Tuesday, September 14, 2010

Marriage between 1st cousins illegal.Live-in with cousin? Bombay high court on the fence

Marriage between 1st cousins illegal.Live-in with cousin? Bombay high court on the fence

14 sep 2010

Can first cousins marry each other? Such a union, except for some communities, is void under the Hindu Marriage Act (HMA), 1955. However, while disposing of a habeas corpus petition filed by Inderpal Walia, 37, the Bombay high court on Monday said the decision of a girl to live with her cousin would be at her discretion.

In his petition, Walia said he fell in love with his first cousin Harmandeep Kaur, 19, when he met her in Amritsar in March 2008. He had also lived with Harmandeep as “husband and wife” at her parents’ house before they got married in Mumbai on January 21, 2009. Walia says though her parents initially agreed to their marriage, Harmandeep was forcibly taken away from him in September 2009.

Walia had pleaded before the court to allow Harmandeep to live with him since he fears his wife would be married off to an NRI. “Considering the changes in the modern world, the friendship and the union of the petitioner (Walia) with Harmandeep is a necessity and it is no more a kind of foolishness,” Walia’s petition stated.

A division bench of justices AM Khanwilkar and UD Salvi, however, refused to grant permission for their live-in relationship. “The court cannot be expected to put a seal on an arrangement which is not recognised in law,” justice Khanwilkar said. The judges held that the purpose of the habeas corpus petition was served as Harmandeep had been brought before the court and she was “hale and hearty”. The judges said the girl was an adult and she could take decisions on her own.

They also agreed that this was “not an ordinary case”.
Walia’s advocate, Bhavesh Parmar, told the court that Walia was not aware Harmandeep was his first cousin when they got married before a registrar in the Mira-Bhayander court. He got to know from legal experts that their marriage was null and void under Section 5 of the HMA after Harmandeep was taken away by her family. “I have advised my client to challenge the order in the Supreme Court,” Parmar said.



14 Sep 2010

MUMBAI: The Bombay high court on Monday rejected one Harmant Singh's plea that his "wife" Hardeep, who is also his first cousin, be allowed to live with him. The Hindu Marriage Act disallows marriage between first cousins.

"If the request was to be considered, it would be putting a seal of approval on a relationship which isn't permitted in law," said a division bench of Justice A M Khanwilkar and Justice U D Salvi. The judges allowed Hardeep to go with her parents. "She is an adult and free to take her own decisions," said the judges, adding that Hardeep could decide her plans in consultation with her parents.

Harmant's lawyer made repeated pleas the court ask Hardeep with whom she wished to go. The judges, however, pointed out that "the law doesn't permit you and her to stay together."

Additional public prosecutor Ajay Gadkari told the court that in a habeas corpus proceeding the scope was limited to producing the person concerned before the court and that they had brought Hardeep from Amritsar.

Section 5 of the Hindu Marriage Act bans, among other things, marriage between a brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters. The marriage is void, unless the custom of the community permits it.

Harmant, who claimed to be a marine officer, said he had met Hardeep in Amritsar. They married at an Arya Samaj temple in Mumbai in January 2009. Nine months later, her family called her home on the pretext that her father was sick. Subsequently, he wasn't allowed to meet her. Harmant, admitted that she was his first cousin, and under the law the marriage was void.

(Names of the couple have been changed to protect their identities)


Divorce outstrips marriage – Indian Divorce tourism ???

Divorce outstrips marriage

In its latest report, the International Institute of Statistics has revealed that, the world over, the divorce rate has overtaken the marriage rate. A spokesperson of the institute, herself a divorcee, said: "While marriage has always been in fashion, today it is more so than ever; people want to get married not just once but multiple times in the belief that the more the merrier where matrimony is concerned. Since bigamy is against the law, serial matrimony also involves serial divorce."

The spokesperson added that divorce had become the latest thing in trendy chic, so much so that even unmarried people were seeking divorces, presumably from themselves.

The reason for this seems to be that being a divorcee was seen to confer social status on the person and make that person more attractive to suitors.

"It's like applying for a job," said a spokesperson for DIVA, Divorce International Vocational Association. "When you're a first-time job seeker, it's tough to get one. Prospective employers naturally want to know what experience you've had. And when you confess that you have none, nobody wants to know. However, once you have managed to get that first job, the second, third, fourth and fifth jobs are easy. In fact, you don't have to get them; they'll come and get you, through headhunters."
The spokesperson explained that the situation was similar in the case of matrimony, which could be compared to a live-in job, with no extra overtime. "These days, there are few takers for first-time marriage partners. But once you've got a divorce or two on your CV, the line-up for you goes round the block," said the DIVA representative.

With career divorce catching on, a booming new industry has sprung up comprising not just lawyers and alimony experts but also garment manufacturers who specialise in drip-dry wedding saris and eco-friendly recyclable red safas for bridegrooms. Similarly, caterers are cashing in as well what with divorce parties becoming even more popular than wedding parties. The travel trade has also benefited as people go on separate divorcemoons rather than joint honeymoons.

