Mere Aggressive Behaviour Of Wife Not A Ground Of Divorce: Punjab and Haryana High Court

It has to be candidly conceded by all of us that a Division Bench of Punjab and Haryana High Court comprising of Hon’ble Mr Justice Rakesh Kumar Jain and Hon’ble Mr Justice Harnaresh Singh Gill in a latest, landmark and extremely laudable judgment titled Ravinder Yadav Vs Padmini @ Payal in FAO-M-126-2019 (O&M) delivered on May 17, 2019 has categorically and convincingly held that mere aggressive behaviour and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home. Thus we see that the Punjab and Haryana High Court in this case dismissed a matrimonial appeal filed by a husband. The Division Bench was considering an appeal filed by a man against the Family Court order which dismissed his petition.

                       While the ball is set rolling in the first para of this notable and praiseworthy judgment authored by Hon’ble Mr Justice Harnaresh Singh Gill for himself and Hon’ble Mr Justice Rakesh Kumar Jain wherein it is pointed out that, “By way of present appeal, appellant-Ravinder Yadav has assailed the judgment and decree dated 03.04.2019 passed by the District Judge, Narnaul, vide which his petition filed under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) against respondent-Padmini @ Payal was dismissed.” The appellant thus wanted the Division Bench of High Court to review the judgment and decree which went against him!

                        To recapitulate, it is then pointed out in the next para that, “The facts which need to be elaborated are that the marriage of the appellant and the respondent was solemnized on 09.03.2015 as per Hindu rites and ceremonies. The marriage was consummated but no child was born out of the said wedlock. As per the allegations in the petition, the respondent-wife always imbibed with independent and modern thoughts posing herself to be a broad minded lady. Right from the next day of marriage, respondent started quarrelling with the appellant and his parents and threatened them to do everything under her command. The respondent flatly refused to perform household work and alleged that if she was compelled to do so, she would commit suicide and create problems for appellant and his family members. It was alleged that the respondent used to consume liquor and take drugs and had illicit relations with one Kuldeep Shekhawat. She was in the habit of leaving matrimonial home without informing the appellant and his family members and on asking, she used to say that nobody was allowed to interfere in her personal life. The respondent often used to make phone calls on mobile No. 9521677437 (at some places the mobile number is mentioned as 9621677437) and whenever the appellant called her she would remain busy on whatsapp and facebook with strangers and friends. The respondent even refused to share bed with the appellant which had caused mental cruelty to him. As per the appellant, the respondent left her matrimonial home on 17.04.2015 without informing him and his family members. On 06.05.2015, her father along with other respectable came to the appellant’s place and used bad words against him and his family members. The respondent also broke the Mangalsutra (Necklace) in the presence of the Panchayat members and flatly refused to live with the appellant as his wife and left her matrimonial home on 13.05.2015.”

                                          Needless to say, it is then pointed out in the next para that, “On the other hand, the respondent-wife, though admitted the factum of marriage yet specifically denied that she had ever raised her voice, rather asserted that she had followed all the social and religious customs in her matrimonial home. She alleged that the appellant is M.Sc., M.Ed. qualified and was doing job in a private school. It is also alleged that the appellant used to pressurize the respondent to bring more money from her parents and asked her parents to sell their land, but the respondent and her father did not accede to such demand of the appellant. It was the appellant and his parents, who harassed the respondent physically and mentally and used to call a Tantrik for doing black magic upon her. She had denied the factum of attempting to commit a suicide. She used to prepare the food for the appellant and his family members at proper time and used to serve the guests as well. It was also denied by the respondent that she was a wanderer or used to consume liquor or drugs. The incident dated 06.05.2015 was admitted by the respondent as her family members came to drop her back to her matrimonial home. However, she was never accepted by the appellant and his family. They tortured her and ultimately she was turned out of her matrimonial home.”

                            As things stand, it is then pointed out in the next para that, “In the present case, issues were framed on 09.05.2017 and the appellant had examined as many as five witnesses along with his mother, namely, Bhatteri Devi as PW-2.”

                   Moving on, it is then illustrated in the next para that, “On the other hand, respondent had appeared into the witness box as RW-1 along with his father and other witnesses. After taking into consideration the evidence on record, the petition under Section 13 of the Act was dismissed on the ground that marriage was solemnized on 09.03.2015 and the respondent-wife had been residing with her parents since 13.05.2015 and the present petition was filed by the appellant-husband on 25.02.2016. It was, thus, held that the allegations of cruelty remained unsubstantiated.”

                                          After hearing both sides, it is then held in the next para that, “We have heard learned counsel for the parties and are of the view that there is no infirmity and illegality in the impugned judgment and decree passed by the trial Court.”

                                    Furthermore, it is then held in the next para that, “PW-3, namely, Vartika, in her cross examination had testified that the respondent was having illicit relations with one Kuldeep Shekhawat and his name was told to her by her friend Raveena. This witness further stated that she had come in contact with the respondent while studying and staying as a Paying Guest and had made a complaint to the owner of the P.G. regarding the behavior and conduct of the respondent-wife. Neither the owner of the P.G. stepped into the witness box to throw light on the said aspect nor any link evidence in this regard was led. Thus, the oral evidence of Vartika, PW-3 will not advance the cause of the appellant/petitioner.”

                                        What’s more, it is then pointed out in the next para that, “Though it is an admitted fact, as it had come through oral testimony, that the respondent-wife has been residing separately since 13.05.2015, but to our mind, it is the appellant, who alone is instrumental in ensuring that the respondent-wife stays away from her matrimonial home and there is no intentional cessation of cohabitation on the part of the respondent-wife nor there is any intention to desert the appellant-husband.”

                                         It cannot be lost on us that it is then made clear in the next para that, “The statutory period of two years of desertion, as envisaged under the Act, immediately preceding the presentation of the petition, had not expired, before the filing of the divorce petition by the appellant. At this stage, it would be relevant to consider Section 13(ia) and (ib) of the Act which reads as under:-

13. Divorce

(1) Any marriage solemnised, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

[(i) xxx          xxx               xxx

[(ia) has after the solemnization of the marriage, treated the petitioner with cruelty; or

[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or”

                                        To be sure, we thus see that it is then laid down explicitly in the next para that, “In Section 13(1)(ib) of the Act, it has been specifically laid down that desertion is to be considered for the continuous period of not less than two years, immediately preceding the presentation of the petition.”

                                         As it turned out, it is then held in this new para that, “In the case in hand, the respondent-wife has allegedly left her matrimonial home on 13.05.2015 and the present petition was filed on 25.02.2016, thus, on the date of filing of the divorce petition, the statutory period of two years had not expired. Thus, the present divorce petition had rightly been rejected on this count by the Court below.”

                                       To say the least, it is then held that, “Thus, the relief of divorce was denied because the legislation in its wisdom had framed the Act on the basis of “fault theory” and “break down theory” which was not proved in the present case.”

                                     To put things in perspective, it is then pointed out that, “In Rajni Goyal versus Amit Kumar 2015 (2) R.C.R. (Civil) 871, the Hon’ble Court has held that “adultery is a serious charge and has to be proved beyond reasonable doubt. But at the same time it is difficult to procure direct evidence for procuring such a charge. It is only from the circumstances that an inference can be drawn that the spouse against whom complaint has been made was leading an adulterous life”.”

                          More importantly, it is then held that, “To our mind, in the present case there is ordinary wear and tear of the married life of the parties, which happens in day to day life. Mere aggressive behavior and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home.”

                          To put it succinctly, it is then aptly pointed out that, “It has been held by the Apex Court in Samar Ghosh versus Jaya Ghosh, 2007 (2) R.C.R. (Criminal) 515 that the concept of cruelty differs from person to person, depending upon his or her upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Therefore, it is essential for the party claiming the relief to prove that a particular conduct or behaviour has resulted into cruelty to him or her. The aggrieved party has to make specific case that the conduct of the spouse had caused cruelty to him/her. It is for the Court to weigh the gravity of alleged cruelty. It has to be seen whether the conduct was such that no reasonable person would tolerate it.”

                           Finally and perhaps most importantly, it is then very rightly held that, “In the present case, no cogent evidence has been placed on record that the behaviour of respondent is uncalled for. Regarding relationship of respondent-wife with Kuldeep Shekhawat the same had not been proved and above all Kuldeep Shekhawat had not been arrayed as party in the divorce petition so that he could join the proceedings and some light could have been thrown on the allegation. As a matter of fact adultery cannot be considered without impleading the alleged adulterer as per Rule 10 of Hindu Marriage (Punjab) Rules, 1956. Rather unsubstantiated and uncorroborated testimony associating the respondent with adulterer has caused mental cruelty to the respondent. Thus nuptial knots cannot be allowed to be broken on these types of unfounded allegations of cruelty, physical or mental. In view of the above, we do not find any illegality or infirmity in the order passed by the learned trial Court, which may warrant interference by this Court in the present appeal. Hence, the present appeal is dismissed. No order as to costs.”

                                In conclusion, the Division Bench of Punjab and Haryana High Court has made it explicitly clear in this latest, landmark and extremely laudable judgment that mere aggressive behaviour of wife cannot be a ground for divorce. There have to be strong grounds on which divorce can be granted. Just mere allegations of adultery also are not sufficient to constitute a ground of divorce. It must also be proved beyond a shadow of doubt for it to be admissible in a court of law. It was held in this case that the husband failed to produce cogent evidence against the wife and therefore his petition for divorce on the ground of cruelty was rejected! It was also very rightly held that mere aggressive behaviour wife and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

INSANITY DEFENSE: and THE ISSUES WITH IT

The concept of “responsibility” arises with most of the cases involving human conduct and presence of guilt, knowledge of the act and its consequences. A person thoroughly oblivious about its surrounding, or unaware of the distinction between right and wrong, is not the one to punish.  Punishing someone who is not responsible for the crime is a violation of basic human rights and fundamental rights under constitution of India.  It also brings the due process of law, if that person is not in a position to defend himself in the court of law, evoking the principle of natural justice[1].

The plea of insanity as a defense in criminal cases has a long and fascinating history. The introduction of “McNaughton’s rules” in 1843 was a turning point in the history of the insanity defense. In 1843, a wood-turner from Glasgow, Daniel McNaughten shot and killed Edward Drummond mistaking him for Sir Robert Peel. McNaughten believed that he was persecuted by the Tories, and evidence was brought to show that he had been totally deluded on this subject for some time[2]. His state of mind was evident from the beginning when he had to be enticed, and finally tricked, into pleading “not guilty.” After hearing seven medical witnesses testify that he was completely insane, the judge stopped the trial, the jury brought in the special verdict without summing up and without retiring, and Mc Naughten was forcibly committed to the Bethlem Hospital. Five propositions were drawn thereafter, which were called McNaughten’s Rules.

This case became a defining moment even in the history of Indian Law relating insanity defense, section 84 IPC is exclusively based on McNaughten Rules. It deals with- “Act of a person of unsound mind”—Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Section 84 IPC, clearly embodies a fundamental maxim of criminal jurisprudence that is[3],

(a) “Actus nonfacit reum nisi mens sit rea” -an act does not constitute guilt unless done with a guilty intention;

(b) “Furiosi nulla voluntas est” -a person with mental illness has no free will.

Hence, Section 84 IPC affixes no culpability on persons with mental illness because they can have no rational thinking or the necessary guilty intent.

CASES OF INSANITY DEFENSE:

Critics argue that some defendants misuse it, effectively faking insanity to win acquittals or less severe convictions. And often the trials involving an insanity defense get the most attention because they involve “crimes that are bizarre within themselves,” said Baltimore defense attorney Cristina Gutierrez, who has defended a dozen such cases in as many years. Some high profile cases of Insanity defense are listed below, where in some cases, the juries agreed, but more often than not, the criminals were found sane enough to know that what they were doing was wrong[4].

1.     JOHN EVANDER COUEY

In August 2007, John Evander Couey, the man convicted of kidnapping, raping and burying nine-year-old Jessica Lunsford alive, was declared sane enough to be executed. Couey’s attorneys argued that he suffered lifelong mental abuse and had an IQ below 70. The judge in the case ruled that the most credible exam rated Couey’s IQ at 78, above the level considered mentally disabled in Florida. He, however, bypassed being strapped to a gurney. Instead, he died in a prison hospital on August 30, 2009, from natural causes as a result of having cancer.

2.     ANDREA YATES

At one time Andrea Yates was a high school valedictorian, champion swimmer, and college-educated registered nurse. Then in 2002, she was convicted of capital murder for killing three of her five children. She systematically drowned her five children in the bathtub after her husband left for work. In 2005, her conviction was overturned, and a new trial was ordered. Yates was re-tried in 2006 and found not guilty of murder by reason of insanity.

Yates had a long medical history of suffering from severe postpartum depression and postpartum psychosis. After giving birth to each of her children, she displayed extreme psychotic behavior that included hallucinations, attempted suicides, self-mutilation, and an irresistible impulse to hurt the children. She had been in and out of mental institutions over the years.

Just weeks before the murders, Yates was released from a mental hospital because her insurance stopped paying. She was told by her psychiatrist to think happy thoughts. Despite warnings from her doctors, she was left alone with the children. This was one of the cases when the plea, innocent by reason of insanity, was justified.

3.     MARY WINKLER

Mary Winkler, 32, was charged with the first-degree murder on March 22, 2006, for the shotgun shooting death of her husband, Matthew Winkler. Winkler had been serving as the pulpit minister at the Fourth Street Church of Christ in Selmer, Tennessee. He was found dead in his home by church members after he failed to show up for an evening church service that he was scheduled to lead. He had been shot in the back

A jury convicted Mary Winkler of voluntary manslaughter after hearing testimony that she was physically and mentally abused by her husband. She was sentenced to 210 days and was free after 67 days, most of which was served in a mental facility.

