Thursday, March 25, 2010

Merit crisis in lower judiciary -SC Told

Not Enough Qualifying In Test for Dist Judges, SC Told

New Delhi: Judiciary faces a crisis of merit at a crucial layer as majority of the states are finding it difficult to fill 25% of district judge posts through a limited departmental examination that was devised to give talent a speedy promotion route.
This became clear before the Supreme Court on Tuesday as senior advocate Vijay Hansaria as amicus curiae pointed to the large number of vacancies in district judge posts, which is the highest level in the lower judiciary responsible for fighting the huge pendency of nearly 2.6 crore cases.
The large number of posts falling under the cadre of Higher Judicial Service was mainly vacant due to failure of existing judicial officers to clear the tough departmental competitive test. The situation is so bad that in Tripura, eight posts were advertised under the speedy promotional route but only two candidates applied, Hansaria said.
Taking up an application filed by Rajasthan Judicial Service Officers’ Association through counsel A D N Rao, a bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and B S Chauhan said this was the situation in almost all states.
Rao gave a chart of the vacancies under 25% quota for speedy promotion through competitive examination. It said West Bengal had 50 vacancies, Uttar Pradesh 24, Maharashtra 42 and Orissa 12. The apex court had noticed on January 13 that in Bihar, though 16 posts were available, the HC could fill only two.
The bench issued notice to high courts for their response to the proposal — fill the existing vacancies through promotion based on seniority and reduce the competitive examination quota from 25% to 5%.
At present, 50% of posts of district judge are filled through promotion, 25% through direct recruitment from lawyers and 25% through limited departmental examination. Though the bench felt 25% posts through departmental examination could be filled through an all-India competitive examination, it veered around to the idea of reducing the quota.
The HCs have been asked to send their responses to the apex court before April 20, when the matter will be taken up for hearing afresh.
States finding it difficult to fill 25% of district judge posts through limited examination meant to give talent a speedy promotion route
Bengal had 50 vacancies, UP 24, Maharashtra 42 and Orissa 12
SC bench issued notice to HCs for their response to proposal to fill existing vacancies through promotion based on seniority and reduce competitive exam quota from 25% to 5%
At present, 50% district judge posts filled through promotion, 25% through direct recruitment & 25% through exam

‘SC can’t order probe into scams by netas’

New Delhi: The Supreme Court on Thursday held that it cannot direct probe against politicians facing corruption charges, saying the onus was on investigating agencies.

“This court cannot sit in judgment over whether investigations should be launched against politicians for alleged acts of corruption,” a three-judge bench headed by Chief Justice of India K G Balakrishanan said, refusing to direct CBI probe into the alleged disproportionate assets case against Sikkim chief minister Pawan Kumar Chamling. “If the Supreme Court gives direction for prosecution, it would cause serious prejudice to the accused, as the direction of this Court may have far reaching persuasive effect on the Court
which may ultimately try the accused,” the bench said in a judgement.
The bench directed petitioner Kungamina Lepcha, an opposition leader, to approach the investigating agencies concerned if he has got any such grievance. “The onus of launching an investigation into such matters is clearly on the investigating agencies such as the state police, Central Bureau of Investigation or the Central Vigilance Commission, among others. It is not proper for this court to give directions for initiating such an investigation under its writ jurisdiction,” the court said.
Questioning the motive behind the petition which was filed at the initiative of persons belonging to a political party, the court said that writ petition cannot be used as an instrument of such partisan considerations. “However, even if we were to accept the locus standi of the petitioners keeping in mind that allegations of corruption on part of the incumbent chief minister do touch on public interest, this court is not the appropriate forum for seeking the initiation of investigation,” the bench said. PTI

‘Violent’ persons cannot remain sarpanch: HC

Ahmedabad: Gujarat High Court has observed that people indulging in act of violence cannot hold post of sarpanch.

“It would be a travesty of ideals of local self government, if a person can continue to head the village panchayat while he remains in jail in connection with offences registered against him,” Justice DH Waghela observed in an order suspending sarpanch of Jagudan village in Mehsana district.

As per the case details, Babubhai Patel, sarpanch of Jagudan, was sent to judicial custody by court because he thrashed one Gopal Patel after summoning him to panchayat office last year. An FIR was lodged against the sarpanch, and he had to remain in jail for 35 days. Following this, the district development officer suspended Patel for his gesture terming it as ‘moral turpitude’. However, Patel was reinstated in the office by additional development commissioner.
The sarpanch’s reinstatement led the complainant to file a petition in the high court through advocate Shakeel Qureshi. Justice Waghela heard the case at length and quashed the additional development commissioner’s order by terming it “completely perverse”, which needs to be “deprecated”.
The judge upheld the DDO’s decision of suspending the sarpanch observing that in such cases, its imperative for authorities to suspend them immediately. Criticising the sarpanch’s act of indulging in violence and the authorities’ decision to retain him on the post, the high court reminded the officers and politicians of high values that are behind the institution of the panchayati raj.
“It must be remembered that panchayati raj institutions are accorded a place of pride in our Constitution as unit of local self-governance, and fundamental duties of every citizen include the following noble ideals that inspired the freedom struggle and abjuring violence,” the judge wrote in his order. The court also observed that the standard “has to be higher and not lower for public life”.

