Monday, November 23, 2015
A woman has inalienable rights over stridhan and she can claim it even after separation from her husband, the Supreme Court has ruled, saying that denying it would amount to domestic violence making the husband and in-laws liable to face criminal prosecution.
As per Hindu law, stridhan is whatever a women receives during her lifetime including all movable, immovable property, gifts etc received prior to marriage, at the time of marriage and during child birth.
A bench of Justices Dipak Misra and Prafulla C Pant quashed the order of a trial court and Tripura High Court which had held that a woman cannot claim her stridhan after separation from her husband and criminal proceedings cannot be initiated against husband and in-laws for not handing over the properties.
The bench clarified that separation under court order is different from divorce and the couple remains as husband and wife, although living separately. It said under judicial separation a couple can keep their status as wife and husband till their lifetime and a wife is entitled to invoke the Act during that period if her rights are violated.
"It is quite clear that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped," the bench said.
"Thus the finding recorded by the courts below which have been concurred by HC that the parties having been judicial separated, the wife has ceased to be an aggrieved person is wholly unsustainable," it said.
Quashing the order of trial court and HC, the apex court said woman has inalienable right over stridhan and neither the husband nor any other family members can have any right over it.
"We are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the Act. We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage," it said.
"A decree or an order for judicial separation permits the parties to live apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended. The decree however, does not sever or dissolve the marriage," the bench said and directed the trial court hear her plea on merit.
Saturday, November 21, 2015
IN THE HIGH COURT OF GUJARAT AT AHMEDABADCRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 9490 of 2014 ========================================================== MADHAVJIBHAI DHANJIBHAI PATEL....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 16/10/2015 ORAL ORDER
"6. Learned counsels for the respondentsaccused have mainly submitted that the respondents were serving as Architects. Their main duty was to submit design plan of the buildings before the Corporation and it is upto the builder or site engineer to act upon it. No other role is attributed to them. It is not the case of the prosecution that the buildings were collapsed due to building plans being improper or improper structural design or improper construction of the structure HC-NIC Page 3 of 29 Created On Sun Oct 18 02:48:20 IST 2015 R/CR.MA/9490/2014 ORDER of the buildings. It is further submitted that owners/builders did not file the reports in the form of progress certificates with the Corporation as required by the byelaws and did not give the completion certificates to show that the buildings were completed as per the approved plan. It is also submitted that Building Use Permissions were not obtained by the owners/buildings of the collapsed building. It is further submitted that owners/builders of the collapsed buildings constructed, completed and used the structure on their own and it might be due to construction of additional rooms and change of use causing additional load on the structure that would have resulted in consequent collapse of buildings in the earthquake. It is further submitted that various agencies and contractors appointed by the builders were involved in the construction of the buildings who would visit the site and supervise the work of the concerned builders. They were neither builders, supervisors, structural designer or Clerk of works. The duties and responsibilities of licensed supervisor, engineer, structural designer and clerk were stipulated in byelaw II/16. As per the byelaw, they were not required to visit the site to see what type of quality was being used by the builder in the construction. It is submitted that the earthquake being a natural catastrophe, no rashness and negligence can be presumed or attributed to the respondentsaccused who have only got the plan sanctioned from the Municipal Corporation. It was not the case that the buildings were collapsed due to improper structural design or improper construction of the structure of the collapsed building or due to mistake of the respondentsaccused. The case was that due to poor and low quality of material used in the building, the buildings were collapsed. However, they were not in any way responsible for the same because they have no connection with the structural design or construction activity of the building. Their only duty was to prepare the plan to be submitted to the Corporation as Architects. It is submitted that the plan prepared by them were approved by the Corporation also. They were rendering their services as Architects for the last several years for a number of buildings including high rise ones keeping in mind the plan approved by the competent authority. Looking to the entire papers of charge sheet, since no prima facie involvement of the respondents is disclosed, they were discharged by the court below. It is also further submitted that they were not in any way connected with any of the allegations levelled in the charge sheet. It is therefore urged that these revisions be dismissed.
15. From the entire papers of charge sheet and the documents annexed thereto, there is nothing to implicate that the respondents are liable or responsible for any of the offences levelled against them. No grave suspicion is made out against the respondents for framing of charge either. In view of the above, taking into consideration nature of their duties, this Court is of the prima facie opinion that there is no sufficient grounds to proceed with the trial against the respondents accused and hence, they were rightly discharged by the learned Addl. City Sessions Judge. Since no irregularity or illegality as having committed in arriving at the said findings has been noticed by this Court, these revisions are required to be dismissed."
"Whoever commits culpable homicide not amounting to murder shall be punished with ... and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
"The most important consideration upon a trial for this offence is the intention or knowledge with which the act which caused death, was done. The intention to cause death or the knowledge that death will probably be caused, is essential and is that to which the law principally looks. And it is of the utmost importance that those who may be entrusted with judicial powers should clearly understand that no conviction ought to take place, unless such intention or knowledge can from the evidence be concluded to have really existed".
