Sunday, October 31, 2010

Do Maintenance laws need to be relooked ? SC judgment on maintenance alimony for Live-in relationships under Domestic Violence Act

NDTV- We The People – Do Maintenance laws need to be relooked ? SC judgment on maintenance alimony for Live-in relationships under Domestic Violence Act


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Alimony and the modern woman

Do alimony laws need to be re-examined in modern India?

Thursday, October 28, 2010

Thursday, October 14, 2010

Family courts falling short of goals

Family courts falling short of goals

By: Imran Shah | Published: October 14, 2010

LAHORE - The unexpected alarming surge in the institution of cases for divorce on the basis of Khula has made it difficult for the family courts to follow the National Judicial Policy-Making Committee (NJMPC), a body supposed to chalk out various long and short-term measures for early disposal of the cases.
The filing of divorce suits has witnessed an unprecedented surge over the last few years due to various factors like ever-rising unemployment and price-hike and monetary issues, in addition to the bad impact of entertainment channels, especially of Indian ones, revealed a survey conducted by TheNation.
The process of getting minors custody is a separate issue but all that including the recovery of dowry-articles and custody of minors can be claimed through a single suit, which has a relief to the women.
Advocate Muhammad Akbar Khan and others pointed out that family courts were overburdened with swelling pile of divorce suits. “The courts are falling short of the goals, set by the National Judicial Policy according to which family cases including that of the custody of minors and recovery of dowry-articles should be decided within six months,” they elaborated.
A data collected from the courts showed horrible figures of suits, instituted for getting divorces. In the family court of Civil Judge Syed Naseer Abbas Naqvi, a total 1,116 cases for dissolution of marriage were instituted from January to August 2010, and 1,046 cases of separations were decided by the court during the said period. Similarly the family court of Civil Judge Tamsal Syed Naeem received 724 cases for the dissolution of marriage from January to July 2010. Some 141 cases of family matters were instituted in the court of Civil Judge Ayeshum Bint-e-Sadiq in the month of July 2010. Again 90 per cent of the cases were of the separations.

KP Assembly passes resolution to ban dowry

KP Assembly passes resolution to ban dowry

The Khyber-Pakhtunkhwa Assembly on Thursday passed a unanimous resolution against ban on dowry in the province, report said. Awami National Party’s woman MPA Tabasum Shams tabled the resolution when the session began with Pakistan Peoples Party parliamentary leader Abdul Akbar Khan in chair. The resolution, which was unanimously passed by treasury benches and the opposition, stressed that exchange of dowry must be banned to save the society from discriminations.

11 HC judges transferred ‘in public interest’

11 HC judges transferred ‘in public interest’

The government on Wednesday transferred 11 judges of six high courts who were recommended for relocation "in public interest" by the Supreme Court collegium.  HT was the first to report about the initiative of the Chief Justice of India (CJI), Justice S.H. Kapadia to shift judges, the biggest single shake-up since 1993.   

According to a Law Ministry notification, two judges each from Delhi, Allahabad and Andhra Pradesh High Courts have been transferred while three have been moved out of the Punjab & Haryana High Court and one judge each has been shifted out of the Madras and Orissa High Courts.

Justices V.M. Sahai and Poonam Srivastava of the Allahabad High Court have been transferred to the Gujarat and Jharkhand High Courts respectively.

Justices T. Meena Kumari and D.S.R. Verma of the Andhra Pradesh HC have been transferred to the Patna and Allahabad High Courts respectively.

Three judges from the Punjab and Haryana High Court — Justices Ashutosh Mahunta, Vinod Kumar Sharma and H.S. Bhalla — have been transferred to the Allahabad, Madras and Orissa High Courts respectively.

Justices S.N. Agarwal and Aruna Suresh from the Delhi High Court have been sent to the Madhya Pradesh and the Orissa High Courts.

Justice M.Jeyapaul of the Madras High Court and Justice B.P. Ray of the Orissa High Courts have been sent to the Punjab & Haryana and the Karnataka High Courts.

The collegium also recommended the transfer of Justice R.S. Mohite of the Bombay High Court to the Patna High Court, but he resigned last month.

Is the judiciary going soft on murderers and rapists

Is the judiciary going soft on murderers and rapists


Judges are actually given too much discretion

The judgment given in any case depends on the proceedings of the court and the judge's discretion. The standards adopted in a particular case may differ in the high court and Supreme Court. There are certain guidelines for a death sentence and it must be a 'rarest of the rare' case. Thus, there is no question of whether a judgement is 'right' or 'wrong' . It all depends on how the bench of judges perceive the case based on the submitted proof. The outlook of judges of a bench may also differ. There is no standardisation in the verdict to be pronounced. However, I would like to point out that judges are given too much discretion. In the end, judges base their verdict on the proof put forth after investigations.
-PB Sawant, former judge, Supreme Court of India

Leniency on the part of the Supreme Court is not justified

In our country, a death sentence is pronounced only in the 'rarest of rare' cases. The court makes its decision on the basis of evidence and the investigation carried out, but the punishment should be awarded in such a way that justice actually prevails. The reason that the judges gave for reducing the death sentence of the convict in the Priyadarshini Mattoo case are dubious. There is no justification for such a dreadful crime. It is different in a case where the victim is alive and the accused offers to marry the victim.
While upholding that he was guilty of the crime, the judges cited mitigating circumstances, which included the young age of the accused at the time of the murder and his having married and become a father. These factors cannot reduce the gravity of a crime that was premeditated and executed in the most brutal manner.
This kind of leniency on the part of the Supreme Court is not justified. The verdict in such a case should act as a deterrent to others as well. Leniency would make people feel that anyone can get away with such a gruesome offence. Rape and murder of a victim is a very serious crime. The commutation of the verdict is not justified.
-Kiran Moghe, president, Janwadi Mahila Sanghatana

Has justice been served?

Priyadarshini Mattoo case

A former IPS officer's son, Santosh Kumar Singh, who was convicted of brutally raping and murdering 25-year-old Priyadarshini Mattoo 14 years ago, escaped the death sentence when the Supreme Court set aside the Delhi high court's order and gave him a life term.
The SC said the "horrendous crime" had happened because Santosh's parents were over-indulgent. The judges said many ghastly crimes happen when "an accused belongs to a category with unlimited power or pelf or even more dangerously, a volatile cocktail of the two".
The apex court added that Singh was young at the time of the incident, and after his acquittal by the trial court he got married and became a father, and there was nothing to suggest that he was not capable of reforming.