Wednesday, March 17, 2010

Any citizen will be able to register a complaint sitting at home

Filing police complaints and FIRs will now be a click of a button away within six months as the Home Department has decided to make registration online in a bid to bring in more transparency in the investigation process.

People can also check the status of FIR and investigation after registering their complaints on

“Any citizen will be able to register a complaint sitting at home. He can also track case status and learn about investigation details.

This will help us deal with the problems and complaints of the people more transparently. A provision has been made in the state budget to help put the system in place,” Minister of State for Home Amit Shah said.

The online complaint registration will first begin in major cities such as Ahmedabad, Gandhinagar, Rajkot, Surat and Vadodara. The service will be gradually extended to the entire state. The pilot project has already started in the Dabhoda police station in Gandhinagar and the outcome has been satisfactory, said Gandhinagar DSP Piyush Patel.

Home Department officials said that the move was aimed at taking governance closer to the public and make the police more approachable. “This move will go far beyond the RTI as each office will have access to in-depth information. This will also increase the police-public interface as heads of various departments be directly accessible to the citizens and in-depth information about the cases will be available to them.”

Complaints like reporting of missing persons and stolen vehicles can be filed online. Registration of tenant/servant will also be possible. Moreover, the status of passport and visa extension can be checked.

Patel told Mirror that the move would help citizens and the delivery of justice will be more transparent. “A pilot project has been launched at Dabhoda police station in Gandhinagar. It is a move towards having a paperless police station. The move will also help the police learn a lot about the needs of the people,” he said.

The portal of Home Department will have links to 70 individual web sites, including those of the Home Department, the Anti-Corruption Bureau, Prohibition and Excise, Prisons, Gujarat Police (DGP, Commissionerate, DSPs, Armed Unit, Training, Human Rights, etc), Port and Transport Department, Commissioner Transport and all RTOs and ARTOs.

Selective hearing? It’s in the brain, not in ears

London: Selective hearing? It’s all in the brain, and not ear, say scientists. A new study has revealed that selective hearing — the ability to filter out unwanted noise and conversation — exists and it is the brain that “zooms in” on sound acting like radio by tuning into certain noises while ignoring everything else.

The study could help explain why people with hearing difficulties lose this ability and are swamped by background noise, thereby pave the way for combating deafness. “We are only just beginning to appreciate the role the brain and this research gives us hope for improving not just the performance of implants and hearing aids,but the lives of people with hearing disabilities everywhere”, Vivienne Michael of Deafness Research UK, which is carrying out the study, said. Simultaneously, a team at University College London’s Ear Institute is using a variety of techniques to investigate the issue, including psychophysics, the study of sensations, and neurophysiology, the study of nervous system and brain. PTI

Monday, March 15, 2010

Point of Driving Licence

"15. Renewal of driving licences. (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry:

Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal:"

Cases may also arise where a holder of driving licence for light motor vehicle is found to be driving a maxi-cab, motor-cab or omnibus for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence."


S.B. Sinha & Markandey Katju [Arising out of SLP (Civil) No. 16437 of 2006] S.B. SINHA, J :

Leave granted.

One Reshma Devi, aged about 40 years, was going to take bath at Rajghat Ganga with her son, Respondent No.3 herein. Driver of an Eicher Tractor bearing Registration No. U.P.30/8423 was driving the said vehicle rashly and negligently hit her as a result whereof, she fell down. She died on 01.05.1995. A claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short, 'the Act) was filed by Respondent No. 2 herein. The said tractor was insured with Respondent No.1, the Insurance Company.

The Motor Accidents Claims Tribunal by an award dated 14.10.2004 determined the amount of compensation payable to the said respondent at Rs.1,06,000/-. Out of the said amount, a sum of Rs.75,000/- was to be paid to Respondent No. 2 (husband of the deceased) and Rs.31,000/- to her son, Respondent No.3 herein.

Respondent No.1, however, preferred an appeal thereagainst, which was dismissed by an order dated 24.01.2005, stating :

"We, therefore, while dismissing the aforesaid appeal give liberty to the appellant to initiate appropriate proceedings against the owner and driver of the vehicle for realization of the amount, which is to be paid by the Insurance Company in terms of the award to the third party-claimant subject to establishing its case before the Tribunal.

We further provide that the amount, which is in deposit before this Court as well as before the Tribunal shall be allowed to be withdrawn by the claimants/respondents.

The balance amount shall be deposited by the Insurance Company within two months from today before the Tribunal. On deposit so being made, the claimants/respondents shall be allowed to withdraw the same also without furnishing any security.

It will, however, be open to the Insurance Company to recover the amount in question from the insured. For the purpose of recovering the same from the insured owner of the vehicle, the insurer shall not be required to file a suit. It may initiate a proceedings before the Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. It is further directed that before releasing the amount, the insured owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount, which the insurer will pay to the claimants. This observation is in consonance with the view taken by the Apex Court in case of Oriental SC page 1630."

Respondent No.1, however, filed an application for review of the said order, inter alia, on the premise that as on the date of the accident, admittedly, the driver was not holding any valid licence in terms of the judgment of this Court in National Insurance Company Limited v. Swaran Singh and Others [(2004) 3 SCC 297]. Relying on or on the basis of the decision of this Court in Oriental Insurance Co. Ltd. v. Nanjappan and Others [AIR 2004 SC 1630], the said application for review was dismissed.