Indeed, so popular has the big fat Indian divorce become, that the Doyenne of Divorce, Liz Taylor, is planning to come to India to get divorced according to traditional Vedic rites, with Sri Sri Savvy Shankar - the celebrated guru of the Art of Splitting - officiating as pundit.

As no one - including Ms Taylor - could remember if the Hollywood star was at the current time in between marriages or in between divorces, it was thought best to employ what in the movie business is known as a body-double. The use of a double - or a stand-in - would legitimately enable Ms Taylor to divorce herself from herself.

Or, as Sri Sri Savvy Shankar once summed up his Art of Splitting: Ek ticket, doh mazaa.


Vengeful aunt kills 8-year-old, surrenders

Read more: Vengeful aunt kills 8-year-old, surrenders

NEW DELHI: Forced to live away from her two children for the past six months, a 32-year-old woman, in an act of revenge, throttled her brother's eight-year-old son. The accused, Shivangi, had reportedly even grown fond of her nephew after her in-laws barred her from meeting her own kids. Police said the accused believed her brother was responsible for the problems in her family. The incident took place around 3.30pm on Sunday in Sitaram Apartments in IP Extension, east Delhi. An hour later, the woman surrendered at a nearby police station.
Police recovered the body of Laksh Gosai a student of Amity International School, Mayur Vihar from the terrace. It was found exactly in the manner Shivangi had described to the cops. According to K C Dwivedi, additional commissioner (east), "Shivangi had married one Sumit, who owns a computer hardware business, in Rohini seven years ago. The couple had two children. However, problems cropped up and Shivangi's in-laws forced her out of the house. She was not allowed to meet her children.''
Shivangi then moved into her brother's house at Sitaram Apartments. Her brother, Rajkumar Gosai, runs a business in Karol Bagh. Laksh's mother, Rita, who is physically-handicapped, did not object when Shivangi came to stay with them.
However, Shivangi believed that her brother and his wife were responsible for her problems. Dwivedi added, "Shivangi was convinced that her brother had abused her husband as a result of which she was separated from her kids. She told us she could not see her brother happy after he brought so much misery to her. She thought her brother will understand the loss of a child only when his son is taken away,'' said Dwivedi.
According to Laksh's maternal uncle, Rajender Sharma, Shivangi had asked Rita if she could take the boy out for a walk around 3pm. "Instead, she took him to the seventh-floor terrace,'' said Sharma.
The accused took with her a kitchen knife. "Shivangi first attacked Laksh with the knife, but couldn't kill him. She then used her stole to throttle him. After the crime, she came out of the complex and took a rickshaw to the Krishna Nagar police station. There, she asked the duty officer if she could use the phone. On being asked why, she confessed to her crime and said she wanted to surrender. Shocked, the SHO informed his counterpart at Madhu Vihar police station, which has jurisdiction over the are where the murder took place. The family was finally informed around 5pm,'' said Dwivedi.
The police has sent the accused for medical examination. "We are trying to contact her husband and in-laws in Rohini. After a postmortem, we will ask her family if she had ever been this violent before,'' said a senior investigating officer.
Psychiatrist Dr Sandeep Bora said a general increase in aggression has been noticed among people. "Sometimes personality problems lead people to equate certain situations as personal embarrassments. It is then that they forget what is right and wrong. Since this crime was well-planned, we have to meet the accused to understand her mental condition,'' said Dr Bora.


बुआ ने की आठ साल के मासूम भतीजे की हत्या


नई दिल्ली। नई दिल्ली। पूर्वी दिल्ली के मधुविहार क्षेत्र के सीताराम अपार्टमेंट में बहन ने अपने भाई से बदला लेने के लिए आठ साल के मासूम भतीजे की हत्या कर दी है। पुलिस से मिली जानकारी के अनुसार राजू गोसाईं का परिवार सीताराम अपार्टमेंट के 132 नंबर में रहता था। पिछले कुछ महीनों से उनकी बहन शिवानी भी अपने पति से कुछ अनबन होने की वजह से उनके साथ रह रही थी। शिवानी का पति से झगड़ा होने के पीछे भाई का हाथ होने की आशंका थी।

रविवार को जब परिवार में तीसरी कक्षा में पढ़ने वाला लक्ष्य घर में अकेला था तो शिवानी ने छत पर ले जाकर उसकी गला घोंट कर हत्या कर दी। हत्या करने के बाद शिवानी ने खुद थाने जाकर अपना जुर्म कबूल कर लिया। शिवानी को गिरफ्तार कर पुलिस मामले की जांच कर रही है।



Make judicial system litigant-friendly: NLB

Make judicial system litigant-friendly: NLB

Tue, Sep 14 02:05 PM

Bangalore, Sep 14 (PTI) The National Litigation Bench, a private initiative, has asked the government to make the existing judicial process litigant-friendly by bringing reforms in it. At a recent conference held here, the Bench demanded the establishment of National Judicial Commission in line with the Election Commission for regulating the judiciary.

It also placed certain other demands before the government to make the judicial process smooth and hassle-free so as to mitigate the problems of more than five crore litigants in the country. The bench, an initiative of the youth and concerned, seeks to promote and further the cause of litigants in the country.



