Section 493, IPC not attracted, if an ex-parte divorce decree is set aside

Bench of JAGDISH SINGH KHEHAR, S.A.BOBDE JJ., of the Supreme Court of India, while considering the question as to whether the respondent husband has committed an offence under Section 493 and 494 of the Indian Penal Code, 1860, held that, Section 493 of Indian Penal Code will not be attracted, if an ex-parte divorce decree is set aside.

In the instant case, where an ex-parte divorce decree was obtained, and in spite of the fact that, both the parties to the present case continued to live together. However, on a subsequent order, theex-parte divorce decree was set aside.

However, in the present case of the appellant, it was contented by the appellant that, the respondent, husband did not inform her about the divorce decree and continued the conjugal relationship. Subsequently, the respondent married to another person, therefore, it is contented that, the respondent committed the offence under Section 493 and 494 of the Indian Penal Code.

Then she came to know about the ex-parte divorce decree and subsequently the appellant of the present case filed an application for setting aside said ex-parte divorce decree, and the same was allowed. Hence, the court in this case observed that, in sum and substance, therefore, thematrimonial ties between the appellant and the respondent came to be restored, as if the marital relationship had never ceased.

On the ground of above mentioned findings the apex court opined that, the respondent husband could not have deceived the appellant of the existence of a “lawful marriage”, when a lawful marriage indeed existed between the parties, during the period under reference, and held that the charge against the respondent of the present case is not made out, under Section 493 and 494 of the Indian Penal Code.

Read full judgement on Ravinder Kaur v. Anil Kumar (09-04-2015, Supreme Court)

Burden of proof not on mother in case of interim custody of child

Division bench of the Supreme Court comprising Vikramajit Sen and C. Nagappan, JJ while considering an interesting case dealing with the issue of an interim custody of a minor child, ordered interim custody of the child to the Mother.

While dealing with the instant case, the apex court considered the provisions of Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956 and Juvenile Justice (Care & Protection) Act, 2000 and in detail explained the concept of guardianship under Indian legal system.

After giving due consideration to above mentioned statutes, court ruled that, mother is the best suited guardian for the custody of children below the age of five years, an in all such cases, where the dispute is on the guardianship of an infant below the age of five years, then the focal point of consideration shall be given to the welfare of the child.

In the present case, the father of the child initiated legal proceedings alleging that, due to the bi-polar disorder, the mother is not fit for the custody of the child. However, apex court rejected such contention and set aside lower court’s judgment imposing the onus on mother to establish the sustainability of granting interim custody of the child, and further observed that, onus is on the father to prove that, it is not in the welfare of the infant child to be placed in the custody of mother and that, the wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.

Read full judgement on Roxxan Sharma v. Arun Sharma (17-02-2015, SC)

Distinction between expiry date and best before date

Madras High Court while dismissing a writ petition of Certiorari and Mandamus, observed that, there is a clear distinction between the term expiry date and the best before date, whereas, the best before date signifies the duration for which the product shall remain marketable and retain its specific qualities if stored in appropriate conditions and on the other hand, “expiry date” is the date on which the product shall completely cease to have the specific qualities associated with it and shall not remain marketable.

By virtue of Clause 1 of the Regulation 1.2 of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 Best before means the date which signifies the end of the period under any stated storage conditions during which the food shall remain fully marketable and shall retain any specific qualities for which tacit or express claims have been made and beyond that date, the food may still be perfectly safe to consume, though its quality may have diminished. However the food shall not be sold if at any stage the product becomes unsafe.

Further, by virtue of Clause 10 of the Regulation 1.2 of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 Use – by date” or “Recommended last consumption date” or Expiry date means the date which signifies the end of the estimated period under any stated storage conditions, after which the food probably will not have the quality and safety attributes normally expected by the consumers and the food shall not be sold.”

Court further noted that, petitioner cannot be allowed to mention a single date for both as it would mislead the consumers to think that the product will never lose its quality.

Read the full judgment of Amrut Distilleries Ltd. v. Authorised Officer, FSSAI (19-03-2015, Madras HC)

[Breaking] Using derogatory terms against spouse amounts to cruelty

Division Bench of the Supreme Court consisting of Vikramajit Sen and Abhay Manohar Sapre JJ while allowing a petition for dissolution of marriage on the ground of cruelty held that, either of the spouse to a marriage abuses the other OR calls police and lodge false complaint against the other spouse or his relatives OR refusing to allow close relatives from visiting other spouse and reside in the matrimonial home for some days etc. would amounts to cruelty towards the other spouse for the purpose of divorce (dissolution of marriage) under the Hindu Marriage Act, 1955.

