Thursday, December 30, 2021

Muslim Husband Has No Fundamental Right To Compel Wife To Share His Consortium With Another Woman: Gujarat High Court

Overturning the family court's order, the Court, referring to the obje
ct behind Order XXI Rule 32(1) and (3) CPC, held that no person can force a female or his wife to cohabit and establish conjugal rights and if the wife refuses to cohabit, in such case, she cannot be forced by a decree in a suit to establish conjugal rights.
"Take a case wherein the wife leaves her matrimonial home on account of matrimonial disputes and in the meantime, the husband marries for the second time and brings home a second wife and simultaneously institutes a suit for restitution of conjugal rights against his first wife, still whether the Court would be justified in passing a decree of restitution of conjugal rights on the ground that a Muslim under his personal law can have several wives at a time upto a maximum four. In such circumstances, the first wife may decline to live with her husband on the ground that the Muslim law permits the polygamy but has never encouraged it."

 The High Court also referred to an order of the Delhi High Court (dated July 7, 2021), wherein it was observed that a uniform civil code (UCC) should not remain a mere hope in the Constitution. 

"While expressing regret over the conflicts in the Society due to differences in various personal laws, the Court observed that in modern Indian society, which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating. The youth of India belonging to various communities, tribes, castes or religions who solemnize their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce," the Gujarat High Court observed as it referred to Delhi HC's order.

Sunday, December 26, 2021

Touching feet of woman without consent amounts to outraging her modesty: Bombay High Court

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Touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger amounts to violation of modesty of a woman," the Court said.

It also placed reliance on precedents to hold that the ultimate test for ascertaining whether the modesty of a woman has been outraged is whether an act could be perceived as “one which is capable of shocking the sense of decency of a woman."

In the instant case, the Court noted that the accused was sitting at the feet of the victim on her cot and had touched her feet.

This behaviour smacks of sexual intent. Otherwise, there was no reason for the accused to be in the house of the victim at such an odd hour of the night...The accused was capable of shocking sense decency of any woman,” the order stated.

Saturday, December 25, 2021

Victim best judge of incident - POCSO conviction, lays down guidelines

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Justice Chaudhuri also issued the following guidelines to protect the identity of children under the POCSO Act.

i. The Officer-in-Charge of every police station shall ensure that in the written complaint the name of the victim girl shall not be stated. The victim girl shall be identified by her age, her father’s name and other particulars sufficient to identify the victim during an investigation without disclosing her name.

ii. In the formal FIR and charge sheet the name of the victim girl shall not be stated by the Investigating Officer. On the other hand, she shall be described as a “victim”.

iii. In the column of witnesses in the charge sheet the victim girl shall not be referred to by her name but as “victim.”

iv. In her statement recorded under Section 161 of the Code of Criminal Procedure, the Investigating Officer shall not record the name of the victim. The said statement shall be referred to as “statement of the victim”.

v. Similarly, while recording the statement of the victim under Section 164 of the Code of Criminal Procedure, the learned Judicial Magistrate shall not record her name. On the other hand she shall record the statement as “the statement of the victim”.

vi. In order to identify the victim, she shall take the help of the parents of the victim. He shall also endorse such identification of the victim by her parents at the top of the statement of the victim recorded under Section 164 of the Code of Criminal Procedure.

vii. The Judicial Magistrate shall obtain the signature or LTI of the victim on a separate page after her statement is read over and explained to the victim by him. The signature of the victim along with the certificate of the learned Magistrate in a separate page shall be kept separately in a sealed cover and the learned Special Judge shall be entitled to open the said sealed envelop, if necessary during trial.

viii. In the deposition sheet of the victim girl, the learned Special Judge shall not record the name of the victim. He/she shall be identified as a “victim” in the deposition sheet.

ix. The signature of the victim-witness in her deposition shall be taken by the learned Special Judge in a separate sheet and the said sheet of paper with signature and certificate by the learned Special Judge shall be kept in the record in sealed envelop. The Appellate Court shall open the envelop case of the identity of the victim girl being made an issue.

x. In the judgment the name of the victim girl shall never be stated or recorded by the learned Special Judge.

xi. The Medical Officer shall not record the name of the victim girl in the Medical Examination Document. On the other hand, the victim girl shall be identified as the “victim” in Medical Examination Report. Similarly, in forensic report victim’s identity by taking her name is prohibited.

Failure to disclose mental disorder before marriage constitutes fraud: Delhi High Court

“The failure on the part of the respondent (wife) to disclose her mental disorder before her marriage with the appellant (husband) – as alleged by him, constituted a fraud perpetrated upon the appellant,”
 the bench said in its judgment.

Wednesday, December 22, 2021

Dowry death case cannot be quashed based on settlement between parties- Delhi High Court

Case registered for dowry death of a wife cannot be quashed on the basis of settlement between accused and complainant, the Delhi High Court recently held while refusing to quash the first information report (FIR) registered against accused-husband after his wife died by suicide allegedly due to harassment for dowry [Dalbir Singh and Ors v State GNCT of Delhi and Anr].
"In the present case a woman has committed suicide within five months of the marriage due to the harassment caused by the husband and his family members and the offence punishable under Section 304-B IPC is not only a grave and heinous offence but an offence against the society actuated by the social evil of demand of dowry, thus needs deterrence and, therefore, cannot be quashed on the basis of settlement arrived at between the accused and the complainant,” the Court said.

Tuesday, December 21, 2021

Section 143A of Negotiable Instruments Act 'directory' not 'mandatory': Delhi High Court

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The Delhi High Court has held that Section 143A of the Negotiable Instruments Act, 1881 (NI Act) is a directory provision and not ‘mandatory’ [M/S JSB Cargo And Freight Forwarder Pvt Ltd v State and Anr].

The observation was made by Justice Anu Malhotra while setting aside an order of the trial court which had, in the exercise of powers under Section 143A(4) of the NI Act granted an interim compensation of over ₹26 lakh for the dishonour of the cheque.

Section 143A lays down the power of the court hearing a cheque bounce case, to order the drawer of the cheque to pay interim compensation to the complainant under Section 138 of the NI Act.

Monday, December 20, 2021

Kerala High Court dismisses plea to remove PM Modi photo from COVID vaccine certificate.

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The Court also imposed costs of ₹1 lakh on the petitioner Peter Myaliparampil stating that the plea is frivolous and seems to have been filed with political motives

"According to my opinion this is a frivolous petition filed with ulterior motives. there seems to be political motives and deserves to be dismissed with heavy cost. Plea dismissed with costs of ₹1 lakh," the single-judge ordered.

Sunday, December 19, 2021

Delhi High Court upholds termination of SBI employee who siphoned off deposits into his personal account

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Justice Singh said that these two incidents are sufficient for the bank to have lost faith and confidence in Bhatia since he was misusing his status for his own personal benefit.

“Once there is a loss of confidence, that too by a Bank qua one of its officials, the standard on which such loss of faith/confidence is to be tested cannot be a very high standard. Even a suspicion or doubt, with some credibility or some evidence, would be sufficient to objectively uphold the dismissal from service. The Court cannot lose sight of the reality that customers who visit banks do develop friendly relationships with officials, however, such officials then have a larger duty and responsibility to safeguard their customers, as well as the interests of the bank, rather than to misuse their trust and faith in the banking system,” the Court said.

Gauhati High Court holds certified copy of sale deed admissible under Section 65 Evidence Act when original lost by lawyer

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The Court noted that the original sale deed was lost from the custody of the appellant's lawyer and that the execution of the original sale deed was proved beyond reasonable doubt.
A certified copy of a sale deed is admissible in evidence under Section 65(c) of the Indian Evidence Act when the original is lost due to no fault of the party, the Gauhati High Court recently held [Satyendra Medhi vs. Pramod Medhi].

Friday, December 17, 2021

Supreme Court refuses to quash domestic violence case against Mumbai Police Commissioner Hemant Nagrale

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The Supreme Court stated that it sees no reason to interfere since the High Court is seized of the first appeal filed against the divorce decree and that all issues under the Domestic Violence Act raised by the wife will now be looked into by the High Court in the same appeal.

"Insofar as the other matter questioning the rejection of the petition seeking quashing of the application moved by the respondent-wife under the provisions of the Domestic Violence Act, 2005 is concerned, we see no reason to interfere in the matter," the Court said.