4.     ANTHONY SOWELL

Anthony Sowell is a registered sex offender who is accused of killing 11 women and keeping their decomposing bodies in his home. In Dec. 2009, Sowell pleaded not guilty to all 85 counts in his indictment. The charges against Sowell, 56, ranged from murder, rape, assault and corpse abuse. However, Cuyahoga County Prosecutor Richard Bombik said there was no evidence that Sowell is insane.

5.     LISA MONTGOMERY

Lisa Montgomery tried to use mental illness when she was being tried for strangling eight-month pregnant Bobbie Jo Stinnett to death and cutting the unborn child from her womb.

Her lawyers said she was suffering from pseudocyesis, which causes a woman to falsely believe she is pregnant and exhibit outward signs of pregnancy. But the jury didn’t buy it after seeing evidence of the methodical plan Montgomery used to lure Stinnett into her deadly trap. Montgomery was found guilty and sentenced to death.

6.     TED BUNDY

Ted Bundy was attractive, smart, and had a future in politics. He was also one of the most prolific serial killers in U.S. history. When he was being tried for the murder of one of his many victims, Kimberly Leach, he and his attorneys decided on an insanity plea, the only defense possible with the amount of evidence the state had against him. It did not work, and on January 24, 1989, Bundy was electrocuted by the state of Florida.

NOT GUILTY BY REASON OF INSANITY

In 2010, 24 year old “Mark Berker” was found guilty of killing his high school Football coach Ed Thomas, and Mr. Berker being mentally ill and off his medications considered him as Satan. Apparently that didn’t bother the lower court justice system. Before carrying out the verdict, the jury asked the Judges- what if they found Mr. Berker “Not Guilty By Reason Of Insanity” (NGBRI). Getting silent answer from the judge, the jury took the safe approach of “Guilty as Charged”.

Not guilty by reason of Insanity is an inadequate remedy to violence by individuals with mental illness. It is only attempted in 1% of murder charges and is rarely successful.

Andrea Yates and John Hinckley were two famous exceptions. Andrea Yates, 37, was found NGBRI in Texas, after postpartum psychosis caused her to drown her five children in a bathtub. Twenty six- year-old Colorado resident John Hinckley was found NGBRI in Washington after he shot Ronald Reagan in a schizophrenia-fueled attempt to secure a date with Jodie Foster. As a result of their successful pleas, both were sent to locked psychiatric hospitals and put on medications to help them regain their sanity. They’re getting treatment and the public is being kept safe. At least for now[5]. But, theoretically, when their sanity is restored, Mr. Hinckley and Ms. Yates can both be released, to go off medications and start drowning kids or shooting presidents again. As a practical matter, few judges are willing to risk that on their watch, so even when sanity is restored—as it allegedly has been in the case of both Mr. Hinckley and Ms. Yates—NGBRI acquitees are routinely kept committed. Ms. Yates has been in a locked hospital eight years and Mr. Hinckley, 29 years. But what kind of society keeps sane individuals involuntarily-committed?
To protect against the possibility of NGBRI acquitees going free, some states either eliminated not guilty by reason of insanity or replaced it with “guilty because of mental illness.” Individuals found guilty because of mental illness go to a hospital until their sanity is restored and then to jail to finish out their sentence. This forces individuals who had no culpability for their actions to go to jail at the exact time it’s not needed—when they’ve regained their sanity. For these individuals being mentally ill is the same as being guilty: either way, they go to jail. Sadly, our prisons and jails have become our de facto mental institutions.

If the cause of the crime was lack of treatment for mental illness, then the solution is to reform laws so we can sentence these individuals to mandatory long-term mental illness treatment—including medications—so they never become violent again. The sentence to treatment could be as long, or longer, than the maximum sentence that would be imposed had the person been found guilty. If this change were adopted, incarcerating the mentally ill would rarely be needed. Their treatment could take place in an inpatient setting on a locked ward if that is what is needed to keep society safe. But, if the sentenced patient progresses—and the crime not too serious—their treatment could be continued on an outpatient basis. Over time, it would most likely be both. Under this form of not guilty by reason of insanity, the sentenced patient could be moved from inpatient care to outpatient care when doing well and instantly back to inpatient with no further court hearings needed if they started to deteriorate. In either case, the individual would be closely monitored by a case manager to see that they stay on their violence preventing medications. That’s the solution that keeps the public safe, avoids wasting resources, and eliminates the dilemma of incarcerating those we should be treating.

As an alternative to NGRI, some states have added a third possible verdict to the usual trio of guilty, not guilty, and NGRI—the verdict of “guilty but mentally ill” (GBMI). In theory, this recognizes when a defendant’s mental illness played an important role in a crime without entirely causing it. The state incarcerates the defendant for the crime, but also treats him or her for the mental illness[6]. Unfortunately, states with GBMI verdicts have sometimes neglected to provide for treatment; therefore many of these defendants are jailed without treatment, exactly as if they had been found guilty. Another dilemma with the GBMI verdict may be an “easy out” for jurors. If a jury finds the defendant guilty, they may not spend time worrying about whether he or she may be sane; because they find the defendant mentally ill, they may not address the fact that the defendant should actually be found NGRI. Hence, the insanity defense “problem” will not yield to easy solutions.

CONCLUSION

Insanity pleas had a success rate of about 17% in Indian High Courts in the past decade. Even though the success rate for wrongful use of Insanity Defense remains low not only in Indian Courts but also worldwide, the need to put more straightforward laws and tests for this can’t be ignored. It is not easy to get away with Insanity defense, even in fact not many criminals use this defense, but still the unsolved issues of this cannot remain unanswered. There’s a issue of distinguishing the Violent criminals and Insane criminals, the criminals committing wrong under the influence of alcohol and drugs shouldn’t be confused with the individuals of insane mind. The states still need to look forward for some strict laws in order to control and use this defense in its right form.

 

Authored by : SAFIYAT NASEEM
3rd Year, BA-LLB
JAMIA MILLIA ISLAMIA, NEW DELHI, 110025
INDIA

 

 

 

[1]  Gostin LO, Larry OG. A Human Condition: The law relating to mentally Abnormal Offenders. Vol. 2. MIND; 1977.
[2]  Daniel Mc Naghten’s Case. 1843, 8 Eng. Rep. 718.
[3] Gajraj Singh vs State of Rajasthan. Appeal (crl.) 1313 of 2006.
[4] www.thoughtco.com
[5] www. mentalillnesspolicy.org
[6] www. psychology.jrank.org

Court Cannot Destroy Faith & Beliefs Of People: Madras HC Rejects Plea Against Performance of Yajnas For Rains

 

                            In a unique and remarkable observation, the Madras High Court just recently on May 15, 2019 in V. Anbazhagan vs. The Commissioner, Hindu Religious and Charitable Endowments Department, No. 119, Uthamar Gandhi Salai, Nungambakkam, Chennai – 600034 in W.M.P. Nos. 14435 & 14436 of 2019 has clearly and convincingly ruled that, “It is performed with hope and belief and though they may be successful or not, this Court cannot destroy such beliefs or hopes of the multitude of people while dismissing a petition challenging the circular issued by the Commissioner of Tamil Nadu Hindu Religious and Charitable Endowments Department, to perform “yagnas” propagating rain, in all important temples under its control. We thus see that the Madras High Court has been very categorical in drawing a red line for itself on which it just cannot tread upon! Each and every Court in India must always bear this in mind while ruling in such sensitive and emotional cases! There can be no denying it!

At the outset, even before the judgment starts, it is pointed out that, “Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari and Mandamus to call for the records relating to the Circular vide Na.Ka.No. 23606/19/K4 dated 26.04.2019 on the file of the respondent and quash the same and direct the respondent to develop the scientific temper, humanism and spirit of inquiry and reform as per Article 51(a)(h) of the Constitution of India.”

First and foremost, the ball is set rolling in para 1 wherein it is pointed out by a Division Bench of Madras High Court comprising of  Justice C.V. Karthikeyan and Justice Krishnan Ramasamy that, “This Writ Petition has been filed by V. Anbazhagan, who claims to be an Editor of a Web Magazine, called “Makkal Seithi Maiyyam” and also claims to be a social worker and RTI activist. He also claims to be a writer and claims to have written various books and articles on various political subjects and claims to have rendered service to the society and further claims he has acquired various other qualifications by which, he claims he has qualified himself to file the present writ petition.”

As it turned out, it is then stated in para 2 that, “In this Writ Petition, the petitioner seeks to challenge the impugned Circular issued by the respondent videNa.Ka.No. 23606/19/K4 dated 26.04.2019 and seek a direction against the respondent to develop scientific temper, humanism and spirit of inquiry and reform as per Article 51(a)(h) of the Constitution of India.”

Furthermore, it is then reckoned in para 3 that, “The impugned circular, dated 26.04.2019 over which, the petitioner is aggrieved, was issued by the respondent, namely, the Commissioner of HR & CE Department. The petitioner claims the circular is in the nature of a direction issued to all the Joint Commissioners/Executive Officers, Deputy Commissioners/Executive Officers, Assistant Commissioners/Executive Officers to perform “yagnas” propagating rain, in all important temples under the control of the HR & CE Department. According to the petitioner, the impugned Circular is against the tenets of the Constitution of India and also against the concept of secularism followed by our country and violates the very objects and scope of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 (in short, ‘the At’).”

To be sure, the Division Bench of Madras High Court then makes it clear in para 5 that, “The preamble to the Constitution of India among other declarations, has declared the State as a Secular State. The citizens of this country are encouraged to have tolerance and to accept all religious beliefs and practices. There is also encouragement to respect various religious practices followed by various religious communities. Even at the outset, it is to be stated that every religion propagates various practices to be followed and such practices are for the welfare not only of the people who have faith on such religion and religious practices but also to bring about peace and harmony in society.”

It must be noticed that para 6 then states in plain words that, “Among various aspects, the State also has certain policies with respect to administration of religious institutions particularly in the instant case, with respect to temples. The HR & CE Board has administrative control over several temples and other endowments which provide performance of poojas and rituals, which may be simple or elaborate, and would be performed either inside the sanctum sanctorum of the temples by the Archakas or also by individuals with participation of a large number of general public.”

Needless to say, it is then acknowledged in para 7 that, “India is a country in which a vast population believe that participating in such poojas will give them mental peace and bring harmony among the community. It is also very common in this State that the people of all religions visit not only temples but also visit churches and mosques and other religious institutions establishments and participate and offer prayers without any discrimination of caste and creed.”

Be it noted, para 8 then discloses that, “In the circular which is impugned, translation of which had been provided, the Principal Secretary / the Chief Commissioner, HR & CE, had addressed all Joint Commissioners / Deputy Commissioners / Assistant Commissioners / Executive Officers as follows:

“It has been decided to conduct Yagna in all important temples under the control of Hindu Religious and Charitable Endowments department so that the state may enjoy bountiful rain and attain prosperity. It is hereby instructed that the following programs be conducted in all the important temples with due respect to local customs by the officers concerned:

1. Parjamya Shanti Varuna Jana Velvi with Special Abishekam.

2. Construction of water tank for Nandi statute filling up the tank with water to neck level and conduct of prayers.

3. Chanting by odivars of Sundaramurty Nayanars seventh Thirunavukarasu.

4. Singing of Thirugnansambandars thevara rain pathigam in 12 the Thirunavukarasu in Megara kurinchi style.

5. Asking musicians to pay amirthavarshini, megavarshini, kedari and Anantha Bairagi ragas in nagaswaran flute and violin.

6. Performing seethal kumbam for Shiva in Shiva temples.

7. Performing Rudrabhisekam in Shiva temples.

8. Special Thirugnansambandars for Mahavishnu.

9. Special pathigam for rain.

10.                  Abishekam for Sri Mariamman with milk, curd and tender coconut water.

11.                  Special mahaabishekam for mahanandhi in Thirunavukarasu Shiva temple in Mayavaran Taluk in Nagapattinam District.

12.                  Varuna Sudha cedaantra parayanama.

13.                  Varuna Gayathri mantra parayanama.

The staff concerned are directed to select suitable persons for performing the above ceremonies and start the performance of directed activities at the earliest.

The Joint Commissioners, Deputy Commissioners and Executive Officers of the concerned temples are directed to personally supervise the performance of the above activities and ensure that they are perform according to the given instructions.

The Zonal Joint Commissioners are directed to inform this office before 02.05.2019 of the detailed schedule of the above activities planned.

Further after the completion of the above activities they are required to send a separate report on the method of conduct of the directed activities”.”

To say the least, the Bench then brings out in para 9 that, “The learned counsel for the petitioner stated that the circular has directed expenditure of public money for the performance of the Yagnas as stipulated above and has taken objection to such expenditure of public money. It was also pointed out that Article 25 of the Constitution of India provides only individual rights to practice religion and not practicing in the manner as provided in the circular.”

What’s more, the Bench then notes in para 10 that, “We disagree with the said contention.” Furthermore, the Bench in para 12 envisages that, “In the majority judgment rendered by the Hon’ble Supreme Court in Indian Young Lawyers Association v State of Kerala, reported in (2018) 7 MLJ 889, The Chief Justice, Hon’ble Mr. Justice Dipak Misra and for Hon’ble Mr. Justice A.M. Khanwilkar, observed thus:

“98. Now adverting to the rights guaranteed under Article 25(1) of the Constitution, be it clarified that Article 25(1), by employing the expression ‘all persons’, demonstrates that the freedom of conscience and the right to freely profess, practice and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women.

