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Review: Madras HC lays down guidelines for fair treatment of ‘Disabled Women Athletes’
Sai Krishna Muthyanolla
December 29, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions about the liability of WhatsApp Group Administrators, persons fraudulently getting pensions meant for political prisoners, treatment of disabled women athletes, and discrimination between unmarried and married daughters in compassionate appointments.
Madras HC: Endorses Bombay HC Judgment; WhatsApp Group Administrator not vicariously liable for objectionable posts by members.
In the case R. Rajendran vs. The Inspector of Police & Kathirvel, the Madras High Court granted relief to an administrator of a WhatsApp group in an FIR registered over offensive messages posted in the group by a member.
The petitioner had formed a WhatsApp group named “Karur Lawyers “. He was the group administrator. In the said WhatsApp group, certain highly offensive messages were posted by one of the members (named Pachaiyappan). Another member of the group, who is also a practicing lawyer, lodged an FIR was registered against the petitioner for offences under Sections 153A.
The counsel for the second respondent argued that after the objections were raised, the petitioner (R. Rajendran) removed Pachaiyappan from the WhatsApp group. However, he re-inducted him within a few days. This indicated that there was collusion between the petitioner and the said Pachaiyappan.
Upon examining all submissions, the Madras high court referred to Bombay high court’s judgment in Kishore vs. State Maharashtra (2021), where it held that there is no vicarious liability on a WhatsApp group Administrator for the objectionable content posted by a group member unless it can be demonstrated that there was a common intention or pre-arranged plan between such member of a WhatsApp group and the administrator.
The Additional Public Prosecutor submitted that only forensic report will reveal if the message was posted by Pachaiyappan (person who posted the allegedly offensive content in the group) or whether it was posted in his name by the petitioner/WhatsApp group Administrator.
In conclusion, the high court held that since the forensic report regarding the role of the petitioner (WhatsApp group Administrator) was awaited, it was premature to entertain the petition. At the same time, the high court observed that the police should bear in mind the principles laid down in the abovementioned Bombay High Court judgment.
The bench ruled that if the petitioner had played the role of a group administrator alone and nothing else, then while filing a final report, the petitioner’s name shall be deleted.
Allahabad HC: Directs State Govt to ascertain how many persons fraudulently getting pension meant for political prisoners of 1975-emergency era.
In the case Ashok Kumar Shamsa and others vs. State of UP and others, the Allahabad high court has asked the State of Uttar Pradesh to specify as to how many persons are getting pensions fraudulently by showing themselves to be detained as political prisoners during the national emergency period from 25 June 1975, to 21 March 1977.
People detained under the Maintenance of Internal Security Act (MISA) and Defence of India Act (DIR) laws during the national emergency period are entitled to a monthly pension from their respective state governments.
The high court was hearing a Public Interest Litigation (PIL) plea filed by the President of Pilibhit’s Loktantra Rakshak Senani Sangathan, Ashok Kumar Shamsa who has claimed that many persons are fraudulently receiving monthly pension meant for political prisoners of the national emergency period.
In 2018, upon adjudicating this matter for the first time, the Allahabad High Court had called for a report from the district administration, and thereafter, in the inquiry conducted by the administration, five people were found to be receiving this pension fraudulently.
However, in the present PIL, the petitioner has contended that around 1500 persons are receiving the pension fraudulently. As the PIL highlights, there are about 6000 such Loktantra Senani in Uttar Pradesh and more than 35.35 crore rupees are being spent every month on their pension. Apart from this, they are also provided with free travel service on roadways buses and free medical facilities in district hospitals.
According to the petitioner, in Pilibhit district alone, many people are receiving the Loktantra fighters Pension even though they were not jailed as political prisoners during the national emergent era; instead, they were sent to jails on allegations of chain snatching, attempt to murder and other crimes. It has also been submitted that the petitioners are not satisfied with the inquiry conducted into the fraudulent names by the administration.
The petitioner also contended that in the last three years, the district administration has in fact doubled the number of persons claiming pensions.
The Bench of Chief Justice Rajesh Bindal and Justice Piyush Agarwal has directed the State of Uttar Pradesh to file an affidavit stating as to how many persons are being paid monthly pension and to ascertain whether they were political prisoners or were in jail on account of certain other offences committed by them.
Madras HC: Lays down guidelines for fair treatment of disabled women athletes, highlights ‘Intersectional Discrimination’ and condemns ‘Romantic Paternalism’
In the case M. Sameeha Barvin vs. The Joint Secretary, Ministry of Youth & Sports & Ors., the Madras high court issued comprehensive directions to streamline policy pertaining to women athletes and their fair treatment.
The high court was hearing an appeal filed by Sameeha Barvin, who is State and National level champion with gold and silver medals in the long jump and high jump. She was denied the opportunity of participation in the Fourth World Deaf Athletics Championship, 2021, held at Lublin, Poland and was able to participate on the strength of the interim order (dated 13 August 2021) from the high court.
When the petitioner participated in the National selection test conducted on 22 July 2021, at New Delhi, she excelled in jumping 5.5 meters in the long jump, surpassing the eligible parameter of 4.25 meters which is the requirement to get selected.
Despite such a performance, she was not selected to participate in the World Deaf Athletics Championship. When she sought the reason for her non-selection, it was disclosed that the selection authorities were not inclined to send a lone female member to the event and therefore, they have preferred male members for the event. Therefore, the petitioner has filed the present writ petition and on 13 August 2021, the ‘All India Sports Council of the Deaf’ was directed to declare her as selected and permit her to participate in the 4 World Deaf Athletics Championship held in Poland under the women category. The counsel for the petitioner also highlighted the mal-treatment from the officials of ‘All India Sports Council for the Deaf (AISCD)’ as well as Tamil Nadu Sports Council of the Deaf (TNSCD).
Justice R. Mahadevan observed that women athletes with disabilities often face double discrimination associated with gender and disability. The judgement highlights that when the axis of discrimination is not singular, but plural, multiple, cumulative, or intersectional, the same has to be viewed with an analytical lens in order to understand the problems and barriers faced by such persons.
The high court held that the case was a clear instance of ‘discrimination based on gender as well as the disability’ and that the state and central governments have failed in their responsibility to ensure support and safety to disabled women athletes.
In this backdrop, Justice R. Mahadevan discussed the concept of Intersectionality and its application in the Indian context. The bench noted that the proposition of intersectional discrimination by Kimberle Shaw has applicability in the Indian context since factors like gender and caste are intrinsically linked and the axis of discrimination almost always intersects.
The bench also noted that the discrimination caused to women is often couched in ‘protectionism’ citing traditional stereotyped roles and purported concern for their safety and security. The bench also highlighted the principle of ‘reasonable accommodation’ has been stipulated under section 2(y) of the Rights of Persons with Disabilities Act, 2016 (RPwD Act).
The court issued the following instructions:
Supreme Court: No discrimination between unmarried and married daughters in compassionate appointments.
In the case State of Karnataka & Ors. vs. C.N. Apporva Shree & Anr., the Supreme Court upheld Karnataka high court’s affirmation that a married daughter is also entitled to an appointment on compassionate grounds and there cannot be any discrimination between an unmarried daughter and a married daughter.
The apex court was hearing a special leave petition by the state of Karnataka against a decision of the Karnataka high court regarding the appointment of a married daughter for a job on compassionate grounds.
The bench of Justices S. K. Kaul and M. M. Sundresh asserted their approval to the reasoning of the High Court, highlighting the rule/provision relied upon by the petitioner to deny a married daughter a job on compassionate grounds while permitting it to a married son has been quashed in the Bhuvaneshwari V. Puranik vs. State of Karnataka (2020) case. The bench reiterated the observations made in the above case where the high court held that excluding a married daughter from consideration for appointment on compassionate grounds is unconstitutional.
Justice M. Nagaprasanna significantly opined that the following:
In conclusion, the Supreme Court dismissed the state of Karnataka’s challenge to the Karnataka High Court’s affirmation in the case.
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Review: Madras HC Notes That Police Have No Jurisdiction to Freeze Bank Accounts
Sai Krishna Muthyanolla
November 9, 2022
In this week’s review of Court Judgments, we look at SC’s judgment upholding the validity of 10% EWS reservations, Karnataka HC’s comments that POCSO is a special law which overrides personal laws, Madhya Pradesh HC’s rephrasing of its judgement on reducing a rape-convict’s sentence, Madras HC’s saying that police has no jurisdiction to freeze bank accounts among others.
SC: 10% Reservation in Government Jobs and Education for Economically Weaker Section (EWS) is Valid
In Janhit Abhiyan vs. Union of India with 32 connected matters, several pleas were filed in the Apex Court challenging the constitutional validity of the 103rd amendment to the Constitution, 2019 which introduced 10% reservation, in addition to the existing reservations, for the economically weaker sections (EWS) among the unreserved categories, in admissions and government jobs. The matter was heard by a 5-judge bench comprising Chief Justice of India UU Lalit, Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and JB Pardiwala. While Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala upheld the 103rd Constitution Amendment, Justice S Ravindra Bhat wrote a dissenting judgment to strike it down which was concurred by the Chief Justice of India UU Lalit. With a 3:2 majority, the validity of the amendment was upheld.