Pratibha Srikantamurthy

A fast track sessions court convicted cab driver Shiva Kumar to rigorous imprisonment for life for kidnapping, raping and murdering BPO employee Pratibha Srikantamurthy in December 2005.
Pratibha, who joined HP Globalsoft in 2005 after her marriage, went missing on December 13, 2005 after leaving home for her night shift. Her body was found on the outskirts of Bangalore a day later.
The 113-page judgement said, "There was no dominating control over the deceased. She was not a helpless woman," adding the crime was not enormous in nature and not in the "rarest of rare" bracket. The judge said Kumar, who was 22 then, is now 27. He was not a habitual offender and the prosecution had not shown that he had been convicted for crime earlier, he said.

Without harsh punishment, people will not fear the law
In rape-murder cases, the law is not as harsh as it should be. Thus, there is no fear in society when it comes to committing these crimes. Take any rape or criminal case; the time it takes to reach a verdict is very long. When the fast track courts take that much time (five years in Pratibha's case), why do we need them at all? In this way, people will lose faith in fast track courts. They will be dissatisfied with our judicial system if there is no change in the procedures, especially in cases involving atrocities against women. Such soft judgements will obviously have consequences, wherein people will not be afraid of committing crimes against women. Moreover, by commuting a death sentence, you give the accused time to find ways to get free.
Capital punishment is criticised vehemently on moral grounds, so we do not have an option but to replace it. However, if it is stopped, bad elements in society will continue committing such crimes.
-Lata Bhise, advisor, Yashada

The judgement cannot be made on the basis of public opinion
Life imprisonment until death is as bad or may be worse than a death sentence. Capital punishment is not required as long as the guilty is being punished for his crime. In fact, a life term is more severe as the convict has to live with his guilt in isolation.
People expected a death sentence in the Priyadarshini case, but the judgement cannot be based on public opinion. Mob mentality tends to be brutal, so the judiciary should not get influenced by what people think. Every murder is heinous, but the 'rarest of rare' case can be applied only to the most gruesome crimes.
-Ritu Lamba, law student

Such acts go against the norms of humanity and compassion
The Priyadarshini Mattoo case has revived the debate over whether capital punishment should be awarded and if it can deter others from committing such crimes. Our Constitution and statutes recognise capital punishment as a deterrent to heinous crimes. In case of a crime as gruesome and merciless as rape and murder, the convict should certainly be granted a death penalty. Such acts go against the norms of humanity and compassion. Anything less than life imprisonment until death should not be acceptable.
As far as the Supreme Court verdict in this case is concerned, the death sentence should not have been reduced to life imprisonment. Keeping in view the heinousness of the crime, the court should have upheld the previous decision and stood by it.
-Sameer Nargolkar, lawyer

Severity of punishment is not a deterrent to crime
Death penalty must be abolished in India because it is a cruel way of punishing someone. It is surprising that the lower courts are enthusiastic in awarding death sentences. A capital punishment with the noose does not go well in a civilised society. If we call ourselves civilised, we must stop this practice. The severity of punishment does not act as a deterrent to crime. The surety and speedy delivery of punishment is more important. People generally feel that life imprisonment is a soft way of punishing someone. Considering the severity of the crime, courts can prolong the period of imprisonment. In case of Priyadarshini, the accused got a life term till death, which is a severe punishment.
-Ramesh Awasthi, founder, MASUM

Flaws in investigation and filing of cases affect judgement
There are two issues in the trial of rape cases — the time required by the court and the quantum of punishment. Both these clauses must be revisited and given a rethink. Two judges can differ in their judgement because the circumstantial evidence may vary. That is how they may arrive at different conclusions. A judge has to decide on the basis of the evidence placed in front of him. If the investigation done by the police is shabby, it can affect the judgment.
I agree that the way rape-murder cases are handled needs to be debated, but it is wrong to criticise the judges and their judgement. Many issues have to be considered in every case. Moreover, if the judgement is based on the investigation, collection of evidence and the way the case is filed, the judge can only do so much. I would say that investigation agencies are the real culprits. One must be persistent in pointing out the flaws in the investigation process and filing of cases.
-Aroona Nafday, advocate

There is a rise in false rape cases, so a court has to be cautious
One cannot say the law has been soft in both cases. The judges have given their verdict based on circumstantial evidence and the investigation reports. The investigation into a case and collection of evidence are the reason for delayed judgements. A court cannot pronounce a verdict without proper facts and data. Cases get prolonged till judges receive the essential proof.

In a recent report, the Pune police said that 74% of rape cases in 2008-2009 were found to be instances of consensual sex. Moreover, there have been cases in which the accused has been falsely implicated. For example, in the case of the American student of Tata Institute of Social Sciences (TISS) in Mumbai last year, the medical report did not confirm rape and the DNA report was negative. The complainant told the doctor she was raped by three men whose names she did not know. However, in the FIR, she accused six men and named them. Then, she claimed that she may have been raped, but that she had fallen unconscious after 1 in the night. On the other hand, phone records show that she was texting and calling all night. Thus, in such a case, circumstances become confusing and the judicial process cannot be hurried. Due to the high number of false rape cases and women-centric laws, the court has to ensure that a person is not falsely implicated.

I am not denying that rapes do not happen and the real culprit has to be punished, however, the case has to follow the required process of investigation before a judgement is given.
-Atit Rajpora, activist, Save Indian Family Foundation

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SC fiat on summoning of accused in criminal cases

SC fiat on summoning of accused in criminal cases

13 oct 2010

New Delhi: The Supreme Court has held that summoning of accused persons cannot be withheld merely on the ground that it will hurt the interests of other accused who are "well-known" or just because the witnesses are related to the complainant.
A bench of Justices Aftab Alam and R M Lodha in an order ticked off a trial court for refusing to summon certain accused merely because they were "well-known persons" and the Karnataka High Court for refusing the plea because of certain delay.

The apex court passed the order while upholding an appeal filed by the complainant Bangarayya in a criminal case challenging the refusal of the two courts to summon additional witnesses during the trial.

On a complaint filed on September 1, 2002, a case was registered against 17 persons, but police, after investigation, submitted chargesheets against only 14 persons under IPC Sections 143, 147, 149 (unlawful assembly), 323 (causing hurt), 427(damage to property), 504 (breach of public peace)and 506 (criminal intimidation). No chargesheet was filed against accused Nos 2, 3 and 6 named in the FIR.
The complainant filed an application under Section 319 CrPC for summoning of the three other accused. The State also also supported the plea for summoning of the three accused.

However, the trial court rejected the plea by taking the view that the two witnesses were related to the complainant and no independent witness had been examined before him.

The trial court observed that it would further delay the matter as some of the other accused were "teachers and well-known persons" and they would suffer due to the delay caused by summoning the additional accused.

Aggrieved by the decision, the complainant approached the High Court which dismissed his plea by citing delay in filing of the application following which he appealed in the Supreme Court.

Rejecting the reasonings, the apex court said the two witnesses were examined on August 24, 2007 and February 2, 2008 respectively and the application for summoning three other accused was filed on March 6, 2008.