99. It needs to be understood that the kernel of Article 26 is ‘establishment of a religious institution’ so as to acclaim the status of religious denomination. Whereas, Article 25(1) guarantees the right to practice religion to every individual and the act of practice is concerned, primarily, with religious worship, rituals and observations as held in Rev. Stainislaus v. State of Madhya Pradesh and Ors. MANU/SC/0056/1977 : (1977) 1 SCC 677. Further, it has been held in The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005, that the logic underlying the constitutional guarantee regarding ‘practice’ of religion is that religious practices are as such a part of religion as religious faith or doctrines.

………………

………………

103. Another authoritative pronouncement in regard to the freedom to practice a religion freely without any fictitious and vague constraint is the case of Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770, wherein the Court observed thus:

The full concept and scope of religious freedom is that there are no restraints upon the free exercise of religion according to the dictates of one’s conscience or upon the right freely to profess, practice and propagate religion save those imposed under the police power of the State and the other provisions of Part II of the Constitution. This means the right to worship God according to the dictates of one’s conscience. Man’s relation to his God is made no concern for the State. Freedom of conscience and religious belief cannot, however, be, set up to avoid those duties which every citizen owes to the nation; e.g. to receive military training, to take an oath expressing willingness to perform military service and so on”.”

More significantly, it is then held in para 13 that, “In the dissenting judgment rendered by the Hon’ble Ms. Justice Indu Malhotra in Indian Young Lawyers Association, supra, the scope of judicial interference in religious faith and practices and more particularly in the light of Article 25 had been discussed as hereunder:-

“7.1. Article 25 of the Constitution guarantees to all persons the freedom of conscience, and the right freely to profess, practice and propagate religion. This is however subject to public order, morality and health, and to the other provisions of Part III of the Constitution.

……………….

……………….

7.5. Article 25(1) confers on every individual the right to freely profess, practice and propagate his or her religion. [H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed., Reprint 1999), at Pg. 1274, para 12.35]. The right of an individual to worship a specific manifestation of the deity, in accordance with the tenets of that faith or shrine, is protected by Article 25(1) of the Constitution. If a person claims to have faith in a certain deity, the same has to be articulated in accordance with the tenets of that faith. ………

7.6. The right to practice one’s religion is a Fundamental Right guaranteed by Part III of the Constitution, without reference to whether religion or the religious practices are rational or not. Religious practices are Constitutionally protected under Articles 25 and 26(b). Courts normally do not delve into issues of religious practices, especially in the absence of an aggrieved person from that particular religious faith or sect. ……”

…………..

……………

10.8. The Constitution lays emphasis on social justice and equality. It has specifically provided for social welfare and reform, and throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus through the process of legislation in Article 25(2)(b) of the Constitution. Article 25(2)(b) is an enabling provision which permits the State to redress social inequalities and injustices by framing legislation. It is therefore difficult to accept the contention that Article 25(2)(b) is capable of application without reference to an actual legislation. What is permitted by Article 25(2) is State made law on the grounds specified therein, and not judicial intervention.

………..

………..

10.13. Judicial review of religion practices ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practice one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs which is outside the ken of Courts.

………….

………….

11.2. India is a country comprising of diverse religions, creeds, sects each of which have their faiths, beliefs and distinctive practises. Constitutional Morality in a secular polity would comprehend the freedom of every individual, group, sect, or denomination to practise their religion in accordance with their beliefs, and practises.

11.3. The Preamble to the Constitution secures to all citizens of this country liberty of thought, expression, belief, faith and worship. Article 25 in Part III of the Constitution make freedom of conscience of a Fundamental Right guaranteed to all persons who are equally entitled to the right to freely profess, practise and propagate their respective religion. This freedom is subject to public order, morality and health, and to the other provisions of Part III of the Constitution. Article 26 guarantees the freedom to every religious denomination, or any sect thereof, the right to establish and maintain institutions for religious purposes, manage its own affairs in matters of religion, own and acquire movable and immovable property, and to administer such property in accordance with law. This right is subject to public order, morality and health. The right under Article 26 is not subject to Part III of the Constitution.

11.4. The framers of the Constitution were aware of the rich history and heritage of this country being a secular polity, with diverse religions and faiths, which were protected within the fold of Articles 25 and 26. State interference was not permissible, except as provided by Article 25(2)(b) of the Constitution, where the State may make law providing for social welfare and reform.

11.5. The concept of Constitutional Morality refers to the moral values underpinning the text of the Constitution, which are instructive in ascertaining the true meaning of the Constitution, and achieve the objects contemplated therein.

11.6. Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practice their faith in accordance with the tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts”.”

As things stand, the Bench then lays down in para 14 that, “What emerges from the ratio laid down is that the freedom of conscience and the right to freely profess, practice and propagate religion is available and that there are no restraints upon the free exercise of religion and the Court cannot impose its morality or rationality with respect to the form of worship and it is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by Courts.”

To put things in perspective, it is then enunciated very clearly and categorically in para 15 that, “In the present case, the policy of the Government cannot be interfered with by the judiciary. Every individual has to have mutual respect for the decisions taken as policy decisions by the Legislature and by the Executive. Judiciary being the guardian of legal rights, has to ensure that such policy confirms to the norms laid down by the Constitution of India. The present writ petition appears to be clearly an attempt to disturb the faith in the religious beliefs among the people. There is a clear attempt to bring about disruption in peace and harmony.”

It cannot be lost on us that the Bench then minces no words to observe in para 16 that, “It is not for this Court to interfere with or criticize upon any method be it religious or scientific adopted with hope to bring about bountiful rainfall in the State by issuing the Circular. Whether such method of performing poojas or yagnas to bring about rain is a success or failure is not within the scope of examination by this Court in the writ petition. It is performed with hope and belief and though they may be successful or not, this Court cannot destroy such belief or hopes of the multitude of people.”

As it turned out, para 17 then spells out that, “As an illustrative case, a farmer with a small piece of agricultural land, would not be able to grow any crop owing to lack of rainfall. He would hope and believe that rain would come some day to save him from the unfortunate situation in which he and his family have been forced to. Faith would lead to, in his limited knowledge, to perform poojas and invoke the benevolence of God to bring about rain. When such poojas are done by him, it would again lead to economic depravity. When however such poojas are performed in a temple close to his place, he would very willingly join with the belief and hope that the prayers would be answered. That faith which the farmer has, cannot be destroyed by this Court. That faith which the farmer has is strengthened by performing the poojas, which the State has encouraged through the impugned circular.”

Above all, para 18 then makes it clear in no uncertain terms that, “It is also to be mentioned that normally and consistently the Courts have kept away from interfering with religious practices and beliefs. Rarely has any Court interfered with any religious practice and religious belief. The circular has been issued only with respect to the temples that are under the control and administration of the Government.”

Now let us deal with the concluding paras of this noteworthy judgment. It is held clearly in Para 19 that, “We do not find any irregularity or infirmity in the issuance of such circular necessitating interference with the same. We offer no opinion as to whether the practice is scientific in nature or purely religious in nature.” Para 20 then stipulates that, “In view of the above reasons, we are not prepared to admit the writ petition.” Lastly, para 21 then concludes by holding that, “Accordingly, the Writ Petition is dismissed at the admission stage itself. Consequently, connected writ miscellaneous petitions are also closed.”

On a concluding note, it has to be said that the Madras High Court in this commendable and significant judgment has very clearly laid down that court cannot destroy faith and belief of people. Very rightly so! All courts must adhere to it!

No doubt, the Madras High Court has thus clearly drawn a red line for itself which it cannot tread upon at its own discretion! The supreme importance which has been attached with the faith, feelings and sentiments of the struggling farmer who performs poojas diligently in the hope that it will bring rain by the Madras High Court Bench in this latest, landmark and extremely laudable judgment is certainly praiseworthy and extremely laudable! The Madras High Court has also assigned suitable reasons for not admitting the writ petition of the petitioner which have a lot of merit in them! No denying it!

Sanjeev Sirohi,

Forcible Sex Is An Illegal Intrusion In The Privacy Of Wife And Amounts To Cruelty: Allahabad HC

In a latest, landmark and laudable judgment delivered by the Allahabad High Court in Case – First Appeal No. – 296 of 2018 on May 24, 2019 has explicitly and elegantly held that forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her. This noteworthy and commendable judgment delivered by Justice Pradeep Kumar Srivastava for himself and Justice Shashi Kant Gupta has held that forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her. The Division Bench of Allahabad High Court thus upheld a District Court order allowing the divorce plea filed by a wife. The District Court had permitted the plea taking note of her deposition that her husband made sexual relation against her wishes like a beast forcibly in a very brutal and cruel way against the order of nature several times and committed sodomy and unnatural sex.

First and foremost, the ball is set rolling in para 2 of this significant judgment which states that, “This appeal has been preferred against the judgment and decree dated 29.03.2018, passed by Additional District Judge, Fast Track Court-II, Ghaziabad, in Case No. 2274 of 2013 (Ritu Gupta vs. Sanjeev Gupta), under Section 13(1) of the Hindu Marriage Act by which the petition for divorce filed by the respondent-petitioner has been decreed against the appellant-opposite party.”

To recapitulate, para 3 then while elaborating in detail states: “Brief facts of the case are that the respondent-petitioner filed a petition for divorce seeking divorce under Section 13(1) of the Hindu Marriage Act for dissolution of marriage dated 01.07.2012 between the parties. The respondent-petitioner has stated that both the parties married according to Hindu rituals and tradition on 01.07.2012 in Arya Samaj Temple, Aryanagar, Ghaziabad. A reception ceremony was also organized in Hotel Country-Inn, Sahibabad, Ghaziabad. The marriage was got registered on 02.07.2012 before the Sub-Registrar, Ghaziabad. Enough dowry was given in the marriage and enough expenses were incurred by the father of the respondent-petitioner. Prior to marriage with the opposite party, she was married with one Omkar Chawala from whom, two children were born. The elder one is son Ekansh and the younger one is daughter Khushi. On 14.06.2011, in a road accident, her husband Omkar Chawala died and thereafter on 01.07.2012, the marriage between the parties took place. Prior to marriage, appellant-opposite party was married with one Priyambada but the marriage was dissolved by a decree of divorce. The respondent-petitioner , prior to marriage with appellant-opposite party had told that she has two children and if he accepts them, only then she will enter into marriage. In the beginning, he did not agree to it and she denied to marry but thereafter, he took her into confidence that he will accept both her children. He got both the children admitted in the British School at Chandigarh and she believed that he has accepted her both children. After the end of the reception of the marriage, both stayed in a room of the same hotel and in another room, the father of appellant-opposite party and his friend Sonaria stayed. His father took her gifts and ornaments in the pretence of keeping them safe. The appellant-opposite party on the very first night of marriage behaved in a very cruel way and forced her for unnatural sex and made physical relationship with her in a very vulgar and inhuman way which was worse than animal. She started bleeding and felt enough pain. When she tried to alarm his father, he forcefully dragged her in the room. On 02.07.2012, after attending the marriage of her sister, both went to their room and again he attempted for unnatural sex and on being prevented, he committed maar-peet with her and said that she is characterless. The appellant-opposite party enjoyed making unnatural sex and on being refused, he got very angry and used to commit violence against her. He also complained that her father did not give any vehicle in dowry. When she told him that according to his status, her father spent money in her marriage and it was not possible for him to give a vehicle, again maar-peet was committed by him. On 03.07.2012, she told about this happening to her family members, they came to her house and in the afternoon, she went to Ghaziabad to her parental house. His father also sided with him. Due to his aforesaid behavior, she refused to go to him. Thereupon, he came with his friends namely Sonaria and Manoj to her house and insisted for compromise. But she said that she will go with him only if he will not further commit unnatural sex with her nor will he commit cruelty with her. On 17.07.2012, the appellant-opposite party compromised before her family members accordingly and gave an affidavit which he brought with him after getting the same prepared in Faridabad, and therefore, she went with him. He took a house on rent in Surya Nagar, Ghaziabad and took her with children there but his behavior did not change. He also made complaints about inadequate dowry and he insisted her to bring Rs 40 lakhs for purchasing a house in Indrapuram, Ghaziabad. When she refused, the appellant-opposite party behaved in a very cruel way and on 06.08.2012, when she was sleeping with her son as he was suffering from fever, the appellant-opposite party came and started abusing her and forced for sexual relationship to which she refused. He forcefully made unnatural sex and threatened that if she will not do it, he will not leave her five years old daughter and will make relationship with her also. On 07.08.2012, the respondent-petitioner was in stomach pain and asked the appellant-petitioner to take her to hospital, but he refused. But when the pain increased, he took her to doctor where the doctor diagnosed to be stone pain. He became very angry at this and despite advice of the doctor that they should keep away from each other and she should take rest, he still forced her to do sex. On 13.08.2012, he went to his office and she suddenly came to know that his father has incurred injury and he has been admitted in hospital, where her mother was also admitted and operated on 10.08.2012. Since, no one was there to look after them, she went there and came back after two hours. When she informed him on phone about it, he started abusing her and started saying that she is characterless as she went to meet her friend. It became too difficult to live with him in view of her physical and mental harassment and sexual exploitation and, therefore, she shifted to her parents house on 14.08.2012. Subsequently, she came to know that the appellant-opposite party had earlier also behaved in the like manner with her previous wife and, therefore, she took divorce from him. When she came back to her parents house, he, in order to save himself, filed a complaint before the C.J.M., Ghaziabad, whereupon, she also lodged an FIR on 09.08.2013 for the offences under Sections 498A, 323, 504, 377 I.P.C. and Section 4 Dowry Prohibition Act. In view of his inhuman behavior, it was not possible for her to live with him as her life was in danger, therefore, this petition was filed for divorce.”