According to Justice Maheshwari, poverty was not merely a state of stagnation but a point of regression. Referring to the UN’s resolution to “end poverty in all its forms everywhere” and to past judgements like Kesavananda Bharati vs. State of Kerala and Anr, M.R. Balaji and Ors. vs. State of Mysore and Ors., State of Kerala and Anr. vs. N.M. Thomas and Ors., he held that affirmative action for the economically disadvantaged was necessary to eliminate socioeconomic inequalities. He added that the amendment in question concerned the requirements of those economically weaker sections who did not get the benefit of affirmative action like reservation, which is being accorded to the other classes of citizens like SEBCs/OBCs/SCs/STs. He concluded by stating that reservation is an instrument to include not only socially and educationally backward classes but also any class/section which is disadvantaged including the economically disadvantaged. Thus, including economic criteria in reservation does not violate the essence or damage the basic structure of the Indian Constitution.
Justice Trivedi noted that the amendment paved way for a separate class of “economically weaker sections of the citizens” from the general/unreserved class, without affecting the special rights of reservations provided to the Scheduled Caste/Scheduled Tribe and backward class of citizens covered under Article 15(4), 15(5) and 16(4). Hence, excluding them from the benefits for “economically weaker sections of the citizens” in the amendment was not discriminatory or violative of the equality code.
According to Justice Pardiwala, the economic backwardness in India is not confined only to those who are covered by Article 15(4) or Article 16(4) of the Constitution. Only a small percentage of the population is above the poverty line and denying higher education opportunities and employment to the economically backward is to deny those who are qualified and deserving. Further, if economic advancement may be considered to negate social disadvantages from the OBCs, the converse can also be considered to grant reservation to the economically disadvantaged.
On the other side, Justice Bhat and Chief Justice Lalit held that reservation is a powerful tool to enable equal access and opportunity, and so an economic basis for the reservation was permissible. However, excluding other disadvantaged classes like SCs/ STs/OBCs on grounds that they already have reservations was heaping injustice based on their past disability. They added that the entire exclusionary principle is Orwellian as all are entitled to be considered regardless of their caste or class but only those who belong to other classes or castes would be considered and socially disadvantaged classes would be ineligible.
Karnataka HC: POCSO is a special law that overrides personal laws
A 27-year-old Muslim man was arrested for having married a 17-year-old girl. The girl was found to be pregnant when she had come for a medical check-up at a primary health centre. The sub-inspector of the police lodged a complaint against the petitioner since the girl was a minor. He was booked under the Prohibition of Child Marriage Act, 2006 and POCSO Act. In Aleem Pasha vs. State and another, the petitioner appealed for bail on grounds that under Mohammedan Law, puberty is considered for marriage and normal puberty age is treated as 15 years and so there was no offence of child marriage committed since the girl had attained puberty.
However, the High Court Bench of Justice Rajendra Badamikar dismissed the arguments stating that the POCSO Act is a Special Act and that it overrides personal law. As per POCSO Act, the age for involving in sexual activities is 18 years. At the same time, the Court noted that the victim was aged 17 years and was capable of understanding things. Since the victim did not raise any objections, it was evident that she was consenting though under the influence of her parents. The bail was granted provided he would not tamper with the prosecution witnesses.
MP HC: Rephrased its judgement on reducing a rape convict’s sentence
The Indore Bench of Madhya Pradesh High Court, comprising of Justice Subodh Abhyankar and Justice S.K.Singh reduced the sentence of a rape convict from life imprisonment to 20 years of imprisonment on the ground that he was kind enough to not kill the 4-year-old victim after the heinous act in Ramu @ Ramu Singh vs. State of MP. This case was explained in detail earlier when the judgement was delivered.
The MP High Court’s remark was criticized widely since then. After a week, the MP High Court division bench headed by Justice Subodh Abhyankar modified the judgment dated 18 October 2022. In the modified judgement, the bench highlighting that the mistake was inadvertent in the context, rephrased the words in the paragraph to reduce his imprisonment since he had not caused any other physical injury to the victim.
Madras HC: Police has no jurisdiction to freeze bank accounts
In Sahil Raj vs. State of Tamil Nadu and others, the original complainant was cheated by an anonymous person through WhatsApp. The complainant was offered a part-time job by the anonymous person and in return, he was made to pay over Rs. 5.58 lakhs in 26 installments through a link.
The petitioner in this case (not accused in the previous case), was engaged in the business of trading cryptocurrency on different exchanges. He had received an order of purchase for a sum of Rs. 89,000 and released the said cryptocurrency within 15 days. Raising allegations that he had fraudulently collected the money and used it to make the purchase and believing that he was engaged in similar crimes, the Inspector of Police directed the bank authorities to freeze the petitioner’s account. The fraudster in the original case had transferred some money to the petitioner’s account.
The Madras High Court Bench of Justice GK Ilanthiraiyan held that the police have no jurisdiction to freeze bank accounts while issuing summons under Section 91 of CrPC. While issuing such summons, the Bench said that the investigating officer can only summon a person to produce the document or other things, and not freeze bank accounts. It also noted that the police had failed to inform the jurisdictional Magistrate about the freezing of the account as was required under Section 102(3) CrPC. The court directed the petitioner to deposit the amount in the form of a fixed deposit in favour of the crime number and directed the police to permit the petitioner to use his bank accounts.
SC: Presence of senior citizen woman in cheque bounce case is needed only when it is mandatory for conducting trial
In S Nalini Jayanthi vs. M. Ramasubba Reddy, the petitioner is an accused in a complaint filed by the respondent invoking Section 138 of the Negotiable Instruments Act, 1881. The accused filed a transfer petition to seek the transfer of a cheque bounce case. While a complaint under Section 138 cannot be transferred as per the convenience of the accused, the Supreme Court’s Single Bench of Justice Abhay S. Oka noted that the petitioner is a woman and a senior citizen and observed that she can always seek exemption from personal appearance. Dismissing the appeal, the judge added that if the petitioner makes an application for a grant of exemption, then the trial judge should consider it favourably and can compel the petitioner to appear only when her presence is absolutely necessary for conducting the trial.
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Madras HC permits Private Schools to collect 85% fees in instalments for 2021-22
Sai Krishna Muthyanolla
August 4, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on continued use of Section 66A of IT Act, right to decent burial/cremation, collection of fees by private unaided schools, and vaccine hesitancy.
Supreme Court: Issues notice to States, UTs, High Court Registrars on plea against the continued use of 66A of IT Act
The Supreme Court issued notice to States, Union Territories and Registrar of High Courts seeking various directions and guidelines against the FIRs under the provision of Section 66A struck down by Shreya Singhal case judgement.
The court was hearing a plea filed by Peoples Union for Civil Liberties (PUCL) seeking various directions and guidelines against the FIRs under struck down the provision of Section 66A in Shreya Singhal case judgement. Section 66A of the Information Technology Act, 2000 gave the government powers to arrest and imprison an individual for allegedly “offensive and menacing” online posts, or for the purposes of causing annoyance, inconvenience, etc. It prescribed the punishment for sending such messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail. In the Shreya Singhal judgment, a bench of Justices J Chelameswar and RF Nariman struck down Section 66A as violative of Articles 14 and 19(1)(a) of the Constitution. The judgment held the provision to be vague, overboard and creating a chilling effect on free speech.
On 05 July 2021, the apex court had expressed shock at the practice of police still registering FIRs under Section 66A of the Information Technology Act, which was struck down by the top court in the 2015 judgment in the Shreya Singhal case.
The PUCL was seeking directions to the Union of India, through the NCRB (National Crime Records Bureau) or any other agency, to collect data of all FIRs registered invoking Section 66A of the IT Act after it had been struck down. Further, data has also been sought of the pendency of cases in the District Courts and High Courts throughout the country where proceedings under Section 66A are continuing in violation of the Supreme Court’s judgment.
Pursuant to the order dated 05 July 2021, the Centre filed a counter-affidavit before the Supreme Court stating that Police and Police orders are state subjects, therefore the primary responsibility to ensure implementation of Shreya Singhal’s judgement which had struck down Section 66A of the IT Act lies with the State. The affidavit has also provided details of efforts made by the Ministry of IT and Home Affairs to disseminate knowledge about the judgement, along with details of pending prosecutions across the country under Section 66A of the IT Act.
The Centre informed the Supreme Court that it approached the Chief Secretaries and Administrators of all States and UTs in 2019, directing them to ensure compliance with the Shreya Singhal judgement. The Centre also requested them for submission of reports to the Ministry on the number of cases booked under Section 66A of the IT Act, and directing them to withdraw any prosecution invoking 66A. The Centre also informed the Supreme Court that it has received letters from twenty-one States and Union Territories regarding the implementation of the judgement.
