a government instrumentality.
A bench of Justice Harsha Devani and Justice Bhargav Karia quashed the district election officer’s order cancelling a special general body meeting that was to be convened by the Mehsana District Co-operative Milk Producers Union Ltd (Dudhsagar Dairy).
According to the dairy’s counsel Dipen Desai, the dairy set an agenda on March 8 to convene a meeting to amend its bylaws. On March 10, it decided to convene the meeting on March
24. The general election was announced on March 10 and the model code of conduct came into force.
On March 16, the district collector received a complaint that the dairy’s decision taken on March 10 to convene a meeting was a violation of the MCC. The district collector sought the district registrar’s opinion on March 19 and stopped the dairy from going ahead with its programme citing the MCC.
The dairy approached the HC contending that the MCC is not applicable to it, being a cooperative, because it does not avail of government funds.

HC scraps govt’s ₹10k limit for support to students

In a major beneficiary boost to Gujarat’s private schools, the Gujarat high court has removed the ceiling of Rs 10,000, the maximum amount that can be reimbursed by the state government to private school for expenditure incurred on a primary student admitted on free seat quota under the RTE Act.
Two associations of nearly 7,000 private schools had challenged a July 2015 government resolution fixing a cap on reimbursement by the government. This ceiling was later increased to Rs 13,500.
The high court has ruled that the government cannot fix such an amount under the provisions of section 12(2) of the Right to Education (RTE) Act. Each non-granted and private school is mandated to admit 25% students from economically weaker section under the RTE laws. The high court has clarified that the non-granted schools are entitled to reimbursement of an amount equal to the amount they actually charge from other students or the amount the government spends per child, whichever is less. It further said that the mode of reimbursement could be prescribed by the state government. The school associations’ case got strengthened when the state government itself admitted that it had spent Rs 11,658 per student in 2013-14, Rs 14,477 in 2014-15 and Rs 15,607 in 2015-16. Since the government had spent more than the maximum amount fixed for private schools for reimbursement, it could not have issued the GR fixing the reimbursement amount, the high court observed. With observation that the government cannot snatch private school’s entitlement to a certain amount by issuing a GR, Justice Bela Trivedi quashed the resolution. The private schools had also challenged the issues regarding non-payment of hostel, lodging, boarding, mess transportation etc, but the state government assured to resolve the issues in September 2016. Therefore the petitioners did not press these demands.
On the dispute, president of Akhil Gujarat Rajya Shaala Sanchalak Mahamandal, Narayanbhai Patel, said, “Our demand before the government was that the schools should be reimbursed the amount local district panchayat and municipal corporation spend per child We had made several representations before the government but to no effect. Therefore we approached the high court.”

Bangladeshi actor Ferdous Ahmed was forced to leave India

MHA Cracks Whip For Visa Rule Violation

Bangladeshi actor Ferdous Ahmed was forced to leave India on Tuesday after he was ordered by the ministry of home affairs to exit the country for campaigning for the Trinamool Congress on Sunday.
“Ferdous Ahmed left the country this (Tuesday-16/04/2019) afternoon after MHA asked the actor to leave India.” 
MHA has sought a report from the West Bengal government and the local Foreigner Regional Registration Office, prompting FRRO to probe whether the actor had violated work visa rules by campaigning for TMC’s Raiganj candidate Kanaia Lal Agarwal.
Bangladesh deputy high commission officials confirmed that Ahmed’s visa did not allow him to take part in political campaigns. The officials had called the actor on Sunday itself to inquire about the issue after his campaigning sparked a political stir. Ahmed reportedly replied that he was shooting near Raiganj on Sunday afternoon and “could not turn down TMC’s request for campaigning”.

Monday, April 15, 2019

Regularization Obtained By Misrepresenting Facts Cannot Be Sustained; SC Upholds Termination Of A 'Chowkidar'