The present case is a series of cases filed between the parties viz. the appellant filed a petition for thedissolution of marriage under Section 13 (1) (ia) of the Hindu Marriage Act, 1955, petition forrestitution of conjugal rights filed by the respondent under Section 9 of the Hindu Marriage Act, 1955 and a petition for maintenance of Rs. 2 lacs under Section 125 of the Code of Criminal Procedure Code.

After considering the facts and evidences, apex court was of the view that, the Appellant had duly pleaded instances of mental cruelty which he proved in evidence and documents. An examination of the divorce petition makes it abundantly clear that various allegations of cruelty were made out and a number of incidents were mentioned therein. Further evidence was submitted during the course of the Trial to substantiate these allegations, which is in keeping with Order VI Rule 2 of the CPC.

Court was further opined that, the Trial Court examined the evidence at great length and came to the reasoned conclusion that the actions of the Respondent amounted to cruelty. After a cursory discussion of the evidence which the Trial Court had discussed threadbare, the High Court was not justified to set aside the conclusions arrived at by the Trial Court without giving substantiated reasons. Hence, the apex court allowed the appeal and restored the trial court’s verdict granting the divorce to the appellant.

Read full Judgement of Vinod Kumar Subbiah v. Saraswathi Palaniappan (decided on 24-04-2015, Supreme Court)

Purchased for commercial purpose, not consumer

National Consumer Disputes Redressal Commission (hereinafter referred as NCDRC) while considering the dispute between EMAAR MGF Land Ltd. and Banga Constructions Pvt. Ltd., held that, anyone including a corporation OR a company who has purchased any goods or hired any services forany commercial purpose, then they shall not fall under the definition of consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986.

In the instant case between EMAAR MGF Land Ltd. and Banga Constructions Pvt. Ltd., an appeal was filed before the NCDRC by the Developer of a Commercial Complex, known as “Central Plaza” atMohali Hills against an order dated 05.01.2012 passed by the State Consumer Disputes Redressal Commission, Delhi in Complaint no. C-11/20, whereby the Appellant has been proceeded against ex parte as, in spite of service of notice, it had remained unrepresented when the Complaint was taken up for hearing on that date.

The question came before the NCDRC is that, the Respondent/Complainant to satisfy NCDRC as to how in the first instance the Complaint alleging deficiency in service on the part of the Appellant in not delivering possession of four shops in the said Commercial Complex, was maintainable under theConsumer Protection Act, 1986.

Having perused the documents on record, including the allotment letters, National Consumer Disputes Redressal Commission was of the opinion that the shops acquired by the Respondent Company purely for commercial purpose and therefore, by no stretch of imagination, the Respondent Company could be said to be a Consumer within the meaning of Section 2 (1) (d) of the Act.

It is trite that the words “for any commercial purpose” used in the Section means that the goods purchased or services hired are used or proposed to be used in any activity directly intended to generate profit. It is manifest that the four units booked by the Respondent Company with the Appellant were meant to be used in some activity directly intended to generate profit.

Therefore, NCDRC is of the opinion that the Complaint filed by the Respondent Company under the Act was not maintainable as the Respondent Company was not a consumer covered under the Act. However, National Consumer Disputes Redressal Commission directed the Respondent Company to approach any appropriate forum, except a Consumer Fora, for redressal of its grievance against the Appellant.

Read Full judgment on EMAAR MGF Land Ltd. v. Banga Constructions (P) Ltd. (24-03-2015, NCDRC)

[Breaking] Husband not bound to provide maintenance to qualified wife

While considering a petition for maintenance ((Firdos Mohd. Shoeb Khan v. Mohd. Shoeb Mohd Salim Khan, decided on 20-02-2015, Family Court, Mumbai))under Section 125 of the Code of Criminal Procedure, a Family Court at Mumbai held that, a wife who is well educated/qualified and capable ofearning livelihood cannot sit idle at home and claim maintenance.

While delivering the judgement it was observed by the court that, provisions of Section 125 of Code of Criminal Procedure is widely misused in todays’ world. It was further observed by the court that, in those cases where the wife is well educated and qualified enough to earn her livelihood, one cannot impose burden on the husband to provide maintenance to such qualified wife who is just sitting idle at home.

While considering the present case, court observed that, the petitioner wife is a well-qualified and educated woman and capable enough to earn her livelihood. Hence, court considering the judgement inMamta Jaiswal v. Rajesh Jaiswal ((2000 (3) MPLJ 100)), rejected the petition filed by the wife and held that, the wife who is well qualified and claiming maintenance by sitting idle is not entitled to get maintenance.