In response to the Centre’s counter-affidavit, the People’s Union for Civil Liberties filed a rejoinder affidavit seeking various directions and guidelines against the FIRs filed under the struck down provision of Section 66A. Referring to the Centre’s submission that they had requested Chief Secretaries of all States and Administers of Union Territories to furnish data for prosecutions invoking Section 66A after 24 March 2015, the PUCL has argued that the response to the said letters has ‘neither been placed on record nor made public’.
While stating that Centre’s affidavit reflects a mechanical reproduction of the stand that the States have complied with Supreme Court’s directions, the PUCL has emphasised the need for further directions by the Court to ensure effective implementation of the judgement.
PUCL has therefore requested the following directions to be issued by the Court in the matter:
Directions To High Courts: The proposed directions should communicate to all the District Courts and Magistrates that forthwith there should be no cognisance taken under the repealed Section 66A of the IT Act. Further, a complaint mechanism is put in place by which any person in the state against whom a case under Section 66A of the IT Act is pending may directly approach the trial Court where the case is pending or the concerned High Court for speedy redressal. It’s been stated that the High Courts be allowed to initiate suo motu contempt proceedings against those responsible for registering a case under Section 66A or for investigating it or for prosecuting it.
Directions to DGPs: Directions be issued to the Director-General of Police of all States/UTs to communicate to all police stations within their respective jurisdictions to display a notice that Section 66A of the IT Act has been struck down and no case under the said provision can be registered. Further, direct the DGPs of states and UTs to initiate disciplinary action against the Police or Law Enforcement Agencies that are found to be registering cases under the repealed Section 66A of the IT Act. In cases where the case is at the stage of the investigation, directions have been sought to forthwith drop further investigation under Section 66A.
Directions to Union Government: Directions be issued to the Union of India to collect the details of the cases registered by the Police or Law Enforcement Agencies under Section 66A of the IT Act since the pronouncement of the Judgment in Shreya Singhal by co-ordinating with the Chief Secretaries of DGPs of the States and Union Territories. According to the applicant (PUCL), the union government can be directed to ensure that Doordarshan and All India Radio make quarterly announcements in major vernacular languages informing the public that Section 66A of the IT Act is no longer in force. The applicant has sought directions to ensure that all official and commercial versions of the IT Act that are hereinafter published (online or offline) do not include the complete text of Section 66A and inform the reader that said provision stands repealed. Further, it has been suggested that the Union of India be directed to ensure that all police training colleges both at the National Level and the State Levels will mandatorily advise all trainees about the Judgment and the fact that Section 66A of the IT Act has been repealed and can no longer be invoked.
Madras HC: Right to life also encompasses the right to a decent burial or cremation
In the case Venkatesan vs. The Principal Secretary Adi-Dravidar and Tribal Welfare Department, the Madras High Court observed that the state is under an obligation to ensure that members of all communities are provided access to burial/cremation facilities.
The high court was hearing a plea by Venkatesan who highlighted the failure of State Administration to provide for a burial ground or area for the cremation of the dead belonging to the petitioner’s community at Madhuravalli Village, Thittakudi Taluk, Cuddalore District.
The petitioner argued that all other communities are being permitted to bury their dead at the common burial ground, except persons belonging to his community. The petitioner stated that multiple representations were submitted to the official respondents but that no action had been taken thereon. Members of his community were being put to great hardship and they are constrained to bury their dead at an adjacent waterbody.
After hearing all the submissions, the high court directed the District Collector, Cuddalore District to consider the representation of the petitioner submitted on behalf of all members of his community and to dispose of the same by a reasoned order within a period of eight weeks.
Madras HC: Permits Private Schools to collect 85% fees in installments
In the case Federation of Association of Private Schools in Tamil Nadu v. The Chief Secretary to Government and ors., the Madras high court permitted private unaided educational institutions to collect 85% of the annual school fee payable for the current academic year, i.e., 2021-22 in six installments from parents who have not suffered any form of financial loss during the pandemic period.
The high court was hearing a batch of petitions challenging a Tamil Nadu government order (dated 20 April 2020) that restrained private schools and colleges (unaided) in the State from compelling students or parents to pay the fee for the academic year 2020-21 and other pending dues during the lockdown period. On the other hand, parents had also filed petitions alleging that schools had collected 100 percent fees without conducting online classes or dispensing other services.
On 17 June 2021, the high court had issued an interim order dated directing the unaided private institutions to collect 40% of the tuition fees.
After considering submissions from all sides, the high court noted that due to the ongoing pandemic, private schools have also been adversely affected. The court noted that schools (unaided) with moderate funds were finding it difficult to survive. Many schools had submitted before the court that they are finding it difficult to even collect the tuition fees and that conducting of virtual classes have shot up expenditure as they are providing laptops and network connectivity for teachers who do not have the required infrastructure to conduct online classes.
Taking into consideration the financial burden on parents and the grievances of the concerned stakeholders, the court issued the following directions:
Meghalaya HC: Directs State Govt to deal with vaccine hesitancy on a priority basis
In the case Registrar General, High Court v. State of Meghalaya, the high court directed the State Government to deal with the issue of vaccine hesitancy in the State in an effective manner, on a priority basis.
The court was hearing a PIL that raised concerns in the order issued by the State Government making vaccination mandatory for shopkeepers, vendors, local taxi drivers, etc. before they can resume their businesses.
In an earlier hearing, the high court held that mandatory or forceful vaccination does not find any place in law and hence is to be declared as ultra vires ab initio. The high court emphasised that people should have an “informed choice” with respect to vaccination. In the same order, the high court issued a slew of directions for encouraging vaccination among citizens and removing any apprehensions in this regard from their minds.
However, the high court observed that the issue still needs to be addressed in detail. In the light of the situation, the high court reiterated their earlier observations and ordered the state government to effectively deal with vaccine hesitancy in the state. The next hearing on the matter has been posted on 09 August 2021.
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Review: Madras HC Rules That Books and Uniforms are Integral for Education and The Expense Should be Covered by The State for RTE Students
Sai Krishna Muthyanolla
May 31, 2023
In this edition of the court judgements review, we look at the Supreme Court’s judgement that Utterances made in public should be added at least to the chargesheet for Court to check if there is an offence under SC/ST Act, Madras HC’s order that the books and uniforms are integral for education and the expense should be covered by the state for RTE students, Kerala HC’s guidelines about amicable settlement outside Courts in cases regarding sexual offences, among others.
SC: Utterances made in public should be added at least to the chargesheet for Court to check if there is an offence under SC/ST Act
In Ramesh Chandra Vaidya vs. State of Uttar Pradesh & Another, the appellant was charge-sheeted for alleged offences, including under section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 that deals with intentional insults or intimidation with the intention to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place in public view. He is also alleged to have physically assaulted the complainant during an altercation. He claimed that even he had intended to file an FIR regarding the assault on him in the same incident and that the police did not register it. Instead, he claimed that he was challaned and detained by the police.
The appellant then approached the Allahabad High Court seeking quashing of the procedures against him stating that the chargesheet did not reveal any offence. However, the High Court dismissed his appeal due to its limited jurisdiction under Section 482 CrPC. The matter was then raised with the Apex Court. The Supreme Court Bench of Justices S. Ravindra Bhat and Dipankar Datta observed that under section 3(1)(x) of the SC/ST Act stresses that the insult or intimidation is such that it is targeted at the victim because they belong to a particular Scheduled Caste or Tribe. Not every insult will amount to an offence under the SC/ST Act. Using foul language to humiliate a person, who happens to belong to Scheduled Caste or Tribe, need not be an offence under 3(1)(x) unless the words are laced with casteist remarks.
Allowing the appeal, the Bench added that it would be desirable to add the utterances made by the accused in any place in public view at least in the chargesheet, if not the FIR so that the Court can check if the offence falls under the said section of the SC/ST Act.
Madras HC: Books and uniforms are integral for education and the expense should be covered by the state for RTE students
In M. Suveathan vs. The State Commission for Protection of Child Rights and Others, the minor’s father had filed a plea with the Madras High Court regarding a private school where the child was admitted, and who were charging additional fees. The child was admitted to a private, unaided matriculation school in the Vellore district under the 25% quota as per the provisions of the Right to Education Act. His parents had paid Rs. 5,340 and Rs. 6,437 as the fees for the next two academic years. However, the school demanded another Rs. 11,977 towards uniforms, study materials including textbooks and stationery, etc.  The child was permitted to sit in class after the District Collector’s orders but was not provided with books, notes, and uniform.
Justice M Dhandapani allowed the petition and observed that uniforms, notebooks, and other reading materials are all necessary and form an integral part of education that is imparted to the petitioner under the Act. He emphasized that it is the duty of the State to provide free and compulsory education to the children who belong to the Economically Weaker Section (EWS) and Disadvantaged Groups (DG). He rejected the state government’s argument that only tuition fees were mandated under the act for reimbursement for the students admitted under the Act. He directed the government’s school education secretary to issue instructions within two weeks to officials of the department and schools to not claim any amount from the children but lay claim on the state and that the state should defray all such expenses.