"We are unable to see where was the delay. In those facts it is quite unreasonable to hold that the application was made after long delay and was, therefore, liable to be rejected. "The reason assigned by the trial court is equally untenable. The two witnesses being related to the complainant or the accused already before the court, being 'teachers and well-known persons' can be no ground to reject the petition under section 319 of the Code for summoning some other persons as well for facing the trial," the apex court observed.

It directed the trial court to consider afresh the plea for summoning of the additional accused.


Wednesday, October 13, 2010



A recent Supreme Court ruling states that a divorce granted by a village panchayat is not legal. But unless rural folk are made aware of their rights, they may continue to abide by such unlawful verdicts, says Shabina Akhtar

Soni Kumari, 22, of Bhujrobad village in Jharkhand was divorced before a gram panchayat a month before the recent Supreme Court ruling that a divorce granted by a panchayat had no legal standing.

She is just one among thousands of rural women in India who accept the verdict of the village panchayat when it comes to separation and divorce.

According to Krishan Murari Sharma, founder of IDEA, a non governmental organisation (NGO) working for women’s empowerment in Jharkhand, 99 per cent of marital disputes in rural India are sorted out before the village panchayat. “Rarely do we see villagers moving the courts or even going to the police station to file a case related to marital disputes. More often than not, both the parties opt to go to the village panchayat and get an out-of-court settlement. Only in the case of dowry deaths do girls’ parents lodge a first information report,” says Sharma.

He also adds that in general it is women who are at the receiving end of these panchayat verdicts. “If a man seeks a divorce, rarely does the panchayat give a verdict that goes in favour of the woman,” he says.

So will panchayats stop granting divorces now that the Supreme Court has ruled that such divorces have no legal sanction? Probably not, say experts. Says Supreme Court advocate Ravi Kant, who is also the president of Shakti Vahini, an NGO, “In north India, the panchayats are really strong and rural people go to them to get verdicts on issues related to rape, violence and marital disputes. Panchayats are so deep rooted in the social system that it will definitely take some time before people stop going to them and instead approach the courts to get a divorce.”

Sharma too agrees that it would take years for people, especially women, to become aware of their rights and take a case of marital dispute to the courts rather than to the gram panchayat.

Of course, there are some women who refuse to take an unfair panchayat verdict lying down. Sheela Devi, a school teacher, had married Mahendra Nath Yadav in 1990, but owing to the nature of Yadav’s job the couple couldn’t lead a normal married life. This eventually led to the dissolution of her marriage both before a village panchayat and then a family court in Allahabad. But when Sheela Devi asked for maintenance, Yadav was quick to approach the Allahabad High Court to get a stay. But instead, the high court ruled that the divorce granted by the panchayat was not legal.

Subsequently, Yadav approached the apex court, only to be told that the high court verdict was apt and that a divorce granted by a panchayat was indeed not legal. It said that the dissolution of marriage through panchayats in accordance with the custom prevailing in the area cannot be a ground for granting divorce under Section 13 of the Hindu Marriage Act, 1955.

Experts say that though such “illegal” divorces are routinely handed out by panchayats, there are no reliable statistics to indicate just how widespread the practice is. “Despite the fact that such divorces are rampant in rural India, no statistical data is available on the number of these cases,” says Kaushik Gupta, a Calcutta High Court advocate who specialises in marital disputes. “Since panchayat rulings on marital issues are not recognised by law, the government has no data related to such rulings,” he adds. Gupta, though, maintains that such divorces are not so popular in West Bengal.

But what of the recent verdict of a kangaroo court in Murshidabad that forced a married woman to do sit-ups holding her ears and decreed that her divorce was not valid? The court chose to ignore her divorce certificate that had been issued by a qazi (who is empowered under the Muslim Personal Law to grant a divorce). Not only did it thus ridicule her in public, it also decreed that her present husband would have to leave the village and pay a fine of Rs 8,000.

Going by the recent Supreme Court verdict, are not such panchayat rulings illegal? Certainly they are, admits Gupta. “The apex court verdict is applicable to each and every citizen of India. And that means that divorce granted by anybody not authorised by the government will be considered illegal. In the case of Muslims, it’s the qazi who has been entrusted with the right to grant divorce and not the panchayats,” he says.

Needless to say, most activists and legal experts have welcomed the Supreme Court judgment. Says Calcutta High Court advocate Protik Prokash Banerji, “The ruling makes it clear that the dissolution of marriage by panchayats is illegal.” Adds Ravi Kant, “The verdict makes the point that panchayats annulling marriages is not legal. In a way it empowers NGOs to bring cases of panchayats granting divorce to the notice of the Supreme Court.”

However, there is no denying the fact that this is one judgment that will be hard to implement on the ground. “The SC ruling can only be effective if the executive enforces it across India,” says Gupta.

Will that happen? Time, as they say, will tell.

Tuesday, October 12, 2010

Delay in FIR not a ground for rejecting prosecution evidence

Delay in FIR not a ground for rejecting prosecution evidence

PTI | 05:10 PM,Oct 12,2010

New Delhi, Oct 12 (PTI) Delay in lodging of FIR and discrepancies in eyewitness accounts cannot be a ground for discarding the prosecution's evidence, the Supreme Court has ruled.The apex court said that such discrepancies were bound to occur particularly in rural areas due to the distance between the village and the police station; and memory of a person also fades away with the passage of time.

Ram Naresh shot at and seriously wounded the victim Shiv Vilas on August 11, 1978 due to previous enmity. The sessions court imposed a five-year sentence on the accused by relying on the eyewitness account of Ram Vilas and Lalu. The Allahabad High Court upheld the sentence."We also find no reason to disregard the evidence of Ram Vilas and Lalu (witnesses). Admittedly, Ram Vilas was a brother of Shiv Vilas, the injured and Lalu was a close relative and also a party man."It must also be borne in mind that the incident happened in the year 1978 and the evidence was recorded in 1986.

Some discrepancies are therefore bound to appear in the ocular evidence as memory fades with the passage of time," a Bench of Justices H S Bedi and C K Prasad said in an order.The apex court passed the ruling while dismissing the appeal filed by Naresh challenging his conviction in an attempt to murder case in Uttar Pradesh about 32 years ago.Ram Vilas had lodged the FIR only the next day as the police station was at a distance of nine kilometres.The accused took the plea in the apex court that there was a considerable delay in the registration of FIR and there was certain material differences in the account given by the eyewitness.Rejecting the argument, the apex court said, "We find from a reading of the evidence that there is no substantial delay in the lodging of the FIR.

The incident happened in a village about 9 kms away from the police station late in the evening and it would have been difficult for the complainant living in a rustic and backward area to rush to the police station immediately,"the Bench observed.However, the Bench said that since the incident had occurred 32 years ago, it was reducing the sentence from five years to three years and directed that the accused be taken into custody forthwith to serve his remaining period of the sentence.