It cannot be lost on us as to what is stated in para 20. It is stated that, “It needs specific mention that prior to filing of this petition for divorce, the plaintiff-wife lodged a FIR against the defendant-husband on 9.8.2013 in PS Linkroad, Ghaziabad, crime no. 331/13, for the offence under Section 498-A/323/504/377 IPC & section 4 Dowry Prohibition Act and dowry demand, dowry harassment and unnatural sex was alleged against him and it was further alleged that on 9.8.2013, he came to her parent house. She was alone as her parents had gone to market. Despite her resistance, he committed sodomy on her. The police investigated the offence and submitted charge-sheet to the court for the offence under section 498-A/323/504/377 IPC & section 4 Dowry Prohibition Act. The appellant-husband was charged and tried and convicted and sentenced for the offence under section 498-A/323/377 IPC & section 4 Dowry Prohibition At by Addl. CJM, Court No. 8, Ghaziabad by judgment dated 12.9.2018. During the hearing of this appeal, the respondent-wife has filed the copy of that judgment and a perusal thereof shows that four fact witnesses including the plaintiff-wife were examined in support of charge and the defendant-husband was held guilty for the offence of sodomy and unnatural sex. It has been submitted by the appellant that he has filed appeal against the said judgment which is pending. No order of the appellant court has been produced by the appellant to show that the said judgment of the trial court has been stayed. It needs to be pertinently mentioned that the standard of proof in a criminal case is much higher than a civil case as the guilt is expected to be proved beyond doubt and it is not decided on the basis of comparative probability. In any case the finding of the court in this petition in respect of dowry demand, dowry harassment and unnatural sex and sodomy stands further corroborated by the judgment in the criminal case.”

What’s more, it is then rightly pointed out in para 21 that, “In addition to being a criminal offence, act of sodomy and unnatural sex is also a marital wrong and is a ground for seeking divorce. It also amounts to cruelty which is another grounds of divorce.” In this very same para 21 then is explained what is provided as grounds for divorce in Section 13 of the Hindu Marriage Act which the husband and wife can avail of. The grounds are: “(I-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ii) that the husband has since, the solemnization of the marriage, been guilty of rape, sodomy or bestiality.”

More importantly, it is then eruditely and elegantly stated in para 26 that, “In the case in hand the respondent-wife has stated that the husband made sexual relation against her wishes like a beast forcibly in a very brutal and cruel way against the order of nature several times and committed sodomy and unnatural sex. The appellant-husband did not put any question in her cross-examination nor made any suggestion of falsity on this point. Even in his written statement, he has expressed his denial only saying that all alleged grievances may not be possible in short spaqn of only about 15 days. He has stated what has been done by him for the children of plaintiff-wife, for her or for her parents. In the above-referred two judgments, the matter proceeded either ex-parte or the husband did not turn up to cross-examine the wife. Viewed from this angle, the appellant-husband is on worse footing as he had opportunity to cross-examine, but he did not cross-examine on the point of allegation of sodomy and unnatural sex. In his affidavit, the appellant-husband has written a lot about his wellness and goodness in terms of nature and economic status, what he did for the respondent-wife and her children and that even he went to see his mother-in-law when she was hospitalized. It has been also disclosed that he deposited the fee for the admission of the children but the same has been denied by the wife, saying that she paid him in cash and thereafter, he made payment by cheque. He has also disclosed that he has made some fixed deposit in the name of the children but admittedly the same has been done after the filing of the petition by wife. It is also pertinent to mention that he also filed a criminal case against the wife and thereafter the criminal case was filed by the wife and thereafter the criminal case was filed by the wife against him and then the case was filed. In view of the fact that the appellant-husband has been convicted for the offence of unnatural sex, therefore, version of the wife in respect thereof is strengthened. Moreover, such thing cannot be a compensation for the act of unnatural sex.”

Equally important is that it is then disclosed in para 27 that, “It has been specifically stated by the respondent wife in her petition as well as in her affidavit filed in evidence that the appellant-husband was earlier married with one Priyamvada who for similar reasons divorced her. On this point, the appellant-husband has been cross-examined, but he has given evasive reply and has not clarified the facts. He could have filed judgment of that divorce case, which must have been in his knowledge, but the same was not filed by him. This fact also supports the respondent-wife, so far as allegations of unnatural sex is concerned.”

As it turned out, the Bench then also sought to make it clear what is stated in para 28 that, “So far as the argument of the appellant-defendant is concerned that a wrong procedure was adopted by the learned court below does not appear to be correct, in view of the record. The fact that at the last stage after recording of the statement by the Family Court the case was transferred to another court and the court below immediately heard the arguments and reserved the case for judgment, cannot be taken to be extraordinary as after the recording of the statement the case was transferred on the basis of a letter of the Family Court, as it declined to hear the arguments as in the transfer application given by the appellant-husband certain allegations were made and thereafter the case was transferred by the District Judge to the court below.”

Most importantly, it is then stated in para 29 that, “We are in total agreement with the view taken by the Karnataka High Court and Kerala High Court as referred above. Unnatural sex, sodomy, oral sex and sex against the order of nature, against the wishes of a women or wife or anybody is not only a criminal offence but also a marital wrong and amounts to cruelty which is a good ground for dissolution of marriage. Any such thing which brings the wife to indignity and causes physical and mental agony and pain is cruelty. Forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her.”

To put things in perspective, it is then stated in para 30 that, “On the basis of above discussion, we find that the approach adopted by the learned court below and the conclusion arrived at in the impugned judgment is sound and based on legal principle and correct marshalling of the fact and evidence. We find no perversity and illegality in it. Hence the appeal is liable to be dismissed and the impugned judgment is liable to be affirmed.”

Furthermore, it is then stated in para 31 that, “The appeal is dismissed and the judgment and decree dated 29.03.2018, passed by Additional District Judge, Fast Track Court-II, Ghaziabad, in Case No. 2274 of 2013 (Ritu Gupta vs. Sanjeev Gupta) under Section 13(1) of the Hindu Marriage Act is affirmed.”

Finally, it is then stated in the last para 32 that, “Lower court record be transmitted forthwith to the learned court below along with a copy of this judgment for information and necessary compliance.”

All said and done, it is an extremely laudable and landmark which deserves to be implemented in all such cases. There has to be zero tolerance against forcible sex. The Allahabad High Court Bench in this latest case has very rightly held that, “Forcible sex is an illegal intrusion in the privacy of wife and amounts to cruelty.” This should be the norm always in such cases! No denying or disputing it!

Sanjeev Sirohi,

Uttar Pradesh Must Have At Least 10 High Court Benches

Let me begin on a very bitter note by pointing out that crime against women are multiplying most rapidly in UP and this is most felt in West UP which is the worst affected of all the regions of UP. Throwing of acid on woman or rape, gang rape, molestation and all other forms of crimes against women and girls are openly being perpetrated in West UP especially as also in UP which is certainly most concerning! While PM Narendra Modi was about to address a rally at Meerut during elections we saw how a woman was raped by a doctor and an attendant right in the hospital itself! Woman is not safe anywhere in West UP! We also saw how a woman was gang raped in Hapur and she then burnt herself in frustration as no strict action was being taken against the culprits?

Why talk about women alone? Even men are not safe here! Policemen themselves are not safe here! Criminals are killing whomever they want with impunity and then we see how they easily manage to get bail and the criminal cases keep pending interminably!  This must stop forthwith if a semblance of law and order is to be restored in UP! But how? By ensuring that cases against criminals are decided at the earliest.

How can this be ensured that cases are decided at the earliest against criminals? By setting up at least 10 high court benches in Meerut, Agra, Kanpur, Jhansi, Gorakhpur, Varanasi, Mahoba, Sultanpur, Aligarh, Badaun or at any other place which is in desperate need of the same! This cannot be allowed to fester indefinitely as we have already lost a lot of precious time!

What an unbeatable irony that Allahabad High Court tops with maximum pending cases at 10 lakh and still it has least high court benches – only one at Lucknow for just 8 districts! No other High Court in India has 10 lakh or 9 lakh or 8 lakh or 7 lakh or 6 lakh or 5 lakh or 4 lakh or even 3 lakh cases pending and still some of them have got 3 high court benches like Karnataka, Maharashtra and others but UP has just one bench only! Why this step-motherly treatment for UP?

We are all seeing how Saharanpur is burning after violent clashes erupted between Dalits and Thakurs that left many dead and many injured! We all saw how BSP leader Munawwar Hasan Rana and his 6 family members were brutally killed in Muzaffarnagar! Many more leaders have been killed since then in West UP and also in other parts of UP! We all know how Meerut and Agra top in the number of incidents of communal clashes and how everyday the local newspapers is flooded with cases of murders, rapes and other heinous crimes! The situation in communally sensitive districts like Aligarh and Kanpur in West UP among others is no better! Still no effort is being made to establish a high court bench here!

This West UP with 26 districts has an area of 98,000 square km which is more than the area of many other states and has a population of more than 9 crore which is more than any other state except Maharashtra and Bihar. Here too areawise West UP is bigger than Bihar which has an area of 94,000 square km. Yet no bench!

It is most hurting to read that dacoits are fearlessly killing innocent people on highway as happened  few years back and then in front of their men had the guts to gang rape the 4 women accompanying them just a kilometer away from the Yamuna Expressway in Greater Noida and when one man resisted he was shot in the chest from point blank range who died  and others were thrashed badly! This shows the complete lawlessness in West UP! This clearly demonstrates that women are not safe even when accompanied with their entire family! Such incidents keep happening on a regular basis in West UP especially! 2 minor girls were gangraped recently in Moradabad! Criminals fully know that West UP has no high court bench and Allahabad High Court tops in the number of pending cases about 10 lakh pending cases and it would take ages before the cases are finally decided as they keep on lingering interminably and by the time they are decided they would die a natural death and victims would suffer endlessly travelling again and again 800-900 km away from West UP to Allahabad as West UP with 26 districts have no high court bench! This must change now if the fear of law is to be ingrained permanently in the minds of such criminals!

We all know fully well that how a similar incident had triggered huge protests in July 2016 when a mother and daughter were gangraped in Bulandshahar! The then newly appointed Chief Justice of Allahabad High Court Justice Dilip Babasaheb Bhonsle rightly lashed out at the law and order situation in UP and said that in Maharashtra from where he hails women or girl venture out in night anywhere yet never such incidents of gang rape occur.

Still you see the irony! Maharashtra has 3 high court benches at Nagpur, Aurangabad and Panaji and now fourth one created at Kolhapur for just 4 districts apart from the high court at Mumbai but West UP has not even a single bench of high court! In UP itself both high court at Allahabad and a single bench at Lucknow are located so close to each other with a distance of just about 150-200 km. Why not a single bench of high court was created in West UP even though Justice Jaswant Singh Commission appointed by former PM late Mrs Indira Gandhi very strongly recommended 3 benches for West UP and hilly areas adjoining it (which now form a separate state – Uttarakhand) at Agra, Nainital and Dehradun? Why women victims have to travel so far away to Allahabad which is about 700-800 km away from most of the districts of West UP and be made to suffer so much for the inordinate delay and made to bear the huge expenses in fighting the case for her right in making sure that sexual offenders are sent behind bars? Uttarakhand whose population in 2000 was about 88 lakh got justice when a separate high court was created for it but what about more than 9 crore people of West UP – 19 years later not even a bench has been created leave alone high court!

 

It is most shocking and disgusting to see that Uttar Pradesh which is the most populated state in India has least high court benches – only one and that too just 150-200 km away from Allahabad where the high court is located! Why no high court bench for 26 districts of West UP which are about 700-800 km away from Allahabad where high court is located ? Why no high court bench for Bundelkhand region as the districts there too are very far away from Allahabad? Why no high court bench at Gorakhpur to which the present Chief Minister Yogi Adityanath belongs? Interestingly enough, Yogi Adityanath as MP had raised the bench issue in Parliament very vociferously a long time back!

Why when UP which is among the largest States, has maximum population – more than 22 crore as CM Yogi Adityanath keeps pointing out every now and then, maximum districts – 75, maximum constituencies, maximum tehsils – 350,  maximum MPs – 80, maximum MLAs – 404, maximum PM including Narendra Modi, maximum pending cases – more than 10 lakh and here too West UP accounts for more than half of pending cases as noted by Justice Jaswant Commission about 57%, maximum Judges which earlier was 160 and increased to 200 in high court, maximum vacancies of Judges – 75 in high court, maximum poverty, maximum villages more than one lakh  as opposed to other states who have not more than few thousands at the most, maximum cities more than 700, maximum fake encounters killings, custody killings, custodial tortures, maximum dowry cases, maximum rape and gang rape cases, maximum acid throwing cases, maximum bride burning cases, maximum cases of human rights violations, maximum undertrials, maximum cases of crime, loot, arson and riots and here too West UP tops with Saharanpur riots, Meerut riots, Muzaffarnagar riots tarnishing our international reputation to the extent that former UN Secretary General Ban ki Moon termed UP as “crime and rape capital” of India and what not yet Centre is not prepared to create even a single bench for not just West UP but entire UP? Why when UP sends maximum MPs to Lok Sabha – 80, maximum MPs to Rajya Sabha – 30, maximum MLAs to State Assembly – 404 MLAs and maximum members to State Legislative Council – 100 MLAs and yet has least benches – only one and that too just 150 km away from Allahabad at Lucknow?