Kerala HC: Unique facts of each case regarding sexual offence should be considered for pleas to quash the criminal proceedings following amicable settlement outside Courts.
In Vishnu vs. State of Kerala & Another and other connected matters, a batch of cases involving individuals accused of sexual offences under the IPC or the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was brought before the Court seeking quashing of the proceedings against them as they had reached an amicable settlement with the victims. Single Judge Bench of the Kerala High Court presided over by Justice Kauser Edappagath observed that each case should be decided based on its unique facts and circumstances. Within the purview of Section 482 of the CrPC, he laid down a broad set of principles to be considered when examining such pleas involving non-compoundable sexual offences against women and children through a compromise between the accused and the victim.
Many cases were related to prosecution for ‘sexual assault’ on a false promise of marriage. In such matters, the Court should consider if the allegation was that the accused had given a promise to the victim to marry, which at the inception was false and based on which the victim was induced into a sexual relationship.  Without such an allegation or proof, the offence of rape will not be attracted in such cases.
In the acknowledged physical relationship between adults, the Court observed that the cases should be dropped if on perusal of the statement of the victim and the evidence collected during the investigation show that the intercourse was consensual.
In cases involving teenagers under POCSO Act, the Court stated that the petitions moved by the parent or guardian of the sexual assault victims to quash the criminal proceedings on the ground of compromise, the Court ought to consider whether the allegations prima facie constitute the ingredients of the offence, whether the settlement is in the best interest of the minor victim and whether the continuance of the proceedings against the accused and the participation of the minor victim in that proceedings would adversely affect the mental, physical, and emotional well-being of the victim.
For cases involving child sexual abuse by family members, the Court observed that the consent for settlement of the case by the victim need not be voluntary as there is the possibility that she is pressurised by the convict or by her own mother, who, in most cases, supports the accused. Thus, the court should consider the facts of the case and decide.
SC: Yawning gaps in investigation fails to establish the guilt of accused in rape and murder of 6-year-old
In Prakash Nishad @ Kewat Zinak Nishad vs. State of Maharashtra, the appellant was accused of rape and murder of a six-year-old in 2010. The girl’s body was found in a well. Investigation revealed that the girl was raped and murdered and thrown into the well to dispose of the evidence. The Trial Court convicted him of rape and murder of a minor child and for concealing evidence and imposed capital punishment on him. The Bombay High Court also affirmed the Trial Court’s decision, following which the accused approached the Supreme Court.
The Court observed that the following were considered for holding him guilty.
However, the Court observed that there were many lapses in the investigation. For instance, there was nothing on record to establish who took such DNA samples, on what date, on how many occasions and why were they not sent all at once. Further, there was no explanation for the month-long delay in sending the samples for analysis because of which the possibility of contamination cannot be ruled out. Discrepancies were also observed in the statements of the witnesses. Due to ‘yawning’ gaps in the investigation, the Court freed the accused of all the charges.
SC: An accused can be discharged only if no case is made out even after believing the evidence produced by prosecution
The facts of the case ‘Captain Manjit Singh Virdi (Retd.) vs. Hussain Mohammed Shattaf & Others’ started in 2006 when an FIR was lodged at Lonawala City Police Station for the murder of one Manmohan Singh Sukhdev Singh Virdi (the appellant’s brother). His body was found lying in a pool of blood in his bedroom. After the investigation, a charge sheet was filed in 2009 against the accused persons stating that while one of the accused was staying in Dubai, his wife was in a physical relationship with the deceased. For revenge, he conspired to kill the deceased along with the other accused. The Trial Court dismissed the revision application for the discharge of the respondents. However, the Bombay High Court set aside the Trial Court’s order and discharged the respondents.
In the appeal in front of the Supreme Court, the division bench of Justices Abhay S. Oka and Rajesh Bindal observed that the High Court had not even referred to the evidence collected by the police presented along with the charge sheet. Psychological Evaluations including Psychological Profiling, Polygraph Testing and Brain Electrical Oscillations Signature Profiling (BEOS) were conducted on the respondent and his aides. The Court stated that at the stage of hearing the charges, the entire evidence produced by the prosecution is to be believed and if no offence is made out, then only an accused can be discharged. Setting aside the High Court’s decision, the Supreme Court allowed the appeal.


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Madras HC rules that chain of cogent circumstances and prosecution evidence necessary for conviction based on extra-judicial confession
Sai Krishna Muthyanolla
July 6, 2022
In this week’s review of Court Judgments, we look at the Supreme Court’s observation mere acceptance of the rent by the landlord after the expiry of the period of a lease would not amount to a waiver of the termination of the lease, that SC has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances, Karnataka HC’s observation that Seniority need not be a criterion for ad hoc appointment, and that chain of cogent circumstances and prosecution evidence is necessary for a conviction based on extra-judicial confession.
SC: Mere acceptance of the rent by the landlord after the expiry of the period of a lease would not amount to a waiver of the termination of the lease
The landlord, Erappa. G had filed a suit for eviction against the tenant, K M Manjunath who argued that there was no valid termination of tenancy in accordance with section 106 of the Transfer of Property Act, 1882. The Trial Court dismissed the eviction suit upholding the tenant’s argument. The matter was then taken to the Karnataka High Court which held that the lease would be determined by efflux of time under Section 111(a) of the Act, and not Section 106. In the absence of registered documents, the period of lease should have been 11 months was the contention of the legal representatives of the deceased property owner.  The High Court directed the tenant to pay the arrears of rent at Rs.1,400 per month till possession of the property is handed over. It also asked the tenant to hand over the possession within 60 days.
Following this, the tenant filed a Special Leave Petition in the Supreme Court against the Judgment and final order passed by the Karnataka High Court. In K.M. Manjunath vs. Erappa. G (deceased). The Supreme Court Bench comprising Justices CT Ravikumar and Sudhanshu Dhulia upheld the High Court’s decision that mere acceptance of the rent by the landlord after the expiry of the period of the lease would not amount to a waiver of the termination of the lease. In simpler words, just because the landowner is paid rent even after the tenure of the contract of the lease ends, it does not mean that the tenure has not ended. It added that the judgment of the Civil Court was not ‘according to law’. The tenant was directed to continue payment of rent as stated by the High Court till they vacate the property within 6 months.
SC has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances
In Deepak Yadav vs. State of UP, the appellant approached the Supreme Court challenging the Allahabad High Court’s grant of bail to those accused of shooting and killing the appellant’s father. The High Court granted the bail considering past judgements, the nature of the offence, arguments advanced by the parties, evidence on record regarding the complicity of the accused, and Article 21 of the Constitution of India. It had also laid a set of conditions for the accused to adhere to, failure of which could lead to cancellation of bail.
However, the Supreme Court Bench of Chief Justice of India NV Ramana, and Justices Krishna Murari and Hima Kohli allowed the appeal and set the bail aside observing that the High Court had not taken into consideration the relevant facts and circumstances and evidence that prove that the accused was charged with a serious offence. The criminal history of the accused, his involvement, nature of crime, material evidence, and recovery of weapon from his possession were not considered by the High Court. The Supreme Court, in the judgement, discussed principles regarding the grant of bail, and cancellation of bail, referring to past judgements. It added that the Supreme Court had inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Some of the circumstances when the bail can be cancelled are:
Karnataka HC: Seniority need not be a criterion for ad hoc appointment
In the University of Agricultural Sciences vs. Dr. Digambarappa, & Others, Dr. Digambarappa had initially filed a petition before the Karnataka High Court questioning his placement in the post of Dean and that of another respondent in the post of Director of Education despite the petitioner being the senior-most in the cadre of Professor.  The petition was opposed by the university and the respondent stated that the appointment was temporary for a period of 6 months and was made on a rotational basis. Further, they contended that the petitioner was appointed as a director earlier and cannot have any grievance as he has been given the post of Dean, which is equivalent to that of Director. However, a single judge bench allowing the petition held that the petitioner is appointed to the post of Director considering his seniority.
Following this, the university and the other respondent appealed to the Court challenging the order.  A bench comprising of Justices Krishna S Dixit and P Krishna Bhat allowed the appeal stating that seniority does not factor in the case of ad hoc appointment.  Though seniority is an important factor for promotions, in the cases of ad hoc appointments, seniority takes a backseat since anyone can be chosen by the authority. The purpose of the rotation is that eligible aspirants for the posts are given an opportunity to take up the position which can help boost their careers. Moreover, talented teachers can be retained on the campus by providing such an opportunity.
Madras HC: A chain of cogent circumstances and prosecution evidence is necessary for a conviction based on an extra-judicial confession
In Dinesh vs. the State, the appellant had allegedly murdered his schoolmate and buried the body near the compound wall of his residence when he declined to have homosexual intercourse with him and feared that he would reveal it to others. Later, he surrendered himself to the Village Administrative Officer, Devanampattinam and gave an extra-judicial confession that he had murdered his schoolmate. Evidence was also recovered from the scene of occurrence. On completion of the trial, the Trial Court sentenced him to life imprisonment with a fine of Rs.1000.
