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Review: Kerala HC Rules That Nature of Previous Divorce is Irrelevant at The Time of Marriage Registration Under SMA - FACTLY
Sai Krishna Muthyanolla
October 4, 2023
In this edition of court judgements, we look at the Supreme Court’s judgements on medical negligence and termination of an employee for suppression or false information, Kerala High Court’s judgement on the relevancy of previous divorce to permit current marriage, Jammu and Kashmir High Court’s judgement on scope of prevention of corruption act, and Karnataka High Court’s judgement on abetment of suicide.
Supreme Court: In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself.
In a significant ruling in CPL Ashish Kumar Chauhan vs. Commanding Officer & Ors., the apex court ruled in favour of an Air Force veteran by awarding Rs. 1.54 crores as compensation and holding the authorities liable for causing medical negligence.
The two-judge bench comprising Justice S Ravindra Bhat and Justice Dipankar Datta was hearing an appeal against the decision of the National Consumer Disputes Redressal Commission (NCDRC) that earlier dismissed a petition seeking compensation for medical negligence. The appellant’s ordeal began in July 2002 when he fell ill while on duty during “Operation Parakram” in Jammu & Kashmir. He was admitted to 171 Military Hospital, Samba, where he received a blood transfusion as part of his treatment. Fast forward to 2014, and he was diagnosed with HIV. Seeking answers, he requested information about his hospitalization in 2002, which revealed that he had received one unit of blood during his treatment. Subsequent medical evaluations in 2014 and 2015 determined that his disability was indeed related to the blood transfusion he had received in 2002.
In 2016, the appellant was discharged from service without an extension, and he also requested a disability certificate, which was denied, citing a lack of provisions for such a certificate. Frustrated by these developments, he approached NCDRC seeking compensation amounting to Rs. 95 crores. This was dismissed claiming that there was no expert opinion available to establish negligence on the part of the staff at 171 Military Hospital during the blood transfusion.
The appellant argued that the respondent was not able to provide any material evidence such as a blood compatibility report, and hence, did not follow standard operating procedure before any blood transfusion. The respondents argue that the appellant did not provide any proof of medical negligence.
The court looked at whether the current case can be covered by Consumer Protection Act, 1986. The court agreed with the respondents that the Indian Air Force (IAF) and army hospitals did not fall under the ambit of the above act. However, the court looked at an alternate basis for exercising jurisdiction under Articles 32 and 142 of the Constitution.
Further, looking at the material evidence, the court agreed that no alternative option is shown to have been made available to the appellant, when in fact the transfusion did take place. The court referred to Bolam vs. Friern Hospital Management Committee, also known as Bolam Test, which lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. This underlined the duty of doctors to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. This was not done in the present case. The court further relied on its earlier judgement in Savita Garg vs. The Director, National Heart Institute, wherein the court had ruled that once the complainant or aggrieved party had adduced some evidence that the patient suffered (or died, as in that case) due to lack of care (or as in this case, suffered irremediable injury due to want of diligence), then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital (principle of res ipsa loquitor).
The court decided on compensation based on medical duty care, mental agony to the victim, and future medical care, and awarded Rs. 1.54 crores compensation. It further slammed the authorities for ripping the basic dignity, honour of the appellant and also for lack of compassion towards the appellant. It further remarked that no amount of monetary compensation can undo the harm caused.
Accordingly, the appeal is allowed.
Supreme Court: Employee can be dismissed from their position if it is discovered that they have concealed or provided false information regarding factors that affect their fitness or suitability for the job.
In Satish Chandra Yadav vs. Union of India & Ors, the apex court held that suppression of material information and giving false information in regard to matters which had a bearing on his fitness or suitability for the post, he could be terminated from service during the period of probation without holding any inquiry.
The two-judge bench comprising Justice Surya Kant and Justice J.B. Pardiwala was hearing a special leave petition after the dismissal of the writ petition before the Delhi High Court against the judgement of the division bench that affirmed the dismissal of the appellant herein from service as a Constable (General Duty) with the CRPF.
Brief facts of the case are as follows. The appellant in this case was serving as a Constable (General Duty) with the CRPF. He was hired as a temporary employee for the position of Constable (GD) in the CRPF, post which he reported to the 179  Battalion on 17 December  2015. During his recruitment process with the CRPF, he completed a verification Form–25, wherein he was asked in Column 12 whether there were any pending cases against him. The appellant responded negatively to this question. However, during the Character and Antecedents verification, it was found that the appellant had a criminal case registered against him. On receiving this information, his candidature was terminated in accordance with Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.
The counsel for the appellant argued that the appellant had no knowledge of the pendency of the criminal case on the date when verification was filled, and the suppression cannot be a ground to deny public employment. It relied on Avatar Singh vs. Union of India, where it was held that the circumstances of the case must be looked into while issuing a termination order. The counsel for the respondent vehemently opposed this.
The court relied on multiple judgements and principles of law laid in them as they were inconsistent. Some exercise was done to shortlist broad principles of law.
Based on these principles, the court did not agree with the appellant’s case.
The court concluded that it was a deliberate attempt on the part of the appellant to withhold the relevant information and it is this omission which has led to the termination of his service during the probation period. Accordingly, the appeal is dismissed.
Kerala HC: Nature of previous divorce is irrelevant, only essential aspect is that the couple do not have living spouses at the time of marriage registration.
The Kerala High Court, in Antony Joseph vs. The Sub-Registrar, held that the only essential aspect during registration of a marriage is that both the parties do not have any living spouse at that time, and the nature of previous divorces is not relevant, under the Special Marriage Act, 1954.
The Single-judge bench comprising Justice Devan Ramachandran was hearing a petition against the order of the registering authority that rejected the marriage on the grounds that there was no sufficient evidence to show that both parties were single or without any living spouse at that time. The registering authority issued an order that unless both parties show that their respective divorces were obtained on mutual consent, it cannot be acted upon. This petition is against such an order.
Section 4 of the act deals with the conditions relating to the solemnization of special marriages.
The court looked at the orders obtained by both parties from Authorities/Courts in the United Kingdom, indicating that both of them have obtained divorces from their respective earlier spouses. The court further looked at sections 4, 7, and 8 of the Special Marriage Act, and remarked that it only requires the parties to satisfy the Registering Authority that they have no living spouses at the time when the application is made and the marriage is registered. It further remarked that no law mandates that all divorces are obtained by ‘mutual consent’.
Accordingly, the earlier order is set aside, and the respondent is directed to reconsider the application by examining the material facts and if he is satisfied, the request for marriage should be acceded to, if there is compliance with other requirements of the law.
Jammu and Kashmir HC: Offences under Prevention of Corruption Act, 1988 not limited to just public servants, but can be invoked against people discharging public duty.
In Sheikh Abdul Majeed vs. UT Of J&K, the Jammu and Kashmir High Court held that The proliferation of novel ways of indulging in corrupt practices is alarming and has prompted the courts to widen the scope of interpretation of the words “public servant” in line with the objective of the Act. Accordingly, people discharging ‘public duty’ can also be included under the Prevention of Corruption Act, 1988. hereby referred to as act.
The Single judge bench comprising Justice Wasim Sadiq Nargal was hearing a petition seeking the quashing of an FIR registered under the Prevention of Corruption Act, 1988. The brief facts of the case are as follows.  The petitioner constructed a godown on his proprietary land and leased it out to the Food Corporation of India (FCI). A truck driver filed a complaint, claiming that he was demanded a bribe by the owner of the godown and a person responsible for weighing goods to unload the food grains from his truck. Subsequently, an FIR was lodged by the Anti-Corruption Bureau (ACB) in Srinagar, invoking Sections 7 and 7A of the Prevention of Corruption Act, 1988, in response to this allegation.
The petitioners argued that the FIR was not tenable as the present case did not involve any ‘Public Servants’, and that ACB overreached its jurisdiction, thereby depriving the liberty of petitioners.  The respondents argued that Section 2 (c) (viii) of the PC Act envisages a public servant to include, “any person who holds an office by virtue of which he is authorized or required to perform any public duty”. Here, the nature of duty is important and not the position held.
Looking at the arguments, the court examined two questions of law.
To answer the first question, the court looked at the statutory provisions of the act, and also the objects and reasons of the enactment of the act. The court remarked that it would be inappropriate to limit the definition clause that would be against the spirit of the act itself.  In State of Gujarat vs. Mansukhbhai Kanjibhai Shah, the apex court held that the purpose under the PC Act was to shift focus from those who are traditionally called public officials, to those individuals who perform public duties.
Accordingly, the Court held that the petitioner performs ‘public duties’ and is liable to be tried under the Prevention of Corruption Act, 1988. Further, the court remarked that if the allegations in the FIR are taken at face value, prima facie reveals that the ingredients of Sections 7 and 7A are fulfilled and the petitioners, who have been held to be public servant performing public duty, can be proceeded in terms of the said of the Act.
Accordingly, the petition is dismissed.
Karnataka HC: Insisting to repay the borrowed money does not amount to abetment of suicide under section 306 of IPC.
