Wednesday, September 15, 2010

GF/concubine can't be prosecuted for cruelty: SC

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GF/concubine can't be prosecuted for cruelty: SC

15 sep 2010

New Delhi: A girl friend, concubine or live-in-partner cannot be prosecuted for cruelty by an estranged wife though the husband and other family members can be made liable for the offence, the Supreme Court has held.

A Bench of Justices Altamas Kabir and AK Patnaik in a judgement said that under Section 498A, it is the husband and his other relatives who can be prosecuted but not the girl friend, live-in partner or concubine even if they are staying with him.

The Bench passed the judgement while upholding an appeal filed by Sunita Jha, challenging the cognizance taken by Sub-Divisional Judicial Magistrate, Dumka, Jharkhand, under Section 498A IPC on the basis of a complaint filed by estranged wife Asha Rani.

Rani had filed the case not only against her husband Mukund Chandra Pandit but also against Sunita who was living with him without marrying him. Rani argued that even though Sunita was not married, yet by her conduct of staying with Pandit they were deemed to be husband and wife. The sessions court dismissed Sunita's plea for quashing of the criminal case and the Jharkhand High Court also refused to interfere with the decision.

The High Court took the view that since Sunita was living with the accused husband of the complainant, she must be deemed to have become a family member of Mukund Chandra Pandit for the purpose of Section 498A IPC. Aggrieved, Sunita appealed in the apex court. Interpreting the provision, the apex court said that under Section "498A, husband or relative of husband of a woman subjecting her to cruelty, 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."

The apex court recalled its earlier ruling in the U Suvetha's case that neither a girl friend nor a concubine is a relative of the husband within the meaning of Section 498A IPC since they were not connected by blood or marriage to the husband.
"We agree with the submissions made on behalf of the appellant that the learned Judge of the High Court committed an error in bestowing upon the Appellant the status of wife and, therefore, a member of Mukund Chandra Pandit's family.
"The doctrine of acknowledgement would not be available in the facts of this case. No doubt, there is direct allegation against the appellant of cruelty against the Respondent No.2, Asha Rani Pal, but as indicated in U Suvetha's case, the same would enable the Respondent No.2 to proceed against her husband under Section 498A I.P.C. and also against the appellant under the different provisions of the Hindu Marriage Act, 1955, but not under Section 498A I.P.C.," Justice Kabir, writing the judgement, said.

Should a woman marry her rapist?

Should a woman marry her rapist?

KALPANA SHARMA , Sep 15, 2010, 12.21pm IST
When a rapist offers to marry the victim, one would think it's the perfect solution. But isn't this victimization of the victim all over again?
You normally don't expect a girl to marry her rapist but in a recent case in West Delhi, a woman wanted to marry the guy who allegedly raped her. This is obviously not a one off case and definitely brings to limelight the existence of an insensitive society that doesn't think twice before putting a girl up for trial, once again.
This March, K G Balakrishnan, the then Chief Justice of India had said, "A woman should be allowed to have a baby out of rape and/or marry the man and drop the rape charge if she so wishes." But most don't call the step justified. Kavita, an NGO worker stresses on the point. "The girl has already been wronged once. And to add to the misery, her predator neatly escapes the consequences of the crime by simply marrying the girl. You never know if this practice catches on, rapists might resort to such techniques on any girl he fancies. This is just not done."
The rapist also takes advantage of the social stigma that no man will accept a woman who has been raped. A source from National Commission of Women reveals, "We have bailed out some small town girls in the past. We make sure that mindless community panchayat decisions are challenged. But in some cases it gets very difficult when the girl's family and the girl herself agree to marry the rapist." But the girl should be given her due, and allowed to make a free decision without having to succumb to the social attitudes.
Psychologist Seema Hingoranny agrees, "A woman should never marry her rapist. Rape is a big trauma and the victim requires intensive therapy to get out of it. Some people get married because of their insecurity and the stigma that no one will marry them. But these girls barely forgive the rapist." She goes on to add, "Also, you cannot completely ignore the psychological status of the man. Someone who can commit such a heinous crime has something incorrect in his character and such marriages can never work. It could lead to more violence. I am totally against this idea. Instead of getting her married to the rapist, family and the government should think of ways to rehabilitate her."
Some have issues with its TV potrayal too. Says an activist, "Indian television has replicated these real life incidents into reel life. What they don't understand is that this could lead to serious repurcussions. TV channels should ensure that they are not propogating the act by showing victims marrying their rapists."
The aftermarks of the incident that are so deeply etched in the girl's mind never let her get over the trauma. And the dilution of punishment for the rapist should not be tolerated!