The appellant then approached the High Court. He argued that the entire prosecution case was based on vague circumstantial evidence and did not point to the guilt of the accused. Moreover, the motive was not properly established. The appellant further argued that there was not enough evidence to establish that the deceased was last seen with the appellant or that the premises belonged to him. They highlighted that a different angle of the investigation was not considered.
The High Court also observed that the entire case was based on circumstantial evidence and lacked material evidence or eyewitnesses. Calling the motive established and weapon of offence artificial and cock and bull story, the High Court Bench of Justice Paresh Upadhyay and Justice AD Jagdish Chandira observed that there were discrepancies and material contradictions in the investigation. The Bench stated that “an extra-judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra-judicial confession”. In other words, a conviction cannot be based on extra-judicial confessions unless it is supported by convincing circumstances. On these grounds, the High Court acquitted the appellant of all charges.
Telangana HC: Employer must be given reasonable opportunity to represent his case under Section 7-C of EPF Act
In M/s. The AGA Khan Academy vs. Assistant PF Commissioner, the petitioner filed a Writ Petition in the Telangana High Court following the orders passed by the Assistant Provident Fund Commissioner, Hyderabad, under Section 7C of the EPF Act, 1952. The Commissioner had determined an amount of Rs. 15,21,834 as a contribution in respect of an international worker. The petitioner presented before the Court that it was a not-for-profit charitable institution and that the employee concerned was hired as a consultant for a period of 8 months and then employed for three years.
The Assistant PF Commissioner initiated a 7-A enquiry for the period from April 2013 to June 2015 and passed an order in 2018 determining the contributions payable as Rs. 52,72,451 in respect of domestic and international workers. This was paid up by the petitioners. The employee filed another complaint that PF contributions were not paid from February 2015 to November 2019, following which proceedings under Section 7-A commenced and the Commissioner passed an order under 7-C of the Act which provided for the determination of escaped amount which escaped determination of the dues by the employer under 7-A.
Multiple issues were considered by the Court when hearing the case- whether the employee, being a foreigner is eligible for EPF? What was the period for which she was eligible? What were the wages for which the employer was liable to pay EPF dues in the case of the complainant? What was the quantum of EPF dues payable by the Foundation?
Justice G. Radha Rani observed that Section 7-C of the Act provides for giving a reasonable opportunity to the employer to represent his case before redetermining the amount due from them. However, in this case, no opportunity was provided to the petitioner for representing his case before the Commissioner issued proceedings under 7-C.  Thus, the petition was allowed.
Featured Image: Important Court Judgements


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Review: Madras HC Rules That Hospitals Cannot Refuse to Perform Transplants from Non-Related Donors
Sai Krishna Muthyanolla
October 18, 2023
In this week’s review of Court Judgments, we look at Bombay High Court’s judgment of appointing aunt as guardian of 4-year old child, MP High Court verdict that higher education of a wife should not be consideration for not receiving maintenance, Karnataka High Court’s observation that POCSO Act takes precedence over Prevention of SC, ST Atrocities Act and Madras High Court judgment that hospitals cannot refuse to perform transplants from non-related donors. We also highlight few important aspects from the latest judgment of Supreme Court on Same Sex marriage.
Bombay HC: Appoints aunt as guardian of 4-year-old in context of Mother’s psychological issues and father’s aggression.
A single Judge Bench of Bombay High Court consisting of Justice RI Chagla has recently appointed the paternal aunt of a four-year-old as his legal guardian while allowing his parents to visit him but ensuring that the child remains and returns to the aunt’s custody on the same day.
While granting custody of the child, the judge took cognizance of the fact that the child is emotionally attached to his aunt and also noted the psychological issues faced by his mother and the aggressive behaviour of the father.
Earlier, the court proposed for a shared custody of the child but was met with resistance from the father. A commissioner was appointed to determine the most suitable residence for the child. The commissioner’s report which assessed the living conditions of the biological parents as well as the aunt, stated that her residence provided the best environment for the child.
The petition filed by the aunt was a guardianship petition. She is a widow with no child, and she sought to establish herself as the legal guardian of the child i.e., her brother’s son. In the petition, she cited her ability to care for the child, including her financial capability to care for the child.
She stated that the parents lived in her house for a period after the birth of the child. However, due to the logistical inconvenience involved in the medical treatment of the mother, the child was left with her to be looked after.
Later, a case was filed by the father against his sister stating that she had abducted the child.   The police did recognise that she had been entrusted by the child’s parents. She further stated that the health of the child deteriorated in the few months he was with his parents. This claim was denied by the father who stated that the aunt had forcibly taken the child from them.
The court referred to several of the Supreme Court’s cases wherein it was emphasised that a child’s welfare is of paramount importance.
Madhya Pradesh HC: Wife having a degree of higher education can’t be basis to disentitle her to maintenance
The Madhya Pradesh High Court observed that a wife having a higher degree cannot be the basis of disentitling her to maintenance.  As per the details of the case, a Criminal Revision plea was filed by the husband Mohammed Nadeem, under Section 19(4) of the Family Court Act, 1984 against the Family Court’s order directing him to pay his wife an amount of Rs. 10,000 per month as maintenance.
The contention of the husband was that the wife resided with him for merely 18 months and could not be penalised a higher amount. An argument was also put forth stating that she holds an MBA degree and is earning around Rs. 28 thousand while his income is only about Rs. 20.9 thousand. The counsel relied on the judgment in the case Niharika Ghosh vs. Shankar Ghosh, where it was stated that a wife cannot be entitled to maintenance by the husband when she is highly qualified and has been earning even after her marriage, though she does not truthfully disclose her true income.
However, the court opined that if a wife has a degree of higher education, it cannot be ascertained that she is able to maintain herself. It further noted that the petitioner himself had relinquished his wife without any reason and therefore the allegation that she is residing voluntarily with her parents is baseless.
Regarding the maintenance amount, the court referred to the judgment in the case Kalyan Dey Chowdhary vs. Rita Dey Chowdhary nee Nandy.
The court noted that the wife was earlier working and is not working now. Furthermore, as per the salary certificate of the petitioner, he is earning around Rs. 40 thousand per month. It noted that the court must figure out what is required by the wife to maintain a standard of living that is neither luxurious nor penurious, but it should be in accordance with the status of the family.
Karnataka HC: POCSO Act prevails over SC-ST Act
Justice S Vishwajith Shetty of Karnataka High Court has held that where the offences punishable under the provisions of two special enactments i.e., the Scheduled Castes and Tribes (Prevention of Atrocities) Act and POCSO Act are invoked, the POCSO Act, being a later enactment, should prevail over the Atrocities Act.
As per the details of the case, Somashekhar vs. State by Rural Police Station, the petitioner had approached the Court seeking bail in a case accusing him of offences under Sections 448, 504, and 305 of IPC, Section 12 of the POCSO Act, and Section 3(2) of Atrocities Act.
As per the complaint, the petitioner allegedly pestered the complainant’s minor daughter to be in a romantic relationship with him. On the day of the incident, the petitioner entered the complainant’s house and quarrelled with the daughter, urging her to love him. He allegedly abused and threatened her which allegedly drove her to suicide.
His first bail application was dismissed by the trial court, and hence he approached the High Court. An objection was raised regarding the petition’s maintainability claiming that because the petitioner was charged under the Atrocities Act, an appeal should be filed as mandated by Section 14A (1) of the Act. Alternatively, it was argued that the material on record established a prima facie case against the petitioner and urged the court to dismiss the petition.
The bench stated that the Atrocities Act and the POCSO Act are special enactments. The Atrocities Act was enacted in 1990, while the POCSO Act was enacted in 2012. Section 20 of the Atrocities Act provides for the overriding effect of the said Act, while Section 42A of the POCSO Act provides for the overriding effect of the POCSO Act.
It further noted that that there was no allegation in the complaint that the petitioner had misbehaved with the complainant’s daughter except by asking her to love him. It also made an observation that the behaviour of the complainant and her brother-in-law, who were present during the incident but did not intervene when the petitioner allegedly abused and pestered the girl, raised doubts about the allegations made in the complaint.
Allowing the petition, the court granted the accused bail.
Madras HC: Hospitals cannot refuse to perform transplants from non-related donors.
In the case, Dr.J.Kaja Moinudeen vs. The Authorization Committee (Transplantation), the Madras High Court has noted that transplantation has been permitted from non-relative donors as per Section 9(3) of the Transplantation of Human Organs and Tissues Act, 1994 and Rules 14 and 19 of the Transplantation of Human Organs and Tissues Rules, 2014.