Apex court cautions high courts on use of powers

Apex court cautions high courts on use of powers

Tuesday, October 12, 2010 7:24:14 PM by IANS

New Delhi, Oct 12 (IANS) The Supreme Court has said that though high courts enjoy vast powers for administration of criminal justice (under Section 482 of Code of Criminal Procedure) but the same was not unbridled and should be exercised cautiously and sparingly.

“It needs little emphasis that although the jurisdiction of the high court under the said provision (Section 482 of Cr.P.C.) is very wide but it is not unbridled,” said an apex court bench of Justice D.K. Jain and Justice H.L. Dattu in a judgment Oct 8.

The provision confers extra ordinary powers on high courts in relation to the administration of criminal justice.

Under the provision, the high court in order to meet the ends of justice can pass any order even in situations where there is no statutory backing for such an order in the Cr.P.C.

The court sounded its caution while setting aside the Bombay High Court order of Oct 9, 2007, by which it had declined to quash criminal complaint against the then chairman of the Maharashtra State Electricity Board (MSEB) by a company, Switchgear Limited. Asoke Basak was heading the board when the complaint was filed.

The company entered into various contracts for the installation of low tension load management system for the MSEB and deposited Rs.five lakh as security.

In the course of the time, some dispute arose between the two and the company withdrew from its deal with the MSEB.

It sought the refund of its security which was declined on the grounds that the same has been adjusted against the dues payable by the company. Against this a criminal complaint was a filed before a magistrate which the Bombay High Court declined to quash.

Pronouncing the judgment, Justice Jain said: “The high court is required to exercise its inherent powers under Section 482 of the code sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice to prevent the abuse of the process of court.”

“One of the situations when the high court would be justified in invoking its powers is where the allegations in the first information report or the complaint, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged,” the judgment said.

Referring to an earlier verdict of the apex court, the judgment said that the exercise of the said powers was a “serious matter” for the accused, thus, the high court should not superficially examine the matter under its consideration.

The high court should exercise the inherent powers under Section 482 of the Cr.P.C. in accordance with the guidelines laid down by the apex court, the judgment recorded.

Two women arrested for injecting HIV blood into mother

Two women arrested for injecting HIV blood into mother

Hyderabad, Oct 7 – Angry with their mother for refusing to write the property in their names, two women and the husband of one injected her with HIV-contaminated blood in Andhra Pradesh's Guntur town. The three were arrested Thursday.
Durga, 35, Kameshwari, 32, and Kameshwari's husband Sambasiva Rao, 36, have been arrested, police said. They were later produced in a court, which sent them to jail for two weeks.

The trio were after the property of 59-year-old Bharati and allegedly injected her with HIV-infected blood. Bharati complained to police that Durga, her step-daughter from her earlier husband, in connivance with Kameshwari and her husband took her to a hospital where they injected her with the HIV-infected blood.

Kameshwari works as a nurse in a government-run hospital, where she with the help of her husband and sister committed the crime.
Bharati, who was undergoing treatment for fever, grew suspicious when her condition worsened and she underwent blood tests which confirmed that she was injected with contaminated blood.

She alongwith her husband, Rachakonda Ranga Rao, a retired government employee, lodged a complaint with the police.

A case under Domestic Violence Act was booked against her daughters and son-in-law.
The accused were mounting pressure on Bharati to hand over to them her property estimated at Rs.50 lakh and when she refused they hatched a plan to ensure her death.

'Make Laws Against Pre-Natal Sex Selection Stringent'

'Make Laws Against Pre-Natal Sex Selection Stringent'

12 oct 2010

The national commissions for women and human rights today voiced serious concern over the decline in ratio of girls to boys and suggested making laws more stringent to check pre-natal sex selection and female foeticide in the country.
"Sex ratio is declining in the country every year due to female foeticide. We had suggested certain amendments in the Pre-conception and Pre-natal Diagnostic Techniques (prohibition of sex selection) Act, 1994, three years ago but nothing has so far been done....The Act should be more stringent," Chairperson of National Commission for Women Girija Vyas said.
She was addressing a conference organised jointly by National Human Rights Commission and National Commission for Women on 'Pre-natal sex selection in India:Issues, Concerns and Action'.
Vyas underlined that there are many "lacunae" in the Act and the rate of conviction is "very low".
"Under the Act, punishment is very less. There is no provision for police intervention or third party intervention under the Act," she said.
The NCW chief noted that "abortion is allowed in extraordinary situation but there is no such distinction (in practice). Not a single state, even Kerala, is spared (where incidents of female foeticide do not occur)."
Practice of female foeticide is still continuing in many states including several districts of Punjab, Haryana, Gujarat and Rajasthan. None of the health clinics have been found to be "upto the mark" even in the national capital, she said.
Addressing the conference, NHRC chairperson Justice K G Balakrishnan lamented that there is no law in the country to address the basic regulatory requirements for opening a hospital.
"Unfortunately in India, there are no effective provision for opening a clinic, a health centre, even a hospital. There is no law to address the basic things, fundamental (regulatory) requirements for opening a hospital," he said.
"Clinics should be periodically inspected by authorised officials. There should be some provision that clinic could always be managed by some senior doctors.... These things can bring change to a great extent," Balakrishnan suggested.
He said that laws to curb female foeticide and sex selection practices are not implemented properly.
"PCPDT Act, 1994 has penal provisions. Unfortunately, police are unable to detect such crimes as those cases are always collusive in nature," the former Chief Justice of India said.
Balakrishnan noted that there was need for better implementation of the existing laws and change in the "mindset" of society for checking the declining sex ration in the country or else crime against women, like trafficking, would rise in the country.
Underlining the role of doctors, he suggested that they should be "a little more active and sensitive" towards "this social evil".
Doctors "must" give correct advice to those who approach them for pre-natal diagnostic test and abortion of female foetus, he said.
"But, unfortunately, nature of man to accumulate more wealth creates problems," he added.