It was a case, where the wife (petitioner) filed the petition under Section 125 of Cr. PC claiming maintenance from her husband. Though the court rejected the petition and the claim of the petitioner, court neither accepted the initial contentions of the respondent husband that, the petition for maintenance is not maintainable on the ground that, their marriage was dissolved by way of talaq.

Court further made it clear that, the term “wife” as mentioned under the Section 125 of Cr.PC is an inclusive term where it includes even a divorcee wife and the same is equally applicable to a Muslim women. However, the right to maintenance can be enjoyed only till her remarriage.

[Breaking] No domestic violence case can be filed against lover

While hearing a petition under the Domestic Violence Act, 2005, Justice S. B. SHUKRE of Nagpur Bench of Bombay High Court held that, under no circumstances, a lover is bound to pay maintenance to his lover who is a married women, because such relationship does not constitute a domestic relationship and therefore, the provisions of Domestic Violence Act, 2005 cannot be applied against the lover of the married woman.

The term domestic relationship is defined with referring to the apex courts view in Indra Sarma v. V.K.V. Sarma, ((2014 (1) ABR 615))where Supreme Court clarified the issue as to whether or not a concubine or a mistress, who is living together with a man for a considerably long period of time, would be entitled to derive benefits of the provisions of the Domestic Violence Act, 2005 by contending that she is in “domestic relationship” with that man.

Court further observed that, by virtue of Section 2 (f) of the Domestic Violence Act, 2005 it is clear that a woman, who is married, can’t enter into another domestic relationship. Court in this regard, further referred the judgement in Durgesh Yuvraj Rahangdale v. Rajni Krushnadatta Ukey, ((2014(1) ABR (Cri) 339))where it was held by the Supreme Court that, all live-in-relationships do not amount to relationships in the nature of marriage so as to get the benefit of the Act, 2005. It was further held by the apex court that, in order to take advantage of the provisions of the Domestic Violence Act, 2005, it is necessary for the petitioner as well as the accused to live in such a way that they are treated by the society at large as husband and wife and not only that they should also otherwise be qualified to enter into a legal marriage, with both of them being of legal age to marry, both of them being unmarried at the time when they enter into a relationship which is akin to a marriage and so on.

Read Full Judgment of Narayan Jangluji Thool v. Mala (decided on 27-01-2015, Bombay HC) Search for Criminal Writ Petition No: 773/2014 (Nagpur Bench)

Maintain confidentiality of sensitive documents [Confidential]

While hearing an appeal under Section 19 of the Family Courts Act, 1984 which is directed against the order dated 5th June 2015 passed by the Principal Judge, Family Court, Saket, Division Bench of Honourable High Court of Delhi constituted by S. Muralidhar and I.S. Mehta JJ, dealt with a serious issue of infringement of Right to Privacy.

It was a case where the attorneys produced very sensitive documents such as personal diary of the children of the parties to this case. However, court was of the opinion that, contents of the document reflect inter alia the very private and personal feelings and opinions of a young child about his parents, sibling, friends and relatives. It is not something which should be casually placed in the public domain as it is bound to violate the right to privacy of not only the author of the ‘personal diary’ but others whose names and conduct find mention therein and is likely to affect the author’s relationships with them. Accordingly court issued following directions;

  1. Where a party in a case seeks to rely upon a document (sensitive documents) which in his or her assessment or the assessment of the party’s lawyer is of a sensitive nature, viz., which contains details of a personal or private nature concerning a party or a person or their conduct, which when disclosed is likely to affect the right to privacy, or cause embarrassment, then such party and/or the lawyer of such party will first apply to the Court seeking leave to produce such document in a sealed cover. Till such time that leave is granted the contents of the said document shall not be extracted in the pleadings or a copy of the whole or part thereof enclosed with the petition. For this purpose a document would include any writing, private letters, notings, photographs, and documents in electronic form including video clips, text messages, chat details, emails, printed copies thereof, CCTV footage
  2. Where upon a party applying under (i) above, or where any other party, or the Family Court on its own, comes across a document on record in the case which is prima facie of a sensitive nature, viz., which contains details of a personal or private nature concerning a party or a person or their conduct, which when disclosed is likely to affect the right to privacy, or cause embarrassment, the Family Court will pass appropriate orders concerning the said document including providing copies thereof to the parties, preserving the originals or copies as the case may be in a sealed cover, de-sealing for being produced during Court proceedings and re-sealing after the purpose for which they are directed to be produced is over.
  3. The Family Court will also bind down by specific directions, the parties and their respective lawyers, and the Court staff regarding the making of copies, use, preservation and dissemination of such document with a view to maintaining its confidentiality. The Family Court can also pass necessary directions to specify the conditions upon which access would be permitted to such document by third parties.
  4. The Family Court will endeavour to decide on the issues at (i) (ii) and (iii) above, without unnecessary delay, in accordance with law. The above directions are in the nature of broad guidelines and can be suitably modified and adapted/applied to a given situation by the Family Court. The Family Court will, however, at all times keep in view the requirements of protecting the rights to privacy and dignity of the parties and persons.
  5. The Family Court should as far as possible and practicable invoke the power under Section 11 of the Family Courts Act 1984 and hold the proceedings in camera. Where the circumstances so warrant, the Family Court may in the orders uploaded on the website or made available otherwise, suitably anonymize the names of the parties.