The learned counsel appearing on behalf of the appellants would submit that although the licence held by the driver of the tractor expired on 27.08.1994, the same later on having been renewed, the Insurance Company was liable to reimburse the amount of compensation payable by the appellants to the claimant-respondents.

The learned counsel appearing on behalf of the respondents, however, supported the impugned judgment.

Section 15(1) of the Act and the first proviso appended thereto reads as under :

"15. Renewal of driving licences. (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the dale of its expiry:

Provided that in any case where the application for the renewal of a licence is made more than thirty days after the dale of its expiry, the driving licence shall be renewed with effect from the date of its renewal:"

From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder.

The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28.04.1995. As on the said date, the renewal application had not been filed, the driver, did not have a valid licence on the date when the vehicle met with the accident.

In Swaran Singh (supra), whereupon the learned counsel appearing on behalf of the appellants relied upon, it is stated :

"45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry.

46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry."

This aspect of the matter is now covered by a decision of this Court in National Insurance Company v. Kusum Rai & Others [(2006) 4 SCC 250], wherein this Court referring to Swaran Singh (supra), opined :

"14. This Court in Swaran Singh clearly laid down that the liability of the Insurance Company vis-`-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle.

The question as regards the liability of the owner vis-`-vis the driver being not possessed of a valid licence was considered in Swaran Singh stating: (SCC pp. 336-37, para 89)

89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are goods carriage, heavy goods vehicle, heavy passenger motor vehicle, invalid carriage, light motor vehicle, maxi-cab, medium goods vehicle, medium passenger motor vehicle, motor-cab, motorcycle, omnibus, private service vehicle, semi-trailer, tourist vehicle, tractor, trailer and transport vehicle. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for motorcycle without gear, [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for light motor vehicle is found to be driving a maxi-cab, motor-cab or omnibus for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence."

[See Nanjappan (supra)] In this view of the matter, there is no merit in this appeal, which is dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.

SC stays Gulbarg probe, seeks report from SIT on allegations

New Delhi: The Supreme Court on Monday stayed further proceedings in Gulbarg Society trial taking exception to the unceremonious exit of special public prosecutor R K Shah, who had resigned saying he could not bear the noncooperation from SIT and taunts from the trial judge.

Seeking a detailed response from the SIT, headed by former CBI director R K Raghavan and which was constituted by the apex court two years ago to probe 10 sensitive post-Godhra riot cases, a Bench comprising Justices D K Jain, P Sathasivam and Aftab Alam took serious note of the flurry of allegations levelled against the working of the investigating team.
Charges flew thick and fast against SIT, which till recently was considered the final word by the apex court as far as investigations into the riot cases went. Things changed dramatically after the indictment of senior police official Geetha Johri by the apex court in the Sohrabuddin encounter case and complaints against the way SIT functioned started pouring in.
NGO Citizen for Justice and Peace, amicus curiae Harish Salve and solicitor general Gopal Subramaniam were one in demanding that SIT should explain its position and the Bench forwarded the complaints to Raghavan for an answer.
Subramaniam, who said he was assisting the court and was not a “hand maiden of the Centre”, expressed uneasiness at the manner in which things had shaped up for SIT. He said, “Whatever investigation SIT does, it must satisfy the fundamental parameters of fairness”.
Amid high drama, senior advocate Ram Jethmalani pushed in a fresh twist by saying his client and BJP MLA Kalubhai Maliwad had been summoned by SIT, one of whose members is Shivanand Jha who is also an accused in the complaint filed by Zakia Jafri, the widow of killed former MP Ahsan Jafri.
He said the apex court could not have set up the SIT without hearing the accused as it went against the very tenets of the criminal justice system. Jethmalani said Gujarat CM Narendra Modi may be the target number one but the SIT did not have the power to summon accused as the apex court had only asked the special investigation team to look into Jafri’s complaint.
After seeking the response of SIT to all the allegations, including one filed by Ilyas Hussain Mulla, who alleged that he was tortured by SIT to become a false witness in the Godhra train burning case, the Bench posted the matter for further hearing in the second week of April.

Bill to amend CrPC introduced in Lok Sabha

New Delhi: The government on Monday introduced in Lok Sabha a CrPC amendment Bill, seeking to “make it compulsory for the police” to record “reasons” for making an arrest or not making an arrest in respect of a cognizable offence for which the maximum punishment is up to seven years.