Truths about marital conflicts

Truths about marital conflicts

Oct 12, 2010

A study at University of Michigan has found that many marriages are probably doomed from the beginning because the partners couldn't get their act together.
While some wanted to resolve the conflict, others ignored it. The study has revealed some insights into some lesser-known truths about marital conflicts:
The husband is more likely to use constructive strategies, trying to confront a problem and resolve it by working through the disagreement, while the wife prefers to yell, or give the silent treatment and make the situation worse.
Over time, the wife is likely to change her behaviour, becoming more constructive in her approach to conflicts, while the husband is more likely to remain unchanged. Since both are willing to work together to resolve the dispute, the marriage has a better chance of succeeding, according to the study.
"You can't just have one person using constructive strategies, trying to find solutions and calmly discussing the problem. You have to have both spouses using that strategy," ABC News quoted Kira Birditt as saying.
29 per cent of the husbands and 21 per cent of the wives claimed they had no conflicts at all during their first year of marriage, which is doubtful since partner must make during the early months of a new marriage, and Birditt believes some spouses may have been less than candid on that question because they were interviewed separately.
"The method changed in the third, seventh and 16th year," she said, and the spouses were interviewed together. "When they are together, it's harder to lie. I can see the wife saying oh no, we did have a conflict, honey."
But perhaps the most surprising find was that greater constructive behaviours among wives predicted greater divorce rates.
"We were totally surprised by that. I'm not sure what's going on there. It might be that wives are more likely to use destructive strategies regularly, so when they use a constructive strategy it might be like the last straw. Maybe they're done with the yelling and screaming, but now they really have a problem," said Birditt.
Birditt, by the way, is in her third year of marriage, and she described herself as "happy." So how does she resolve conflicts in her own marriage?

"I think it depends on the situation," she said. "I guess I use all of them. It just depends on how mad I am."
The study is published in the current issue of the Journal of Marriage and Family .

Live-in Relationship- Indian scenario-Legal psycho social aspect-p7 news kayda kanoon-03oct10

Live-in Relationship- Indian scenario-Legal psycho social aspect-p7 news kayda kanoon-03oct10


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Part 2/2

Hazards of FATHERLESSNESS-Single parenting-p7 news on KAYDA KANOON-10oct10

Hazards of FATHERLESSNESS-Single parenting-p7 news on KAYDA KANOON -10oct10


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Part 2/2


Retired cop, family for booked abetting daughter-in-law's suicide

Retired cop, family for booked abetting daughter-in-law's suicide

TNN, Oct 11, 2010, 11.22pm IST

RAJKOT: A retired policeman and two of his family members were booked on Monday for abetting the suicide of his daughter-in-law, who ended her life here on Sunday.

Police said victim Manchhaba Jadeja committed suicide by hanging herself from the ceiling of her house in Rameshwar Park in Railnagar area. The victim's father in-law Dilubha Jadeja, retired assistant sub-inspector, had informed the city police control room about the incident. The investigation was handed over to Pradyumannagar police station.

Manchhaba's family created a ruckus at the civil hospital when her body was brought for postmortem. Ranjeetsinh Parmar, Manchhaba's brother has alleged in his police complaint against her husband and in-laws that his sister was being physically and mentally tortured for not bringing Rs 50,000 as dowry. This forced her to take the drastic step, he has alleged.

Dilubha, his son Lakhdhirsinh and wife Ansoyaba have been named as accused in the complaint and have been booked on the charge of abetment to suicide, said assistant sub-inspector T J Mishra of Pradyumannagar police station.

Son of district judge held in dowry harassment

Son of district judge held in dowry harassment

12 oct 2010

HYDERABAD: A software engineer from the city, who was employed in the US, was arrested from the Delhi international airport in a dowry harassment case. The techie was returning to the US when immigration authorities caught him and handed him over to the city police.

The software engineer is the son of Asifabad additional district judge Sambasiva Rao.

Police said  K Ramakrishna was married to Anupama, a resident of Yousufugda in 2006. Anupama’s parents reportedly gave Rs 1.80 lakh cash, gold ornaments and other household articles as dowry during the marriage.

An year after the marriage, Ramakrishna and Anupama left to the US.  Ramakrishna started harassing his wife for additional dowry.  When Anupama become pregnant, Ramakrishna sent her to Hyderabad.  She told her parents about the harassment.

Anupama’s family members met Ramakrishna’s parents, Sambasiva Rao and Saraswati, several times to sort out the matter but their efforts went in vain.

In May this year, Anupama lodged a complaint against her husband and in-laws with the police.

The City police alerted all international police stations about the case and issued a look out circular against him. Recently, Ramakrishna came to Delhi on an official   work and was on his way back to the US from the Delhi airport when immigration officials caught him.

“Ramakrishna was arrested from the Delhi airport and he was sent to judicial remand,’’ CCS women police station inspector S jyothi Lakshmi said.

Meanwhile, the police sought the permission of the High Court to take action against Sambasiva Rao and are awaiting  court’s nod.

NCW to SC: Is it cruelty to threaten divorce?

NCW to SC: Is it cruelty to threaten divorce?

Tue Oct 12 2010,

The National Commission for Women (NCW) wants the Supreme Court to rule on whether a woman can be held liable for cruelty under dowry law if she threatens to “force” her son to take divorce.

“Whether threatening a daughter-in-law that she (the mother-in-law) would force the son to take a divorce not amount to mental cruelty thereby clearly attracting Section 498A (dowry harassment) of the IPC?” the commission has sought a judicial clarification from the apex court.

It has further asked the court to decide if “advising” a daughter-in-law to take divorce by mutual consent and inducing her with a monetary compensation amounts to cruelty as defined under Section 498A.

The top women’s body has sought these clarifications in a curative petition filed before a Bench headed by Justice P Sathasivam against a July 27, 2009 Supreme Court judgment.

“In this judgment, this court has held that (a) kicking a daughter-in-law; (b) constantly threatening her that they (in-laws) would convince their son to take divorce does not amount to cruelty as under Section 498A (dowry harassment) of the IPC,” states the NCW petition filed by advocate Aparna Bhat.

The commission said it had, during the “course of its work”, found dowry harassment and domestic violence “more of a norm than an aberration and the law has to be interpreted in a manner beneficial to women in distress”.

The 2009 judgment of Justices S B Sinha and Cyriac Joseph had quashed dowry harassment charges instituted against Bhaskar Lal Sharma and his wife by their daughter-in-law, Monica, who accused them of physically harming her and threatening her with divorce.

Section 498A says it amounts to ‘cruelty’ if a husband or his relative wilfully subjects a woman to actions that may drive her to commit suicide or cause grave injury to herself. A person is liable to undergo a maximum imprisonment of three years if found guilty.

The petition asks the court whether “constantly interfering in the marriage of a newly married couple by advising a daughter-in-law to give divorce, kick her, and criticise her on a regular basis” match the definition of cruelty under Section 498A of the IPC.