It stated that hospitals denying such transplants is illegal. It noted that the apprehensions of the hospitals are due to inadequate awareness of the law. In this case, the court was looking into the plea of Kaja Moinuddeen, who has been suffering from chronic kidney disease since June 2022. He himself is a doctor. He was advised to undergo a kidney transplant. While the attempts to get a donor from the family failed, a well-wisher has offered to donate a kidney. Moinudeen stated that when he approached the hospitals in Tamil Nadu, the doctors did not entertain this idea. Hence, he has to approach a hospital in Kerala.  He informed the court that all documentation process was completed except for an NOC under Section 9(4) of the Act. Moinudeen told the court that he was in a fix as the Authorization Committee in Tamil Nadu was saying that the NOC was not necessary while the Authorization Committee in Kerala stressed the need for one.
The court pointed out that as per the 2014 Rules when the donor was a non-relative, the only requirement was a verification of the residential status by the Tahsildar or other authorized officer of the donor or the recipient when either of them resided at a State/UT other than the State/UT where the transplantation was proposed to be done. It also noted that the NOC requirement is no longer needed, and it pertains to an earlier 2008 Rule.
The court directed Moinudeen and his donor to appear before the Authorisation Committee for approval. The court also directed the Tahsildar to conduct an inquiry in terms of Rule 14 of the Transplantation Rules and submit a report to the Authorisation Committee which shall then examine the case in line with the parameters prescribed under the Rules and pass orders approving or rejecting the case.
Same Sex Marriage Case: Supreme Court rules that Parliament to decide on Legal status.
The Five-judge constitutional bench headed by Chief Justice DY Chandrachud and including  Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha has ruled that there cannot be legal recognition for same-sex marriages, doing so by a 3-2 majority.
The petitioners of the case stressed the equal rights of the LGBTQIA+ community and pushed to acknowledge such a union which would ensure LGBTQIA lead a ‘dignified’ life like heterosexuals. Our article related to the benefits availed by married couples can be read here.
The Centre had opposed the pleas arguing that the legislative policy of India has consciously validated a union only between a biological man and a biological woman. It also said that it would constitute a committee headed by the cabinet secretary to examine administrative steps that could be taken to address genuine concerns of same-sex couples without going into the issue of legalising their marriage.
Chief Justice of India D Y Chandrachud, who was heading the bench pronouncing the verdict on 21 pleas seeking legal validation for same-sex marriages, said the court can’t make law but only interpret it and it is for Parliament to change the Special Marriage Act.
A few of the highlights from the judgment are:

created: October 18, 2023


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Review: Madras HC Rules That Love and Affection is a Deemed Condition for Transfer of Property by Senior Citizens and its Violation Leads to Cancellation of Such Transfer - FACTLY
Sai Krishna Muthyanolla
September 20, 2023
In this edition of Court Judgements, we look at the Supreme Court’s judgements on immunity for public servants under Section 6A of the Delhi Special Police Establishment Act 1946, lack of positive viscera report as non-conclusive proof, Calcutta High Court’s judgement on entitlement of students of reserved category, Madras High Court’s judgement on transfer of property and its implied conditions, and Karnataka High Court’s judgement on misusing signed cheques as ‘Cruelty’.
Supreme Court: Striking down of Section 6A of the Delhi Special Police Establishment Act 1946 will have retrospective effect.
In CBI vs. Dr. R.R. Kishore, a constitutional bench of the Supreme Court declared that its 2014 ruling, which found Section 6A of the Delhi Special Police Establishment Act 1946 unconstitutional, will apply retrospectively. This implies that Section 6A is considered to have never been in effect since the day it was added.
A constitutional bench comprising of Justices Sanjay Kishan Kaul, AS Oka, Vikram Nath, Sanjiv Khanna, and JK Maheshwari was hearing a reference made to them in the case of Subramanian Swamy vs. Director, Central Bureau of Investigation and another on whether its judgement that struck down the unconstitutional provision of section 6A of the DSPE Act, 1946 will apply retrospectively.  Earlier, this section was struck down as unconstitutional by another constitutional bench.
Section 6A of the DSPE Act mandated that the Central Bureau of Investigation (CBI) needed to obtain prior authorization from the government before commencing any inquiry or investigation into allegations of corruption against officers holding the rank of joint secretary and higher.
In Subramanian Swamy vs. Director, Central Bureau of Investigation and another case, Section 6A of the DSPE Act, 1946 was struck down as the apex court felt that the ultimate purpose of an investigation is to seek the truth, and any law that obstructs this objective may not pass the scrutiny of Article 14. Further, the Court remarked that the principle of equality before the law does not permit differentiation, based on their status, when it comes to the inquiry or investigation of an offense for which public servants are accused. However, the Constitution Bench did not address whether the determination that Section 6A (1) of the DSPE Act violated Article 14 of the Constitution would be applied retroactively or only prospectively. Hence, these appeals in the court.
Having heard both sides, the apex court held that much emphasis had been laid on Article 13(2) that deals with ‘void’. The word “void” has been interpreted in a number of judgments of the SC beginning in 1951 till recently and it has been given different nomenclature such as ‘non est’, ‘void ab initio’ ‘still born’ and ‘unenforceable’. It relied on a catena of judgements including The State of Manipur & Ors vs. Surjakumar Okram & Ors. where it was held that when a statute is ruled as unconstitutional, it is as if it never existed, and any law found to be unconstitutional, whether due to a lack of legislative authority or a violation of fundamental rights, is void from the beginning. A statute declared unconstitutional by a court of law is essentially invalid from the outset and has no legal standing for any purpose. Further, when a law is declared unconstitutional, it is regarded as “void ab initio,” meaning it was void from the beginning, “still born,” signifying it was never validly established, “unenforceable,” indicating it cannot be applied, and “non est,” suggesting it has no legal existence. Therefore, the invalidated Section 6A of the Delhi Special Police Establishment Act would be deemed to have never been in effect from the date of its enactment.
Accordingly, the matter is disposed of.
Supreme Court: Lack of positive evidence of Viscera Report is not a conclusive proof of the fact that the victim has not died of poison.
In Buddhadeb Saha vs. State of West Bengal, the apex court held that the mere absence of poison detection in the viscera report should not be automatically considered as definitive evidence that the victim did not die from poisoning.
A case was presented before the Supreme Court bench, presided over by Justices J.B. Pardiwala and Prashant Kumar Mishra, involving an appeal against a judgment from the Calcutta High Court. In this judgment, the appellants had been sentenced to 7 years in prison for the offense of causing a dowry-related death, as stipulated in Section 304-B of the Indian Penal Code (IPC), and 3 years for acts of cruelty under Section 498-A IPC.
The origins of this case trace back to an FIR initiated by Uma Shankar Shah (PW-1), who served as the de facto complainant. He put forth an accusation that, during Tuli Shah’s marriage, substantial dowry was bestowed upon the husband’s family. However, the appellant allegedly commenced a campaign of relentless harassment, demanding further dowry from Tuli.
Due to the growing torment within her matrimonial home, Tuli Shah, tragically took her own life by consuming poison on 16 September 2011. The Trial Court rendered a verdict, finding the appellant guilty under Sections 498A and 304B, in conjunction with Section 34 of the Indian Penal Code. The High Court subsequently upheld this decision, leading to the appeal before the Supreme Court.
The court heard both sides. It looked at the post-mortem report and remarked that the report is silent on the exact cause of death. However, the report noted the presence of odour material with pungent smell in the stomach and this can be found in cases of poison consumption. Yet, due to delay in sending the viscera samples, the poison may not be detected. Taking reference of some articles in medical jurisprudence and toxicology, and the apex court judgement in Mahabir Mandal and Others vs. State of Bihar, the court held that the absence of poison in viscera would not militate against the conclusion that the death of the deceased was due to poisoning.
Accordingly, the court does not find justification to interfere in the findings recorded by earlier courts, and hence the appeal is dismissed.
Calcutta HC: Providing relaxations to candidates from reserved categories does not imply that any advantage has been conferred upon them that would disqualify them from being considered in the unreserved category.
In Sahim Hossain & Ors. vs. The State of West Bengal & Ors, the Calcutta High Court held that the relaxation in age and fees should not be interpreted as a means of gaining benefit in the process of evaluating a candidate’s merit and it should not become a disentitlement for them from being considered in unreserved category.
The division bench of the Calcutta High Court comprising Justice Debangshu Basak and Justice Md Shabbar Rashidi was hearing an appeal against the order of the West Bengal Administrative Tribunal that held that persons belonging to a reserved category who took the benefit of age relaxation could not be placed in the unreserved category.  The Public Service Commission and the State government were in favour of putting candidates from reserved categories in vacant unreserved seats even though they claimed reservation relaxations regarding age and fee. However, the unsuccessful candidates argued against such a stand. Relying on the apex court judgement in NiravKumar Dilipbhai Makwana vs. Gujarat Public Service Commission & Ors., the Tribunal set aside the recruitment conducted by the West Bengal Public Service Commission.