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Holding that the appointment of a Chowkidar on regular basis was invalid, the Supreme Court observed an order of regularization obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained.
Karamjit Singh was appointed as a Chowkidar on daily wages by the Punjab Urban Planning and Development Authority on 1st December 1995. His name was on the muster rolls till 31.03.1997. The Government of Punjab revised the Policy for regularization of work-charged / daily wage and other categories of employees who had completed 3 years of service. Even though he had only worked for a few months, Singh's name got into the list and was regularized w.e.f. 06.11.2001.
Some other employees challenged the regularization and the High Court directed the department to look into the matter. In the enquiry, it was found that Singh had not completed the requisite period of 3 years' service prior to 22.01.2001. Consequently, the Chief Administrator annulled the regularization.
Singh challenged this termination before Industrial Tribunal. As the tribunal dismissed his plea, he approached the High court which held that the department ought to have issued a chargesheet, conduct an enquiry against a permanent employee, before terminating or dismissing him from service under the Regulations. It observed that "rightly or wrongly" Singh's services had been regularized.
Setting aside the High Court order, the bench observed that Singh was disentitled from getting the benefit of a regular appointment with the Authority, in the absence of fulfilling the pre-requisite requirement. The bench observed:
"The appointment of the Respondent on regular basis was invalid since the Respondent did not have the pre-requisite experience of 3 years' continuous service prior to 22.01.2001. The Respondent had sought to secure regularization on the basis of interpolation in the final list of employees recommended for regularization. Such an appointment would be illegal and void ab initio, and cannot be sustained."

Saturday, April 13, 2019

No bar on attachment of Pension to recover Maintenance, Bombay HC

The Bombay High Court recently held that there is no bar on attaching a husband’s pension for the purpose of recovering maintenance due to his wife.
Sitting at the Nagpur Bench, Justice MG Giratkar passed a judgment to this effect while disposing of a revision application filed against an interim order of the Magistrate Court. During the course of proceedings initiated under the Domestic Violence Act, the Magistrate had ordered the attachment of the husband’s pension to secure the payment of Rs 30, 000 as interim maintenance to the wife every month.
The husband had filed a revision application challenging the same. For the husband, it was contended that the Magistrate had overstepped his jurisdiction in ordering the attachment of pension for recovery of maintenance. In this regard, reference was made to Section 11 of the Pensions Act, 1871 which deals with “exemption of pension from attachment”. This provision states that,
No pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance. shall be liable to seizure, attachment or sequestration by process of any Court at the instance of a creditor, for, any demand against the pensioner, or in satisfaction of a decree or order of any such Court.”
The Court, however, pointed out that the provision only bars attachment of pension at the instance of a creditor. It was observed,
The above said Section shows that in civil disputes pensions cannot be attached at the instance of creditors.
On the other hand, it was noted that a wife cannot be termed a creditor. Therefore, the Court concluded that the attachment of pension cannot be barred for the recovery of maintenance in favour of the wife. This was supported by commentary relied upon by the husband’s counsel. The Court noted,
“… Commentary relied on by learned counsel for the applicant/husband at serial No.16 under head of attachment shows that, ‘maintenance allowance granted to wife cannot be considered as debt. She is not a creditor hence exemption under S.11 cannot be granted to husband. (1985)87 Punk LR 682 : (1985) 12 Cri LT 219’. 
The said commentary itself shows that pensions can be attached to recover amount of maintenance. Hence, the stand taken by learned counsel for the applicant/husband that pensions cannot be attached is not digestible.
In view of this observation, the Court refused to quash the Magistrate’s order on the aspect of attaching the husband’s pension for recovering the maintenance due to his wife. However, the Court reduced the amount of maintenance payable from Rs 30, 000 to Rs 20, 000, opining that the amount ordered to be paid by the Magistrate was exorbitant on the facts of the case.
Accordingly, the Court ordered as follows,
Instead of Rs.30,000/­ per month, the applicant/husband shall pay Rs.20,000/­ per month towards interim maintenance to his wife during the pendency of D.V.Act proceedings.
The order of attachment of pension is hereby quashed and set aside subject to the applicant/husband clears all arrears of maintenance within a period of one month from today.
Before parting with the matter, the Court also directed the Magistrate to conclude the case within a period of three months.

Friday, April 12, 2019

Supreme Court directs parties to give details of donations received via electoral bond

The SC ordered all political parties to furnish the details of the electoral bond in a sealed cover by May 31.
Hearing a petition challenging the validity of the electoral bond scheme, the Supreme Court on Friday directed all political parties to furnish details of donations received via these bonds and said that the issue raised in the petition is "vital to fairness” of electoral process.
The SC bench headed by CJI Ranjan Gogoi said that all political parties give details of all donations received through electoral bond till date and the bonds they would receive till May 15 to Election Commission in a sealed cover by May 31. The details will include the name of the donors and the amount received till date.