It is so shocking and disgusting to see that West UP is fast becoming the epicenter of all kinds of crimes, rapes, gangrapes, brutal murders, mass murders, dacoity, robbery and what not! What is even more shocking to see is that all political parties barring Samajwadi Party have openly espoused the creation of a high court bench in West UP but still even after seventy years of independence we see no sign of it happening anytime soon! What is most shocking is that inspite of West UP accounting for more than half of the crime cases all over UP, not a single high court bench has been created here since 1947 till now in 2019 even though a high court bench was created at Lucknow which is just about 150-200 km away from Allahabad way back on July 1, 1948! What an unbeatable irony that Allahabad High Court tops with maximum pending cases at 10 lakh and still it has least high court benches – only one at Lucknow for just 12 districts!

There is zero fear of law in West UP and UP! How long will the government keep tom-tomming the same old argument on lawlessness in West UP and UP? Why no strict action is taken against culprits?

Such criminals know fully well that Allahabad High Court has the highest number of pending cases – about 10 lakh as compared to other states where the number of pending cases don’t exceed 1 lakh or at the most 2 lakhs cases! They know that they will easily get bail and by the time cases are finally decided they will die a natural death. This must change which is possible only if at least in my opinion 10 more benches of high court are created in different parts of UP! Such poor, hapless women and girls, for God sake, need more high court benches and not more temples!

But see the unpalatable irony! Politicians are not prepared to create even a single bench anywhere in UP leave alone West UP!  It is a matter of great shame that Allahabad High Court which in 2016 on March 17 had completed its 150th year of establishment has the least benches in India – only one at Lucknow and that too just about 150-200 km away from Allahabad! Why no high court bench in West UP at Meerut or Agra or at Jhansi or some other place? We all know that Allahabad High Court is the biggest court in whole of Asia and also the oldest court! Still why it has least benches in India only one which is so close to Allahabad? If Lucknow is capital of UP, Bhopal is also capital of MP, Bhubaneshwar is also capital of Odisha and so is the case with many other big cities which neither have high court nor bench!

Why politicians have ensured that a high court bench was created for Lucknow about 69 years back on July 1, 1948 but not at any other place especially in West UP, Bundelkhand and Gorakhpur even 72 years later? Why Centre decided to create 2 more benches for Karnataka at Dharwad and Gulbarga for just 4 and 8 districts but not a single for West UP with 26 disricts? Why 230th report of Law Commission submitted in 2009 which recommended creation of more benches has only been implemented in Karnataka alone and not in UP, Bihar or other big states? Why Karnataka has just 6 lakh population which is less than the population of even West UP which has 9 crore population, has less than 2 lakh pending cases as compared to UP which has 10 lakh pending cases still 2 more high court benches created for it but not a single more for UP?

When Dr Sampoornanand who was the UP CM way back in 1955 very strongly recommended a high court bench for West UP at Meerut, Jawaharlal Nehru refused as he felt that one bench at Lucknow was enough. The number of pending cases way back in 1948 were not much but see the situation now! West UP now accounts for more than half of the pending cases of total pending cases of UP and UP tops the maximum pending cases state list with 10 lakh pending cases still it has just one high court bench as no more benches were created in UP since 1948! Other states like Karnataka and Maharashtra don’t have 10 lakh or 9 lakh or 8 lakh or 7 lakh or 6 lakh or 5 lakh or 4 lakh or 3 lakh or even 2 lakh cases still they have got 3 high court benches but UP has only one! Is this fair?

Why not a single bench of high court was created in West UP even though Justice Jaswant Singh Commission appointed by former PM late Mrs Indira Gandhi very strongly recommended 3 benches for West UP and hilly areas adjoining it which now form a separate state – Uttarakhand at Agra, Nainital and Dehradun? Why women victims have to travel so far away to Allahabad which is about 700-800 km away from most of the districts of West UP and be made to suffer so much for the inordinate delay and made to bear the huge expenses in fighting the case for her right in making sure that sexual offenders are sent behind bars?

Eminent and senior Supreme Court lawyer and former Law Minister Kapil Sibal himself had mentioned that he had recommended a high court bench at Meerut but the then state government led by Akhilesh Yadav refused to endorse it and this was candidly disclosed by former Union Minister RPN Singh himself! It was way back in 1955 that Dr Sampoornanand had recommended a high court bench for West UP at Meerut but even after 64 years we see no bench as Centre had refused then! Similarly many other UP CM had also recommended the creation of a high court bench here but to no avail! Why? Our former PM Atal Bihari Vajpayee had himself raised the demand for a high court bench for West UP in 1986 inside Parliament but even after more than 33 years we are nowhere!

Why can’t 10 high court benches be created for UP which has 75 districts which means at least one bench for 7 to 8 districts? Why 2 more high court benches for a peaceful state like Karnataka and not a single more for a lawless state like UP? What is stopping politicians from creating more benches in UP? They must answer! Lower courts in UP has more than 50 lakh cases pending and still we see that there is only one high court bench in UP and that too very near to Allahabad! Why? UP needs more benches and not anti-Romeo squads!

Sanjeev Sirohi,

Wife Expected To Be With Husband’s Family: Cannot Compel To Stay Separated From Mother-In-Law Without Justifiable Reason: Uttarakhand High Court

It has to be said in all fairness that in a landmark, latest and extremely laudable judgment titled Sheenu Mahendru vs Sangeeta @ Soniya in First Appeal No. 139 of 2017 which was reserved on May 10 and decided on May 23, 2019, a Division Bench of Uttarakhand High Court comprising of Justice Sudhanshu Dhulia and Justice RC Khulbe has very rightly observed that the persistent efforts of a wife to compel her husband to get separated from his mother constitute an act of cruelty. The Division Bench thus allowed the appeal of a husband who had sought divorce on the ground of cruelty by wife. Very rightly so!

To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice RC Khulbe for himself and Justice Sudhanshu Dhulia by first and foremost observing that, “This appeal has been filed against the impugned judgment and order dated 03.11.2017 and its decree passed by the learned Judge, Family Court, Haridwar in Original Suit No. 314 of 2015 “Sheenu Mahendru Vs. Sangeeta @ Soniya”, whereby the petition filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 has been dismissed.”

To recapitulate, it is then pointed out in para 2 that, “The brief facts of the case are that the marriage of the parties was solemnized on 10.12.2010 as per Hindu rites and rituals. After the marriage the respondent stayed with the appellant’s house in Khankhal at Haridwar. Out of the wedlock of the parties a son was born on 03.10.2011. The father of the appellant had died before the marriage of the appellant. The appellant has six sisters and all of them were married before the marriage of the appellant. The only old and infirm mother of the appellant was living with the appellant. After the marriage, the respondent started pressuring the appellant to reside separately at Delhi. She also started pressuring the petitioner to sell out his parental house. The appellant tried to convince the respondent that he has a private job and is not able to quit the job but the respondent became adamant on the demand that the appellant should sell his parental house. The respondent is comparatively less educated and always abides by the instructions of her elder sister Nisha Kocher and brother-in-law Chandra Prakash Kocher, it is alleged. Thereafter, the respondent again started threatening the appellant that if the appellant will not accede to her demand, then she would commit suicide and kill her son as well. At times, the respondent used to take out a knife and threatened to kill herself or to drown herself in Ganga, or to take any other suicidal step.”

Not stopping here, it is then pointed out in this same para 2 that, “She also started misbehaving, and even physically torturing the old and infirm mother of the appellant. The respondent frequently started taunting the appellant that she was ill-fated to marry an idiot like the appellant. The appellant tried to convince the respondent but she refused to fulfill her marital duties, and on 13.05.2012 in the absence of the appellant, she left her matrimonial home and took all the ornaments with her.”

Truth be told, it is then brought out in para 3 that, “The appellant then filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights against the respondent. In that case the respondent appeared before the Court. During the proceedings, the appellant came to know that the respondent has filed an F.I.R. No. 147 of 2013 under Section 406 and 498-A IPC read with Section 34 IPC against the appellant and his family members with false allegations. During that case filed under Section 9 of the Hindu Marriage Act, the respondent made a statement before the Court that she is ready to reside with her husband. On the request of the respondent the appellant took a rented house at Haridwar but the respondent did not come to reside with the appellant in the rented accommodation. Later on as per the direction of the Court, the appellant handed over all the household goods to the respondent in presence of the police personnel at Police Station Motinagar on 12.08.2013. Subsequently, on the direction of the Court the appellant took the respondent to his rented house at Haridwar, where they even celebrated the birthday of their son. The parties stayed together for some time at Haridwar as per the compromise reached between the parties but even then, the respondent refused to consummate marital relations. However, again the respondent started pressurising the appellant to settle down at Delhi. The respondent had become so violent that she would put a knife on the neck of her child and started threatening that if the appellant does not accede to her demand then she would kill the child and herself. When the appellant refused to fulfill her demand then the respondent told him that now she would not reside with him and told that she wants divorce and started demanding Rs 10 lakh. Many times, the respondent used abusive language for appellant in front of all his relatives. No physical relations were established between the parties since 17.09.2014 and she is living separately from the appellant since then. The appellant Sheenu Mahendra has filed the divorce petition under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act for dissolution of marriage. As per the evidence, after marriage respondent Sangeeta started torturing the appellant as well as his old and infirm mother. She also compelled him to settle with her at Delhi. The respondent did not want to reside with her in-laws, since the mother of the appellant is an old and infirm woman. When the appellant did not agree to settle in Delhi, then the respondent refused to consummate the marriage. Ultimately on 13.05.2012, she left her matrimonial home and took all the ornaments along with her. With these averments the divorce petition was filed.”

Briefly stated, para 4 then brings out that, “The respondent filed her written statement and factum of marriage was admitted. It is also admitted that out of the wedlock of the parties, a son was born. She also admitted that she filed a criminal case, F.I.R. No. 147 of 2013, under Section 406 and 498-A IPC read with Section 34 IPC against the appellant and his family members at Delhi. It is also stated that on the basis of mutual agreement, both the parties filed a divorce petition before the Family Court, Haridwar but the parties could not reach an agreement, therefore the case was dismissed. The appellant filed a case against the respondent under Section 9 of the Hindu Marriage Act. The respondent appeared before the Court and stated that she is still ready and willing to live with the petitioner in a separate rented accommodation at Haridwar. She also stated that she never pressurized the appellant to settle at Delhi. She never committed marpeet with the appellant. The marital relations between the parties remained in existence till 2014. The appellant committed marpeet with the respondent on 15.09.2014 at his residence. It is also stated that all the expenses pertaining to education and maintenance of the child are being incurred by the respondent.”

About cruelty, the Bench eloquently observes in para 14 that, “The word “cruelty” appears to have been used in the Section in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ‘cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can also be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from acts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of them have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively.”

Furthermore, while elaborating on mental cruelty, it is then envisaged in para 15 that, “Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular stratum of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society.”

Needless to say, it is then clarified in para 16 that, “The burden lies upon the respondent to establish the charge of cruelty. The question is as to what is the standard of proof to be applied in order to judge whether the burden has been discharged or not. The rule which governs matrimonial cases is, that a fact could be established, if it is proved by a preponderance of probabilities. Proof beyond reasonable doubt is a proof of a higher standard, which generally governs criminal trials or trials involving inquiry into issues of a quasi criminal nature. Such proof beyond a reasonable doubt could not be imported in matters of pure civil nature especially matrimonial matters.”

It cannot be lost on us that it is then held in para 17 that, “From the evidence it is clear that when the respondent has left the matrimonial home in the year 2012, the appellant filed a petition no. 408 of 2012 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights against the respondent, the respondent appeared before the Court and after that, she filed an F.I.R. No. 147 of 2013 under Section 406 and 498-A IPC read with Section 34 IPC against the appellant and his family members with false allegations  at Delhi.”

What’s more, para 18 then reveals that, “It is the allegation of the appellant that after marriage the respondent started pressurizing him to reside separately from his old aged mother. The respondent also started to pressurize the appellant to sell out his parental house. It is the contention of the appellant also that the respondent has forced him to quit his job so that he may settle at Delhi with the respondent. The respondent never wanted to live with her mother-in-law. The respondent also filed an F.I.R. No. 147 of 2013 under Sections 406 and 498-A IPC read with Section 34 IPC at Delhi. In this regard Premlata Mahendra, who is the mother of the appellant, appears as DW-2. In her statement she also proved the allegations as alleged by the appellant against the respondent. She also stated that the respondent tortured her and abused her on many occasions. She also stated that the respondent filed a false criminal case against the appellant and his relatives.”

Moving on, the Bench then discloses in para 19 that, “Respondent Sangeeta admitted in her evidence that her mother-in-law Premlata is a 76 years old lady. She also admitted that she filed a case under Section 498-A IPC against the appellant and other family members at Delhi. She also admitted that she is residing at Delhi with her sister.”

Furthermore, para 20 then enunciates that, “The appellant stated in his evidence that on the request of the respondent, he took a house on rent at Haridwar where the respondent resided with him and where they celebrated the birthday of their son. It is also an admitted fact that respondent lodged an F.I.R. against the appellant as well as his relatives. The respondent admitted in her statement that she wants to continue to reside at Delhi with her child. These facts are also proved by PW2, Premlata Mahendra, who also proved that the respondent always tortured her and used abusive language. She also stated that the respondent lodged a false complaint against the appellant and other relatives with false allegations at Delhi.”