‘Neutralise unfair edge gained by litigant from interim orders'-SC

‘Neutralise unfair edge gained by litigant from interim orders' -SC

The Supreme Court has deprecated the practice of litigants approaching court and obtaining interim orders, and later blaming it for delay if ultimately their case is dismissed.

A Bench of Justices P. Sathasivam and B.S. Chauhan called upon the courts to exercise caution while passing interim orders. “No person can suffer from an act of the court and in case an interim order has been passed and the petitioner takes advantage thereof, and ultimately [if] the petition stands dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised.”

Justice Chauhan, writing the judgment, said: “No litigant can derive any benefit from the mere pendency of a case, as the interim order always merges into the final order to be passed, and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the court.”

Undo the wrong

In such a situation, “the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the court,” the Bench said.

“There is nothing wrong in the parties demanding to be placed in the same position in which they would have been had the court not intervened with its interim order, when at the end of the proceedings, the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned had it not been interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so.”

The Bench made it clear that the court should also pass an order expressly neutralising the effect of all consequential orders passed in pursuance of the interim order. “Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits.”

The Bench, quoting an earlier judgment, said: “Litigation may turn into a fruitful industry. Unscrupulous litigants may feel encouraged to approach the courts, persuading them to pass interlocutory orders favourable to them by making out a prima facie case when the issues are earlier to be heard and determined on [their] merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced.”

In the instant case, Kalabharati Advertising was granted permission by the Municipal Corporation of Greater Mumbai to put up a hoarding in front of a cooperative housing society. On a public interest writ petition, the Bombay High Court passed interim directions which the company complied with. However, even before the final order was passed, the hoarding was removed by the Corporation at the instance of the petitioner despite agreements between the parties.

Kalabharati Advertising, having failed to get relief in the High Court, moved the Supreme Court against the High Court order and the consequent order passed by the Corporation. The Bench allowed the appeal.



Court relief for hubby charged with impotency

Court relief for hubby charged with impotency

Swati Deshpande, TNN, Sep 14, 2010, 06.36am IST

MUMBAI: A city businessman facing a police probe after his wife of 12 years accused him of being impotent and venting his "frustrations'' by beating her will not be compelled to undergo a potency test.

Offering the Peddar Road resident this respite, a public prosecutor when asked by the Bombay high court if such test was necessary n Monday said that the police would not insist on the test but would continue investigations in the wife's complaint under section 498-A of the Indian Penal Code ( IPC).

A bench headed by Justice Ajay Khanwilkar recorded the prosecutor's statement. The wife is seeking to annul the marriage before the family court in Bandra where she made a similar demand of having her husband tested for impotency. The HC said that since criminal and civil cases are separate proceedings the family court can deal with the civil plea independently.

The wife, a businessman's daughter, said her marriage was never consummated. Married in 1998, she only recently lodged an FIR against her husband.

Last month when the police wanted to test the husband at the civic-run Nair hospital for impotency, he rushed to the high court to challenge the powers of the police. His lawyer Edith Dey said the scope of police investigation could not include carrying out such medical tests.

Last week, the HC had suggested a mutual consent divorce. On Monday, with the mutual consent terms failing after the couple disagreed over the issue of stree-dhan, the high court asked the public prosecutor whether medical tests for impotency test must be carried out for the police investigation. The judges also asked the prosecutor to read out the wife's statement to the police to show whether wilful cruelty was linked to the alleged impotency of the husband. The prosecutor could not point to a link and said that the police had in the past not conducted such tests.

The wife's lawyer, advocate Flavia Agnes, in the family court was relying on supreme court rulings to say that the family court has the power to compel a husband to undergo an impotency test and in case of refusal, adverse inference can be drawn against him. She is also relying on a ruling which permitted annulment after several years marriage.



Associated news

We will not insist potency test in matrimonial dispute: Police

MUMBAI: In a matrimonial dispute, the police today told the Bombay High Court that they will not insist on potency test on the husband.

Accepting the statement on record, a bench of Justice Ajay Khanvilkar and Justice U D Salvi disposed of a petition seeking a direction to the state and police not to insist on potency test.

The couple, Ajay and Jamuna (names changed) married on March 24, 1988, and after 11 years Jamuna filed a police complaint alleging cruelty on the ground that her husband was impotent.

Ajay was arrested on January 5 this year and granted bail by Additional Chief Metropolitan Magistrate a week thereafter subject to certain conditions.

However, in July, the state applied for modification of bail condition to change the day of attendance from Sunday to Tuesday for conducting potency test of the accused.

The Magistrate modified the order to the extent of changing the day of attendance from Sunday to Tuesday but did not change other conditions. In the earlier order, there was no mention of the court allowing potency test of the accused.

Despite this the police took Ajay to a hospital for conducting potency and psychiatry tests. Later, he moved the High Court saying the action of police violated human rights and his right to dignity. He said non-consummation of marriage does not amount to cruelty as per the scope and purview of section 498 A IPC under which his wife had filed a complaint.