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.