To put things in perspective, it is then divulged in para 21 that, “In the present case, it is clear from the evidence that the respondent had started torturing the appellant as well as his infirm and old mother after the marriage. It is also clear that on the request of the respondent, the appellant took a separate house on rent at Haridwar where the respondent resided with her son but again she started torturing the appellant and forced him to settle down at Delhi. From the evidence, it is also proved that the respondent went to Delhi along with all the ornaments to settle there. When the appellant filed an application under Section 9 of Hindu Marriage Act for the restitution of conjugal rights against the respondent, the respondent filed a criminal case Section 498A IPC at Delhi not only against the appellant but also against other relatives of the appellant-husband with false allegations. The respondent also admitted in her statement that a compromise took place between the parties earlier, and on the basis of the compromise, the divorce suit was filed before the Family Court at Haridwar in which the appellant was ready to give Rs. 10 lakh as one time settlement, and was also ready to give custody of his child to the respondent, but due to some reasons, it could not be materialized.”

More importantly, the Bench then very clearly and categorically points out in para 22 that, “It is proved that the parties are living separately since 2014 and this Court also tried for settlement which could not bring any fruit. It is also clear that the respondent has filed false criminal case not only against the appellant but also against the relatives of the appellant. She is not willing to live with the appellant-husband, rather willing to settle down at Delhi with her son. The respondent does not want to see the face of the old and infirm mother of the appellant. Many times after the marriage, she tortured the old and infirm mother of the appellant. It is also clear that the respondent-wife wanted the appellant to get separated from his old and infirm mother. The evidence shows that the family was virtually maintained from the income of the appellant-husband. It is not a common practice, desirable and acceptable norm for a son to leave his old mother when there is no one else to take care of her in order to settle with his wife, particularly when he is the only earning member in the family. After being brought up and educated by his mother, the son has a moral and legal obligation to take care and maintain her when she becomes old and has no other source of income to maintain her. In normal circumstances, the wife is expected to be with the family of the husband after marriage because she becomes an integral a part of the family of the husband, and without any justifiable reason, she may not insist that her husband stays separately from her old mother, and to live with his wife in a separate and rented accommodation. If a wife makes such a demand, then she must have some justifiable reason for the same. In this case, we do not find any justifiable reasons. In our opinion, normally no husband would tolerate this nor would any son like to be separated from his old mother, who is dependent upon her son. The persistent efforts of the respondent-wife to compel the appellant to get separated from his mother would be torturous for the husband, and in our opinion this act of respondent certainly constitutes an act of cruelty. However, these allegations were not touched by the Family Court. It is also evident that the respondent has lodged a complaint against her husband and his relatives. Such type of behaviour must come within the definition of ‘cruelty’.”

To be sure, it is then held in para 23 while pooh-poohing the inept manner in which the trial court handled this case that, “We have also carefully gone through the evidence adduced by the parties before the Trial Court. The constant persuasion by the respondent for getting separated from the mother of the appellant and constraining the appellant to live separately only with her, was also not considered to be of any importance by the Trial Court. Even no importance was given to the incident with regard to the statement made by the respondent to commit suicide and to kill her son. The mere idea with regard to facing illegal consequences would put a husband under tremendous stress. The thought itself is distressing. Such a mental cruelty should not have been taken lightly by the learned Family Court. It is needless to add that such threats or statements constitute cruelty.”

As it turned out, the Bench then minces no words in stating emphatically in para 24 that, “In the present case, living separately of the parties for a long time, public insult, embarrassment to the appellant, agony and humiliation suffered by the appellant, charging the appellant with false allegations amounts to cruelty by the respondent towards her husband. The respondent wife is living separately for the last five years and presently staying at Delhi with a son born out of the wedlock of the parties.”

Most importantly, while endorsing the appellant-husband’s claim of cruelty on him by the respondent-wife, it is then held explicitly, eloquently and elegantly in para 25 stating that, “From the perusal of the entire material on records, the following facts are proved which constitute cruelty:-

a)  Disrespectful and disparaging remarks by the respondent wife against the appellant-husband would amount to cruelty under Section 13(1) (i-a) of the Act as laid down in Smt. Santana Banerjee Vs. Sachindra Nath Banerjee AIR 1990 (Calcutta) 367.

b) The respondent-wife created a pressure on appellant-husband by alleging that she will commit suicide and kill her son and entangle the appellant in a false case would amount to be a cruelty as laid down in Harbhajan Singh Monga Vs. Amarjeet Kaur AIR 1986 MP 41.

c)   The attitude of respondent-wife abusing the mother in law and making sarcastic remark against the husband before the relatives of husband would amount to be a cruelty as laid down in Rajinder Bhardwaj Vs. Mrs. Anita Sharma AIR 1993 Delhi 135.

d) If the wife physically assaults the mother-in-law and abuses her will amount to be a cruelty.

e)  The respondent has compelled the appellant to abandon his 75 years old and infirm mother.

f)    The respondent has compelled the appellant to liver separately in a rented house.

g)  The respondent had compelled the appellant to live with her at Delhi after selling off his ancestral house.

h) The behaviour of the respondent-wife made the life of the appellant-husband miserable and it became impossible for the appellant to stay with the respondent for the aforesaid reasons. Moreover, the respondent wanted the appellant to leave his own mother and got separated from his mother so that the respondent can live independently, and in that event it would become more torturous for the appellant to stay only with the respondent-wife to tolerate such nature and behaviour of the respondent.

On the whole, the Bench after considering all aspects then observes in para 26 that, “On the basis of above discussion and considering the facts and circumstances of the case, it appears that the relationship between the parties has deteriorated to the extent that there is no possibility of any reconciliation. Their relationship has reached to the point from where there appears no possibility of harmonious conjugal relationships or there being living together as husband and wife and discharging the matrimonial duties. This itself amounts to a cruelty, if allowed to continue. In these circumstances, the appeal is liable to be allowed.”

Interestingly enough, it is then held in para 27 that, “However, before parting, we are also conscious of the interest of the minor son born out of the wedlock of the parties. It, would, therefore, be just to award an amount of Rs. 14 lakh to the respondent-wife for maintenance and education etc. of her son Master Yash Mahendra under Section 25 of the Hindu Marriage Act as one time alimony.”

Lastly, it is then held in para 28 that, “For the aforesaid reasons, the appeal is allowed. The marriage solemnized between the parties on 10.12.2010 is hereby dissolved. The appellant is directed to pay Rs. 14 lakh (fourteen lakh only) to the respondent-wife as one time alimony under Section 25 of the Hindu Marriage Act. Out of this amount a sum of Rs. 10 lakh will be paid by him within one month from today, out of which Rs. 5.00 lakh would be a fixed deposit for five years in the name of his son, with his wife as nominee. The remaining amount will be paid by him within a span of two years in four equal half yearly installments.”

In all fairness, it has to be applauded, appreciated and admired most lavishly not just what the Uttarakhand High Court Bench comprising of Justice RC Khulbe and Justice Sudhanshu Dhulia has so very rightly ruled in this highly commendable judgment but also the appellant-husband who has taken his wife to the court to ensure that his mother does not suffer interminably for no fault of hers! This is the best inspiration for every son to follow. It is usually seen that most of the men prefer to side with their wife and desert their parents in one go at the call of their wife very conveniently forgetting that it is their parents who gave their whole life for them and nurtured them with full love and affection by sacrificing their own comforts and enjoyments! But Sheenu Mahendru very rightly decided to opt for his old mother when his wife pressurized him to leave his mother for which he must be commended lavishly in no uncertain terms! Also, the gist of this extremely laudable, landmark and latest judgment is that, “Wife is expected to be with the husband’s family. Wife is not expected to be with her own parent’s family. She cannot compel her husband to stay separately from his mother without justifiable reason.” There can be no denying it!

Sanjeev Sirohi

Substantial Question Of Law Requirement Not Mandatory In Second Appeals Before Punjab & Haryana HC: SC

 

It has to be conceded right in the beginning that in a latest and significant judgment titled Kirodi (Since Deceased) Through His LR vs. Ram Parkash & Ors. in Civil Appeal No. 4988 of 2019 (@ Special Leave Petition (C) No. 11527 of 2019, it has been held by the two Judge Bench of the Supreme Court comprising of Justice Sanjay Kishan Kaul and Justice Indira Banerjee very explicitly on May 10, 2019 that the substantial question of law requirement not mandatory in second appeals before Punjab and Haryana High Court. The Apex Court said that, though the Code of Civil Procedure requires the second appeal to mandatorily contain a substantial question of law considering the same, but as far as state of Punjab is concerned, Section 41 of the Punjab Courts Act, 1918 does not require the framing of such a substantial question of law. Very rightly so!

To start with, first and foremost it is stated eloquently in para 2 that, “The sole contention advanced is that the regular second appeal has been decided without framing a question of law.” Para 3 then further states that, “In order to support the aforesaid plea, learned counsel for the appellant(s) has relied upon the judgments in Civil Appeals No. 3276-3281 of 2019 titled as Chand Kaur (D) through Lrs. And in Civil Appeal Nos. 9118-9119 of 2010 titled as Surat Singh (Dead) Vs. Siri Bhagwan & Ors. both emanating from the Punjab and Haryana High Court. He also relies upon two other judgments i.e. Civil Appeal No. 4451 of 2009 titled as Shrikant Vs. Narayan Singh (d) through Lrs. & Ors. and Civil Appeal No. 1117 of 2001 titled as Santosh Hazari Vs. Purushottam Tiwari (D) by Lrs. Both emanating from the Madhya Pradesh High Court to canvass the aforesaid proposition.”

To be sure, it is then recalled in para 4 that, “On the last day of hearing, we had pointed out to learned counsel for the appellant(s) that insofar as Punjab and Haryana High Court is concerned, a different legal position will prevail in view of the Constitution Bench Judgment of this Court in Civil Appeal No. 201 of 2005 titled as Pankajakshi (Dead) through L.Rs. & Ors. Vs. Chandrika & Ors. (2016) 6 SCC 157.”

Be it noted, it is then lamented in para 5 that, “Unfortunately, in respect of both the first two judgments, emanating from second appeal in Punjab and Haryana High Court, the Constitution Bench decision has not been brought to the notice of the Bench deciding the matters.” It is then clarified in para 6 that, “We are elucidating the position which emerges from the Constitution Bench Judgment to put the controversy at rest.”

Furthermore, para 7 then concedes that, “It is no doubt true that by virtue of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as the ‘Amendment Act’) and Section 100 of the Code of Civil Procedure, 1976 (hereinafter referred to as the ‘Code’) was amended requiring the second appeal to mandatorily contain a substantial question of law considering the same.”

More significantly, para 8 then envisages that, “It was initially held in Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (Dead) by Lrs. Ors. (2001) 4 SCC 262 case that Section 100 of the Code would take precedence over Section 41 of the Punjab Court Act, 1918 (hereinafter referred to as the ‘Punjab Act’) which conspicuously does not require the framing of such a substantial question of law. It was held that Section 41 of the Punjab Courts Act being repugnant to the amended provisions of Section 100 of the Code and Section 97 of the Amendment Act containing a saving clause, Section 41 of the Punjab Act would no longer hold the field and substantial question of law will be required to be framed. Section 41 of the Punjab Courts Act reads as under:

“Section 41 – Second Appeals

(1)         An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:

(a)          the decision being contrary to law or to some custom or usage having the force of law:

(b)         the decision having failed to determine some material issue of law or custom or usage having the force of law:

(c)           a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or possibly have produced error or defect in the decision of the case upon the merits:

(1)         [Explanation – A question relating to the existence or validity of a custom or usage shall be deemed to be a question of law within the meaning of this section.]

(2)         An appeal may lie under this section from an appellate decree passed ex parte.

(3)         [Repealed by Section 2B of Punjab Act 6 of 1941]”.”

What cannot be overlooked is that the Bench then points out in para 9 that, “A Constitution Bench of this Court however in Pankajakshi (Dead) through L.Rs. & Ors. (supra) opined that Section 97 of the Amendment Act prohibited amendments made in the principal Act which were repugnant to the same and, therefore, if any state amendment to the Code was enacted by the state legislature or a rule was made by the High Court of State in respect of the provisions of the Code, it would be hit by the provisions of the savings clause of the Amendment Act. The caveat, however, was that the legislation in question being the Punjab Act is a pre-Constitution Act and hence is not a legislation hit by the provisions of Article 254 of the Constitution of India which holds state enactments to be repugnant to the enactments when they run counter to the laws enacted by the Centre through the Concurrent List. The legislation was saved by Article 372(1) of the Constitution of India being a pre-Constitutional enactment which was to continue to be in force until altered or repealed or amended by a competent legislature. No such repeal took place, hence, the legislation continue to operate.”

To say the least, it would be pertinent to mention here that the Bench then rightly acknowledges in para 10 that, “The effect of the judgment of the Constitution Bench is that insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law since the Punjab Act would be applicable for the State. Hence, Section 100 of the Code would not hold the field having supervening effect.”

It cannot be lost on us that the Bench then rightly envisages in para 11 that, “The discussion of the Constitution Bench is as under:

24. The judgment in Kulwant Kaur case raised a question which arose on an application of Section 41 of the Punjab Courts Act, 1918. This Section was couched in language similar to Section 100 of the Code of Civil Procedure as it existed before the Code of Civil Procedure (Amendment) Act, 1976, which amended Section 100 to make it more restrictive so that a second appeal could only be filed if there was a substantial question of law involved in the matter. The question this Court posed before itself was whether Section 41 itself was whether Section 41 stood repealed by virtue of Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976, which reads as under:-

“97. Repeals and savings – (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provisions of the principal Act as amended by this Act, stand repealed.”