One adverse entry in service record & you’re gone, Supreme Court tells judges

One adverse entry in service record & you’re gone, Supreme Court tells judges

Wednesday, Sep 15, 2010, 3:03 IST
By Rakesh Bhatnagar | Place: New Delhi | Agency: DNA

Subordinate court judges, beware! The Supreme Court (SC) has held that even a single adverse entry, howsoever old, in the service records of such judges casting doubts on their “integrity” can lead to serious consequences, including forced retirement.

SC, which is engaged in strengthening infrastructure in subordinate courts where at least 2.5 crore cases are pending for years, wants matters relating to judicial officers examined differently than any other “wing of society”, such as government servants.

“He [the judge] is serving the state in a different capacity,” the court said while upholding a Jharkhand high court (HC) full bench order awarding compulsory retirement to temporary additional district judge Pyare Mohan Lal.

Lal joined Bihar Civil Service in 1982 as a munsif (judicial magistrate) and was confirmed in 1987. In March 2001, the Patna high court issued a notification promoting him to the post of subordinate judge.

The same year Bihar was bifurcated and Lal was sent to Jharkhand. After serving as a sub-judge in Ranchi, he was again promoted, along with other judicial officers, as a temporary additional district judge in the city’s fast-track court.

On May 12, 2003, however, the Jharkhand HC passed an administrative order recommending compulsory retirement of six judicial officers, including Lal, in “public interest”.

The court had examined Lal’s service record and found that he was an average officer who needed massive improvement. His reputation was not good, either.

In fact, the inspecting judge of HC submitted an adverse report about him, saying Lal’s knowledge was average and he needed “extensive study”. The judge said his disposal of cases was not “up to the mark” and there were “some whispers [about his reputation]”.

Lal moved HC, but to no avail. He later filed a petition before SC alleging “non application of mind” by HC and termed its order “mala fide”.

Rejecting his pleas, a bench of justices JM Panchal, Deepak Verma and BS Chauhan held that since Lal’s retirement had been upheld by a full bench of HC, “there is hardly any chance to make allegations of non-application of mind”.

Referring to Lal’s service record, the bench said it’s evident that he “remained an average officer throughout his career” and could “never improve”. His performance had been poor and there were entries that his “integrity/reputation was not good”, it said.

Minor offences cannot bar anyone from govt service: HC

Minor offences cannot bar anyone from govt service: HC

15 Sep 2010

Should a man accused of a simple offence like speeding or wrong parking be barred forever from government service? Should the Raj-era recruitment processes give way to a policy where the purpose of governance is to serve and not to rule?

Delhi Police Commissioner Y S Dadwal will very soon be answering all these questions put to him by the Delhi High Court, which spelt relief for several people vying for government jobs when it recently ruled that a person convicted for minor offences should not be disqualified from government service, especially the police.

Holding that not every brush with crime had to mandatorily prohibit a person from a public sector job, the Division Bench of Justices Pradeep Nandarajog and M C Garg had asked the police to draft a policy keeping in mind that “life is too precious to be staked over petty incidents”.

The court had also noted that there were no rules to guide the Delhi Police on cases in which, despite acquittal, the person should be kept out of service or deprived of employment. “A man can be booked for the offence of speeding and perhaps be convicted for parking his motor vehicle in a non-parking area. But would this man be of a character compelling in public interest not to induct him in public service? The answer would be in the negative,” the Bench had observed.