In Mangala Gowri vs. State of Karnataka, the Karnataka High Court held that merely insisting on repayment of borrowed loan does not amount to abetment of suicide under section 306 of the Indian Penal Code unless there be such an action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence.
The Single judge bench of Justice Shivashankar Amarannavar was hearing an appeal against the judgment of Additional District Sessions Court that convicted the appellant for abetment of suicide. The deceased borrowed money from the appellant and was allegedly harassed for repayment. However, the appellant argued that the mere demand of repayment of borrowed money does not amount to abetment of suicide.
The court looked at the facts of the case and heard both sides. The court relied on multiple judgements of apex court, including M.Mohan vs. State, wherein it was held that there has to be a clear mens rea to commit the offence.
The court further looked at M.Arjunan vs. State, where the apex court held that The key elements of the offense defined in Section 306 of the Indian Penal Code (IPC) are as follows: (i) involvement in abetment, and (ii) the intention of the accused to assist, provoke, or abet the deceased in committing suicide. It is important to note that merely insulting the deceased through the use of offensive language by the accused does not, on its own, qualify as an act of abetment to suicide.
The court remarked that the current case does not look like abetment from any angle. Accordingly, the impugned order is set aside, and the appeal is allowed.

created: October 4, 2023


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Review: Kerala HC Rules That Parents’ Demands Can’t Be Given Importance If Child is Grown Up & Able To Take Rational Decision in Personal Matters.
Sai Krishna Muthyanolla
February 22, 2023
In this week’s review of Court Judgments, we look at Supreme Court’s judgment regarding felling of trees for a railways bridge project, SC’s judgement regarding change of date of birth of an employee, Allahabad High Court’s judgment  that a woman who is complicit to a rape being also guilty, Kerala High Court’s observation to honour the wish of a major child regarding the custody, Delhi High Court’s observation regarding the non-provision for guardianship rights of a non-Indian citizen in respect of a disabled child and also its striking of the plea of WinZO who accused Google of trademark infringement.
Allahabad HC: A Woman facilitating act of rape with a group of people may be prosecuted for Gang rape.
A single-judge bench of Allahabad High Court, comprising Justice Shekhar Kumar Yadav has rejected the argument that a woman cannot be prosecuted for the alleged commission of the offence of gang rape.
In the case, Suneeta Pandey vs. State of U.P and another, the court observed that a woman cannot commit the offence of rape but if she facilitates the act of rape with a group of people then she may be prosecuted for Gang rape under Section 376D of IPC.
As per the case details, the incident of rape took place in June 2015, and the FIR was lodged by the informant against unknown persons in July 2015, under Sections 363 and 366 I.P.C. The allegation in the complaint was that someone has enticed the daughter (aged about 15 years) and took her with him.
As per the statement given by the victim, the applicant of the plea was involved in the alleged incident, however, was not named in the chargesheet. An application was filed to summon her, which was allowed by the court.
However, she moved the High Court to quash the summoning order as well as to stay further proceedings, on the ground that she being a woman, no offence under Section 376-D IPC is made out against her and she was wrongly summoned by the trial court.
The Court, considering the facts of the case observed that the argument that a woman cannot be prosecuted for gang rape is not correct as per the amended provisions of Section 375 to 373 IPC by Act 13 of 2013 of IPC, 1860.
The Court further stated that under the scope of ‘Gang Rape’, to establish an offence under Section 376-D IPC, the prosecution has to provide evidence to indicate that one or more persons had acted together in the event, and if rape has been committed by even one, all the accused will be guilty, irrespective of the fact that victim had been raped by one or more of them.
The court upheld the principle of joint liability in case of common intention and prior effort to commit the action. Hence it proceeded to dismiss the plea.
Delhi HC: Google’s warning for third-party APK files an industry practice, doesn’t infringe Trademark
As per the details of the case, WinZO filed the suit against Google after it was informed about the disclaimer by Google. Google has a disclaimer in place to caution users before they download WinZO’s APK file.
The warnings read,’This type of file may harm your device. Do you want to keep WinZO.apk anyway?’.
WinZO’s argument was that Google’s disclaimer/warning amounts to infringement of its trademarks and that it disparages the digital gaming services under the ‘WinZo’ or ‘WinZO Games’ marks.
Google submitted that other browsers also display such warnings when downloading a third-party APK format files or applications. It further stated that this is an industry practice, and the warning is a security feature to protect consumers from any possible malware.
The Court observed that since the defendant i.e., Google is not providing any goods or services using the trademarks in dispute, the usage cannot be considered as ‘use of trademark in the course of trade’.
The court took cognizance of the fact that Google is not unique to put in place such warnings, as several other browsers also display such warnings when the users download third-party APK files. It also noted that Google is required to put in place such warnings in order to guard users against potential threats as per Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and Information Technology (Reasonable Security Practices And Procedures And Sensitive Personal Data or Information) Rules, 2011.
The plea by WinZO was dismissed as the court did not find any merit in it.
Kerala HC: Parents’ demands can’t be given importance if child is grown up & able to take rational decision in personal matters.
A division bench of Kerala High Court comprising of Justice Anil K. Narendran and Justice P.G. Ajith Kumar observed that when a child is grown up and is capable of making rational decisions on his/her own, the court must not give too much importance to the demands of the parents’ battling the custody of the child.
This observation was made while hearing a challenge against the order of a family court that has denied custody to the father.
The grievance of the petitioner (father) was that the respondent was not permitting him to visit the child. The family court has earlier denied his submission for custody of the child. He approached the High Court challenging this order.
The counsel for the mother of the child submitted that the overnight custody of the child cannot be given to the father as the child is suffering from health-related issues that have affected his mobility.
The court highlighted that in custody battles, it is the welfare of the child that is of paramount importance and any decision on child custody needs to be solely based on this criterion.
The report submitted by the Secretary of the Taluk Legal Service Committee based on the direction of the court confirmed that the child does have issues with mobility due to obesity. The child often requires a wheelchair to move around, and special arrangements were made at his school to suit his needs. The report also stated that the mother visits the school every noon to help him with his daily tasks.
The court also had a personal interaction with the child, and he expressed his desire to stay with his mother.
The court took cognizance of the Supreme court’s observation for such cases, wherein it is the child who suffers the most in custody battles. It also noted that the child has a fundamental right to receive love form both parents.
However, it held the wish of the child as paramount and denied the custody application of the father. It also recognised the grievance of the father of not being allowed ample time to spend with the child and revised the visitation timings.
Delhi HC: Foreign national cannot claim vested or constitutional right to be appointed as guardian of person with disabilities.
In a case relating to the plea moved by a father whose adopted son has severe mental retardation, the Delhi High Court has observed that a foreign national cannot claim a vested or constitutional right to be appointed as guardian of a person with disabilities.
In the plea, the father has challenged the validity of Rule 17(1)(iii)(a) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Rules, 2001 and Regulation 12(i) of Board of Trust Regulations, 2012. Under these provisions, only Indian citizens are allowed to be guardians of a person.
In this case, the petitioner and his son are citizens of the USA but hold Overseas Citizenship of India cards. The petitioner and his wife were earlier looking after the needs of the child. However, since there is a breakdown of marital relations with his wife, the child is now being taken care of only by him. The petitioner submitted to the court that he was granted legal custody of his son and has been acting as his primary caregiver since the time of adoption. His assertion was that Section 14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act does not restrict a non-citizen from applying to be appointed as guardian of a person with disabilities.
Regarding this, the Court said that the Act lays down a broad and basic structure relating to assistive measures to be adopted for differently abled persons, including that of appointing a guardian. However, it leaves the details to be determined by Rules and Regulations that might be framed.
Section 14 of Rules & Regulations refers to the words “parent”, “relative” or “any person”, but does not specify that a non-citizen could also claim a right to be appointed as a guardian of a person with a disability.
It stated that the petitioner being an American citizen does not have the right to be appointed as a guardian, except when there is a special provision that grants him that right.
The court also referred to observations of the Supreme Court in Sahibzada Saiyed Muhammed Amirabbas Abbasi vs. State of M.B, wherein a person who migrated to West Pakistan in 1948 was denied being appointed as guardian of two minor children borne from his first marriage.
The court stated that it cannot find a suitable case in support of the petitioner, without the provision for the same in Rules & Regulations.
However, the court stated that it cannot close the proceedings in view of the situation of the child and allowed the petitioner to appoint someone as the statutory guardian of the son with special needs. Any such nomination will be duly examined and considered by the Local Level Committee.
Supreme Court: Human Life equally important as protection of Environment, projects necessary for country’s economic development can’t be stalled.
In the case, Association for Protection of Democratic Rights vs. State of West Bengal, Supreme Court gave a go-ahead to the construction of railway overbridges in West Bengal as part of the Setu Bharatam project and observed that protection of human life is also equally important as protecting the environment.
This project was stayed since 2018, after Calcutta High Court’s order allowing the cutting down of 365 trees was challenged in the Supreme Court. An expert committee was constituted in 2020 by the Supreme Court to examine the matter.