"It may be asked how can the existence of the requisite intention or knowledge be proved, seeing that these are internal and invisible acts of the mind? They can be ascertained only from external and visible acts. Observation and experience enable us to judge of the connection between men's conduct and their intentions. We know that a sane man does not usually commit certain acts heedlessly or unintentionally and generally we have no difficulty in inferring from his conduct what was his real intention upon any given occasion".
304A. Causing death by negligence. -- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
"Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted".
"Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission mayHC-NIC Page 9 of 29 Created On Sun Oct 18 02:48:20 IST 2015 R/CR.MA/9490/2014 ORDER accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two".
"Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise.
Briggs (1977) 1 All ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act.
"Nevertheless, to decide whether someone has been 'reckless', whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as 'reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not be deterred from treating it as negligible, could the accused be described as reckless in its ordinary sense, if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave). So, to this extent, even if one ascribes to 'reckless' only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as 'objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective."
"As to what is meant by causa causans we may gainfully refer to Black's Law Dictionary (Fifth Edition) which defines that expression as under:
"Causa causans. - The immediate cause; the last link in the chain of causation."
"Causa causans. - The immediate cause as opposed to a remote cause; the 'last link in the chain of causation'; the real effective cause of damage"
"Proximate cause. - That which in a natural and continuous sequence unbroken by any efficient, intervening cause, produces injury and without which the result would not have occurred. Wisniewski vs. Great HC-NIC Page 14 of 29 Created On Sun Oct 18 02:48:20 IST 2015 R/CR.MA/9490/2014 ORDER Atlantic & Pacific Tea Company, 226 Pa. Super 574 : 323 A2d 744 (1974), A2d at p. 748. That which is nearest in the order of responsible causation. That which stands next in causation to the effect, not necessarily in time or space but in causal relation. The proximate cause of an injury is the primary or moving cause, or that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission."
"4. We may in this connection refer to Experor V. Omkar Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret S. 304-A and observed as follows:
"To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non."
This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of S.304-A. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. Therefore, the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, would not be enough to make him liable under S.304-A, for the fire would not have taken place, with the HC-NIC Page 15 of 29 Created On Sun Oct 18 02:48:20 IST 2015 R/CR.MA/9490/2014 ORDER result that seven persons were burnt to death, without the negligence of Hatim. The death in this case was, therefore, in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proximate and efficient cause without the intervention of another's negligence. The appellant must, therefore, be acquitted of the offence under S.304-A."
"The word "criminal" in any attempt to define a crime is perhaps not the most helpful, but it is plain that Lord Ellenborough meant to indicate to the jury a high degree of negligence."
"In a criminal Court, on the contrary, the amount and degree of negligence are the determining questions. There must be 'mens rea'."
''Negligence is a specific tort and in any given circumstances is the failure to exercise that care with which the circumstances demand. What amounts to negligence depends on the facts of each particular case and the categories of negligence are never closed. It may consist in omitting to do something which ought to be done or in doing something which ought to be done, either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the accompanying circumstances, and may vary according to the amount of the risk to be encountered HC-NIC Page 18 of 29 Created On Sun Oct 18 02:48:20 IST 2015 R/CR.MA/9490/2014 ORDER and to the magnitude of the prospective injury."
"In a criminal court, on the contrary, the amount and degree of negligence are the determining questions. There must be mens rea........ In explaining to juries the test which they should apply to determine whether the negligence in a particular case, amounted or did not amount to a crime, Judges have used epithets such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving punishment."
HC-NIC Page 20 of 29 Created On Sun Oct 18 02:48:20 IST 2015 R/CR.MA/9490/2014 ORDER
(1) whether there was contravention of the rule? If so, to what extent that contravention by the appellant contributed to the non-discovery of lead nitrate in sodium chloride content of the glucose saline in Batch No. 211105? (2) Whether sodium chloride for which the said solution was prepared was obtained by the appellant from sources other than the Stores of S. C. I. Ltd.? and (3) Whether the method adopted in testing the said batch by Prabhakaran would have, but for the contravention of the rules requiring the giving of one batch number to each lot, detected the presence of lead nitrate when he analysed samples of the offending batch of glucose saline prepared by the accused.
"8. Then the question would be whether an offence under Sec. 304-A, I.P.C, is made out? The provisions of this Section apply to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. Therefore this provision is directed at offences outside the range of Ss. 299 and 300,I.P.C. and obviously contemplates those cases into which neither intention nor knowledge enters. The words "not amounting to culpable homicide" in the Section are very significant and it must therefore be understood that intentionally or knowingly inflicted violence directly and wilfully caused is excluded. The Section applies only to such acts which are rash or negligent and are directly the cause of death of another person. In other words, a rash act is primarily an over hasty act as opposed to a deliberate act but done without due care and caution. Then the question whether the conduct of the accused amounted to culpable rashness or negligence depends on the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient and this depends on the circumstances in each case."
"12. The term "negligence" is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of HC-NIC Page 25 of 29 Created On Sun Oct 18 02:48:20 IST 2015 R/CR.MA/9490/2014 ORDER liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens -rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R. v. Lawrence Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell3 and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said: (All ER p. 982e-f) "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it."
"A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability."