Thursday, September 29, 2022

All Women Entitled To Safe & Legal Abortion, Distinction Between Married & Unmarried Women Unconstitutional : Supreme Court

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The Supreme Court on 29/09/22 declared that unmarried women are also entitled to seek abortion of pregnancy within 20-24 weeks arising out of a consensual relationship.

The Court ruled that excluding unmarried women who conceive out of live-in relationships from the Medical Termination of Pregnancy Rules is unconstitutional.

"All women are entitled to safe and legal abortion, " the Court noted that the 2021 amendment to the Medical Termination of Pregnancy Act does not distinguish between married and unmarried women.

The issue relates to whether the exclusion of unmarried women, whose pregnancy arises out of a consensual relationship, from Rule 3B of the Medical Termination of Pregnancy Rules is valid. Rule 3B mentions the categories of women whose pregnancy in the duration of 20-24 weeks can be terminated.

The distinction between married and unmarried women is unsustainable

"If Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities. This is not constitutionally sustainable. The artificial distinction between married and unmarried women cannot be sustained. Women must have the autonomy to have free exercise of these rights", Justice Chandrachud, the presiding judge of the bench, read out the excerpts of the judgment.

Teenage Pregnancies -Doctor Need Not Disclose Identity Of Minor Girl Seeking Abortion In Information Given To Police : Supreme Court

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The Supreme Court on 28/09/22 read down the mandatory police reporting requirement under the Protection of Children from Sexual Offences (POCSO) Act to hold that a doctor need not disclose the name and identity of the minor girl in the information given to police.

A bench comprising Justices DY Chandrachud, AS Bopanna and JB Pardiwala, called for a harmonious reading of the Medical Termination of Pregnancy (MTP) Act and the POCSO Act and held that a registered medical practitioner was exempt from disclosing the identity and other personal details of a minor in the information provided under Section 19 of the POCSO Act.

Saturday, September 24, 2022

Passenger Injured On Account Of Mine Blast Entitled To Compensation Under Motor Vehicle Act: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court on 22/09/22 ruled that even if the cause of the accident is remote or due to subversive activity involved, the victim is entitled to a grant of compensation under the Motor Vehicle Act.

The appellants assailed the impugned judgment primarily on the ground that there was no negligence on the part of the driver or the appellants and the death of the deceased and injuries to the injured had been caused by a mine blast which was beyond their control as such even the incident in question was too remote, and unconnected with the use of the vehicle.

Adjudicating upon the matter the bench observed that even if the cause of the accident is remote or as a result of subversive activity involved, the victim is entitled to grant of compensation under Motor Vehicle Act, for the use of the vehicle and all other reliefs granted under some other statutes or schemes are not adjustable towards the compensation payable under the Motor Vehicles Act.

Saturday, September 17, 2022

Order I Rule 10 CPC - Nobody Can Be Permitted To Be Impleaded As Defendants Against The Wish Of The Plaintiffs Unless Court Suo Motu Directs: Supreme Court

Code of Civil Procedure, 1908 ; Order I Rule 10 - Plaintiffs are the domius litis - Unless the court suo motu directs to join any other person not a party to the suit for the effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs - In case the counter-claim is allowed, it will not be open for the plaintiffs to contend that no decree in the counter-claim be passed in absence of the subsequent purchasers - Non-impleading the subsequent purchasers as defendants on the objection raised by the plaintiffs shall be at the risk of the plaintiffs.

The Supreme Court observed that a High Court can quash a cheque case only if it comes across some unimpeachable and incontrovertible evidence to indicate that the Director/partner of a firm could not have been concerned with the issuance of cheques. "Vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the status of the partners 'qua' the firm.", the bench comprising Justices Surya Kant and JB Pardiwala observed.

The High Court quashed a cheque case against the accused (partner of a firm) on the ground that there was nothing to indicate in what manner the accused herein was in­charge and responsible for the day­to­day affairs of the firm so as to make her vicariously liable for the alleged offence with the aid of Section 141 of the NI Act. The High Court held that merely by reciting the words used under Section 141 of the NI Act in the complaint no vicarious liability can be fastened on the firm's partner.

Code of Criminal Procedure, 1973 ; Section 482 - Negotiable Instruments Act, 1881 ; Section 138,141 - High Court should not interfere under Section 482 of the Code at the instance of an accused unless it comes across some unimpeachable and incontrovertible evidence to indicate that the Director/partner of a firm could not have been concerned with the issuance of cheques - If any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he/she is really not concerned with the issuance of the cheque, he/she must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his/her contention. He/she must make out a case that making him/her stand the trial would be an abuse of process of Court. (Para 47)

Negotiable Instruments Act, 1881; Section 138,141 - Vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the status of the partners 'qua' the firm. This would make them liable to face prosecution but it does not lead to an automatic conviction. On the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company/partners of a firm to show that they were not liable to be convicted. (Para 47)

Negotiable Instruments Act, 1881; Section 138,141 - The object of notice before the filing of the complaint is not just to give a chance to the drawer of the cheque to rectify his omission to make his stance clear so far as his liability under Section 138 of the NI Act is concerned - It is essential for the person to whom statutory notice is issued under Section 138 of the NI Act to give an appropriate reply. The person concerned is expected to clarify his or her stance. If the person concerned has some unimpeachable and incontrovertible material to establish that he or she has no role to play in the affairs of the company/firm, then such material should be highlighted in the reply to the notice as a foundation. (Para 44)


Monday, September 12, 2022

Witness Can't Be Allowed To Seek Correction In Evidence After He Signs Deposition Sheet: Orissa High Court

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The Court noted that Section 278, Cr.P.C. deals with procedure with regard to the evidence when it is completed and it states, inter alia, that as the evidence of each witness taken under section 275 or section 276 of Cr.P.C. is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected and it is further provided that if the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Presiding Officer may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.

The Bench observed that where the certificate of the Magistrate endorsed on the deposition sheet states that the deposition was read out to the witness and that the witness admitted it to be correct, the Court is bound to accept this as correct under 
Section 80 of the Evidence Act
 until it is proved to be untrue. Before a deposition is closed, a witness is given an opportunity of explaining and correct any contradictions which it may contain and the statement that the witness finally declares to be the true one and that statement only must be taken to be the statement that the witness intended to make.

It was further held that all the Courts whether civil or criminal have an obligation to read over the deposition to the witness before he is called upon to affix the signature. Having regard for the statutory mandate, the Court observed,

"…after his cross-examination is over, he was asked to go through his deposition sheet and put his signature on each page of the deposition sheet, he never raised any objection about of any wrong recording. The contention of the learned counsel for the petitioner that everything was done in a hurried manner and the petitioner could not get time to go through the evidence minutely and therefore, the evidence should be corrected is not acceptable. The correction, which has been sought in the evidence is completely different from what evidence has been recorded. Therefore, it would be too risky to allow further examination of the petitioner as D.W.1 and permit him to make corrections in the evidence already recorded."

Before concluding, however, the Court made it clear that if any new fact is there with the petitioner to be deposed to prove his case which he has inadvertently left out, his counsel can file an application for recall of petitioner to depose only those aspects and in the recall petition, specific questions likely to be put to D.W.1 should be mentioned and the same shall be considered by the Trial Court and if it is found to be relevant, just and proper.

Friday, September 9, 2022

Passport Officer Can't Usurp Power Of Authority Issuing Birth Certificate Or Make Independent Enquiry Into Applicant's Date Of Birth: Rajasthan HC

Justice Ashok Kumar Gaur held that the Passport Authorities are always within their competence to direct the parties to produce relevant documents either from the Authorities functioning under the Births & Deaths Registration Act or from the Judicial Magistrate or from the Civil Court, as the case may be.

Tuesday, September 6, 2022

Engagement does not give prospective groom right to sexually exploit fiancée: Punjab & Haryana High Court

The Punjab and Haryana High Court on 5/9/2022 held that a couple engaged and meeting each other did not give the prospective bridegroom the right or liberty to sexually exploit his fiancée without her consent [Sagar Kapoor v State of Haryana].