West Bengal government has submitted that the project is necessary since close to 600 lives were lost in railway accidents. It was also submitted that the State has undertaken to plant five trees against one tree that would be felled, as a compensatory measure.
Meanwhile, the petitioner submitted that the project would require the felling of thousands of trees including heritage trees.
The Supreme Court bench took note of the committee’s observation that the bridge must be constructed to resolve the congestion at the railway crossing.
The bench dismissed the petition challenging the High Court order and noted that the felling of trees needs to be restricted to only 356 as per High Court’s order and the State government needs to be put on terms for compensatory afforestation.
Supreme Court: Employee can’t seek alteration of Date of birth at fag end of career
In a recent judgement, the Supreme Court reiterated that an employee cannot seek alteration of date of birth in the service records at the fag end of the career. The Supreme court bench was hearing a special leave petition filed by South Eastern Coalfields Ltd challenging a Bombay High court order which allowed the alteration of an employee’s date of birth.
The employee’s date of birth was correctly recorded at the time of his appointment. However, it was altered without his knowledge in 2001. After correspondence with the South Eastern Coalfields Ltd, a letter was issued in September 2011 which records the fact that the date of birth indicated in the service record was scored off.
In view of the fact that the service of the employee would end in a few days, the Supreme Court decided not to interfere with High Court’s order.
However, the court clarified the law that employees cannot wake up from their slumber after a long time and seek alteration of date of birth towards the fag end of their career.

source: news-factly

created: February 22, 2023

license: Creative Commons - Attribution - https://creativecommons.org/licenses/by/4.0/

author: Sai Krishna Muthyanolla


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Review: Kerala HC rules that persons have the right to include only mother’s name in official documents
Sai Krishna Muthyanolla
July 27, 2022
In this week’s review of Court Judgments, we look at the Supreme Court’s order in which it said that unmarried women cannot be denied medical termination of pregnancy, that State governments may permit non-forest activities on forest land upon prior approval of the Centre, Kerala HC’s order that persons have the right to include only mother’s name in official documents.
SC: Unmarried woman cannot be denied medical termination of pregnancy
In X vs. The Principal Secretary, Health & Family Welfare Department, the petitioner was a native of Manipur and lived in Delhi. She was in a consensual relationship in which she became pregnant. She was 24 weeks pregnant when the Supreme Court heard her case. Her ultrasound scan revealed that a single intrauterine pregnancy of a term of twenty-two weeks. She decided to terminate the pregnancy after her relationship failed. Citing familial issues, the petitioner stated that she was a BA graduate and that she wouldn’t be able to raise a child in the absence of livelihood. When she approached the Delhi High Court, it observed that an unmarried woman, whose pregnancy arises out of a consensual relationship, is not covered by the Medical Termination of Pregnancy Rules, 2003.
However, the Supreme Court bench comprising Justices DY Chandrachud, Surya Kant and AS Bopanna noted that amendments were made to the Act in 2021 substituting the word “husband” with “partner”, and also included all women including divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape, into the ambit of the Act. It added that the legislation has recognized the reproductive choice of a woman and her bodily integrity and autonomy. That is, she is entitled to choose whether or not to bear a child as she has the right to life with dignity and the right to privacy under Article 21 of the Constitution. The order also stated that ‘there is no basis to deny unmarried women the right to medically terminate the pregnancy when the same choice is available to other categories of women’. The Supreme Court also directed the Director of AIIMS, Delhi to constitute a medical board and carry out an abortion if the foetus can be aborted without danger to the life of the petitioner.
SC: State governments may permit non-forest activities on forest land upon prior approval of the Centre
In Narinder Singh vs. Divesh Bhutani, the Supreme Court was considering the writ petitions and appeals filed by owners of marriage halls and restaurants, residents, etc. lying in the land covered under special orders issued under Section 4 of the Punjab Land Preservation Act, 1900 (PLPA, 1900). The appeals challenged the order of the National Green Tribunal which ordered that non-forest activities should not be conducted on the subject lands. According to NGT, the lands covered under Section 4 of PLPA, 1900 were ‘forest lands’ as defined in the Forest (Conservation) Act, 1980. This was challenged in the Supreme Court. The issue considered by the Supreme Court was whether land covered under a special order issued by the Government of Haryana under Section 4 of the PLPA, 1900 is a ‘forest land’ within the meaning of the Forest (Conservation) Act, 1980.
The Supreme Court bench comprising of Justices AM Khanwilkar, AS Oka and CT Ravikumar, held that the lands covered by the special orders issued under Section 4 of PLPA, 1900, have all the trappings of forest lands within the meaning of the Forest Act, 1980. The Bench observed that the State is mandated to protect and improve the environment and safeguard the forests. Further, the precautionary principle requires the Government to anticipate, prevent and remedy or eradicate the causes of environmental degradation including acting sternly against the violators.
The Bench also elaborated on the meaning of ‘forest’ under the Forest Act of 1927 and the 1980 Forest Act and noted that the 1980 Act does not provide for an absolute prohibition on the use of any forest land for any non-forest purposes. The State Governments or competent authorities can permit the use of forest land for non-forest purposes, provided they get the prior approval of the Central Government. The purpose of such a provision is to check the depletion of green cover. The Central Government shall permit only such activities which do not cause environmental degradation.
SC: Credible, plausible grounds are required to believe that the accused is not guilty of offence and grant bail
In Narcotics Control Bureau (NCB) vs. Mohit Aggarwal, the NCB had received secret information that a parcel which was suspected to contain narcotic drugs was stored at the godown of a courier company in Delhi. On conducting search proceedings, the NCB recovered the suspected parcel which contained 50,000 Tramadol tablets weighing 20 kgs. The respondent confessed that he illegally purchased and sold narcotic substances. He was taken into custody in January 2020 following which he moved two applications for grant of bail before the Special Judge, NDPS. The applications were rejected. However, the High Court granted bail to an accused in the case on grounds that there was no material evidence apart from the confessional statement.
The Supreme Court Bench of Chief Justice NV Ramana, and Justices Krishna Murari and Hima Kohli noted that the respondent’s disclosure is what lead the NCB to the supplier’s godown. Further, the CDR details of the mobile phones of all co-accused including the Respondent showed that they were in touch with each other. Stating that the High Court should not have passed the order supporting the respondent citing lack of material evidence, the Court cancelled the bail order and directed that he be taken back into custody.
It also noted that Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which talks about bail states that there should be reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The expression “reasonable grounds” used in the Section means credible, plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, facts and circumstances must exist such that the Court can believe that the accused person would not have committed such an offence.
Kerala HC: Persons have the right to include only their mother’s name in official documents
In XXX vs. Registrar of Births and Deaths, Pathanamthitta Municipality and ors., the petitioners were a mother and son (first petitioner). The mother had conceived her son when she was a minor under mysterious circumstances because of which the father’s name of the first petitioner was recorded differently in different documents. The petition was filed to expunge and remove the son’s father’s name from the birth register maintained by the office. They wanted a certificate showing the mother’s name only as a single parent.
Justice P. V Kunhikrishnan of Kerala High Court observed that the child of an unwed mother is also a citizen of India, and nobody could infringe any of his/her fundamental rights. The children of unwed mothers and the children of rape victims could also live in this country with the rights of privacy, dignity, and liberty and no one could intrude in their personal life. Referring to past judgements, he opined that it is the right of a person to include his mother’s name alone in the birth certificate, identity certificates and other documents and allowed the petition.
Delhi HC: Subjecting a citizen to police scrutiny for no good reason is an invasion of their right to privacy
In Jindal Kumar vs. NCT of Delhi & Anr, a kalandra was issued when a quarrel occurred after access by the petitioner’s wife to the terrace was not allowed by the respondent. Kalandra is a notice issued under section 107 of Code of Criminal Procedure (CrPC) against a person against whom there is information that he is likely to commit a breach of the peace or disturb the public tranquillity or any other wrongful act leading to breach of peace or disturbance to the public. It was submitted that the counsel appearing on behalf of the petitioner had submitted that he was not a regular complainant and admitted that the kalandra was initiated against both the parties, which was later disposed of. The petitioner also stated that no action was taken against his complaint. Justice Asha Menon of Delhi High Court dismissed the petition and observed that subjecting a citizen to police scrutiny including verification of personal documents for no good reason would be an invasion of their right to privacy.
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Review: Kerala HC Rules That Registering Authority Under The Special Marriage Act, 1954 Cannot Refuse Solemnization of Marriage Online
Sai Krishna Muthyanolla
May 24, 2023
In this edition of court judgements review, we look into the Supreme Court’s judgements on bribery in money laundering cases, issues pertaining to judicial independence, trademark infringement of ‘Rooh Afza’, Madras High Court’s decision on detention order, Delhi High Court’s judgement in deciding on minor status in POCSO cases, and Kerala High Court’s judgement regarding the online solemnization of marriage.
Supreme Court: Criminal activity, and generation of proceeds of crime are like Siamese twins in cases of corruption, registration of FIR is sufficient for ED to launch a probe.