"Domestic Violence Act enacted to protect women, not harass men:" J&K court

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"Domestic Violence Act enacted to protect women, not harass men:" J&K court imposes ₹10 lakh fine on wife for misusing law against the husband.

Judge Fayaz Ahmad Qureshi said that the Act cannot be allowed to be used in a manner that spoils the lives of couples living peacefully.

"It is quite obvious that the object of Protection of Women (from Domestic Violence) Act, is to give protection to women from the violence which takes place when they live in such domestic relation. This is to protect legitimate and genuine cases where the aggrieved person does not indulge in acts that defeat the purpose and object of the legislation. Domestic Violence Act has not been enacted to cause harassment to the other spouse or to further aggravate the matrimonial discord to the extent of throwing the respondent out of his own house." 

The Court, therefore, imposed ₹10 lakh cost on a woman who after procuring orders under the DV Act to throw her husband out of his house, had eventually decided to withdraw her petition.

The Court allowed the wife to withdraw the case filed in the year 2019 but ordered her to pay ₹10 lakh to the respondent-husband as compensation since he was deprived of shelter and accommodation in his own house during the pendency of the petition.

Sunday, December 12, 2021

Conviction of Godman who raped devotee Court upholds -Bombay High

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The Bombay High Court recently upheld the conviction of a man claiming to be devotee of Macchindranath, for having sexually abused a female devotee under the garb of "blessing her with a child" 

"It is significant to note that the blind faith of the parties/victim on the accused is the real driver in such cases. The evidence in such cases has to be appreciated in the context of these peculiar circumstances" the judgment said.

The female devotee and her husband had allegedly been suggested to approach the accused to resolve their problems of having a child post their marriage.

While the initial visits of the couple in 2013 would involve the accused giving them' vibhuti' and chanting of mantras, in 2015, the accused advised the couple to have a ‘reiki procedure’.

Friday, December 10, 2021

Allahabad High Court quashes FIR against Mirzapur makers, directors, writers

The Allahabad High Court on Friday quashed the First Information Report (FIR) registered against Farhan Akhar and Ritesh Sidhwani, producers of web series Mirzapur, in a case registered against them for allegedly hurting religious, social and regional sentiments through their portrayal of the town of Mirzapur in Uttar Pradesh in the web series [Ritesh Sidhwani And Another v. State of UP].

"..both the Writ Petitions nos. 851 of 2021 and 1665 of 2021 are allowed. The first information report dated 17.1.2021 registered as Case Crime No. 0016 of 2021, under sections 295-A, 504, 505 and 34 of the IPC and Section 67-A of the IT Act in Police Station Kotwali Dehat, District Mirzapur is hereby quashed.

Everyone has a right to know what they are consuming: Delhi High Court

"We are directing you to disclose the source of all the ingredients. Everyone has a right to know what he or she is consuming. One should not resort to deceit or camouflage of the ingredients or the source. Please ensure that there should be full and complete disclosure of any article; not just by its codename or food name but also in normal terms."

"A simple Google search would how the ingredient is also sometimes sourced from pig fat. Yet, the food business operators are not disclosing the source. News of non-vegetarian ingredients could offend the sensibilities of strict vegetarians."

The Court directed that the disclosure should entail the exact specifications of the source and ingredients in simple, layman's terms. It pointed out that the Food Safety and Standards Act, 2006, did not account for this aspect.

"The Food Safety and Standards Act, 2006 does not specifically encourage the food business operators to disclose the source of their ingredients. It should be clearly stated whether it is plant-based, animal-based or chemical-based. Everything has to be mentioned," the Court added.

Saturday, December 4, 2021

Do not manually lift disabled person without consent, remove prosthetic limbs/calipers during security checks: Supreme Court to DGCA

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The Supreme Court has asked the Directorate General of Civil Aviation (DGCA) to ensure that disabled persons are not lifted manually without their consent or asked to remove prosthetic limbs/calipers during security checks during air travel (Jeeja Ghosh & Anr v Union of India & Ors).

The Court said that lifting a person manually without his/ her consent is inhumane.

"First is that no differently-abled person should be manually lifted without his consent. We find that the suggestion is worth considering, as the lifting of a person manually is inhumane. How the differently-abled person should be treated with dignity is left to the DGCA," the Court said.

Regarding prosthetic limbs/calipers, the Court stated that disabled persons should not be asked to remove the same during security checks to maintain human dignity.

"In the draft guidelines circulated, it has been mentioned that scanning of prosthetic limbs/calipers though full-body scanner but to what extent differently-abled persons with prosthetic limbs/calipers are required to be checked for the purpose of security should be in a manner where no such person is asked to remove prosthetic limbs/calipers to maintain human dignity while ensuring the requirement of security checks," the Court said.

Delhi High Court directs man to serve for 3 weeks at animal care centre for violation of bail condition

The petitioner was granted bail by the Court in September last year. One of the conditions was that he should not leave Delhi during the suspension of his sentence. The Bench was given some photographs showing that he travelled to Rampur and Shimla, thereby violating the condition.
“In order to atone for the breach of the condition of suspension of sentence, we direct the appellant to render service gratuitously at the Sanjay Gandhi Animal Care Centre, Raja Garden, New Delhi (near Shivaji College and Delhi Home Guards Head Office) for 03 (three) weeks beginning 06.12.2021 between 01.00 p.m. and 04.00 p.m. every working day, by performing whatever tasks he is assigned by the Head of the Animal Care Centre,” read the Court order.

When should regular FIR and Zero FIR be registered? Delhi High Court answers

Subramonium Prasad observed that "failure to register a regular FIR costs precious time that could be utilised in conducting the investigation and can also lead to the destruction of important evidence."

"The place of crime and jurisdiction of the police station becomes irrelevant when a cognizable offence is disclosed, and the police station is obligated to instantly transfer the pertinent documents over to the police station vested with the jurisdiction which numbers the FIR and begins the investigation."

The Court also explained the difference between a regular FIR and a Zero FIR,

"...the only difference between 'FIR' and 'Zero FIR' is that an FIR is registered where the incident has occurred within the jurisdiction of a particular Police Station, and a zero FIR can be lodged at any Police Station irrespective of where the incident has taken place."

Friday, December 3, 2021

Service Rules on prevention of sexual harassment at workplace should not be given hyper technical interpretation: Supreme Court

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A Bench of Justices DY Chandrachud and AS Bopanna said that the existence of transformative legislation such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) may not come to the aid of persons aggrieved of sexual harassment if the appellate mechanisms turn the process into a punishment.

"It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. It is also important to be mindful of the power dynamics that are mired in sexual harassment at the workplace," 

"We implore courts to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all the parties," the Court stated.

Thursday, December 2, 2021

Himachal Pradesh judge dismissed from service for taking bribe in cheque bounce cases

The Himachal Pradesh government has dismissed a judicial officer from service on the recommendations of the Himachal Pradesh High Court after an enquiry by the High Court found him guilty of corruption.

The Governor of Himachal Pradesh passed the order dismissing Civil Judge cum Additional Chief Judicial Magistrate (ACJM) Gaurav Sharma who stood accused of taking a bribe of Rs. 40,000 from a local resident.

Dragging scarf, pulling hand not sexual assault, sexual harassment under POCSO Act: Calcutta High Court

The Calcutta High Court recently held that an act of dragging a minor girl’s scarf, pulling her hand and proposing marriage does not come within the purview of sexual assault or sexual harassment under the Protection of Children from Sexual Offences (POCSO) Act [Nurai Sk. @ Nurul Sk. v. State of West Bengal].

Single-judge Justice Bibek Chaudhuri held that even assuming that the accused committed the alleged acts of dragging the scarf and pulling the hand of the victim and proposed marriage, such acts do not come within the definition of either sexual assault under Section 7 of POCSO or sexual harassment under Section 11 of POCSO.

At best, the accused can be held liable only for offences under Section 354A (sexual harassment) read with Section 506 (criminal intimidation) of the Indian Penal Code (IPC), the Court ruled.

On appeal, the High Court before going into the merits of the matter, discussed the judgment of the Supreme Court in State of Rajasthan vs. Om Prakash in which it was stated that it is necessary for courts to have a sensitive approach when dealing with cases of child rape since the effect of such a crime on the mind of the child is likely to be lifelong.