Bombay HC sets aside divorce for wife of dead man

Bombay HC sets aside divorce for wife of dead man

TNN, Oct 12, 2010, 12.05am IST
MUMBAI: Can a divorce be granted to a woman whose husband is dead? The Pune family court certainly thought so and passed just such an order recently. But finding the Pune order nothing short of "preposterous, a bench of Justices B H Marlapalle and U D Salvi of the Bombay high court set it aside on Monday.
A Pune-based woman who was married for almost 20 years through a love match and had two minor teenagers was going through a divorce battle when a freak accident took her husband's life.
The fairly affluent couple, Arun and Aruna Joshi ( name changed), were estranged for five to six years. In 2005 the wife in her mid-40s filed a divorce petition citing mental and physical cruelty as ground for divorce under the Hindu Marriage Act and sought maintenance too. But after efforts at mediation failed, the couple turned their petition into one of mutual consent in February this year.
The family court allowed them to convert the contested divorce case into a joint plea for divorce. The mutual consent petition had its next date of hearing in May 2010. But in April, Arun in his early 50s, who was walking on one of Pune's main roads became a fatal victim of an accident involving a truck and car. Aruna went to the family court and made an application for closing the case as her husband was no more.
Aruna's lawyer Neela Gokhale told the HC that in a mutual consent divorce matter, the couple continues to remain married till the decree is passed. As the husband died while the matter was pending, the wife , Gokhale, said is now a widow. The family court judge R V Deshmukh rejected the wife's request and said that as the couple had agreed to a divorce by mutual consent and had even sought to convert a contested case into a joint plea for divorce, "nothing else remained to be done. So, he could issue a divorce decree even if the husband was dead.
At the first day of its hearing, Justice Marlapalle who had read the appeal papers and appeared shocked at the Pune court's decision of granting divorce, set it aside. The woman can now have her widow status which she prefers over being called a divorcee. The property issues would now follow the succession laws if no will was made.

Monday, October 11, 2010

Why daughters-in-law are hazardous for mothers-in-law’s health

Why daughters-in-law are hazardous for mothers-in-law’s health

Always thought it’s the mother-in-law who makes the life of her son’s wife a living hell? Well, according to a research, the daughter-in-law is actually primed for revenge.

Research shows women who are cared for by their son’s wife in later life fare less well than those looked after by their own daughter.

In fact, the set-up is so unhealthy an elderly woman would be better off living by herself.

According to Japanese researchers, the friction in the mother and daughter-in-law relationships is at the heart of their results, with years of arguments finally taking their toll.

During the four-year study, the scientists tracked almost 200 elderly Japanese men and women.

Their analysis revealed that living with a son and his wife to be highly detrimental to a woman’s health.

A woman cared for by her daughter-in-law was twice as likely to have died as one who lived with her daughter.

"These findings are provocative in that they suggest a survival disadvantage for women who are cared for by their daughters-in-law, that is a daughter-in-law 'penalty,'" the Daily Mail quoted the University of Tsukuba researchers as saying.

At its heart could be the 'strained relationship' between the two women, who traditionally are fighting for the affections of the same man.

Previous research by Cambridge and Exeter university scientists suggests the rivalry between a woman and her mother-in-law may have been behind the evolution of the menopause.

They believe it is nature's way of creating a truce in families. If older women are unable to have children, the younger females are free to lavish the family’s resources on their children.

The study has been published in the journal BMC Geriatrics.

Nothing moves without money, Legalise corruption - SC

Nothing moves without money, Legalise corruption - SC

The Supreme Court has expressed concern over growing corruption in the government machinery, particularly in the income tax, sales tax and excise departments, saying “ nothing moves without money”. “It is very unfortunate that there is no control over corruption in the country. There is rampant

corruption, particularly in the department of income tax, sales tax and excise department. Nothing moves without money,” a Bench of Justices Markandeya Katju and T.S. Thakur said.

The apex court was admitting an appeal filed by the CBI challenging the acquittal of an income tax inspector, Mohanlal Sharma, by the Punjab and Haryana High Court.

Additional Solicitor General P.P. Malhotra, appearing for the CBI, submitted that Sharma was acquitted by the high court despite the trial court holding him guilty of demanding and accepting a bribe of R10,000 from an IT assessee. He was earlier sentenced to one year’s rigorous imprisonment by the trial court.

The bench said “why doesn’t the government legalise corruption so that a specific amount is fixed for every case... That way, every individual will know how much bribe he has to pay.”

It added sarcastically, “Poor government officials, we can’t blame them also because of the growing inflation.”

Sharma, who appeared in person, denied the allegation and said he was falsely implicated.

Sunday, October 10, 2010

Court pulls up Delhi sub-divisional magistrate

Court pulls up Delhi sub-divisional magistrate

New Delhi, Oct 4 (IANS) A sub-divisional magistrate (SDM) posted in south Delhi has been pulled up by the Delhi High Court for abusing his power and acting in a corrupt manner in a land dispute case.

Justice Shiv Narayan Dhingra while setting aside a December 2009 order passed by Vivek Tripathy, SDM, Vasant Vihar, said: “It is most unfortunate that an SDM holding a responsible post in executive could have acted in such a corrupt manner that he could pass an order without caring for the orders passed by his predecessor in respect of the same land.”

The matter is related to a dispute over 14 biswas of land (1 biswa is 8.2 acres) in Bijwasan Village in south Delhi.

Earlier, the SDM’s senior had passed an order in favour of Sanjeev Kumar Sharma who was declared owner of the land. But Tripathy modified the ruling when his senior’s decision was contested by Usha Puri in Bijwasan village.

“The parties were all along contesting rights over the land in various courts. However, the SDM, in patent abuse of his power, conducted the proceedings on Dec 17, 2009, late at night, in the absence of the petitioner,” the court said in an order delivered last week.

“When the petitioner learnt about the late night proceedings, he went to the SDM but he was not allowed to participate in the proceedings and in gross misuse of his power passed the order,” said Justice Dhingra.

Following a legal battle for several years, the 14 biswas land was allotted to Sharma and physical possession was given to him with the help of local police in 2001. Puri contested the order in various forums but the decisions went against them.

In December 2009, on an application filed by Puri, the SDM passed an ex-parte order in a hurry favouring her, without issuing even a notice to Sharma. Later, he declined Sharma’s plea for re-hearing of the matter

Activist judges can thwart corrupt cops,“Judges cannot remain oblivious to injustice” – Justice Dhingra - Delhi Police rarely act against its erring officials

“Judges cannot remain oblivious to injustice” – Justice Dhingra

06.10.2010 | 21:46
New Delhi
Abhijit Pandey

The Delhi High Court has dismissed a petition filed by a Delhi Police officer against a lower court decision directing to initiate criminal proceedings against the officer for not registering a case on the complaint of a woman who had been gang raped in 2005.

The court while upholding the lower court decision said “The Sessions Judge was rightly disturbed at the lack of sensitivity of the petitioner to a gang rape victim and his grave dereliction of duty in not registering FIR in a gang rape case”.

The court dismissed the contention of the petitioner that the power to direct police to make further inquiry under section 156 Code of Criminal Procedure (CrPC) rest with the Magistrate and not with the Session Judge. Justice Dhingra noted with regret, “The learned Sessions Judge in this case directed registration of an FIR and had also brought the relevant facts to the notice of the senior police officials. It was expected of the police department to have taken action immediately and swiftly in this case. The most unfortunate part is that whatsoever wrong the police officials may do, the department rarely takes action against them instead they are protected despite dereliction of duties on their part.” Justice Shivnarayan Dhingra pulled up the police department for not taking appropriate action against such officers.