Seven years or less is the maximum penalty for a host of offences, including attempt to commit culpable homicide, robbery, attempt to suicide, kidnapping, voluntarily causing grievous hurt, cheating, outraging a woman’s modesty and death caused by negligence. The Code of Criminal Procedure (Amendment) Bill, introduced by home minister P Chidambaram, will also make it compulsory for the police to “issue a notice” in all such cases where arrest is not required to be made under the relevant section (41) of CrPC.
The amendment followed a suggestion of the Law Commission, which had recommended that if a person, to whom notice under the law had been issued, was not identifying himself or herself, then it could be a ground for the police to arrest that person.
Earlier in 2008, the government had brought an amendment in Section 41 of CrPC, divesting the police of the usual arrest powers in all cases where the maximum possible sentence is seven years or less. As a result, the police, instead of arresting the accused, was supposed to issue him a “notice of appearance” for any offence punishable with imprisonment up to seven years. Under Section 41, as it originally stood before the 2008 amendment, a police officer may, without an order of a magistrate and without a warrant, arrest any person who has been concerned in any cognizabale offence.
The radical change in CrPC had, however, drawn a lot of flak from a number of bar associations across the country. The lawyers apprehended that the amendment (in Section 41) doing away with the mandatory arrest provisions in offences punishable up to seven years would remove fear from the minds of criminals who would misuse the provisions under the garb of personal liberty.

Tuesday, March 9, 2010

SC challenges HC verdict on RTI ambit

Applying RTI To CJI Would Impair Judicial Independence, Says Apex Court

New Delhi: The Supreme Court Secretary General on Monday moved the apex court seeking the setting aside of a Delhi High Court verdict bringing the Chief Justice of India’s office under the ambit of RTI Act and said the judgment had the potential to destroy the constitutionally guarded independence of the judiciary.
Filing the special leave petition just four days before the expiry of the March 12 deadline to appeal against the unanimous verdict of a threejudge Bench authored by former chief justice A P Shah, the secretary general of the apex court said the declaration of assets by judges to the CJI was voluntary and the information so held was purely in a fiduciary capacity in the absence of any law to that effect.
The appeal, drafted by advocate Devdatt Kamat and settled by Attorney General G E Vahanvati, said though the initial RTI appeal by S C Agarwal before the single-judge Bench of the HC pertained only to declaration of assets by judges, the three-judge Bench unnecessarily forayed into virgin territory and made observations touching on sensitive areas of judicial administration.
Since, judges have already posted their assets and liabilities on the official website of SC, the appeal did not seek stay of the HC judgment, but sought its setting aside on the ground that the observations in the verdict seriously compromised judicial independence.
“The effect of the judgment of the HC would seriously impair the position of the judges and the doctrine of independence of judiciary. The framers of the Constitution had insulated the higher judiciary from any interference, pressure or scrutiny. Independence of judiciary also includes in its ambit the independence from any ‘pressures’ or ‘prejudices’.”
The appeal complained: “The single judge made wideranging observations on the position of the CJI. This was specificaly put in issue before the Full Bench and it was contended that the observations were not only uncalled for but also wrong. These issues have not been dealt at all.”
If the RTI ambit was so expanded to mean that the consultation process for appointment of judges was also to be made public, then it would seriously impair a confidential constitutional process, it said.
“The basic constitutional principle is that in a process of consultation, the consultor and the consultee must have the fullest assurance that the views expressed would be kept in confidence. Confidentiality is a requirement of the basis of consultation,” the secretary general said.Right to information had to be interpreted within the meaning and scope of the 2005 legislation and was not to be construed as an “unbridled and unchecked right” as the HC had made it out to be, the appeal said.

Sunday, March 7, 2010

Respect victim’s wish to marry rapist, says CJI

New Delhi: In a radical suggestion, India’s Chief Justice KG Balakrishnan on Sunday said that judges, lawyers and social activists should give “due regard” to the wishes of a rape victim if she chooses to marry the rapist or have the baby conceived from the crime.
“Judges, lawyers and social activists
should also ensure that they do not take an overtly paternalistic approach when they have to make decisions for the welfare of rape victims,” he said at a seminar here.
“Due regard must be given to their personal autonomy since in some cases the victim may choose to marry the perpetrator or choose to give birth to a child conceived through forced intercourse,” he said.
He was speaking at the seminar on “Access to Justice, Relief and Rehabilitation of Rape Victims” organised by the ministry of women and child development. Others who addressed it included law minister M Veerappa Moily and minister of state for women and child development Krishna Tirath.
“We must also keep in mind that the interests of the victim are not protected by punishing the offenders alone,” said Balakrishnan, referring to a law ministry move to enact a law to set up fast-track courts to try sex-related offences. “Adequate attention should also be drawn to suggestions for compensatory remedies and the rehabilitation of rape victims through the provision of shelter, counselling services, medical and legal aid.”

Wednesday, March 3, 2010

Husband’s girlfriend cannot be booked for domestic violence

A woman can lodge a complaint against her husband and in-laws under domestic violence laws, but not her husband’s girlfriend. In one such case, as the Gujarat High Court has recently quashed a complaint filed by a wife against her husband’s so-called beloved.

Wife lodged a complaint in July last year at the Chaklasi police station near Nadiad against her husband Fatabhai and his family members accusing them of demanding dowry and putting her through physical and mental torture. The police booked all the persons under various sections of the Indian Penal Code, including 498A.
Interestingly, the police also booked one Rasila Parmar on Mamtaben’s complaint, though she was not a member of the family. Wife accused Parmar of having illicit relationship with her husband, and therefore Fatabhai used to torture his wife.
But this was not acceptable to Parmar, who is employed with a government department. She approached the high court against Mamtaben’s complaint. Her lawyer, Haresh Trivedi contended before the court that Mamtaben could not make even a single statement against the woman to show how she was instrumental in the act of violence and harassment. He claimed that Parmar was not a family member, neither was she residing with the family. And in absence of any connection of Parmar with Mamtaben and her in-laws, she cannot be held responsible for the alleged act of domestic violence.
Parmar’s counsel also alleged that wife had tried to implicate her in this case merely with a view to subverting her chance of promotion in government job. The case against Parmar cannot stand because technically she does not fall under the definition of a relative. On his argument, the court made Wife a party in proceeding in order to seek her version, but she did not turn up.
After hearing advocate Trivedi and the public prosecutor, Justice Akil Kureshi quashed the FIR against Parmar holding that Wife’s complaint under 498A cannot stand against her husband’s so-called lover.