In a significant development regarding the jurisdictional mandate of the Enforcement Directorate (ED), the Supreme Court in Y. Balaji vs. Karthik Desari & Anr.Etc, held that, unlike other cases, in corruption, criminal activity and generation of proceeds of crime are like ‘Siamese twins’, and receipt of bribe money itself is an act of money laundering.
A two-judge bench comprising Justice Krishna Murari and Justice V Ramasubramanian was hearing appeals against the Madras High Court’s judgement that put a hold on ED’s enquiry into a cash-for-jobs scam, where public servants were accused of collecting bribes in exchange for jobs in state transport corporation. The counsels for the accused argued about the locus to challenge the proceedings, while the respondent’s counsel responded to the contentions on the jurisdictional mandate of the ED. The court summed up the arguments from both sides and formulated two fundamental questions that need to be addressed.
To the first question, the court referred to the Prevention of Money Laundering Act, 2002. On joint reading of Sections 2 and 3 of the act, it can be held, unlike other cases, in corruption cases, bribe money constitutes the ‘proceeds of crime’ within the meaning of Section 2(1)(u). Hence, the argument raised by the counsel for the accused that the mere generation of proceeds of crime is not sufficient to constitute the offence of money laundering is preposterous.
The second question deals with some portions of the judgment in Vijay Madanlal Choudhary & Ors. vs. Union of India & Ors. One of the points raised by the counsel for the accused is that in view of inherent contradictions contained in the decision in Vijay Madanlal Choudhary and in view of this Court having ordered notice in the review petition, the appeals on hand should also be referred to a larger Bench. However, the court held that the current petitions have nothing to do with those issues raised. The court held that the accused cannot have a piggyback ride on the review petition.
Supreme Court: Independence of the judiciary requires that pay of judicial officers must be stand-alone and not comparable, and Judiciary must have a say in matters of their finances.
The apex court in All India Judges Association vs. Union of India, held that judicial independence is part of the Basic Structure of the Constitution, and it requires that judiciary must have a say in matters of their finances.
The Supreme Court bench, comprising the Chief Justice of India DY Chandrachud, Justice PS Narsimha, and Justice V. Ramasubramanian, pronounced its judgement regarding the matters of judicial pay, pensions, and other similar issues of judicial officers. To ensure the financial independence and economic security of judicial officers, the apex court in 1993 called for an independent Judicial Pay Commission. Accordingly, the First National Judicial Pay Commission (“FNJPC”) was constituted by the Government of India by Resolution dated 21 March 1996, whose recommendations on matters pertaining to pay revisions, pensions were accepted. In 2010, these were extended to the district judiciary.
Pursuant to the report of the 7 Pay Commission, the apex court ordered the setting up of the Second National Judicial Pay Commission (SNJPC) in 2017. The SNJPC submitted its final report in 2020, and the court asked the states to file objections to the report. Before going through the report, the court looked at the evolution of judicial principles surrounding pay commissions.
The court delved into each of these five principles in detail. The apex court also refrained from the usage of the term ‘subordinate judiciary’ when referring to district judiciary. It further held that respect must be accorded to the institution for its contribution to the country.
The court looked at the recommendations by the SNJPC and accepted a large portion of the recommendations. Some of the important recommendations accepted by the court pertained to the retirement age, financial assistance in cases of death, and gratuity among others. The list of accepted recommendations is explained in detail in the judgement.
Further, on the aspect of the implementation of the orders, the court asked the states to file compliance affidavits within four months.
Supreme Court: Not inclined to allow appeal against Delhi High Court’s order restraining use of ‘Dil Afza’ name for sharbat.
The Supreme Court, in Sadar Laboratories Pvt. Ltd vs. Hamdard National Foundation (India) & Anr. refused to entertain a petition challenging the Delhi High Court’s division bench order restraining Sadar Laboratories Pvt. Ltd to use the ‘Dil Afza’ trademark in its products.
The three-judge bench comprising of the Chief Justice of India DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala was hearing an appeal petition filed by Sadar Laboratories private limited against the Delhi High Court’s order.
The word trademark “SHARBAT DIL AFZA” (also known as “the impugned trademark”), which is registered in favour of the Hamdard National Foundation in Classes 5 and 32, is at the centre of the current legal dispute. They assert that they have been producing and selling a sweet beverage concentrate under the name “SHARBAT ROOH AFZA” constantly since 1907. Under the brand name “SHARBAT DIL AFZA,” Sadar Laboratories private limited recently started a similar product (sweet beverage concentrate).
Earlier, a single judge bench of Delhi High Court refused to grant an interim injunction against Sadar Laboratories Pvt. Ltd. for their product ‘Dil Afza’. In the appeal against this application, the appellants had argued that using marks like “SHARBAT DIL AFZA” or “DIL AFZA” would certainly lead to confusion and would violate their registered trademark “SHARBAT ROOH AFZA” or “ROOH AFZA.”
The claim that the two competing marks were similar was denied by the single judge. According to the court, purchasing a bottle of sharbat would not elicit strong feelings, and consumers could tell “ROOH” from “DIL” in any case. The single judge had ordered the respondent to provide a quarterly report regarding its accounts until the suit was resolved, although declining to issue an interim injunction.
Upon hearing both parties, the division bench of Delhi High Court held that the ‘Rooh Afza’ Trademark required higher degrees of protection as it acquired immense goodwill. On the similarity of the signs and language, the court held that,
Further, the value of the product and the strength of the mark are to be considered when deciding on trademark infringement cases. Here the product is low-priced and hence the attention of customers would be cursory. Further, the strength of the mark is inversely proportional to the requirement of protection- the stronger the mark, the greater the required protection.
Accordingly, the Delhi High Court’s single judge order is set aside by the Division Bench of Delhi High Court. In an appeal against this order in the present case, the Supreme Court refused to entertain the petition.
Madras HC: Improper intimation of arrest hampers the Constitutional safeguard of right of the detenu to make effective representation.
The Madras High Court, in Harini vs. State of Tamil Nadu, quashed a detention order on the grounds that the intimation of arrest was not made properly, thereby hampering the constitutional rights of the detenu.
The division bench of Justice M Sundar and Justice Nirmal Kumar was hearing a petition praying for the issuance of a writ of habeas corpus to call for the records relating to the detention order dated 30 November 2022, passed against the detenu. The impugned detention order was issued in accordance with the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyberlaw Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum-Grabbers, and Video Pirates Act, 1982 (Tamil Nadu Act No. 14 of 1982).
The main issue brought up by the petitioner’s Counsel is that even though it has been claimed that the detainee’s wife received an SMS alerting her of her husband’s arrest on her mobile device, neither a signature nor any evidence supporting the claim that the arrest notification was transmitted through SMS to the petitioner’s mobile number. Thus, the detainee’s right to due representation was impeded.
The court, upon looking at the material evidence, agreed with the petitioner. It relied on the judgement of the same court in Akilandeswari vs. State, rep. by Secretary to Government, Home, Prohibition and Excise Department, Chennai, wherein it was held that,
Further, the court held that curtailment of personal freedom in pursuance of a preventive detention law though has the constitutional sanction, is conditioned by many constraints, one of which is a chance for him to make representation against his detention. If his arrest is not informed to his dear and near ones, who could make representation against the detention order on his behalf, he cannot exercise the right given to him under Article 22(5) of the Constitution of India.
Accordingly, the court found the detention order infringing on the constitutional safeguard of effective representation, and hence, it is quashed. The Habeas Corpus petition is allowed.
Delhi HC: The inclination of the Court should be towards considering the lower side on the margin of error, when deciding on the age of child victim under the POCSO Act.
The Delhi High Court, in Raju Yadav vs. State of NCT of Delhi, held that when a child victim’s age is determined by the bone ossification test under the POCSO Act to be between 15 and 17 years old, the court shall lean toward taking the lower end of the margin of error into consideration.
The Single judge bench of Delhi High Court headed by Justice Jasmeet Singh was hearing an appeal against the order of the Special judge sentencing to undergo rigorous imprisonment for 10 years along with a fine of Rs.10,000/-. The counsel for the accused argued that the provisions of the POSCO act cannot be attracted as the age of the prosecutrix was not conclusive, since medical reports ascertained the age to be between 15-17 years, whereas various judgements of the courts point out the prevalence of plus/minus difference of 2 years in any bone ossification test, thus making the age of prosecutrix above the age of majority.
Upon hearing the arguments from both parties, the court held that undergoing another bone ossification test amounts to re-victimization, and hence cannot be allowed. On the confusion around the age range, the court looked at the objectives of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
In Jarnail Singh vs. State of Haryana, the apex court has leaned towards the benefit of the lower age side to both the child in conflict with the law and the minor victim under the POCSO Act. The court further held that it cannot be the intention of the POCSO Act to treat a victim who is a borderline minor, as a major in case the victim does not have a birth certificate/school certificate and has undergone a bone ossification test. Such an interpretation would not be in furtherance of the POCSO Act but rather in contradiction and derogation to the objective and purpose of the POCSO Act.
Further, in Section 29 of the POCSO Act, there is a presumption of guilt against the accused. The prosecution is only required to lay the foundational facts which disclose the commission of an offence by the accused persons. Once the same has been done, it is the accused who has to rebut the presumption of guilt. In this case, the appellant was unable to rebut the presumption of guilt.