The court was adjudicating an appeal by the Delhi government and the police against an order quashing their decision to keep a man out of the job of Sub-Inspector (Executive), as he had been charged with the offences of assault and criminal intimidation. Defending the decision, the department argued that a person who had a brush with criminal law was not suited to be appointed as a member of the police force.

The Bench, however, differed from the unqualified view and said: “It is high time the executive brings in a policy where summary or ordinary conviction should not be treated as a conviction for entry or retention in government service. It is unfortunate that in India we are not marching ahead in the comity of nations and prefer to be governed by the recruitment processes which are a legacy of the British era; ignoring that the purpose of governance then was to rule and the purpose of governance now is to serve.”

The primary consideration, according to the court, should be whether public interest and public good would be jeopardised if a person with a criminal background is inducted in public service, observed the court.

The court, while dealing with a similar petition last week, referred to earlier order and called upon Dadwal to intimate the Bench about what was being done at their end to comply.

दिल्ली में शादी करो और एक दिन में रजिस्टर्ड हो जाओ Delhi govt relaxes marriage registration norms -To protect couples, Delhi govt will amend marriage rules -Marriage registeration in one day

दिल्ली में शादी करो और एक दिन में रजिस्टर्ड हो जाओ Delhi govt relaxes marriage registration norms -To protect couples, Delhi govt will amend marriage rules -Marriage registeration in one day


दिल्ली में शादी करो और एक दिन में रजिस्टर्ड हो जाओ

पहले दिल्ली में शादी करने के लिए किसी भी शख्स को कम से कम 30 दिन तक दिल्ली में रुकना जरूरी होता था लेकिन अब 30 दिन रुकने की शर्त खत्म कर दी गई है।

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Collegium appointment of judges criticised

Collegium appointment of judges criticised

PTI | 05:09 PM,Sep 14,2010

New Delhi, Sep 14 (PTI) A P Shah, former Delhi High Court Chief Justice who gave a landmark judgement bringing the office of Chief Justice of India under the ambit of RTI Act, today attacked the present collegium system of judicial appointments to higher judiciary.

"The present system of judicial appointments in the constitutional courts exemplifies the misalignment between the core values of judicial independence and accountability," he said during the fifth annual convention of the Central Information Commission. Justice Shah, who gave a number of significant judgements including on the disclosure of assets by Supreme Court judges, and decriminalisation of homosexuality, said the process of judicial appointment provides for no oversight.

"Our current appointments system is out of step with democratic culture primarily because it lacks transparency, and provides for no oversight. "The way in which judges are appointed embody a set of values about democracy. Choosing judge based on undisclosed criterion in largely unknown circumstances reflects and increasing democratic deficit," Shah said.

Speaking on efforts to bring more diversity among the benches he said the other interesting development was around growing consensus to promote conscious efforts and bring more diversity on the bench. "Judges are not representatives of any group or constituency.

Their duty is to do justice to all according to law without any fear or favour, affection or ill-will. "Equally, the judiciary as a whole does not need to be representative of any group or constituency. However, a judiciary -- indeed any institution -- that fails to reflect the make-up of society from which it is drawn will sooner or later lose confidence of that society," he said. Justice Shah said an "appropriate balance" between competing principles must be found in something that is best suited to our constitutional set-up and is "uniquely Indian" in that sense. He was critical of the Judges (Enquiry) Bill, 2006 which allows people to file complaints against sitting judges which can then be examined by proposed National Judicial Council.

The council can make reference to Parliament for removal or impose punishment on judges. "This presents an example of the cure being worse than the disease. This is clearly impermissible for it is unconstitutional and also severely undermines the status and functioning of judiciary. What cannot be done by not less than 100 members of Parliament can now be initiated by only one person," he said.

Justice Shah said until an alternative constitutional procedure is devised for removal of "errant judges without compromising independence, the procedure for complaints must, at the first instance, be an in-house exercise and cannot be given to a small and select number of persons".

Dowry death case: key witness turns hostile

Dowry death case: key witness turns hostile

New Delhi, Sep 14 (PTI) A Gurgaon-based lawyer, a key witness in an alleged dowry death of a newly-wed woman here, today took a complete U-turn in a court here saying "I do not know anything about this case".