Monday, March 1, 2010

MANISHA TYAGI v. DEEPAK KUMAR [2010] INSC 99 (10 February 2010)



1. In this appeal the wife has challenged the judgment of High Court of Punjab and Haryana in LPA No.1625/01 dated 25.8.2006 whereby the High Court set aside the judgment of the Trial Court and the Judgment of Ld. Single Judge and granted a decree of divorce to the husband.

2. Marriage between the parties was celebrated according to Hindu rites at New Delhi on 17.11.1991. For a short period after the marriage, the couple stayed at Meerut where the husband was posted as a Captain in the Indian Army. Mutual cohabitation of the parties seems to have come to an end on 30.12.1992. They have been living separately since 31.12.1992. They have a daughter who was born on 2.6.1993.


3. On 24.11.1993 the husband filed a petition under Section 13 of the Hindu Marriage Act being Matrimonial Case No.644 of 1993 for dissolution of the marriage. Later on the petition was amended and filed in the Court of District Judge of Gurgaon on 28.11.1995 pursuant to the order issued by this Court in a transfer petition.

4. The husband has mentioned numerous instances of cruelty in paragraph 7 of the divorce petition. He has described the wife as quarrelsome, rude and ill-mannered. He had gone to the extent of terming his wife to be schizophrenic, making his life a living hell. He goes on to narrate that all efforts at conciliation even by his parents did not yield any result. He then proceeds to state that his wife is misusing her position as a practising advocate. According to him she has been constantly threatening him as well as his family that since she and her two uncles are advocates they would make the lives of the husband and his family miserable. The husband then complains that the wife has been making baseless complaints to his superiors. This has affected his career prospects in the Army. He makes a special reference to a statutory complaint dated 10.12.1993 in which according to him the wife had made numerous false allegations about the behaviour of the husband and his family even prior to the marriage ceremony.

5. We may notice here the contents of the statutory complaint. She complained about the exorbitant demands made by the husband's family for dowry. She complained that within days of the marriage the husband 2 started behaving in a strange manner; throwing household articles and clothes all around in the room and also mimicking the sound of different animals and sometimes barking like a dog. She had also claimed that she had never seen a human being behaving that way even if very heavily drunk, as he was most of the times she remained in his company. She has stated that the husband and in-laws had willfully and cruelly treated her and had spared no effort to cause her mental harm and inflicted grave injuries. She also complains that there is danger to her life, limb and health. They had pressurised her to meet not only their unlawful demands of money but also for spurious reasons. She ends the complaint with the comment that she has a child to support. She requested that an enquiry be held into the conduct of the husband which is not only rude, indiscreet, disgraceful and unbecoming of an Army officer but he has committed the offences under the Penal Code.

6. The husband further complains that even during this short period of cohabitation the behaviour of the wife was erratic, inhuman and unbearable. In order to cause mental agony to the husband the wife would deliberately indulge in erratic sexual behaviour. She would intentionally interrupt the coitus. On many occasions she even refused to share the bed with him.

7. The husband then makes a grievance that the wife had made a complaint to the Women Cell, Nanakpura, New Delhi where notice was received by the husband for appearance on 28.1.1994. She had also 3 registered FIR No.10 on 19.1.1994 with Police Station, Keshavpuram, Delhi under Section 406, 498-A, IPC. The police raided the flat of the parents of the husband at Noida on 22.1.1994 along with the wife. She even took away all her belongings including the Maruti car. The husband in fact goes on further to allege that she even took the ornaments belonging to the husband and his parents. It is further alleged that the husband and the parents had to approach the court for anticipatory bail. She then filed a petition for maintenance before the Family Court, Meerut. She also lodged an FIR on 18.8.1999 under Section 354/506/34. She made false allegations against his father, advocate and the son of the advocate. With these allegations the husband had gone to court seeking divorce.

8. The Trial Court also took notice of the counter allegations made by the wife. She claimed that the husband and his family had started treating her with cruelty when the unwarranted demands for dowry were not met by her parents. She also claimed that the husband is deliberately disrupting the marriage as he wants to get married to someone else. She however admitted that the couple had separated on 31.12.1992. She complains about the deliberate neglect by the husband of his matrimonial as well as parental duties towards the new born daughter. She denied all the allegations made by the husband with regard to her erratic behaviour. She dwells on the illegal demands made by the in-laws for cash, jeweler and electronic items. She states that the 4 marriage was celebrated under shadow of extortion. She was harassed by the in-laws and rudely informed that they were expecting a sum of more than 30-lakh rupees to be spent in the marriage as her father was working abroad. On the very first day when she went to the matrimonial home she was informed by the mother-in-law that her son was destined to marry twice as per the horoscope. She reiterates the allegations about the erratic behaviour of the husband. She states that in his show of temper he threw household things at her. She was constantly beaten on one pretext or the other. Denying the allegations with regard to sexual misbehaviour she stated that in fact the respondent tried to have sexual intercourse during menstruation period or after conception. She had asked him to desist from acting in such an unnatural manner but to no effect. She further admitted having made the complaint but she denied that these are made as a counter blast to the divorce petition filed by the husband.