Accordingly, the appeals are set aside.
Kerala HC: Registering authority under the Special Marriage Act, 1954 cannot refuse solemnization of marriage online.
In Dhanya Martin vs. State of Kerala & Anr. and other connected cases, the Kerala High Court held that the registering authority under the Special Marriage Act, 1954 cannot refuse solemnisation of marriage online and directed the State Government to follow the directions in the interim order for solemnisation of marriage under the Special Marriage Act in all other matters until the Government prescribes any other mode for compliance.
The division bench of the High Court comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas was hearing a batch of writ petitions regarding an authoritative pronouncement on a question related to the solemnisation of marriage under the Special Marriage Act, 1954, through Video Conferencing. The court in earlier judgements in Dioncey Augustine vs. State of Kerala, and Shitha V.K. vs. The District Registrar (General) answered the above question negatively, stating that sections 11 and 12 of the Special Marriage Act, 1954 require the physical presence of the parties, in the absence of which Section 13 that provides for the certificate of marriage, is invalid. This has been the stance of the Government also.
However, the single-judge bench of this court relied upon the doctrine of ‘updating construction’ that allows for the interpretation of the statute with reference to the changing societal conditions. The single-judge bench further held that,
On whether the marriage can be solemnized through video conference, the single judge bench relied on the State of Maharashtra vs. Praful B. Desai (Dr), whereby the question considered was whether evidence can be recorded through video conferencing in a criminal trial. It was in this case, the doctrine of ‘updating construction’ was relied upon.
Further, the court held that Special Marriage Act must be read in light of the Information Technology Act, of 2000.  Section 6 of the Information Technology Act,2000 recognise the use of electronic records in the Government and its agencies.
Accordingly, the court held that it cannot refuse the online solemnization of marriage under the special marriage act and directed the government for compliance until the prescription of any other modes.


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Review: Kerala HC says Passport Officer can't insist on Father's consent where Mother holds exclusive custody of Minor
Sai Krishna Muthyanolla
September 14, 2022
In this week’s review of Court Judgments, we look at Karnataka High Court’s order regarding non-requirement of Father’s consent for issuance of passport of minor child when mother  holds the exclusive custody, J&K&L High Court’s observation regarding the husband’s responsibility to clearly communicate the divorce, Telangana High court’s change in sentence with respect to murder conviction, Delhi High Court’s conviction of a rape accused who was earlier acquitted and Kerala High Court’s observation regarding a bail application.
Karnataka HC: Passport Officer can’t insist on Father’s consent where Mother holds exclusive custody of Minor
In the case Poulami Basu vs. The Government of India, Karnataka High Court stated that once exclusive custody of a child is granted by the Family court to a mother, the Regional Passport officer cannot insist upon the presence of the father of the child for his consent to issue a passport to the child.
A petition was filed in the Karnataka High Court by a woman, Poulami Basu, seeking direction from the passport authority to consider the application to issue a passport to her minor child.
She was earlier awarded exclusive custody of the child by the Family Court as part of the Divorce Decree. The government had opposed the plea, stating that the grant of a passport is regulated by the Passport Act, 1967. As per the manual issued under the act, the consent of the estranged husband is a pre-condition for the grant of a Passport.
The single judge bench of Justice Krishna S Dixit went through the case and said that the petitioner is justified to contend that a Passport is only a travel document that enables the grantee to pass the country and it does not enable them to travel abroad unless the Visa is granted by the intended host country. As per the ‘Divorce Decree’ by the Family court, the ex-husband was granted limited visitation rights which would not be curtailed by the mere grant of a Passport. Any apprehension of curtailment of such rights in case of visa-less travel abroad can be alleviated by prior permission of the Family Court.  Hence it is not justified for the ‘Regional Passport Officer’ to insist upon the presence of the father.  The Court allowed the petition and gave the necessary direction to the Passport Officer.
Telangana HC: Killing someone on sudden quarrel & under involuntary intoxication amounts to ‘Culpable Homicide not amounting to Murder’
A bench of Telangana High Court consisting of Justice A. Venkateshwara Reddy and Justice G. Anupama Chakravarthy, altered the conviction of an accused from the punishment of murder to ‘Culpable Homicide not Amounting to murder’, as the offence was committed in a heat of sudden passion in highly inebriated stage, which itself was involuntary.
A Criminal Appeal was filed in the Telangana High Court against the judgment in the Sessions court, where-in the accused was found guilty of murder punishable under Section 302 of the IPC and was sentenced to Life imprisonment. As per the Case details, Accused (A1) was the son of the deceased and A2 was the brother of the deceased.
There was a land dispute between the brothers which developed into enmity. As per the prosecution, A1 was instigated time and again by A2 to kill his father (deceased) by making him addicted to liquor.  One day, A1 returned home at around 11 PM and was scolded by his father for not completing a few of the chores. A1 picked up a quarrel for insulting and scolding him in public. He proceeded to beat the father and pushed him, following which the father collapsed. A1 poured kerosene and set him on fire.  The elder son registered a case and the trial court found A1 guilty of murder.
The counsel for A1 contended that as per the dying declaration of the deceased, A1 was in an intoxicated condition. Therefore, based on the dying declaration, A1 has only inflicted burn injuries and had no intention to kill the deceased. Hence, the offence may not fall under Section 302 of IPC but at most falls under Section 304 Part II of IPC i.e., Punishment for Culpable Homicide not amounting to murder.
The Court looked into the arguments presented and made certain observations. As per the declaration of the deceased, A1 was in an inebriated state. This was not the voluntary doing of self but was encouraged to drink by A2, as per the presentation of prosecution. Further, there was no enmity between A1 and the deceased.
The court relied on an earlier judgment by Rajasthan High Court in the case of Kalu Ram vs State of Rajasthan. It observed that the offence commuted may fall under Exception 4 of Section 300 IPC i.e., culpable homicide is not murder if it is committed in a sudden fight in the heat of passion upon a sudden quarrel.
Accordingly, the Criminal Appeal was partly allowed and the conviction of A1 was altered.
Delhi HC: Convicts a man for raping 11-year-old, 10 years after the acquittal by trial Court
In the case State vs. Rahul, Delhi High Court convicted a man to 10 years of rigorous imprisonment for raping an 11-year-old, after over 10 years of being acquitted by a trial court.
In April 2010, the minor victim was returning from school and went to a public toilet. A man following her forcibly took her to a male toilet and committed rape on her. The incident was reported to the police after seven days. The man was apprehended a few days later and taken into police custody. He was acquitted by the trial court on 20 October 2011, based on the benefit of the doubt by holding that the prosecution had failed to prove the case beyond a reasonable doubt.
The status report filed by the prosecution in November 2013, stated that the man was not seen around his residence for long and could not be traced. An appeal was filed by the prosecution in Delhi High Court in 2014 against the trial court order. The High Court directed the initiation of proclamation proceedings against him under sec. 82 & 83 of CrPC.
The High court highlighted the various omissions and errors committed by the trial court in the case. The Delhi High Court bench comprising of Justice Mukta Gupta and Justice Mini Pushkarna observed that the trial court ignored the fact the victim has earlier lost her mother at a young age and her father was also missing. She was staying with her aunt who was looking after 10 children (6 her own, and 4 of her brother’s including the victim). She was working as a daily labourer and in view of the state of affairs cannot be expected to have the knowledge or be in a state to immediately report the incident.
The High court also pointed out the general reluctance in society to report such incidents. Therefore, not lodging an FIR immediately cannot be considered a factor in the case.
The High Court further pointed out that the trial court made an error in holding the victim as a tutored witness by stating that she told whatever her aunt and police told her to say. It further highlighted that since the victim and her family belong to economically and educationally backward backgrounds, they cannot be expected to hold on to the evidence.
The High court considered the appeal of the prosecution and proceeded to convict the accused of the crime of raping a minor child.
J&K&L HC: Muslim husband cannot avoid his liability to maintain unless divorce is validly pronounced and communicated.
In the case, Mohammad Ali Bhat vs. Shafeeqa Bano & Ors, a plea was filed by the petitioner challenging the maintenance order by Chief Judicial Magistrate, Budgam, on the ground that a divorced Muslim wife is not entitled to maintenance and even interim maintenance cannot be granted in her favour. The petitioner informed the court that the first respondent of the case was divorced as per the terms of communication by Anjuman Sharie Shiaan, J&K, and hence is not entitled to any maintenance.
The main question before the court was whether the production of the document issued by Anjuman Sharie Shiaan, J&K, would conclusively or even prima facie show that the respondent has been divorced by the petitioner and if this in turn affects the entitlement of the maintenance claim.
The bench comprising of Justice Sanjay Dhar observed that for a Muslim husband to avoid liability to maintain a wife on the ground that he has divorced his wife, he not only has to show that the divorce was validly pronounced as per Muslim law but also show that this has been properly communicated to the wife.
The court referred to the judgment in earlier cases including the Supreme Court’s Shamim Ara vs. State of U.P. & Anr .