This Court concluded that Section 41 of the Punjab Courts Act was repealed because it would amount to an amendment made or provision inserted in the principal Act by a State Legislature. This Court further held that, in any event, Section 41 of the Punjab Courts Act being a law made by the Legislature of a State is repugnant to a later law made by Parliament, namely, Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976, and that therefore, by virtue of the operation of Article 254 of the Constitution of India, the said provision is in any case overridden. In arriving at the aforesaid two conclusions, this Court held: (SCC p. 276, paras 27-29)

“27. Now we proceed to examine Section 97(1) of the Amendment Act and the amendment of Section 100 CPC by the said 1976 Act. Through this amendment, right to second appeal stands further restricted only to lie where, ‘the case involves a substantial question of law.’ This introduction definitely is in conflict with Section 41 of the Punjab Act which was in pari material with unamended Section 100 CPC. Thus, so long there was no specific provision to the contrary in this Code, Section 4 CPC saved special or local law. But after it comes in conflict, Section 4 CPC would not save, on the contrary its language implied would make such special or local law inapplicable. We may examine now the submission for the respondent based on the language of Section 100(1) CPC even after the said amendment. The reliance is on the following words:

‘100. Second appeal – (1) Save as otherwise expressly provided …by any other law for the time being in force.’

These words existed even prior to the amendment and are unaffected by the amendment. Thus so far it could legitimately be submitted that, reading this part of the section in isolation it saves the local law. But this has to be read with Section 97(1) of the Amendment Act, which reads:

’97. Repeal and savings – (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.’ (Noticed again for convenience.)

28. Thus, language of Section 97(1) of the Amendment Act clearly spells out that any local law which can be termed to be inconsistent perishes, but if it is not so, the local law would continue to occupy its field.

29. Since Section 41 of the Punjab Act is expressly in conflict with the amending law, viz., Section 100 as amended, it would be deemed to have been repealed. Thus we have no hesitation to hold that the law declared by the Full Bench of the High Court in the case of Ganpat cannot be sustained and is thus overruled.” [at paras 27-29].

25. We are afraid that this judgment in Kulwant Kaur case does not state the law correctly on both propositions. First and foremost, when Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 speaks of any amendment made or any provision inserted in the principal Act by virtue of a State Legislature or a High Court, the said Section refers only to amendments made and/or provisions inserted in the Code of Civil Procedure itself and not elsewhere. This is clear from the expression “principal Act” occurring in Section 97(1). What Section 97(1) really does is to state that where a State Legislature makes an amendment in the Code of Civil Procedure, which amendment will apply only within the four corners of the State, being made under Schedule VII List III Entry 13 to the Constitution of India, such amendment shall stand repealed if it is inconsistent with the provisions of the principal Act as amended by the Parliamentary enactment contained in the 1976 amendment to the Code of Civil Procedure. This is further made clear by the reference in Section 97(1) to a High Court. The expression “any provision inserted in the principal Act” by a High Court has reference to Section 122 of the Code of Civil Procedure by which High Courts may make rules regulating their own procedure, and the procedure of civil courts subject to their superintendence, and may by such rules annul, alter, or add to any of the rules contained in the first schedule to the Code of Civil Procedure.

26. The Kulwant Kaur decision on the application of Section 97(1) of the Code of Civil Procedure Amendment Act, is not correct in law.

27. Even the reference to Article 254 of the Constitution was not correctly made by this Court in the said decision in Kulwant Kaur case. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force. Shri Viswanathan’s reliance upon this authority, therefore, does not lead his argument any further”.”

Finally and perhaps most importantly, it is then held in the second last para 12 that, “In view of the legal position enunciated above, the judgments of this court in Chand Kaur (D) through Lrs.’s case (supra) and Surat Singh (Dead)’s case (supra) being contrary to the Constitution Bench of this Court in Pankajakshi (Dead) through L.Rs. & Ors. (supra) and the Constitution Bench’s decision not being brought to the notice of the Bench of this Court deciding the matters, they would not hold the field.” The last para 13 then states that, “The appeal is accordingly dismissed.”

It needs no Albert Einstein to conclude that it is a very well reasoned and logical judgments which while citing the relevant case laws in detail very rightly concludes that, “Insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law since the Punjab Act would be applicable for the State.” It has already been discussed in detail above. It must also be pointed out here at the cost of repetition that in earlier judgments decided by Apex Court in Chand Kaur (D) through Lrs. Vs. Mehar Kaur (D) through Lrs. and Surat Singh (Dead) Vs. Siri Bhagwan & Ors, the Bench while considering the appeals arising from orders of Punjab and Haryana High Court in a second appeal had observed that the sine qua non for allowing the second appeal is to first frame the substantial question(s) of law arising in the case and then decide the second appeal by answering the question(s) framed. But in this latest, landmark and laudable judgment, the Apex Court Bench comprising of Justice Sanjay Kishan Kaul and Justice Indira Banerjee very explicitly and elegantly held on May 10, 2019 that these two judgments delivered by another Bench ‘would not hold the field’ as they are contrary to the Constitution Bench judgment in Pankajakshi (Dead) Through L.Rs Vs. Chandrika as has already been pointed out in detail earlier. Very rightly so! No denying it!

Sanjeev Sirohi

No Law And No Court Can Compel Anyone To Sing Anything

                                                               I am very clear on one thing right from the time I was child: No one can compel anyone to sing anything which he/she does not want to sing. There is not even an iota of doubt in my mind that no law and no court can compel anyone to sing anything against his/her wishes. Our Constitution guarantees not just the right to freedom of speech and expression as envisaged in Article 19 but also guarantees to remain silent to what one does not wish to sing.

Having said this, let me refer here now to the judgment by the Madras High Court which had culminated from a goof-up by the Government of Tamil Nadu. A government job applicant – K Veeramani had in his entrance exam for the post of BT Assistant written to a question that Vande Mataram was written in Bengali. The examiner said that it was Sanskrit. The applicant challenged it as he missed by just one mark. The applicant contended that in all the books he had read, Bengali was mentioned as the language in which Vande Mataram was originally written.

Following this, the Judge had directed the Advocate General of Madras High Court – R Muthukumaraswamy to apprise the court of the correct answer in order to settle the dispute over the linguistic origin of the song. When the case up on July 13, the Advocate General informed the court that Vande Mataram was of Sanskrit origin but had originally been penned in Bengali by Bankim Chandra Chatterjee. The Judge directed the Teachers Recruitment Board to award the mark to the petitioner.

Needless to say, the Hon’ble Madras High Court should have focused only on this. Instead what we saw is that it stipulated that the national song Vande Mataram should be compulsorily sung and played in all schools and educational establishments across the State at least once a week. Justice MV Muralidharan also ordered that Vande Mataram should be played in all Government offices and institutions, private companies, factories and industries at least once a month. Certainly I must say here that patriotism cannot be thrust upon anyone. Singing of national song or anything else must be purely voluntary.

Be it noted, Justice Muralidharan also made it clear that nobody should be forced to sing the national song provided there were valid reasons. This itself proves that it is just not correct to force anyone to sing Vande Mataram or anything else which he/she does not want to sing. Singing or not singing anything cannot be made a crime by any law.

But the moot question that arises here is: Who will determine these valid reasons and what standards will be applied haven’t been specified? All this will only serve to provide more leeway to authorities and moral brigade to harass a common person who is just concerned about how to earn his/her bread and butter! Moreover, every citizen have been guaranteed the fundamental choice by the founding fathers of our Constitution to sing what they want or not to sing at all! No law and no court can force any citizen to sing any song whether it is national song or anything else! Patriotism cannot be forced at gun point or lawpoint or any other point!

This latest order of Madras High Court is reminiscent of the Supreme Court direction in November 2016 on the compulsory singing of the national anthem in cinema houses. We all know how some fringe elements exploit such orders to further their own narrow vested political interests by forcing people from a particular religion or group to sing something which they feel their religion does not permit them to sing! This is why I very strongly feel that no one should be forced anyhow to sing anything against his/her wishes because this is no way to usher in nationalism.

Truth be told, there are many who don’t like to sing any song but they love our nation as much as we do. Why should they be made to sing any song against their wishes? Why should goons be given a pretext to attack those who refuse to sing song? How can this be legally justified?

Don’t we know that there were incidents of physical assaults on those who did not stand up when the national anthem was played in theatres and in some cases even the physically disabled people or those who can’t hear properly or see properly were beaten up! What sort of nationalism is this? Such sort of forced nationalism cannot be justified under any circumstances! All courts right from bottom to top must guard against giving such judgments which can be misconstrued by goons to further their own vested interests or the vested interests of their political masters!

Nationalism cannot be forcibly spoon-feeded. What is the guarantee that those who sing Vande Mataram or any other song would be good citizens or would not indulge in anti-national acts or corruption? Who invited Pakistani invader Gen Pervez Musharraf who masterminded Kargil war in which we lost more than 500 brave soldiers as per official figures? Who gave Most Favoured Nation status to Pakistan unilaterally for more than 20 years which is even now continuing? Those politicians who love singing Vande Mataram and other songs!

Everyday our brave soldiers are dying because of the proxy war being waged by our rogue neighbour – Pakistan and yet our politicians who keep chanting “Bharat Mata Ki Jai, Vande Mataram etc etc” are not ready to declare Pakistan as a “rogue and terror” nation just like Kuwait did recently and severe all ties with Pakistan! No national party is willing to support the likes of independent MP Rajeev Chandrashekhar who has tried several times to bring in a private member Bill to declare Pakistan a terror state! Most shameful!

Even former Rajya Sabha MP Maulana Mehmood Madani who is also leader of Jamiat-e-Ulema had demanded sometime back that Pakistan be named “Aatankistaan” and India should severe all ties with Pakistan but our mainstream parties who enjoy singing national songs are just not prepared for it and feel very strongly that no matter how many soldiers are killed but relations with Pakistan must remain intact! Corruption is silently killing so many people more than that of terror killings and there are so many corrupt politicians who never tire of singing national songs yet shamelessly and wantonly indulge in corruption by nexus with corrupt contractors, engineers etc in making weak roads, weak bridges and weak buildings etc thus directly ensuring that many innocent people are killed in the most brazen manner! Thus there can be no two opinions about the irrefutable truth that moral character is the biggest asset and this should always be stressed upon right from childhood but nowadays it seems that more focus is attached on national songs etc which alone is just not enough!

It is most unfortunate that sparks flew in the Maharashtra Legislative Assembly on July 28 as the ruling BJP MLAs slammed Samajwadi Party’s Abu Asim Azmi who opposed a demand for making the singing of the song mandatory in the schools and colleges of the State. What is most disconcerting to note is that Maharashtra Public Works Minister and BJP leader Chandrakant Patil even went to the extent of saying that those who want to live in the country must say Vande Mataram and Bharat Mata Ki Jai! This is just not done!

India is a very liberal and democratic country where everyone is free even to worship any God of his/her choice or not worship any God and remain an atheist! How can anyone be forced to worship a particular God or Goddess? I myself consider Bharat as father and not as Mata so will those who disagree with me beat me up? Same is the case with singing of national song or anthem. If some person does not like singing anything, that does not imply that he/she is an anti-national or does not love his/her country!

I am reminded of 1994 when my faith in Lord Shiva was completely shattered and my best friend Sageer Khan took a vow from me that I would worship Lord Shiva till my last breath just like he himself worshipped Allah. He rightly said to me to always remember that anything can be changed but parents, religion which includes God whom we worship right from our childhood days and nationality can never be shunned or changed! I had to agree not at gunpoint but because of friendpoint which he pointed towards me and while visiting temple alone I used to utter “Matha to tekna hain tekna hain tekna hain Shraddha nahin hain bhakti nahin hain paar matha to tekna hain tekna hain tekna hain, naak to ragaadni hain Sageer Khan ne kahan hain Sageer Khan ne kahan hain”.

An old priest used to observe me daily and one day he said to me that, “You are doing a crime by worshipping Lord Shiva against your wishes and Lord Shiva will be more angry with you”. I said that I don’t care but I have to fulfill the vow which I gave to my best friend Sageer. He said that Lord Shiva will be most angry with your best friend Sageer Khan because no God wants that anyone should worship him/her against his/her own wishes and your best friend Sageer Khan has committed the biggest sin by forcing you to worship Lord Shiva whom you don’t want to even see! From then on I decided to always go to temple only with true dedication and not because of gunpoint or friendpoint – Sageer Khan! Also, Sageer himself never wanted that I should worship Lord Shiva in a disinterested manner or in a forcible manner.

Same is the case with singing of songs. No song whether it is national song or national anthem can be forced on anyone whether it is Waris Pathan or Abu Asim Azmi or anyone else! Singing of song or anthem has to be purely voluntary! There should be no coercion at all under any circumstances.  Just because a person does not sing a song or anthem does not make him/her an anti-national and just because a person sings a song or anthem does not make him/her a true patriot! This is what we all especially those who are educated must understand and stop quarreling over such trivial issues like illiterate people! Also, Supreme Court itself had on a writ petition on this specific issue of singing of national song clearly stated that there is no mention in the Constitution of the national song that Vande Mataram is meant to be.

Let me now conclude by quoting what the former Cabinet Secretary TSR Subramanian known for his impeccable credentials and genius whom all Central Governments keep consulting from time to time and even has headed many important Committees like the one on National Education Policy had to say in this regard: “I believe that most people in India are patriotic, while they may not be overly demonstrative about it all the time. Love for one’s country is something that comes naturally and can’t be forced. Nothing can be ensured by using force.  The national anthem and Vande Mataram deserve to be respected but binding people by rules can’t ensure patriotism. In my view, it is not to be brought to the bazaar by saying that every shop and every courtroom will sing it every morning. While I respect the spirit of the Madras High Court ruling. I am critical of its application. By asking to play Vande Mataram in every classroom and every office, the court is certainly overdoing it. We should accept and accommodate different views. I think that a debate on patriotism or Vande Mataram, per se, is not required. There are insufficient debates on what’s affecting the country like poverty, preventive medication and education. Our government, Parliament, media and judiciary are not paying attention to these vital subjects.” Very rightly said! What more should I say on this? What the former Cabinet Secretary TSR Subramanian has said must be adhered to by all of us!