9. On the basis of the pleadings of the parties the Trial Court framed the following issues:

"1. Whether respondent has been exercising such cruelty towards the petitioner so as to entitle the petitioner to the dissolution of the marriage? OPP

2. Whether the petitioner has been ill- treating the respondent and as such, cannot take benefit of his own cruel and tortuous acts, if so, to what effect? OPR 5

3. Whether the petitioner is bad as premature? OPP

4. Whether the petition is malafide? OPR 5. Relief."

10. The Trial Court on evaluation of the entire evidence however held as follows:

"Although the circumstances mentioned above clearly reveal that it is a case of broken marriage, however, there is no ground given in Section 13 of the Hindu Marriage Act, where a decree of divorce can be founded on the proof of irretrievably broken marriage. In this regard, I may cite a recent judgment of our own Hon'ble Singh Sandhu (1997-3) P.L.R. 553. It is laid down in this decision that even if the marriage is assumed to have (illegible) for irretrievably, it is not ground to dissolve the marriage.

However, the situation reached between the parties is of the doing of the petitioner and it is well cherished principle laid down in Section 11 of the Hindu Marriage Act that a party cannot be permitted to take benefit of his own wrongs.

For the discussion made above and the conclusions reached thereon, I hold that the petitioner has been unsuccessful in proving the respondent to have treated him with cruelty of the nature as to entitle him to a decree of divorce. It is however, proved on the other side that the petitioner had harassed the respondent for getting his demand and the demands of his parents fulfilled. However, the respondent has prayed for no relief on that ground. Issue No.1 is, therefore, decided against the petitioner while Issue No.2 is decided in favour of the respondent."

6 11. Aggrieved by the aforesaid findings the respondent filed F.A.O.

No.16-M of 2000 in the Punjab and Haryana High Court. The Learned Single Judge independently examines the entire evidence and the material on the record. Upon evaluation of the entire evidence the Learned Single Judge observed that both the parties are at fault.

According to the Learned Single Judge the wife had crossed "Lakshman Rekha". Apart from what was stated by the Trial Court, the Learned Single Judge notices that the wife had not only made allegations about the unnatural demands of the husband for sexual intercourse when she was pregnant but she had also made an allegation that he had wanted to commit the act of sodomy with her which she resisted. The Learned Single Judge concludes that the evidence led by the husband with regard to cruelty of the wife is not such that he can be granted a decree of divorce under Section 13 of the Hindu Marriage Act. At the same time, adverting to the behaviour of wife the Learned Single Judge observed as follows:

"I have considered the contentions of the parties with reference to the documents and first of all I must say here that respondent had crossed "Lakshman Rekha". I do not deny that a woman has no rights after the lawful marriage.

She expects love and affection, financial and physical security, equal respect and lots more but at the same time, the wife must remain within the limits. She should not perform her acts in such a manner that it may bring incalculable miseries for the husband and his family members She should not go to hat extent 7 that it may be difficult for her to return from that point."

12. The final conclusion reached by the Learned Single Judge is as follows:

"I have made an independent assessment of the oral evidence and am of the opinion that both the parties are at fault. The respondent exceeded the limits of decency when she went to the extent of lodging a false FIR and when she tried to humiliate the appellant in the eye of his superiors by writing a very damaging letter Ex.

PW2/1 without knowing its consequences."

13. In view of the aforesaid conclusions the Learned Single Judge granted the alternative relief to the husband by passing a decree for judicial separation under Section 10 of the Hindu Marriage Act. This decree was passed with the hope that the parties would ponder upon the situation and may be able to re-unite for the welfare of the child. If, on the other hand, the parties do not reconcile within the statutory period of one year it will be open to either of them to seek a decree of divorce.

14. Aggrieved by the aforesaid judgment the wife went in appeal before the Division Bench in LPA No.1625/01. The Division Bench noticed the extensive pleadings as well as the evidence led by the parties. On a re- evaluation of the evidence the Division Bench concluded that all efforts of reconciliation between parties have failed. They have been living separately since 31.12.1992. According to the Division Bench the marriage has irretrievably broken down. The Division Bench sums up the entire matrimonial scene of the parties in the following words:

8 "The allegations and counter allegations had flown thick and proper in this case. To an extent these did receive support by the evidence led by the respective parties. The learned Single Judge chose a middle-path by holding that both the parties were at fault and accordingly granted decree of judicial separation instead of divorce.

To what effect and what difference it has made to the lives of parties can not really be made out.

The parties are living separately since 31.12.1992. Though not revealed from the record but we can assume that efforts must have been made for reconciliation between the parties at the trial and at the first appellate stage. Both the parties continue to differ and have refused to patch up. As noticed earlier, we also failed in our efforts to bring this matrimonial dispute to some agreed solution.