The court observed that the burden is on the petitioner to prove that the divorce was properly communicated. It stated that unless he discharges the burden of proof, he cannot wriggle out of the maintenance and proceeded to dismiss the petition.
Kerala HC: Bail can’t be denied by ignoring the basic tenets merely because accused was earlier released by incompetent court
Kerala High court has granted bail to a person accused of killing his wife, with an observation that merely because he was earlier released on bail due to incompetent jurisdiction, he cannot be denied bail as per the tenets of criminal jurisprudence. It highlighted that as per the basic tenets, the accused is presumed to be innocent until proven guilty.  The court granted bail to the petitioner in the case, Arun v. State of Kerala & Anr.
The petitioner was accused of smothering and electrocuting his wife to death. After the arrest, the accused approached the High Court with a bail application, which was rejected. Later, a Magistrate court granted the bail without any conditions. The State sought the cancellation of the bail before the Sessions Court. The Sessions judge noticed the illegality of the order passed by the magistrate and also because the High Court has earlier cancelled the bail, issued an order to cancel the bail.
The petitioner approached the High Court, which initially affirmed the cancellation order, but stated that he has the freedom to apply for regular bail. The counsel on behalf of the petitioner contended that the wrong order of the Magistrate cannot be a reason to deny the bail. The Counsel appearing on behalf of the complainant contended that the grave nature of the crime requires the court to deny the bail, and also that the accused benefited from the wrong order.
The single judge bench of Justice Bechu Kurian Thomas observed that the circumstances prima facie reveal the ghastly crime, but the facts are for consideration by the trial court during the trial. In view of the stage of the case, the court observed that the bail cannot be denied as ‘Bail is the rule, and jail is an exception.’
It stated that although the accused benefitted from the earlier bail order, the illegality of the court cannot be a factor in denying the accused bail.

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Kerala HC says that a Child born in live-in relationship to be construed as child born to married couple.
Sai Krishna Muthyanolla
April 14, 2021
In this roundup of the important court judgments, we look at directions about the legality of deportation of Rohingyas, rights of a couple in a live-in relationship, preventive detention, and freedom of speech.
Supreme Court: Rohingyas in Jammu to be deported with procedure prescribed.
In the case Mohammad Salimullah Vs. Union of India, the apex court held that the Rohingyas can be deported from Jammu following the procedure prescribed for deportation.
The court was hearing a plea to stop the deportation of Rohingya refugees detained in Jammu. The Rohingya community has faced persecution in Myanmar. In the last few years, before the latest crisis, thousands of Rohingya made perilous journeys out of Myanmar to escape communal violence or alleged abuses by the security forces. The military coup, which has replaced the elected government, poses an imminent threat to the lives of the Rohingya community.
The counsel for the petitioner submitted that more than there are about 6,500 Rohingyas refugees in Jammu and that they have been illegally detained and jailed, according to reports that appeared in The Wire, The Hindu, The Indian Express, and The Guardian.  The main contentions of the petitioners were:
The Union of India replied in the following terms:
Upon examining all considerations, the bench of Chief Justice of India SA Bobde, AS Bopanna, and V. Ramasubramanian observed that the Rohingyas in Jammu shall not be deported unless the procedure prescribed for such deportation is followed.
The court took serious note of the allegations of internal security threats and agents providing safe passage to illegal immigrants, as submitted by the Central Government. The apex court reasoned that it is not possible to grant any interim relief with respect to the petition and ordered that the Rohingyas can be deported following the procedure.
Kerala HC: Child born in live-in relationship to be construed as child born to married couple.
In a significant order, the Kerala high court held that a child born in a live-in relationship would be construed as a child born to a married couple. While recognising a woman’s decisional autonomy to acknowledge her biological father, the high court directed restoration of the surrendered child to the live-in couple.
The case pertains to a couple, John & Anitha, who started a live-in relationship in 2018. Anitha become pregnant and gave birth in February 2020. When John broke the relationship or remained elusive, Anitha felt isolated and approached the Child Welfare Committee and handed over the child, and executed a deed of surrender in June 2020. On completion of the procedure, the Committee declared that the child is legally free for adoption in the manner contemplated under Section 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). The child thereafter was given in adoption to a couple by the order of the Family Court, Ernakulam, in February 2021.
The couple got back together and approached the high court with a writ of habeas in February 2021. Notice was issued to the State and the Child Welfare Committee. The Committee submitted before the Court that the child had already been given in adoption.
The central issue that the high court was dealing with was whether the law differentiates between the unwed and legally wed couples in matters or relationships not connected with marriage, as a social institution? More specifically, in the context of juvenile justice, does the law differentiate unwed couples and legally wed couples to recognize biological parents. There are two circumstances wherein a child needs care and protection from the State/Committee: (i) Orphan or abandoned child (ii) Surrendered child. A ‘Surrendered child’ needs further classification under the law: (i) Surrendered by a married couple (ii) Surrendered by an unmarried mother. The bench was contemplating the question – whether a married couple includes a couple in a live-in relationship or not for the purpose of law related to surrender? Under Regulation 7(5) of the Adoption Regulations, if a child born to a married couple is surrendered, both parents must sign a deed of surrender.
The technical issue in the present case is that the procedure clearly distinguishes surrender by an unmarried mother from a married couple. The entire legal issue is surmounted on the legality of the surrender by Anitha, unilaterally. Therefore, if the surrender is legally valid, the entire challenge, in this case, comes to an end. After the perusal of records, the court concluded that the Committee followed the procedure for surrendering the child applicable to an unmarried mother.
In the present case, the court notes that the birth certificate shows the name of the father, mother, and child. A birth certificate is a crucial document for the public authority to verify that the child is born to a married couple or not. Once it is found that the child is born to a couple, for all practical purposes of the JJ Act, an inquiry must be initiated as though the child belonged to a married couple.
Since the surrender is by one parent and the whereabouts of the other parent are not known, the child has to be treated as an abandoned child. Admittedly, the procedure applicable for an abandoned child was not followed by the Committee, instead, they followed the procedure relevant to an unwed mother alone. Hence, the declaration and issuance of a certificate under Section 38 of the JJ Act that the child is legally free for adoption stand to be legally unsustainable.
The judgment concluded that since the entire proceedings leading to Section 38 fall, consequently, the adoption becomes illegal. The judgement further highlights the plight of a single mother who faces financial, social, and emotional challenges and deems it to be a failure of the system. The court also took cognizance of chat messages between Anitha and the Social Worker, which depict the vulnerable state of Anitha. She constantly kept in touch with the Child Care Institution where the child was put up to keep track of the child’s well-being. The judgement takes note of her desperation and the plight of her suffering in being a single mother who was not a legally wedded relationship.
In view of the willingness of the biological father to take care of the child, the court directed the Committee to consider his rights to claim for restoration under Sections 37 and 40 of the JJ Act. The Committee was directed to take necessary steps for restoration in accordance with law within a period of one month.
Madhya Pradesh HC: Directs State Government to issue guidelines to all District Magistrates to strictly adhere to the provisions of National Security Act
In the case Anshul Jain vs. State of Madhya Pradesh, the high court held that due to procedural lapses in following due process of law, the orders of preventive detention which may have been passed on justified grounds suffers annulment.
The court was hearing a plea filed against an order of preventive detention passed by District Magistrate, Guna for directing detention of petitioner for a period of three months. The grounds for detention were based on the seizure of certain misbranded and adulterated items from the premises of the petitioner.
The counsel for the petitioner argued that the offence registered after the said raid did not lead to a situation that may give rise to prejudice to public order. The petitioner also submitted that the food items were not found to be unsafe for human consumption and highlighted the failure of the State to demonstrate actual communication of the order of detention and its grounds to the Central Govt. thereby raising ground of Secs. 3(2),(4), and 3(5) of the National Security Act (NSA).
The court notes that the State Government did not bring any material to show that after forwarding the approval order along with grounds to the Central Government, the same was actually received by the Central Government or not. The Court further observed that the order of preventive detention was passed on 18 December 2020, whereby District Magistrate Guna took 3 long days’ time to forward the case to the State government. for approval.
The judgement held that in the absence of any satisfactory explanation, the order of preventive detention stands vitiated.
The judgement highlights that the court has come across various cases in the recent past where on account of procedural lapses in following due process of law, the order of preventive detention which may have been passed on justified grounds suffers annulment. Therefore, the court found it essential that the State issues guidelines to all District Magistrates so that timeline provided in following due process of law and other provisions of NSA are strictly followed. The Court further said that it is also seen that original record produced from the office of concerned District Magistrate ordinarily does not contain the following materials: –
The judgement also stressed that the satisfaction of competent authority is to reflect from the order of preventive detention or else it may not stand the test of law.
Goa HC: Non-deliberate insult to religion without intention to hurt religious feelings not an offence under Section 295-A.
In the case Sudheer Rikhari v. State of Goa & Ors., the high court held that Section 295-A only punishes aggravated form of insult to religion when perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.