Looking at the facts of the case, the court looked at the context of the state policy of West Bengal. It remarked that both the 1976 Act and the 2012 Act envision and have established a scenario in which candidates from reserved categories, who are taking part in the selection process, can be included in the merit list within the unreserved category. Such inclusion in the unreserved category will not affect the allocation of reserved category quotas.
Further, the court remarked that the relaxation in age and fees should not be seen as a means of gaining an advantage in the assessment of a candidate’s merit. It is simply a provision that enables a specific segment of society to participate. Assisting this designated section of society in taking part in a selection process should not be equated with granting them special privileges in the evaluation of their merit, particularly when this State did not prohibit the same. The relaxation provided at the initial stage is unrelated to the assessment of a candidate’s merit. The court found fault with the judgement of the Tribunal.
Accordingly, the petition is disposed of.
Madras HC: Love and affection are a deemed condition for transfer or gift of property by senior citizens and its violation leads to declaration of documents as null and void.
In Mohamed Dayan vs. The District Collector and Others, the Madras High Court held that the behaviour of individuals under the Senior Citizen Act should be analysed by considering the connection between the senior citizen and the recipients of the Gift or Settlement Deed. If the senior citizen is not supported subsequently, it would trigger Section 23(1) of the Act, and the Authorities in such situations have the authority to declare the document invalid.
A single judge bench comprising Justice S.M. Subramaniam was hearing a writ petition under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari. The respondent had acquired the property in his name through a settlement deed. However, after obtaining ownership, the petitioner did not provide support to the elderly wife and her husband. Furthermore, the petitioner insisted that they vacate the house, causing significant difficulties for them in leading a peaceful life during their old age. Subsequently, an Executive Magistrate, upon investigating the situation, issued an order nullifying the Settlement deed. This decision was appealed to the District Collector but was ultimately rejected. Hence, the current writ petition.
The counsel for the petitioner argued that the execution of the settlement deed was without any condition and one unregistered consent deed was also obtained from other siblings. In the absence of any such condition, cancellation of the Settlement Deed is in violation of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
After hearing both sides, the court looked at the apex court’s judgement in S. Vanitha vs. The Deputy Commissioner, Bengaluru Urban District and Ors. This judgement elaborated the scope of Section 23(1) of the Act and the statement of objects and reasons for the enactment of Senior Citizens Act. A close reading of judgements of other High Courts also provides that under section 4(2) of the act, the obligation of the children or the relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life. The concept of “normal life” as outlined in Section 4(2) of the Act goes beyond mere existence; it encompasses a life that includes both security and dignity. In the context of Article 21 of the Constitution of India, the right to life encompasses access to decent medical care, adequate nourishment, and shelter provided with dignity and security.
Further, the court remarked that the term “subject to condition” mentioned in Section 23(1) of the Act should be interpreted in light of the senior citizen’s feelings of love and affection toward the individual for whom the Gift or Settlement Deed was executed. “Love and Affection” is an implied condition in the context of Section 23(1) of the Act, and therefore, there need not be any express condition in the Settlement Deed for the purpose of maintaining the senior citizen.
Accordingly, the writ petition is dismissed.
Karnataka HC: Utilizing Wife’s Signed Cheques for Creditors’ Action by Husband is a form of mental cruelty and humiliation.
The Karnataka High Court, in ABC vs. XYZ, held that subjecting wife to creditors action by misusing her signed blank cheques amounts to mental cruelty and humiliation, and hence a ground for divorce.
The division bench of High Court comprising of Justice G. Narendar and Justice Vijay Kumar A. Patil was hearing an appeal petition against the judgment of the family court that dissolved the marriage on grounds of cruelty. The brief facts of the case are as follows. The couple got married in 2003, and the wife accused her husband of being addicted to gambling, betting, and excessive drinking, all while earning an insufficient income to sustain his lifestyle. Allegedly, due to financial difficulties, he began to harass his wife physically and mentally for money. It is asserted that the husband had control over the wife’s bank account and had obtained a loan ranging from Rs.15 to 20 Lakhs by misusing her signed blank cheques. As a result, strangers started coming to their marital home to demand money from the wife. Consequently, the wife filed a petition seeking the dissolution of their marriage on the grounds of cruelty. The family court accepted this petition.
Upon looking at the case, the High Court agreed with the contentions of the wife that the conduct of the husband established that he needed money for his personal habits. Further, the husband has not produced any evidence to disprove the allegations of the respondent-wife on creditors initiating criminal proceedings against her.
The court agreed with the findings of the family court that the husband had inflicted mental cruelty on the wife and the order of the family court is neither perverse nor contrary to the evidence on record calling for interference in these appeals. Accordingly, the appeals are dismissed.

created: September 20, 2023


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Review: Madras HC Rules That Wife Directly/Indirectly Contributes to Acquisition of Assets, Entitled to Equal Share in Assets/Properties.
Sai Krishna Muthyanolla
June 28, 2023
In this edition of the court judgements review, we look into the Supreme Court’s judgements on the allotment of shares to directors, Madras High Court’s judgements on the wife’s contribution as a homemaker, and also regarding the membership in the bar association, Himachal Pradesh’s High Court judgement on Maternity leave, Karnataka High Court’s judgement on consummation of marriage and Meghalaya High Court’s judgement on POCSO case.
Supreme Court: Disproportionate allotment of shares in favour of one party cannot be set aside merely because the party is the promoters and they benefitted from the allotment of shares.
The Supreme Court, in Hasmukhlal Madhavlal Patel and Anr. vs. Ambika Food Products Pvt Ltd. and Ors held that merely because the allotment of shares benefitted the promoters, the allotment cannot be set aside. The allotment of shares cannot be said to be ‘oppressive’.
The two-judge bench comprising Justice KM Joseph and Justice BV Nagarathna was hearing an appeal filed by H.M Patel Group against the order passed by the National Company Law Tribunal (NCLT) and appellate tribunal (NCLAT) which held the allotment of shares as ‘defective’.
The brief facts of the case are as follows: Ambika Food Products Pvt Ltd is a closely held private limited company that is controlled by three groups of shareholders: the H.M. Patel Group, the Sheth Group, and the V.P. Patel Group, who hold 30.80, 45, and 24.20 per cent of the company’s paid-up share capital, respectively.
Following the advice of the Bank of Baroda, the company’s allowed capital was increased from Rs. 1 crore to Rs. 2 crore. The H.M. Patel Group’s stake rose to 63.58% of the paid-up share capital following the issuance of new shares. The V.P. Patel Group and the Sheth Group each held a stake of 12.74% and 23.68% of the paid-up share capital, respectively. Following this, the other shareholders filed a petition with the National Company Law Tribunal (NCLT) under Sections 397 and 398 of the Companies Act, 1956, alleging mismanagement and oppression on the part of the H.M. Patel Group. The NCLT upheld the company’s increase in authorised share capital, however, finding the distribution of shares as ’defective’. The NCLAT also upheld the same.
Upon hearing both sides and looking at the material facts of the case, the apex court held that the shareholders had the knowledge of the proposal to raise the authorised share capital, and each shareholder was given the opportunity to apply for the additional shares in more or lesser number than they were actually entitled to. Hence, the allegation of mismanagement by the H.M. Patel group is not valid and hence liable to be rejected.
Regarding the oppression in the allotment of additional shares to the directors, thereby benefitting them, the apex court referred to Section 81(3) of the Companies Act, 1956. The court relied on the judgement in Dale & Carrington Invt. P. Ltd and another vs. P.K. Prathapan & others, where in it was held that there is a finer scale to test the directors of a private limited company to eliminate the possibility of misuse of power for personal gain.
Just because the directors benefitted from the allotment of shares, it must not be construed that the allotment of shares is oppressive.
On the perusal of the minutes of Board meetings, the court held that the terms for allotment of shares were applied equally to all the shareholders. It is just the case that the other shareholders did not apply for the additional shares. NCLAT reasoned that only after the other shareholders refused to accept the shares, the excessive share allotment can take place. The apex court did not agree with this reasoning.
Accordingly, the appeals are allowed and the NCLT and NCLAT orders are set aside.
Madras HC: Wife directly/indirectly contributes to the acquisition of assets, entitled to equal share in the assets/properties.
In a landmark judgement, the Madras High Court, in Kannaian Naidu and others vs. Kamsala Ammal and others, held that if the acquisition of assets/properties is made by the joint contribution of both spouses, either directly or indirectly, then both are entitled to an equal share in the assets. This is a significant judgement that recognizes the wife’s contribution as a homemaker in the acquisition of assets for the family.
A single judge bench of the Madras High Court, headed by Justice Krishnan Ramaswamy, was hearing an appeal filed by the legal heirs of the husband against the judgement of the appellate court that reversed the husband’s argument of usurping the property by the wife. The brief facts of the case are as follows.