What is left of this marriage? Both the parties though educated but are still standing firm on their respective stands. They both seem to be totally unconcerned about their young child and have continued with their combatant attitude without any remorse. This marriage, if we may say, has irretrievably broken down. That of course cannot be a ground for granting divorce between this fighting couple. No wonder, the Hon'ble Supreme Court in a latest decision in Naveen Kohli vs. Neelu Kohli, 2006 (3) Scale 252 has made a recommendation to the executive to provide this as a legal ground for divorce. Till the law is amended, we will remain handicapped to act even in those cases where one finds that a marriage just cannot work and existence thereof is nothing but an agony for both the parties.

We, as such, are required to decide if the allegations of cruelty made by the respondent were proved or not."

15. While reappreciating evidence the Division Bench notices the averments made by the wife in paragraphs 13 and 31 of the Statutory Complaint dated 10.12.1993 wherein she had stated as follows:

9 "13. On 2.12.1991, my husband started behaving in a strange manner throwing the household articles and clothes all around in the room and also mimicking the sound different animals and some times barking like a dog. I was not only stunned but also shocked because I had never seen a human being behaving that way even if very heavily drunk as he was most of the time I remained in his company. I was not allowed to touch any thing which belong to him.

When I told my mother-in-law, she warned me to ensure that I obeyed all orders given to me, either my husband or in laws."

"31. My health started deteriorating. My mind was disturbed to the extreme. Now another form of torture, unnatural sex. He would thrust on me at odd hours. I was no longer a human being but a slave to his wild passions."

16. It is also observed that the wife has not denied the aforesaid averments while giving her evidence. She had in fact further elaborated the allegation of sodomy made by her in the complaint. The conclusion recorded by the Division Bench is as follows:

"We have given our thoughtful consideration to the while issue. It cannot be disputed that the appellant had made the averments in paras 13 and 31 of the complaints, which have been reproduced above. She has also not denied the same, rather while giving her evidence, she had further elaborated the allegations of sodomy made by her in the complaint. Wife cannot deny that she had compared her husband to a barking dog that she also made allegations against him for having behaved in a strange manner. She had also referred to him as heavy drunkard. Even if we leave aside the other allegations as made by the husband, we think that describing husband as 10 dog and mimicking as animals and making allegations of sodomy would be enough to say that these amounted to cruelty on her part towards her husband. It cannot be denied that the wife had lodged various complaints and criminal proceedings against the respondent- husband. FIR under sections 498-A and 406 IPC was got registered by the wife. Respondent- husband, however, earned acquittal in this case.

Another complaint filed before the Police Station Civil Lines, Meerut ended in dropping of the proceedings. Yet in another FIR got registered under Sections 417, 419 and 420 IPC, the respondent-husband was discharged. The record also reveals that still another FIR was got registered under Sections 354 and 506 read with Section 34 IPC on 18.8.1999 against the father- in-law, an Advocate and son of an Advocate by the appellant-wife. We think that this conduct would exceed all bounds of moderation. A daughter-in-law making an allegation against her old and infirm father-in-law for molesting her would certainly be an intolerable behaviour, which can be termed nothing but an act of immense cruelty for a son, who was none else than the husband of such complaint-wife. This FIR was quashed on 20.3.2002. Seeing the cumulative effect of all these allegations, we would not have any hesitation to hold that the allegations of cruelty made by the respondent- husband stand established."

17. Since the allegation of cruelty made by the husband had been accepted, the Division Bench further observed as follows:

"We would, accordingly, hold that the finding of the learned Single Judge in grating partial relief and that of the trial Judge in declining the relief of divorce cannot be sustained. We would, accordingly, set aside both the judgments and hold that the cruelty alleged by the respondent husband stands proved. As a result, we will dismiss the appeal 11 and modify the judgment of the learned Single Judge to hold that the decree of divorce prayed by the respondent-husband is granted."

The aforesaid judgment has been challenged by the wife in the present appeal.

18. We have heard the counsel for the parties. Ms. Kamini Jaiswal, appearing for the appellant, submitted that order passed by the High Court could not have been passed in an appeal filed by the wife. The husband had not filed any appeal. Both the courts below had given concurrent findings that that the allegations of the husband about cruelty of the wife have not been proved. These findings were based on a thorough evaluation of the evidence by the Trial Court as well as the learned Single Judge of the High Court. The Division Bench reversed the findings without any recording any independent reasons. Learned Counsel made a reference to the observations of the Trial Court wherein it has been observed that averments made in paragraph 13 would not amount to calling her husband a dog. The District Judge had observed "to say that a person started barking like a dog and that that person is a dog are two different things. In Para 13 of exh. PW2/1, the respondent only speaks about unhuman behaviour of her husband and she cannot be taken as addressing her husband as dog in this paragraph".

19. The Trial Court also observed that the allegations made in paragraph 31 of the Statutory Complaint about unnatural sex cannot be equated with sodomy. The Trial Court also came to the conclusion that 12 it is a case of broken marriage. However, in the absence of a ground under Section 13 of the Hindu Marriage Act where a decree of divorce can be founded on the proof of irretrievable broken marriage, it would not be a ground to dissolve the marriage. It is also pointed out that these findings were not rejected by the Appellate Court. According to the learned counsel on this short ground the judgment of the Division Bench is liable to be set aside.