The court was hearing a petition for quashing of FIR filed against members of an art-rock project at Panaji Police Station alleging that they have committed an offense under section 295-A and section 34 of the Indian Penal Code (IPC). Section 295-A punishes deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. After lodging the FIR, the petitioners were called to the police station “to issue an apology” and were placed under arrest on 18 December 2020. The arrested petitioners later secured bail and other petitioners had to secure anticipatory bail to avoid physical arrest.
The Petitioners are members of an art-rock live performance project known as “Dastaan LIVE”. The Petitioners claim that the said band is driven by several influential poets and writers from Faiz Ahmed Faiz to Baba Nagarjuna, to Sahir Ludhianvi to Nazeer Akbarabadi, and has composed their lyrics using progressive rock and shades of folk music to create an audio-visual live performance. One such song performed by the Petitioners’ band was the “Mantra Kavita” by Vaidyanath Misra (widely known as Baba Nagarjun), which was originally composed in the year 1969. The petitioners also placed on record the entire text of the “Mantra Kavita” by Shri Vaidyanath Misra accompanied by a certificate under section 65-B of the Evidence Act.
The petitioners pleaded that their band was only performing their own musical adaptation of the poem composed by Shri Vaidyanath Misra and even the lyrics were not modified by them, in the least. Various artists have given their own musical adaptation to this composition. The Petitioners also argued that the alacrity and the undue haste in registering the FIR give reason to believe that it was driven by political interest with malicious intent to damage the band’s reputation and to curb free speech and artistic intent/creative capital.
The Public Prosecutor submitted that “OM” is quite sacred to the Hindus and if the same is recited in a negative narrative or clubbed with the words or phrases “Ullu ka pattha”, then, the same amounts to insulting religion and religious beliefs. He argued that the petitions may be dismissed with an opportunity for the petitioners to face trial and prove their innocence.
At the onset, the court observed that the police authorities cannot call citizens to the Police Station and demand apologies of this nature. The judgement held that there was no justification whatsoever for arresting the petitioners, who are members of a band and who have been making such presentations all over the Country, unhindered and unmolested. The judgement notes that based on a frivolous complaint, some of the petitioners, who were only members of a band were incarcerated or forced to seek anticipatory bail.
The judgement emphasises that no arrest can be made routinely on a mere allegation of commission of an offense made against a person, except in heinous crimes. There has to be some reasonable justification, in the opinion of the officer effecting the arrest, that such arrest is necessary and justified.
In conclusion, the court quashed the FIR and held that the police authorities were neither justified in registering the FIR nor arresting any of the petitioners. After pursuing the lyrics of the said poem, the judgement clarifies that allegations in the FIR, even if accepted in their entirety, do not even remotely point out the ingredients of Section 295-A of IPC. To simply allege that “OM” which is a symbol of the complainant’s faith “in a negative narrative” or “abusing people chanting the OM and followers to Hindu stream as Ullu ke Patta” is by no means sufficient to spell out the ingredients of Section 295-A of the IPC. Section 295-A only punishes aggravated form of insult to religion when perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.
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Review: Kerala HC Upholds Grant of Maintenance To Wife Who Voluntarily Left Husband Although The Charge of Cruelty is Unproved
Sai Krishna Muthyanolla
January 4, 2023
In this week’s review of Court Judgments, we look at Kerala High Court upholding the grant of maintenance to wife who voluntarily left husband even though the charges of cruelty were unproven, MP High court’s restraint order regarding a demolition at short notice, Madras High Court’s judgment to recover loss to exchequer due to negligence from public servants, Bombay High Court’s observation regarding allegation of rape and J&K&L High court’s reiteration regarding challenging constitution of enquiry committee after taking part in enquiry.
Kerala HC: Upholds Grant of maintenance to wife who voluntarily left husband, although the charge of cruelty is unproven.
A single-judge bench of Kerala High Court, consisting of Justice A. Badharudeen, upheld the grant of maintenance to a wife, who voluntarily left her husband, although she failed to prove a cruelty charge against him.
The court was dealing with the case, Arun vs. Reshma. Earlier, the Family Court directed a man to pay Rs. 4 thousand maintenance to his wife. He filed a revision petition in the High court and argued that she has left him voluntarily and without any justified reasons and hence, he has no liability to pay maintenance to his wife.
The counsel on behalf of the husband further stated that the case filed by the respondent i.e., the wife on the ground of cruelty ended in acquittal.
However, the court observed that there could be other circumstances which would not count as cruelty but deny the wife of living a peaceful life in a matrimonial home. These circumstances are a reasonable grounds to deny ‘joint residence’.
Justice A. Badharudeen observed that the wife leaving the house voluntarily under such circumstances does not support the argument of the husband that he is not legally entitled to provide maintenance.
The court further considered the fact that the wife remarried in September 2022 and hence, the entitlement to maintenance ceased from the date of marriage. However, it directed the petitioner to clear the dues, which it reduced to Rs. 3,500 per month.
MP HC: Restrains authorities from demolishing property by giving less than a day’s notice.
Justice Satyendra Kumar Singh of Madhya Pradesh High Court’s Indore Bench restrained the authorities from demolishing the property of the litigant, who was given less than a day’s notice by the authorities.
Hearing the case, the court held that it would only be fair if the litigant was given reasonable time to file an objection before the appropriate authorities.
As per the case details, the petitioner (i.e., the litigant) was served a notice by the authorities regarding the demolition of his property allegedly constructed on government land. This notice was served on 28 December 2022, at 6:45 pm and the petitioner was required to file his reply by the next morning itself failing which the property would be demolished on 29 December 2022.
The aggrieved petitioner moved the court and submitted that he was being victimised for filing an election petition against the sitting MLA of the ruling party. Further, it was contended that the content of the notice and not providing enough time to file his reply support his argument that the notice was served owing to political reasons.
The state authorities argued that the property concerned was constructed upon government land and hence, the notice was issued. The opportunity to file a reply was provided and the petitioner is not entitled to any relief.
Examining the submissions made by both the parties and the documents, the court found it appropriate to restrain the State from taking any coercive action and grant the petitioner a reasonable opportunity to approach the appropriate authority.
Madras HC: Thiruvarur hospital can recover compensation amount from doctors, officials in Medical Negligence case
In the case of The Dean,  Government Medical College Hospital and another vs. Vijayalakshmi, the Madras High Court held that whenever a loss to the State Exchequer is caused due to the negligent acts of public servants, such a financial loss should be recovered from them.
As per the case details of the civil revision petition filed by the Dean of the Government Medical College Hospital, Thiruvarur and the District Collector, a woman instituted a suit against the hospital in 2015. She claimed compensation for medical negligence after an erroneous surgery left her totally blind.
Since she was able to prove the negligence, the Sub Court – Thiruvarur granted her a compensation of Rs. 5 lakhs and directed the hospital to pay the compensation amount within a period of 3 months.
An execution petition was initiated by her, and after a period of five years, the execution court passed an order in September 2022 attaching the movables to the office of the revision petitioners. This was challenged before the high court with the main contention that the order will cause inconvenience to the public institution.
The court stated that the compensation to the victim cannot be delayed, as it was granted in 2016. It further noted that, if the petitioners had a better case, they ought to have initiated appropriate steps.
The court observed that when public officials commit an act of negligence, lapse or dereliction of duty and have caused financial loss to the State Exchequer, then such loss can be recovered from the public servants.  The court did not find any reason to interfere with the earlier judgment and directed that the compensation amount be deposited with the execution court by 10 January 2023, failing which the court can proceed with the attachment of properties.
Bombay HC: Difficult to accept a widow with two children residing in a thickly populated locality could be forcibly raped.
The Bombay High Court quashed an FIR against a man accused of raping a woman, stating that the court finds it difficult to accept that a widow with two children could be raped many times in a thickly populated locality.
A Criminal Appeal was filed by a man seeking to quash the chargesheet and an FIR was filed against him for offences punishable under Sections 376, 406, 427, 323, 506 of the IPC.
As per the Woman’s case, one night, the applicant entered her house in the presence of her children on the pretext of drinking water. He brandished a knife threatening to kill her and proceeded to rape her. He also threatened the lives of her children. It was alleged that he repeatedly used to threaten her and had forcible physical relations with her.
In another incident, he demanded money, which she refused. He took her gold jewellery to mortgage them and get money. The woman, frustrated with this conduct of his, approached the police, who registered an FIR and filed a chargesheet.
The argument submitted by the applicant was that the woman resides in a thickly populated area and knows the applicant for a long time. It was also argued that the allegations were vague and rape at knifepoint on a fully grown lady in her own house is not possible. It was submitted that the sexual encounters between the two were consensual. It was also pointed out that neither the parents nor the immediate neighbours had any knowledge of the alleged incidents.
The authorities submitted that the investigation is over and there is ample material against the applicant, therefore, he should face trial. The counsel on behalf of the woman stated that there was no consensual act, and she did not resist saving her children.
From the details of the case, the court noted that the alleged instances were reported for the first time six months after they began. The applicant who is the neighbour regularly visited her and even helped her at times. The supplementary statement of the woman further shows that she even entrusted her ATM Card for operation, which could lead to the presumption of a long-standing association.