Mahender Singh Chauhan, practising as an advocate in Gurgaon district courts, appeared for testifying in the seven-year-old case following the issuance of bailable warrants by Additional Sessions Judge S C Rajan.

The key witness, who had allegedly recorded his statements to the police and the SDM concerned after victim Sarita committed suicide at her matrimonial home here, was declared hostile by the prosecution.

"I do not recollect that I was informed by the father of the victim (a co-villager) that his daughter was harassed by the accused for not bringing Rs 3.5 lakh cash and a car in dowry," Chauhan said while testifying as 19th prosecution witness in the case.

The witness, however, admitted that the statements, given to the police and the SDM, were signed by him.
However, he fell short of endorsing the statement saying "I don not recollect as to whether it was recorded by the SDM on September 1, 2003."

The court has fixed the matter on September 25 for further cross-examination of the witness.Earlier, the court had issued a bailable warrant against the lawyer after he had failed to appear and testify despite being summoned over 15 times.

The case pertained to alleged dowry death of Sarita Devi who committed suicide after consuming poison at her matrimonial house at Chanakyapuri here on August 31, 2003.Narender Yadav, husband of the victim and his parents, have been booked under various penal provisions dealing with dowry death and subjecting a married woman to cruelty.

The father of the victim alleged that her daughter was being harassed for not bringing a car and Rs 3.5 lakh cash as dowry.The alleged torture led her commit suicide within a year of her marriage.

Welfare of child is of utmost importance in giving custody: SC


Welfare of child is of utmost importance in giving custody: SC

New Delhi, Sept 14 (PTI) Though father is the natural guardian, maternal grand parents or other relatives can be given custody of the child as "welfare of the minor" is of paramount consideration, the Supreme Court has ruled.

A Bench of Justices P Sathasivam and B S Chauhan in a judgement set aside a Bombay High Court order and entrusted the custody of a minor to maternal grandparents as the father had re-married within a short period of the death of his first wife and was also not in a proper position to look after the child.

"One thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section 13 of the Act 1956(Hindu Guardians and Wards) has to be construed literally and must be taken in its widest sense.

The Bench passed the judgement while allowing the appeal filed by the child''s maternal grandfather Shyamrao Maroti Korwate challenging the High Court''s decision to entrust the custody to the father Deepak Kisanrao Tekam.
The apex court said it is true that under the Guardians and Wards Act, 1890 the father is the guardian of the minor child until he is found unfit to be a guardian of the minor.

"Though father is the natural guardian in respect of a minor child, taking note of the fact that welfare of the minor is of paramount consideration inasmuch as the respondent-father got married within a year after the death of his first wife Kaveri and also having a son through the second marriage, Justice Sathasivam, writing the judgement, said.

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Court service notices could be sent through e-mails: Delhi HC

Court service notices could be sent through e-mails: Delhi HC

link to the administrative Del HC notices

PTI | 09:09 PM,Sep 14,2010

New Delhi, Sep 14 (PTI) In a major effort to make litigations computer-friendly, the Delhi High Court has said notices to litigants could now be sent through e-mails as well.

In pursuance of the recent Supreme Court directives, the High Court said lawyers, who want their petitions to be heard on urgent basis, can get in touch with opposite parties through Internet.

In the case of filing of a fresh petition, the lawyers send the copy of the plea along with the court notices to the parties, to be sued, either by the registered post or by the court-approved couriers services.

"The Supreme Court... has directed that in commercial litigations and in those cases where the advocates seek urgent interim relief, service of the notices may be effected by e-mails, in addition to normal mode of service," the High Court said in an administrative order.

The High Court has asked the lawyers to provide soft copies of the petitions, in addition to the hard copy along with e-mail addresses of the parties at the time of filing the plea.

The copy of the order, issued by Rakesh Kapoor, Registrar General of the High Court, has been sent to various authorities including the nine district judges of the trial courts of the national capital.