“I also consider that a judicial officer apart from being a Judge is also a human being and citizen of this country. He while discharging his functions as a Judge cannot remain aloof and oblivious to his functions as a citizen of this country and cannot just adjudicate the matter and rest with it when he finds that a police officer involved in the investigation of the case had deliberately tried to save the accused persons. It is his constitutional duty to bring it to the notice of the department and ask for appropriate action including registration of an FIR.” the court observed and dismissed the petition seeking quashing of criminal proceedings initiated on behest of recommendation of the Sessions Judge.

also @

Activist judges can thwart corrupt cops: HC

New Delhi, October 06, 2010

The Delhi High Court on Tuesday said that the menace of cops colluding with accused in many criminal cases and in lodging of FIRs, can be effectively thwarted if a judge goes beyond the evidences submitted before him and thinks like a lay person. The court said that it is the judge’s

“constitutional duty” to bring it to the notice of the department and ask for appropriate action including FIR registration.

Justice SN Dhingra ruled: “If a Judge learns about commission of a crime, either inside the court or he learns about commission of crime by the investigating officer/SHO, during the course of trial, there is no reason why he cannot inform about this crime having been committed by one of the police officers, to his superiors and ask that action should be taken in accordance with law.”

“The HC considers that a judicial officer apart from being a Judge is also a human being and citizen of this country. While discharging functions, a Judge cannot remain aloof and oblivious to his functions as a citizen. He cannot just adjudicate the matter and rest with it when he finds that a police officer involved in the investigation of the case had deliberately tried to save the accused persons,” Dhingra said.

According to the High Court, “An FIR can be registered at the instance of any person, who has the information of commission of crime.”

Justice Dhingra’s remarks came while dismissing a petition filed by Inspector Gurmeet Singh seeking quashing of criminal proceedings ordered against him by the trial judge for refusing to lodge FIR in a Gokulpuri gang rape case in 2005. Singh was the SHO of the police station at the time of the incident.

The sessions judge’s order against the cop came after he tried and convicted all the accused in the gang rape case.


also @

Delhi Police rarely act against its erring officials: HC

HC quashes FIR against DU professor accusing him of sexual molestation.

HC quashes FIR against DU professor accusing him of sexual molestation

TNN, Oct 5, 2010, 04.25am IST

NEW DELHI: In a relief to Delhi University professor, the Delhi high court has quashed an FIR registered against him accusing him of sexual molestation.

Justice S N Dhingra put an end to the proceedings against the accused, Bidhyut Chakraborty, saying he didn't molest or threaten the victim.

Chakraborty, who was working as an honorary director on deputation in Gandhi Bhawan, was accused of molesting an employee of the Bhawan. Subsequently, the police filed an FIR.

Once the probe got over, a chargesheet was filed in the court which revealed that the investigating officer conducted several inquiries with different staff members of Gandhi Bhawan tea vendors and other witnesses available outside the Bhawan to find out the truth. The IO submitted in the chargesheet that not even one witness was found who could support the allegations levelled by the victim and said no evidence could be found against the professor to warrant his arrest. However, keeping in view the complaint made by the victim, the IO left it to the court to issue summons to Chakraborty if needed.

HC was surprised to note that despite no evidence, the police was reluctant to file a closure report. The court next turned its attention to the inquiry report of Delhi University that had examined the complaint of the woman. It revealed that on the day of the alleged incident, Chakraborty found all employees missing from Gandhi Bhawan even though lunch break had long got over. This infuriated him and he scolded the employees including the complainant, ordering them not to come to office for a month. The IO seconded the inquiry of DU and added that when the victim was being scolded, she kept saying "sorry sir''.

This convinced HC that after being scolded by Chakraborty, the victim levelled the allegation of being molested and granted him the relief.

Gender laws in favour of women?

Gender laws in favour of women?

5 October 2010

nivedita choudhuri

The Union minister of law and justice has been saying on many occasions that laws will be made gender neutral in the next four years. Mr Veerappa Moily, recently replying to a debate in the Rajya Sabha, said male chauvinism and dominance should disappear and that men should never allow women to be degraded and looked down upon. However, the existence of a number of laws that are tilted heavily in favour of women makes the layman wonder if gender neutrality means looking after the interests of women (read wives) only and ignoring totally the welfare of men.

Take for instance the anti-dowry law – Section 498A of the Indian Penal Code – which has reportedly been misused by many women to lodge false or exaggerated complaints against their husbands and in-laws, accusing them of cruel behaviour. Implemented in 1983, Section 498A is a criminal law.

A case filed under this section is non-bailable (one has to appear in court to get bail), non-compoundable (the complaint cannot be withdrawn) and cognisable (the police has to register and investigate the complaint). The law says, “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

This was meant to be a special law to get more convictions, but the opposite has happened because there are too many false complaints. Many women use the law to blackmail their husbands, allege activists of the Save Indian Family Foundation, a group that fights the misuse of laws targeted at men.

The false complaints can be filed due to many reasons. Sometimes, a wife wants her husband to sever ties with his family or stop giving money to his parents. If he does not comply with her demands, she slaps a false case against him alleging harassment for non-payment of dowry, allege the activists.

Men also find it unfair that their family members are arrested in the event of the wife naming them in the FIR. Anybody named in the FIR is arrested. It can even be the man’s parents, who live in a different town. The frivolity of the complaints was driven home by a recent newspaper article which reported that a wife was ready to slap a dowry harassment case against her father-in-law who had demanded fish curry for dinner. The wife, who was in no mood to cook fish curry, thought it would be easier to punish her ‘errant’ father-in-law by slapping a dowry harassment case on him.

Another law that is allegedly being misused is The Protection of Women from Domestic Violence Act 2005. This law assumes that all victims of domestic violence are women and it does not give a man a chance to complain or seek justice if he is being harassed or abused by his wife. It also assumes that wives are always honest and truthful. Therefore, proof and evidence to support the allegations of abuse are not required.

Due to the lack of social support and legal protection, many male victims of domestic abuse are taking their lives every day, allege SIFF activists. False cases are severely hampering the personal and professional lives of the most productive section of the Indian population.

Moreover, the so-called “women protection’’ laws are causing more harm than good to women. In every false case, at least two women, a mother-in-law and a sister-in-law, are accused. Minor girls, married and unmarried sisters, ailing mothers and even aged grandmothers have been sent behind bars based on mere allegations and subjected to long-drawn trials before being declared innocent.

Unreasonable and easily misused laws like Section 498A IPC and the Domestic Violence Act are creating a situation of fear and mutual distrust and adversely affecting inter-personal relationships between men and women in society. There is fear psychosis among men, who are increasingly finding it difficult to repose faith in women or marriage.