Sanjeev Sirohi

No New Appointments To Be Made From In-Service Candidates Against Bar Quota To District Judge Post: SC

In a major and significant development with far reaching potential consequences, the Supreme Court which is the highest court has on May 10, 2019 in Dheeraj Mor vs Hon’ble High Court of Delhi [Petition for Special Leave to Appeal (C) No(s). 14156/2015 (Arising out of impugned final judgment and order dated 19-02-2015 in WPC No. 9303/2014 passed by the High Court of Delhi At New Delhi) ([only IA no. 49518 of 2019 application for stay in w.p. (C) no. 414/2016 to be listed]) with W.P. (C) No. 414/2016 (X) (Only IA no. 49518 of 2019 application for stay to be listed) very clearly and categorically ordered that no new appointments to the post of District Judges shall be made from in-service candidates against quota reserved for Bar ‘now-onwards’. The Bench of Apex Court comprising Justice Arun Mishra and Justice Navin Sinha has refused to pass any further interim orders either by permitting in service candidates to stake their claims in the examination or for being appointed as against the quota reserved for Bar. In other words, the Apex Court has explicitly directed that, “No new appointments to be made from in-service candidates against Bar quota to District Judge post”.

It is a no-brainer that lawyers are very elated to learn this as they have always felt that those Judges who already made it to the Judges post by qualifying for Civil Judge were wrongly and unfairly being allowed further to make inroads to the District Judge post through direct recruitment which earlier since last more than 65 years has always been reserved only for lawyers and those who were already Judges being in Civil Judge had their own quota by which they become District Judges! Earlier they were permitted but now the Supreme Court has chosen to correct this blatant wrong and the lawyers who fought this case now feel that their stand on it has been vindicated by this latest, landmark and laudable judgment! Very rightly so!

To start with, the ball is set rolling in this landmark and laudable judgment by first and foremost observing that, “In these matters, it is in dispute as to whether the incumbents who have joined the services as Civil Judge can stake their claims for the posts meant for direct recruitment from the Bar reserved for practicing advocates for appointment as District Judges. Since there is a quota in the direct recruitment of Bar Members, in order to attract talent from the Bar out of practicing advocates. There are separate quota of promotional posts for the incumbents who have joined the services as Civil Judge to the post of District Judge. There is a set procedure for that and there is a merit promotion quota which has to be made by virtue of the limited departmental examination as held in All India Judges’ Association & Ors. v. Union of India and Ors. (2002) 4 SCC 247 and followed in All India Judges’ Association & Ors. v. Union of India And Ors. – (2010) 15 SCC 170. Nowhere it is provided that such in-service incumbents can stake their claim as against posts which are reserved for direct recruitment from the Bar.”

As things stand, the Bench pointed out that, “It was contended that in certain cases, interim relief has been granted by this Court and by virtue of the interim directions issued, certain in-service incumbents participated in the exam and other process by staking claim to be appointed in the quota which is basically meant for lawyers. Since the entitlement of Civil Judges to occupy posts of Bar quota is yet to be decided by hearing matter finally and in case such interim orders are continued to be granted and the Civil Judges from the judiciary are permitted to be appointed as against the quota which was basically meant for practicing lawyers, serious prejudice may be caused to the Bar incumbents. In the past, for the last 65-66 years no person from the Civil Judge cadre were permitted to stake their claims as against the posts which are reserved for direct recruitment from the Bar.”

As it turned out, the Bench made it amply clear that, “It is settled proposition of law that final relief cannot be granted by way of interim measure when direct recruitment has to be from Bar, we cannot continue to grant interim order of final nature leaving the situation virtually irreversible, an incumbent from Bar has to be deprived of the post given to in-service candidate which is reserved for Bar, question of seniority would also arise and in case relief is not finally granted several other complications would arise. In any case such ad-hoc arrangements by appointing such incumbents is not at all warranted that too in higher judiciary unless and until the case is decided in favour of in-service candidates.”

What’s more, the Bench then points out that, “It was also contended that in Dheeraj Mor case, certain interim orders have been passed allowing the members of the judicial service to stake their claims for the posts which are meant to be filled by the direct recruitment from the Advocates. In the circumstances, for years together such interim orders cannot be granted nor interim orders can be treated as a precedent. As they are creating more complications and the question of entitlement of in-service candidates has been referred to Larger Bench which will take call on it. It is considered appropriate that quota meant for the Bar be no more filled by in-service candidates. However, the recruitment from Bar shall be subject to the final outcome of the matter which has been referred.”

Going forward, the Bench then held that, “We are of the considered opinion that we cannot direct any more appointment by way of interim orders of Civil Judges as against posts meant for practicing advocates or allow the judiciary members to participate in such examination to make position worse. Serious complications would arise in case ultimately in-service candidates are not found eligible for such quota.”

Furthermore, the Bench then held that, “As such we are not inclined to pass any further interim orders either by permitting in service candidates to stake their claims in the examination or for being appointed as against the quota reserved for Bar. It would not be proper to stop all recruitments for years together, so as to prevent complications as to seniority as well as the quota which is required to be maintained.”

To say the least, it was then pointed out by the Bench that, “It was submitted that if such an anomaly is permitted to be continued, the posts reserved for the Bar members in the High Court too will have to be filled even from the District Judges who might have earlier practiced for 10 years. Be that as it may, as we are not on that issue, in the facts and circumstances of the case, we find that it is not appropriate to pass such interim orders any more. As the matter is urgent, we request Hon’ble The Chief Justice to post the matter before appropriate Bench for hearing it finally as early as possible.”

Finally and most importantly, it is then  held in the concluding para that, “We make it clear that we are not disturbing the appointments which have been made so far by virtue of such interim orders. However, no new appointments be made from now onwards of in-service candidates against quota reserved for Bar. In case even if in-service candidate has been selected in the examination held earlier as against the Bar quota no further appointment to be made of such candidates. However, the practicing advocates who have been found selected for appointment, their result be declared and they be appointed subject to the outcome of the pending matter.”

No doubt, in the ultimate analysis, it is a path breaking judgment which has clearly signalled that from now onwards no new appointments to be made from in-service candidates against Bar quota to District Judge post. It has also made it amply clear that the Bar quota is meant to recruit candidates from the Bar who practice as lawyers and Civil Judge who have their own quota will not be eligible to stake their claim from the Bar quota as it is meant only for lawyers and if they are allowed then this will cause serious prejudice to the lawyers. It also refused to pass any further interim orders either by permitting in-service candidates to stake their claims in the examination or for being appointed as against the quota reserved for Bar.

However, the Bench clarified that it is not disturbing the appointments which have been already made so far by virtue of such interim orders. But from now onwards the Bench clarified that even if in-service candidate has been selected in the examination against the Bar quota no further appointments to be made of such candidates! Needless to say, the lawyers mostly are most pleased and happy at this latest, landmark and extremely laudable order especially those who aspire to become District Judge and for this full credit goes to all those lawyers who took up the cudgels and filed a PIL which ultimately culminated in this noteworthy judgment!

Sanjeev Sirohi,

Mere Pendency Of Civil Case Between Complainant And Accuused Not A Ground To Qash Criminal Case: SC

Let me begin at the very beginning by first and foremost explicitly pointing out that in a latest, landmark and laudable judgment titled Md. Allauddin Khan vs The State of Bihar & Ors in Criminal Appeal No. 675 of 2019 (Arising out of S.L.P.(Cri.) No. 1151 of 2018) delivered just recently on April 15, 2019 has clearly and convincingly observed that, “Mere pendency of civil case between complainant and accused is not a reason to quash criminal case.” There can be no reason to quash a criminal case just because a civil case is pending between complainant and accused. So the Apex Court has very rightly ruled so accordingly!

While setting the pitch for this extremely landmark and laudable judgment delivered by the Apex Court authored by Justice Abhay Manohar Sapre for himself and Justice Dinesh Maheshwari, it is pointed out in para 2 that, “This appeal is directed against the final judgment and order dated 11.09.2017 passed by the High Court of Judicature at Patna in Criminal Miscellaneous Application No. 27078 of 2013 whereby the High Court allowed the Criminal Miscellaneous Application filed by respondent Nos. 2 & 3 herein and quashed the complaint filed by the appellant herein.”

Needless to say, it is then pointed out in para 3 that, “A few facts need mention here in below for the disposal of this appeal, which involves a short point.” Para 4 then envisages that, “By impugned order, the High Court quashed the order dated 13.02.2013 passed by the Judicial Magistrate 1st Class, Saran at Chapra in Complaint Case No. 21/2012 whereby the Judicial Magistrate took cognizance of the complaint filed by the appellant herein against respondent Nos. 2 and 3 for commission of the offences punishable under Sections 323, 379 read with Section 34 of the Indian Penal Code, 1860 (for short “IPC”) by holding that a prima facie case was made out against respondent Nos. 2 and 3 on the basis of allegations made in the complaint.”

To put it succinctly, it is then observed in para 5 that, “So, the short question which arises for consideration in this appeal filed by the complainant is whether the Judicial Magistrate was right in holding that a prima facie case is made out against respondent Nos. 2 and 3 for commission of the offences punishable under Sections 323, 379 read with Section 34 IPC so as to call upon them to face the trial on merits or whether the High Court was right in holding that no prima facie case has been made out against respondent Nos. 2 and 3.”

After observing in para 6 that, “Heard Mr. Binay Kumar Das, learned counsel for the appellant, Mr. Prabhat Ranjan Raj, learned counsel for respondent Nos. 2 & 3 and Mr. Devashish Bharuka, learned counsel for respondent No. 1-State.”, the Bench then goes on to add in para 7 that, “Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and restore the order of the Judicial Magistrate dated 13.02.2013.”

Furthermore, the Bench then observes in para 8 that, “The High Court examined the case in para 6, which reads as under:

“6. On perusal of complaint petition, I find that the complainant has asserted that firstly, he had contracted for purchasing the shop premises from the land owner, but the petitioners offered more money and got the document registered in their favour. There is no chit of paper on record to support the agreement of sale or payment of any amount to the land owner. The petitioners claim to be bona fide purchaser of the shop premises, which was in tenancy of the complainant. The petitioners have filed an Eviction Suit No. 10 of 2012, in which the complainant has filed his written statement admitting tenancy in the said shop premises. The complainant has further asserted that he has been remitting rent of the said shop regularly and when he learnt about the transfer of shop premises in favour of the petitioners, the complainant has filed a Title Suit No. 2 of 2012. The dispute between the parties appears to be a civil dispute. The relationship of landlord and tenant stands admitted by the complainant in the eviction suit. I further find that there are contradictions in the statement of witnesses on the point of occurrence. The criminal prosecution of these petitioners in the above background appears to be an abuse of process of Court”.”

Truth be told, the Bench then minces no words in pointing out in para 9 that, “On perusal of the impugned order, we find that it suffers from two errors.” Elaborating further, para 10 then states that, “First error is that the High Court did not examine the case with a view to find out as to whether the allegations made in the complaint prima facie make out the offences falling under Sections 323, 379 read with Section 34 IPC or not.”

While highlighting the discrepancies in the High Court’s verdict, the Bench then observes in para 11 that, “Instead the High Court in Para 6 gave importance to the fact that since there was a dispute pending between the parties in the Civil Court in relation to a shop as being landlord and tenant, it is essentially a civil dispute between the parties.”

Furthermore, while rapping the High Court on its knuckles, the Bench then minces no words to say it upfront in para 12 that, “It is on this ground, the High Court proceeded to quash the complaint. This approach of the High Court, in our view, is faulty.” Also, it is then laid bare in para 13 that, “Though the High Court referred to the law laid down by this Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors. (AIR 1992 SC 604) but failed to apply the principle laid down therein to the facts of this case.”

Not stopping here, it is then pointed out in para 14 that, “The High Court failed to see that mere pendency of a civil suit is not an answer to the question as to whether a case under Sections 323, 379 read with Section 34 IPC is made out against respondent Nos. 2 and 3 or not.”

To say the least, the Bench also sought to make it clear point blank in para 15 that, “The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizance is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.”

While pointing out the second error in the verdict of High Court, it is then held in para 16 that, “The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.”

While making the picture on this lacuna in the High Court verdict more clear, it is then held explicitly in para 17 that, “In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”

What’s more, it is then observed in para 18 that, “It is due to these two errors, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court for quashing the complaint filed by the appellant against respondent Nos. 2 and 3 is not legally sustainable and hence it deserves to be set aside.”

It also cannot be lost on us that it is then observed in para 19 that, “In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside and the order of the Judicial Magistrate dated 13.02.2013 is restored because it records a finding that a prima facie case for taking cognizance of the complaint is made out.”

Before parting, it is then finally held in the last para 20 that, “The Judicial Magistrate is accordingly directed to proceed to conclude the trial on merits on the basis of evidence adduced by the parties in the trial strictly in accordance with law uninfluenced by any observations made by the High Court in the impugned order and in this order made by this Court.”

In conclusion, it can be said with consummate ease that this extremely landmark and laudable judgment while clearly and convincingly not concurring with the High Court verdict lays down that explicitly that mere pendency of civil case between complainant and accused is not a ground to quash criminal case. It thus also directs the Judicial Magistrate to conclude the trial on the basis of evidence adduced by the parties strictly in accordance with law without being influenced in anyway by the observations of the High Court! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.