The court also took into cognisance the statement of her parents and the immediate neighbours, who did not have any knowledge of the incidents. Further, the allegation of forcefully taking jewellery is false as the jeweller in his statement has said that the woman has accompanied the applicant twice for mortgaging ornaments.
The court also expressed concern over the delay in lodging an FIR with the allegations of rape. Based on the available information, the court opined that the sexual encounters between them seemed to be consensual and that facing trial would render an injustice to the applicant.
J&K&L High Court: One cannot challenge proceedings of enquiry committee after taking part in it without any demur.
In the case Dr.RK vs. UT of J&K, Jammu & Kashmir & Ladakh (J&K&L) High Court has reiterated that if a person participates in enquiry proceedings without any demur, he/she is not entitled to later challenge the constitution of the enquiry committee after finding out that the result has gone against them.
A plea was filed by a female doctor challenging the enquiry report of the Complaints Committee constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 wherein it was concluded that the entire case including the testimonies of the witness and the charges levelled against the respondent was not proven. In the petition, the petitioner has also challenged the constitution of the Complaints Committee.
The petitioner has alleged that the respondent in the capacity of the Director of Health Services Kashmir has conveyed certain ‘sexually coloured remarks” to her, and his behaviour was highly distasteful. There was continuous harassment in different ways, because of which she filed a case with the Lieutenant Governor.
The complaint was referred to the Complaints committee, which conducted the enquiry and concluded that the allegations against the respondent were not proven.
This report was challenged in the High court. Looking into this matter, the court observed that a person who participates in the enquiry proceedings or selection without any demur, cannot on a later date challenge the constitution of the enquiry committee.
Supreme Court Constitution bench upholds Union Government’s decision of Demonetization in 2016.
The Supreme Court Bench upheld by a 4:1 majority the decision taken by the Union Government in 2016, to demonetise the currency notes of Rs. 500 and Rs.1000 denominations.
The majority of the 5-judge bench held that the decision by the Union government satisfies the test of proportionality. The majority was of the view that demonetisation had a reasonable nexus with the objectives, however, whether the objectives were achieved is not relevant.
It noted that the 52 days for currency exchange is reasonable, and the decision-making process cannot be faulted because the proposals originated from the Central government. It held that Section 26(2) RBI Act, which empowers Centre to demonetise any series of bank notes of any denomination, can be used to demonetise the whole series of currency.
Justice BV Nagarathna had a dissenting view and held that though demonetisation was well-intentioned, it has to be declared unlawful on legal grounds.

created: January 4, 2023


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Review: Kerala HC upholds marital rape as valid ground to claim divorce
Sai Krishna Muthyanolla
August 11, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on right to legal assistance, women’s struggle with balancing motherhood and career, martial rape as valid ground for divorce, including of teaching and non-teaching staff in frontline workers, and survey to understand the number of children out of school.
Allahabad HC: Victim’s Parent/Guardian should be notified of bail plea & their right to legal assistance in POCSO cases.
In the case Rohit vs State of U.P. Thru. Secy. Home Lko., the high court directed that the notice of bail application filing in all cases under POCSO Act (Protection of Children from Sexual Offences) shall be given to the guardian of the child victim. The notice is to be served through Investigating Officer/S.H.O. of the concerned police station and the court-mandated that it should include the details regarding the right to legal assistance in Hindi language to enable complainants to take assistance from the Legal Services Authority.
The Court was hearing a bail application under POCSO Act, wherein the applicant had initially impleaded the complainant by name as opposite party no.2, however, the Registry, raised an objection to this and the counsel for the applicant deleted the name of the complainant.
The high court was faced with the question of whether the complainant or any person on behalf of the child victim is to be made a party to the proceedings, and if any such person is to be made an opposite party in the bail application, what should be the mode of service, as the court is required to protect the child victim’s identity during investigation or trial.
The judgement mentions that the high court as well as the Supreme Court, in a number of judgments, have emphasized protecting the identity of the child in every possible manner by every person concerned. Therefore, in case the guardian or family member or any other person of the child is made an opposite party by name and notices are served upon them in the normal course, there is every possibility that the identity of the child may get revealed to the public at large.
In view thereof, it would be appropriate that notice in every case shall be served through Investigating Officer/ S.H.O. of the Police Station concerned upon parent/guardian of the child. The Investigating Officer is entrusted with protecting the identity of the child and ensure it does not get disclosed in any manner during the investigation and trial.
The judgement acknowledges that in a large number of cases, due to poverty or other similar circumstances, the parents of the victim-child are unable to engage a counsel and make a proper representation before the Court. They are unaware of their right under Section 40 of the POCSO Act, to seek the assistance of a legal counsel of their choice and if they are unable to afford a legal counsel, the Legal Services Authority is duty-bound to provide a legal counsel.
The court opined that since in many cases, the family members are unable to engage a counsel and represent in bail applications, the notice shall also include the required in the Hindi language.
Kerala HC: Emphasises on the struggle to balance motherhood and career, while setting aside a termination order for availing maternity leave
In the case of Vandana Sreemedha J vs State of Kerala & Ors., the high court deprecated the State for terminating her service as the counsellor at the Women and Child Development Department and set aside the order of termination.
The court was hearing a plea filed by Vandana Sreemedha, a Counsellor on contract at the Women and Child Development Department, after she was terminated from service allegedly for unauthorized absence. In her plea, she contended that her request for maternity leave was turned down, and to aggravate her agony, she was terminated from service when she proceeded to take the leave.
The petitioner contended that she had approached several authorities with a representation seeking maternity leave, and yet was not granted the leave. She also submitted that the Director of the Department had gone to extent of threatening to take action against the District Child Protection Officer for appointing the petitioner “without proper care”, thus implying that he should not have hired her because she had recently delivered and would be in need for leave to childcare responsibilities.
The bench of Justice Devan Ramachandran expressed that the whole incident is unfortunate and emphasized that such acts undermine the confidence and morale of women, who bravely balance their personal and official life to the best of their capacity.
In conclusion, the high court ordered the respondents to reinstate the petitioner and to reconsider her application for leave expeditiously. Although the respondents agreed to reinstate her, they stood their ground that no monetary benefits shall be granted to the petitioner for the period when she was on leave. The court left this decision to the discretion of the authorities.
Kerala HC: Upholds marital rape as a valid ground to claim divorce
In a significant judgement, the Kerala high court upheld that marital rape, although not penalised in India, is a good ground to claim divorce while dismissing a set of two appeals filed by a husband challenging the decision of the Family Court.
The high court was hearing an appeal filed by the husband against the judgment of the Family Court allowing a petition for divorce on the ground of cruelty. The Family court took cognizance of multiple instances of marital rape, mental and physical harassment, and constant exploitation for money. Therefore, it was held that the findings clearly establish a ground for cruelty warranting divorce. The family court also noted the complaints made by the women’s father before the police narrating harassment meted out to him for financial exploitation as well as to his daughter.
The high court took note of the women’s struggle as the divorce proceeding have been prolonged for more than a decade (12 years). The court also noted that in desperation for obtaining a divorce, she has also forsaken and abandoned all her monetary claims.
The judgement takes cognizance of the fact that although marital rape is alien to our penal jurisprudence, it is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy. This essentially would constitute cruelty.  Merely because the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant a divorce. The high court, therefore, held that marital rape amounts to cruelty and is a ground to claim divorce.
Karnataka HC: Teaching & non-teaching staff can be included in the category of frontline workers for vaccination
In the case Radha M vs State of Karnataka, the Karnataka high court suggested that teaching and non-teaching staff of schools should be included in the category of frontline workers for the COVID-19 vaccine.
The bench of Justice B V Nagarathna and Justice P Krishna Bhat observed that vaccination would be the first step before deciding upon the reopening of schools.
Therefore, the court directed the state government to furnish district wise details of teaching and non-teaching staff of government and aided schools who have been vaccinated. However, the court clarified that the decision to re-open schools should be taken under consideration of experts’ opinions and the present situation of COVID-19 cases in the state.
Karnataka HC: Issues notice to BBMP for a door-to-door survey to find how many children are out of school
In a suo moto proceeding, the Karnataka high court directed the urban local body to conduct a door-to-door survey of the children in the age group of 6-14 years to ascertain how many children are out of school in the Greater Bangalore metropolitan area.
The court was hearing a suo-motu petition based on media reports highlighting the large number of children dropping out of school.
The high court took notice of an ongoing door-to-door survey being conducted by the Rural Development and Panchayat Raj Department of all the children in the age group of 0-18 years, which found the following:
The amicus curiae submitted that though under Sub Rule (1) of Rule (6) of the Karnataka Right of Children to Free and Compulsory Education Rules, 2012, a door-to-door survey was required to be carried out by the local body i.e., Bruhath Bengaluru Mahanagara Palike (BBMP), which has not been initiated.
Therefore, the court directed the Secretary of the Urban Development Department to issue a direction for BBMP to conduct a door-to-door survey on par with the door-to-door survey conducted by the Rural Development and Panchayath Raj Department.
Featured Image: Important Court Judgements