Despite the public outcry over the misuse of Section 498A IPC and the Domestic Violence Act, the government is not ready to make the proposed Sexual Harassment at Workplace Bill gender neutral. It presupposes that women are always victims of harassment in offices and does not take into account the fact that a woman employee can be every bit as abusive and sadistic as a male. Such laws violate the essence of Article 15 of the Indian Constitution, which prohibits discrimination against any citizen on the grounds of religion, race, caste, sex or place of birth.

Of course, the prime motivation in filing false cases is money. There are scores of cases, allege SIFF activists, where the wives threaten to go to the police or courts if they are not given hefty sums of money as “settlement’’. Sometimes, the clinching factor is the property and assets of their in-laws which the wives covet. What better way to usurp it all than foist false cases on one’s in-laws and then demand a king’s ransom. The proposed Bill against sexual harassment, if not made gender neutral, is likely to encourage the extortion “culture’’.

Though the sufferings of men and their families are increasing, the Indian government still thinks that it’s women who need protection. It is continuing to turn a blind eye to these harassed men, who have to spend the best years of their lives running around in courts to proclaim their innocence. But, can anything better be expected in a country which ranks a lowly 84th in the Corruption Perceptions Index?

The writer is a freelance contributor\

Saturday, October 9, 2010

Court: abuse on spur of moment not valid ground for divorce

Court: abuse on spur of moment not valid ground for divorce


Making certain statements or using abusive language on the spur of the moment and expressing certain displeasure about the behaviour of elders by the spouse may not be characterised as cruelty, warranting ground for grant of divorce, the Supreme Court has held.

A Bench of Justice P. Sathasivam and Justice B.S. Chauhan said, “mere trivial irritations, quarrels, normal wear and tear of married life which happens in day-to-day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty.”

Writing the judgment, Justice Sathasivam said: “The married life should be assessed as a whole and a few isolated instances over a certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty.”

The Bench said, a Hindu marriage solemnised under the Hindu Marriage Act could be dissolved only on any of the grounds specified therein. It said: “Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in a different set of circumstances. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty.”

In the instant case, appellant Gurbux Singh, principal of a college was married to Harminder Kaur, working as librarian in a government institute in November 1997 and a male child was born to them in May 1999. Irked by certain remarks made by his wife against his parents, the appellant moved the trial court seeking divorce on the ground of ‘cruelty.' The trial court rejected the petition and the Punjab and Haryana High Court dismissed his appeal. The present appeal is directed against that order.

The Bench said: “We are satisfied that on the basis of such instances, marriage cannot be dissolved. An isolated friction on some occasion like the festival of Lohri even in the presence of others cannot be a valid ground for dissolving the marriage.”

On the appellant's plea that there was irretrievable breakdown and that the marriage should be dissolved by the Supreme Court invoking its jurisdiction under Article 142 of the Constitution, the Bench said: “Though, on a rare occasion, this court has granted the extraordinary relief de hors to the grounds mentioned in Section 13 of the HM Act in view of the fact that the issue has been referred to a larger Bench about permissibility of such course at present, we are not inclined to accede to the request of the appellant. If there is any change of law or additional ground [irretrievable breakdown of marriage] included in Section 13 by the Act of Parliament, the appellant is free to avail the same at the appropriate time.”

Maintenance for live-in woman: issue for larger Bench

Maintenance for live-in woman: issue for larger Bench

The Supreme Court has referred to a larger Bench a question of law whether a man and woman living together for long, without a valid marriage, would raise a presumption of valid marriage entitling her to maintenance under Section 125 Cr.PC.

A Bench of Justices G.S. Singhvi and A.K. Ganguly, though prima facie held the view that women in live-in relationships would be entitled to maintenance, referred the issue to Chief Justice of India S.H. Kapadia for determination by a larger Bench having regard to the provisions of the Protection of Women from Domestic Violence Act, 2005, which provided for maintenance.

The Bench framed questions including “whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.PC. We think the larger Bench may also consider the provisions of the Domestic Violence Act. This Act assigns a very broad and expansive definition to the term `domestic abuse' to include even economic abuse. Therefore, women in live-in relationships are also entitled to all reliefs given under the Act.” Writing the judgment, Justice Ganguly quoted from the rulings of the House of Lords and the Privy Council to hold that cohabitation, with the required repute, as husband and wife was proof that the parties between themselves had mutually contracted the matrimonial relationship. The Bench noted that in the instant case both appellant Chanmuniya and first respondent Virendra Kumar Singh Kushwaha were related and lived in the same house and by a social custom were treated as husband and wife. Their marriage was solemnised with ‘katha' and ‘sindur'. “Therefore, following the ratio of the decisions of the House of Lords, this court thinks there is a very strong presumption in favour of marriage.”

Tuesday, October 5, 2010

‘Husband bound to provide maintenance regardless of income’

‘Husband bound to provide maintenance regardless of income’

A husband has moral and legal duty to provide a decent maintenance amount to his estranged wife in consonance with her living standards irrespective of his income, a Delhi court has said.

“A married man is under a legal and moral obligation to maintain his estranged wife whether he possesses any property or not or whether or not he has any income. The obligation to maintain her is personal in character and arises from the very existence of the relationship between the parties,” Additional Sessions Judge Nivedita Anil Sharma said.

The court passed the order while declining the plea of a husband, Shalabh Srivastava, seeking alteration in the interim-maintenance amount fixed by a lower court on the ground that his income had substantially went down after he joined a new job.

It declined the husband’s plea saying that he had an earning potential of Rs 35,500 per month and if he has preferred to minimise his income and work at a lesser salary, then he cannot be allowed to take advantage of his own conduct.

“The fact of taking up a job at a lesser salary clearly indicates that the revisionist (husband) is deliberately making a conscious effort to reduce and minimise his income. It is also not believable that any man would work at a lesser income than what he is getting already.”

“The averments of the appellant clearly show that a deliberate attempt has been made by him to lessen his income and he cannot be permitted to take advantage of this fact,” the court observed.

The court rejected the contention of husband that the earning potential of his estranged wife was far more than the amount she was getting as maintenance.

“There is nothing brought on the record prima facie by the husband to show that the earning potential of the respondent (wife) is more than Rs. 7,000 as observed by the trial court,” the court said.

It also turned down the plea that the wife was living separately due to her own conduct, saying that the fact was immaterial for the purpose of award of interim-maintenance.

“The dispute regarding conduct of the parties are immaterial... only the earnings, properties, assets as well as the earning potential of both the sides is to be taken into consideration,” it said.

Mr. Shalabh had appealed against the order of a trial court fixing Rs. 7,000 per month as the maintenance for his estranged wife Ritu.

While awarding the maintenance, the trial court had concluded that Mr. Shalabh’s income was around Rs. 35,500.