Tuesday, April 9, 2019

Mere Financial Assistance To Buy Property Cannot Be Termed Benami Transaction


"Source of money had never been the sole consideration, and is only merely one of the relevant considerations but not determinative in character" The Supreme Court has observed that mere financial assistance to buy a property cannot be the sole determinative factor/circumstance to hold the transaction as benami in nature. The issue before the bench comprising of Justice L. Nageswara Rao and Justice MR Shah in an appeal arising out of a suit filed by a lady (P. Leelavathi vs. Shankarnarayana Rao) against her brothers was whether the transactions can be said to be benami in nature merely because some financial assistance has been given by the father (Late G. Venkata Rao) to the sons (defendants) to purchase the properties, subject matter of the suit (filed by his daughter, claiming share in these properties) 

The bench referred to judgment in Binapani Paul v. Pratima Ghosh that had held that the source of money had never been the sole consideration, and is only merely one of the relevant considerations but not determinative in character. It also reiterated the observations made in Valliammal v. Subramaniam, which delineated six circumstances to check whether the transaction is benami or not.

The source from which the purchase money came; the nature and possession of the property, after the purchase; Motive, if any, for giving the transaction a benami colour; Position of the parties and the relationship, if any, between the claimant and the alleged benamidar; Custody of the title deeds after the sale; Conduct of the parties concerned in dealing with the property after the sale. The bench also took note that G. Venkata Rao had given financial assistance to the plaintiff (his daughter) and her husband to purchase the residential house at Bangalore and therefore must also have given the financial assistance to sons and helped them in purchase of the properties. It said: "It is true that, at the time of purchase of the suit properties, some financial assistance was given by Late G. Venkata Rao. However, as observed by this Court in the aforesaid decisions, that cannot be the sole determinative factor/circumstance to hold the transaction as benami in nature. The plaintiff has miserably failed to establish and prove the intention of the father to purchase the suit properties for and on behalf of the family, which were purchased in the names of defendant Nos. 1 to 3.......Therefore, the intention of Late G. Venkata Rao to give the financial assistance to purchase the properties in the names of defendant Nos. 1 to 3 cannot be said to be to purchase the properties for himself and/or his family members and, therefore, as rightly observed by the High Court, the transactions of purchase of the suit properties – Item Nos. I(a) to I(c) in the names of the defendant Nos. 1 to 3 cannot be said to be benami in nature. The intention of Late G. Venkata Rao was to provide the financial assistance for the welfare of his sons and not beyond that. As none of the other ingredients to establish the transactions as benami transactions, were satisfied in this case, except that some financial assistance was provided by Late G. Venkata Rao, the bench held that plaintiff has no right to claim share in these properties. 

Thursday, April 4, 2019

Drunk lawyer Simone Burns is jailed for racist mile-high rant (Mumbai to London Air India flight)

A DRUNK human rights lawyer who spat at a flight attendant when she refused to serve her a bottle of wine has been jailed for six months.
Simone Burns, 50, was filmed shouting at Air India cabin crew in a racist and foul-mouthed tirade during a nine-hour flight from Mumbai to London Heathrow last November.
Sentencing her yesterday, Judge Nicholas Wood said: ‘The experience of a drunk unrepentant irrational person in the confines of an aircraft is frightening, not least on a long-haul flight, and is a risk to safety.’

He said although her hour-long rant did not put the aircraft in danger ‘there is no escape at 30,000ft.’ Although Burns was of ‘impeccable character’ a jail term was inevitable, he added.
Burns, known as Simone O’Broin, was initially served three 25cl bottles of wine on the flight, then refused more.
The business class passenger labelled the crew ‘Indian money-grabbing c***s’ and was also twice caught smoking in the toilet. Belfast-born Burns, who lives in Hove, East Sussex, said: ‘I’m an international criminal lawyer. I don’t get any money for it by the way and you can’t give me a f***ing glass of wine.’
Burns later spat on supervisor Dastur Pervin and squeezed her arm so hard it hurt. She was escorted off the plane by three armed police officers at Heathrow. After admitting charges at Isleworth crown court, she was jailed six months for being drunk on an aircraft and two months for common assault, to be served concurrently. Burns was also ordered to pay Ms Pervin £300.News by Metro UK