The couple in question had been married since 1965, and the court was handling their dispute. In 2002, the husband of Kannaian Naidu filed an injunction suit, alleging that his wife had been attempting to usurp the properties that had been bought on his behalf with the money he earned while he was working abroad. On the other hand, the wife submitted that she also contributed in some form to the acquisition of assets by the family. The husband’s lawsuit was dismissed by the trial court, but the first appellate court reversed the ruling in some cases. In their capacity as his legitimate heirs, Kannanian Naidu’s children filed a second appeal with the High Court following his death.
Upon hearing both sides, the High Court agreed with the wife’s submission regarding the contribution to the acquisition of assets. Even though there is no financial contribution, the wife played an important role in running the family without causing any inconvenience to the husband. The court further held that the wife performs multi-tasks, and it is certainly not a valueless job. Their contribution must be accounted for in deciding the rightful share in the properties acquired.
The court also points out the absence of legislation so far that recognizes the direct or indirect contributions made by the wife. Yet, no law prevents judges from recognizing the contributions made by the wife.
Accordingly, the appeals are partly allowed, and the decree of the first appellate court is modified partially.
Himachal Pradesh HC: Maternity leave is a fundamental right; its denial is violative of Articles 29 and 39D of the Indian Constitution.
In State of HP vs. Sita Devi, the Himachal Pradesh High Court held that maternity leave is intended to achieve social justice for women, motherhood, and childhood, both require special attention, and maternity leave is a fundamental right of every woman, irrespective of her employment status, and its denial is a violation of Articles 29 and 39D of the Indian Constitution. Article 29 related to the Protection of the interests of minorities and Article 39 relates to the certain principles of policy to be followed by the state.
The two-judge bench of the Himachal Pradesh High Court, comprised of Justice Tarlok Singh Chauhan and Justice Virender Singh, was hearing an appeal filed by the state against the order of the Himachal Pradesh Administrative Tribunal that granted the maternity leave benefit to the respondent.
The State argued that the respondent was a daily wage worker, and the respondent could only put in 156 days as against the minimum requirement of 240 days in a year during the year in which her maternity happened. The Tribunal ordered that the period of maternity leave should also be considered as a continuous service.
The High Court looked into the arguments of both parties. The court reminded that India is a signatory to the various international covenants and treaties including the Universal Declaration on Human Rights,1948. India also ratified the “Convention on the Elimination of all Forms of Discrimination against Women” (CEDAW) and “ILO: Maternity Protection Convention 2000.”
The High Court relied on the judgement of the apex court in Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr, wherein the apex court questioned the lack of justification for the denial of maternity benefits to daily wage/casual workers.
The apex court further held that a just social order can be achieved only when inequalities are obliterated, and everyone is provided with what is legally entitled. It held that becoming a mother is the most natural phenomenon in the life of a woman and employers need to be considerate and sympathetic to them for performing duties while carrying the child in their womb.
Further, in State of H.P vs. Sudesh Kumari, the division bench of the Himachal Pradesh High Court held that the claim of maternity benefit is grounded on social justice and fair play. No discrimination is permitted, and any such discrimination is violative of Articles 14 and 15 of the Indian Constitution.
Further, the court held that maternity leave is a fundamental human right of the respondent, which could not have been denied by the employer. The action of the petitioner is violative of Articles 29 and 39D of the Constitution of India. Accordingly, the petition is dismissed.
Karnataka HC: Non-consummation of marriage does not constitute cruelty under section 498A of Indian Penal Code.
In ABC & others vs. State of Karnataka & Anr., the Karnataka High Court held that non-consummation of marriage does not fall under ‘cruelty’ as defined in section 498A of the Indian Penal Code.
The single-judge bench of Justice Naga Prasanna was hearing a petition questioning the proceedings against them under section 498A of the IPC. The brief facts of the case are as follows. The petitioners submitted that the parties married in December 2019 and that their marriage quickly turned sour. The complainant-wife filed two lawsuits: one under Section 498A of the IPC, which started the criminal justice process, and another under Section 12(1)(a) of the Hindu Marriage Act of 1955, which sought to dissolve the marriage on the basis of cruelty.
The counsel for the petitioners argued that the complainant/wife stayed at the matrimonial house only for 28 days and on the ground that the marriage had not been consummated, registered a crime for offence under Section 498A of the IPC. The learned counsel for complainants argued that the husband was a devotee of the Brahma Kumari Samaja sisters and that as a result, whenever she tried to get close to him, he would always say that he was not interested in a sexual relationship. It is also contended that the parents deliberately got their son married to her.
The trial court annulled the marriage on the grounds of cruelty due to the non-consummation of marriage. However, the proceedings of cruelty under section 498A of IPC against the in-laws are pending in the court.
The court upon hearing both sides, looked at section 498A of the IPC.
On the perusal of the complaint, the court held that there is no indication of the ingredient of cruelty in the complaint by the wife. Further, if proceedings are permitted to continue against the parents, it would become an abuse of the process of law and become an abuse of the process of law and ultimately result in the miscarriage of justice.
The High Court relied on the judgements in Kahkashan Kausar vs. State of Bihar and Shafiya Khan vs. State of Uttar Pradesh & Another, wherein it was held that,
Accordingly, the petition is allowed and proceedings against the in-laws are quashed.
Meghalaya HC: A 16-year-old is capable of making conscious decision as regard his or her well-being as to the actual act of sexual intercourse; quashes POCSO case against him.
In John Franklin Shylla vs. State of Meghalaya & Anr, the Meghalaya High Court held that looking into the physical and mental development of an adolescent of that age group (16 years) would consider it logical that such a person is capable of making conscious decisions as regard his or her well-being as to the actual act of sexual intercourse.
The Single judge bench of Justice W. Diengdoh was hearing a petition filed by the accused seeking the quashing of FIR proceedings under the POCSO Act. The brief facts of the case are as follows.
At the time in question, the petitioner was employed by a number of homes, including the residence of the respondent’s maternal aunt. During this time, he got to know the respondent’s daughter, the alleged victim, who is a little girl. As the two got to know one another, they started to get close, and as a result, a relationship developed in this connection. The petitioner and the victim engaged in sexual activity while sharing the same bed during the duration of the incident. The following morning, the mother of the minor girl filed a First Information Report (FIR) against the petitioner under Section 363 of the Indian Penal Code (IPC) and Sections 3 and 4 of the POCSO Act 2012.
The only ground raised by the counsel for the petitioner it was consensual and there is no element of sexual assault involved.  This was even conceded by the counsel for the respondent. The court relied on the judgement of Madras High Court in Vijayalakshmi & Anr. vs. State Rep. By. Inspector of Police, All Women Police Station, wherein it was held that the scheme of the Act clearly shows that it did not intend to bring within its scope or ambit, cases of the nature where adolescents or teenagers involved in romantic relationships are concerned.
Further, the court held that looking into the physical and mental development of an adolescent of that age group would consider it logical that such a person is capable of making a conscious decision as regard his or her well-being as to the actual act of sexual intercourse. Prima facie, it appears that there is no mens rea involved.
Accordingly, the proceedings in the POCSO Act are set aside and quashed.
Madras HC: There is no rationale in preventing membership to a practicing Lawyer in the Court premises, unless he is disqualified otherwise; direct bar association to give membership without any discrimination.
The Madras High Court reprimanded the Madras Bar Association for discriminating lawyers in becoming a member of the Association. The court held that creating a class within the class of Lawyers cannot be construed as intelligible differentia. It further held that it is improper discrimination by conferring particular privileges upon a class of Lawyers which is arbitrary and not falling within the classification of reasonable distinction.
In Elephant G Rajendran vs. The Registrar General and others, the single judge bench of Madras High Court headed by Justice S.M. Subramaniam was hearing a petition filed by Senior Advocate Elephant Rajendran who claimed that his son Neil Rashan was prevented from getting water at the MBA hall by another senior advocate. Rajendran argued that since the Association was supported by public money, other lawyers in active practise could not be refused access to the facilities. He argued that the Association’s actions were biased and prevented lawyers from using public facilities.
Rajendran also argued that while admitting new members, the association did not follow an open and democratic standard or policy. Additionally, he drew to the court’s attention numerous incidents of discrimination in which the association had denied various applicants for membership in an unfair and arbitrary manner.
The court heard claims and arguments from both sides. The court relied on the judgement of the apex court in S. Seshachalam vs. Bar Council of Tamil Nadu, wherein it was held that every differentiation is not discrimination but at the same time, differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones.
Further, upon bare reading of the conditions to become a member of the bar association, the choice is provided to the existing members. The existing members will have their own choice in selecting the members. Such allocation would undoubtedly cause not only discrimination but lead to the constitution of an Elite Community of Lawyers within the Lawyers community. Such constitution of the Elite Community of Lawyers under no circumstances be allowed at the cost of the public, more so in the public premises.
The court further pointed out the powers of the High Court with regard to bar associations within court premises. The High Court has got ample powers to control the functions and affairs of the Bar Associations within the Court premises.
Accordingly, the writ petition is disposed of, and a compensation of Rs. 5 lakhs should be paid to the victim for the untoward incident that happened to them.