20. On the other hand, Mr. Rajender Kumar, appearing for the husband submitted that the High Court possibly could not have granted the decree on the basis of irretrievable break down of marriage.

However, the High Court has granted the decree of divorce upon re- appreciation of the evidence and recording an independent finding that the conduct of the wife amounts to cruelty which would entitle the husband to a decree of divorce. According to the learned counsel substantial justice has been done between the parties and the judgment does not call for any interference. It has also been pointed out by the learned counsel that, a petition was filed for divorce on the basis of the decree of judicial separation which had been granted by the learned Single Judge. However proceedings in the aforesaid case have been kept in abeyance due to the pendency of the appeals in the High Court and this Court. Learned counsel submitted that there is absolutely no room for reconciliation between the parties. Therefore, the judgment of the High Court need not be reversed at this stage.

13 21. We have considered the submissions made by the learned counsel.

The Trial Court as well as the Appellate Court have both concluded that the behaviour of the husband as well as the wife falls short of the standard required to establish mental cruelty in terms of Section 13(1) (i-a).

22. At this stage we may notice the observations made by this Court in the case of Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. In this case the Court examined the development and evolution of the concept of mental cruelty in matrimonial causes. In paragraph 35 it is observed as follows:

"35. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to 1976 amendment in the Hindu Marriage Act, 1955 cruelly was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act.

By the 1976 amendment, cruelty was made a ground for divorce and the words which have been omitted from Section 10 are "as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party".

Therefore, it is not necessary for a party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension-reasonable apprehension - that it will be harmful or injurious for him or her to live with the other party."

23. The classic example of the definition of cruelty in the pre-1976 era is given in the well known decision of this Court in the case of N.G.

14 Dastane vs. S. Dastane (1975) 2 SCC 326, wherein it is observed as follows:

"The enquiry has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner as reasonable apprehension that it would be harmful or injurious for him to live with the respondent".

24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce.

25. We may notice here the observations made by this Court in the case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 wherein the concept of cruelty has been stated as under:

15 "The word "cruelty" has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. It if it mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot b e denied on the ground that there has been no deliberate or willful ill-treatment."

26. In the case of V. Bhagat vs. D. Bhagat (1994) 1 SCC 337, this Court while examining the concept of mental cruelty observed as follows:

"16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live 16 together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."

27. Taking into consideration the conduct of the parties over a period of time, the Trial Court as well as the Appellate Court concluded that the husband had failed to establish cruelty on the part of the wife which will be sufficient to grant a decree of divorce.

28. The Appellate Court further came to the conclusion that since both the parties made extremely serious allegations, it would be appropriate as the parties were not compelled to live together. The Appellate Court came to the conclusion that it would be more appropriate to give the couple some time to ponder over the issue especially keeping in view the welfare of their daughter. If in due course they manage to reconcile their differences the decree of judicial separation would be of no consequence.

On the other hand, if the parties continued with their adamant attitudes 17 it would be possible for either party to seek dissolution of the marriage on the basis of the aforesaid decree of judicial separation.

29. As noticed earlier the husband did not challenge the aforesaid decree of the Appellate Court, he was content to wait for one year and there after seeking decree of divorce. In fact upon the expiry of one year he has actually filed the necessary proceedings seeking decree of divorce in the Court of District Judge, Gurgaon on 9.5.2002. These proceedings are still pending.

30. On the other hand the wife had filed the Latest Patent Appeal challenging the grant of decree of judicial separation to the husband by the Appellate Court. We are of the opinion that the High Court erred in granting a decree of divorce to the husband. She had come in appeal before the Division Bench complaining that the Appellate Court had wrongly granted the decree of judicial separation even after concurring with the findings of the Trial Court that the husband had failed to establish cruelty by the wife. Therefore even if the appeal had been dismissed, the findings recorded by the Trial Court in her favour would have remained intact. The effect of the order passed by the Division Bench is as if an appeal of the husband against the decree of judicial separation has been allowed. Both the parties had failed to make out a case of divorce against each other. The husband had accepted these findings. Therefore he was quite content to wait for the statutory period to lapse before filing the petition for divorce, which he actually did on 18 9.5.2002. On the basis of the proven facts the Trial Court was more inclined to believe the wife, whereas the learned Single Judge of the High court found both the parties to be at fault. Hence the middle path of judicial separation had been accepted. Therefore, it was not a case where it was necessary for the Division Bench to correct any glaring and serious errors committed by the court below which had resulted in miscarriage of justice. In our opinion there was no compelling necessity, independently placed before the Division Bench to justify reversal, of the decree of judicial separation. In such circumstances it was wholly inappropriate for the Division of High Court to have granted a decree of divorce to the husband.

31. For the aforesaid reasons, we are unable to uphold the judgment and the decree of the Division Bench. Consequently, we allow the appeal. We set aside the Judgment and the Order passed by the Division Bench and restore the Order passed by the learned Single Judge in FAO No. 16-M of 2000.

32. There shall be no order as to costs.

NEW DELHI, 19 FEBRUARY 10, 2010.