Sunday, November 28, 2021

Bombay High Court directs Mumbai Police Commissioner Hemant Nagrale to clear maintenance arrears due to wife

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While granting time to Nagrale to respond to the application, the Bench ordered,

It is expected of the Respondent- husband to clear the arrears of maintenance by the next date.”

The Nagrale couple had dissolved their marriage in 2011 through an order of the Family Court and directed Nagrale to pay ₹20,000 each month as maintenance.

Appeal was filed against the same before Bombay High Court which had stayed the order dissolving the marriage but refused to grant a stay on the maintenance payable to the wife.

Wednesday, November 24, 2021

Cannot charge citizens for questioning authority of police in plain clothes: Kerala High Court

If a police officer on duty is not wearing his/ her uniform, individuals who question the said officer's authority cannot be booked for obstruction, the Kerala High Court recently ruled (Avinash v State of Kerala).

"The uniform of a police man is his direct identification. A policeman in uniform is visible and a citizen immediately knows that he is a police man which will inform that the said individual is in charge of his protection and prevention of offences. It carries an undeniable symbolic value besides representing the State authority. The police uniform also symbolises pride, respect and authority over the citizens," the order stated.

Tuesday, November 23, 2021

District Magistrate of a district can revoke arms license issued by District Magistrate of another district: Gauhati High Court

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District Magistrate as the ‘licensing authority’ under Section 17 of Arms Act has the power to cancel arms licenses in any district, Justice Robin Phukan said.

"There is nothing in the provisions of the Arms Act and the Arms Rules, which may restrict the power of revocation or suspension in the same authority who has granted the arm license. Being the ‘licensing authority’, under Section 17 of the Arms Act District Magistrate of one district can cancel/suspend a license issued by District Magistrate of another district," the Court held.

Monday, November 22, 2021

Section 125 CrPC- Defaulter cannot be given composite civil imprisonment for more than 1 month: Punjab & Haryana High Court

The Punjab and Haryana High Court on Friday held that a magistrate court in exercise of its powers under Section 125(3) of the Criminal Procedure Code (CrPC) cannot impose composite civil imprisonment for default on the 

The Court was of the view that a magistrate court can impose a maximum sentence of one month only unless the payment of the arrears is made sooner. Reliance was placed on the decision of the Supreme Court in Shahada Khatoon and others v. Amjad Ali and Others, wherein it was held,

" sentence exceeding the maximum i.e. one month, can be imposed for default, and if at all the default persists even after the expiry of one month the only remedy available to the aggrieved party would be to approach the Magistrate concerned again after the expiry of one month for enforcing her claim of maintenance for sending the delinquent husband to civil imprisonment." payment of maintenance arrears for more than a month at a time (Bal Raj v. Priya and Others).

Bar Council of India suspends 28 advocates alleged to have filed fake compensation claim cases - Read press release

Twenty-eight advocates whose names are listed in FIRs or chargesheets for allegedly filing fake claims before the Motor Accidents Claims Tribunal and under the Workmen Compensation Act, have been suspended by the Bar Council of India (BCI)

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Consideration the romantic relationship between a minor victim and a man accused under the Protection of Children from Sexual Offences Act (POCSO Act) while granting the latter bail in a sexual assault case lodged-The Meghalaya High Court

"On perusal of the records, particularly the statement of the victim and the accused, prima facie it is apparent that there is a romantic relationship between the two and that the sexual act involved between them was one of consensual, notwithstanding the fact that in the case of an alleged victim being a minor, consent has no legal validity, however, this aspect of the matter cannot be lost sight of while a plea for grant of bail is being considered by the court."
The Court passed the order in a bail plea filed on behalf of the accused in relation to a case registered against him under Sections 5 and 6 (penetrative and aggravated penetrative sexual assault) of POCSO Act. The accused and the victim were stated to be in a romantic relationship with each other.

Relay up on and cited the Madras High Court decision in Vijayalakshmi and Anr. v. State represented by the Inspector of Police and Another, in which it was held that the POSCO Act did not intend to penalise teenagers in a relationship who consented to sexual acts between them.