"The petitioner cannot get any leverage to physically exploit the fiancée against the consent during the period intervening the engagement and the marriage", the single-judge said.
"In the instant case, there is a categoric statement of the prosecutrix that the petitioner entered into physical relationship with her, despite her reluctance, refusal and denial."
"In the peculiar circumstances of the case, it is not made out that it was a case of consensual relationship," the court concluded while refusing anticipatory bail.

Peaceful protest is offence under Railways Act-Rail Roko Agitation and Bandh etc., the offence under Section 174(a) of the Railways Act - Allahabad High Court

"Even if a peaceful agitation/protest can lead to obstruction of running of any train by squatting or picketing or during any Rail Roko Agitation or bandh, the same would amount to an offence under Section 174(a) of the Railways Act. It is no one’s case that the protest was violent, but the fact remains that the protesters, including the appellants, had stopped the train for 15 minutes by picketing on the railway track and climbed on the engine of the train when it was stopped." 
"In a democratic polity governed by a written Constitution, people have the right to protest against the Government’s policies and perceived atrocities. The right to protest, is also part of the fundamental rights guaranteed under Article 19 of the Constitution of India. The citizens of this country have rights to demonstration, agitation and staging protests. However, this right is not an absolute right, and it is subject to reasonable restriction," the bench observed.
"The law clarifies that if any Railway servant or any other person obstructs any train by squatting or picketing or during Rail Roko Agitation and Bandh etc., the offence under Section 174(a) of the Railways Act would get attracted."

Monday, September 5, 2022

Muslim Husband Cannot Avoid His Liability To Maintain Unless Divorce Is Validly Pronounced And Properly Communicated : J&K&L High Court

Deciding the matter the bench observed that it is clear that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, he has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife.
Explaining the said position of law the bench recorded the observations of the supreme court in Shamim Ara v. the State of U.P. and another, (2002)wherein SC observed.

The bench also placed reliance on a Judgement of the J&K High Court in Mohd. Naseem Bhat v. Bilquees Akhter and another wherein Court observed that for a husband to wriggle out of his obligations under marriage including one to maintain his wife, claiming to have divorced her has not merely to prove that he has pronounced Talaak or executed divorce deed to divorce his wife but has to compulsorily plead and prove the following:-

I) that effort was made by the representatives of husband and wife to intervene, and settle disputes and disagreements between the parties and that such effort for reasons not attributable to the husband did not bear any fruit.

II) that he had a valid reason and genuine cause to pronounce divorce on his wife.

III) that Talaak was pronounced in the presence of two witnesses endued with justice.

IV) that Talaak was pronounced during the period

Friday, September 2, 2022

An Ex-Parte Decree Obtained By Suppressing Fact Of Non-Service Of Summons On Defendant Would Be Vitiated By Fraud: Calcutta HC

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The Calcutta High Court has held that an ex-parte decree which is obtained by suppression of the fact of non-service on the defendant would be vitiated by fraud.

The Bench of Justice Shekhar B. Saraf set aside an ex-parte decree under Order IX Rule 13 CPC on the ground that the defendant could not be served with a notice of original plaint, the amended plaint, and the writ of summons of the amended plaint as it was not present in the address mentioned in the plaint and the service.

The Court further held that a suit cannot be transferred to the category of 'Undefended Suit' when the defendant was never served with the notice of the suit.

Thursday, September 1, 2022

POCSO Act Not Meant To Breakdown Happy Family Relationship: Meghalaya High Court Quashes Proceedings Against Minor's Partner

The Meghalaya High Court, while quashing a POCSO FIR against a minor's partner, reiterated that rigours of the Act may not be applied to break down a happy family relationship. Such cases must be decided by taking a sympathetic view towards the accused, who is in a consensual relationship with the minor, in the instant case almost 18 years of age.

The accused was booked after the minor was admitted to the hospital in connection with her pregnancy and was found to be aged 17 years.

The matter was reported to the local Police which swung into action and registered a case under Section 5(j)(ii)/6 of the POCSO Act, 2012.

The minor submitted that their union was blessed by the family members of both sides and therefore, the continuation of the criminal proceedings would not be for ends of justice.