Court further made it clear that, unless there is a specific order of the Family Court, or where the party thinks it to be absolutely essential, or where suitable alternative arrangements are unable to be made, parties should avoid bringing children to the Family Court on a routine basis. Lawyers should also advise their clients in this regard since repeated visits to Courts to witness the legal contests between and among parents and relatives is not desirable or conducive for the healthy development of children.

Read the full judgment of X v. Z, MAT.APP.(F.C.) 78/2015, decided on June 11, 2015 (Delhi High Court)

[Breaking] Dowry can be demanded at any time, says Supreme Court

A bench of M.Y. Eqbal and P.C. Ghose JJ. of the Supreme Court of India, while upholding the life term of the appellant, said that, dowry can be demanded at any time, and it is not necessarily before marriage. It was a case were the appellant was sentenced for life term for poisoning and burning his wife to death.

Appellant pleaded before the Honourable Supreme Court that, he has not demanded any dowry. However, court did not agree to his contention. Supreme Court rejected the plea of the appellant and his family members with a note that, there was no missing link in the circumstantial evidence brought by the prosecution to justify their plea.

Court further pointed that, if some or any of the chain in the above-mentioned circumstances found to be missing, and then the accused is entitled for the benefit of doubt. However, in this case, no such missing links were found with respect to the evidences produced in support of the claims presented by the prosecution. Therefore, court concluded that, the appellant is not entitled for the benefit of doubt.

  • Read more on Section 498A: Husband or relative of husband of a woman subjecting her to cruelty

It is a well-established principle that, there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act was done by the accused.

Dowry system is one of the major social evil existing in India since ages, which put great financial burden on the family of bride. The existence of dowry system is one of the major cause, which leads to different kinds of crimes against women in India ranging from harassment to death. In India, dowry system is prohibited under the Dowry Prohibition Act, 1961, Section 304B and 498A, of the Indian Penal Code.

Read the Full Judgment of Bhim Singh v. State of Uttarakhand (Decided on 11-02-2015, Supreme Court)

[Breaking] Indians can marry foreigners under Special Marriage Act

Indian Parliament enacted the Special Marriage Act in the year 1954 providing an opportunity to all Indian nationals, including those who are resident of foreign countries to marry irrespective of their religious faith OR belief. In certain cases Special Marriage Act, 1954 provides a special form of marriage; provides registration of such marriages and also provides provisions for divorce.

In the give case between Devika Raj v. State of Kerala, came before the Honourable High Court of Kerala, decision of the Marriage Registration Officer prohibiting the petitioner from marrying a Canadian citizen under the provisions of Special Marriage Act, 1954 on the ground that, said Act does not apply in marrying a foreign national.

Hence, the question before the Honourable High Court was that, whether Indians can marry foreigners under Special Marriage Act? In this regard, court referred to earlier judgement in Rajeev v. State of Kerala ((2001 (1) KLT 578)), which relied on a decision of High Court of Himachal Pradesh in Marian Eva v. State of Himachal Pradesh ((AIR 1993 Himachal Pradesh 7)), where the Court categorically found that the Special Marriage Act does not contain any prohibition for solemnisation of the marriage, if one of the parties is a foreigner.

In order to get a marriage registered under the provisions of Special Marriage Act, 1954 the parties shall comply with the provisions of Section 4 of the Special Marriage Act, 1954. In the given case, court observed that, the petitioner has duly complied said provisions.

High Court further interpreted the term “person” as mentioned in Section 4 of the Special Marriage Act, 1954, which does not indicate that either one of the parties or both the parties should be citizens of India.

In the light of above mentioned points, Honourable High Court allowed the petitioner to contract the marriage as she intended and instructed the Marriage Registration Officer to register their marriage under the provisions of Special Marriage Act, 1954.

Read Full Judgement of Devika Raj v. State of Kerala