498-A: Recent Supreme Court Judgment

2nd Aug - 498-A Recent Supreme Court JudgmentThe Indian legal system is faced by the contradictory duality of victims fighting desperately for justice on one side, while innocent persons are trapped in the shackles of law by frivolous litigations; and striking the right balance of stringency of law at a level where the innocent are not put in turmoil, while at the same time the wrongdoers do not escape the clutches of law, is a task in itself. In a recent decision, the Supreme Court gave a landmark verdict in relation to S. 498-A IPC which may easily pass off as one of the most misused provisions of our criminal law system, to the effect that now arrest can be made under the section only after obtaining some incriminating evidence against the accused.

Title: Rajesh Sharma and Ors v State of UP and Anr.

Case No.: CRIMINAL APPEAL NO. 1265 OF 2017

Coram:

  • Adarsh Kumar Goel
  • Uday Umesh Lalit

 

Matter:

The Court addressed the issue of prevalent misuse of S.498-A IPC (Cruelty by husband and family), and examined whether any directions are called for to prevent the same. The amicus curie appointed by the Court conducted a study on the matter, and the Court considered it in addition to the factual circumstance at hand. The appeal was filed by the family of the husband against the Order of the HC to rope in all the family members in the case of dowry and domestic abuse filed against the husband by his wife. The wife had accused the parents, brother and sister of the husband in addition to the husband himself.

 

Decision of the Court:

The Court ruled that allegations against all family members cannot be taken in face value when in normal course it may only be the husband or his parents who perpetrated the cruelty. The Court observed that misuse of the provision often led to harassment and arrest of even innocent family members including grandparents, minor children, siblings, etc.

The Court passed Directions to:

  • Set up Family Welfare Boards under DLSAs in every Distt.
  • The Committee is to look into every complaint filed u/s 498-A IPC,
  • Report must be submitted by them to the Authority;
  • No arrest must be made prior to the Report being received;
  • The parties may reach a settlement
  • Investigation under the Section be made by a designated Investigating Officer of the area
  • But these directions will not apply to the offences involving tangible physical injuries or death.
  • Consider bail to the accused on the same day if Notice sent to opposite party at least a day prior, etc.

 

Relevant portions of the Judgment:

“….accepted that there is a growing tendency to abuse the said provision to rope in all the relatives…on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury….”

“…..this results in harassment and even arrest of innocent family members, including women and senior citizens…”

Dr. Manjula Krippendorf v Union of India [POCSO Decision 2017 Supreme Court]

With sexual crimes becoming a common story and those against children particularly on the rise, the case becomes more relevant in terms of deciding who to bring within the purview of ‘child’ under the Act. The case attempted to convince the Court to widen the ambit of the term so as to include mentally retarded adults who have attained adulthood only in respect of biological growth, while having mental growth of a child.

Title: Ms. Eera, through Dr. Manjula Krippendorf v Union of India and Anr.

Register No.: CRIMINAL APPEAL NOS.1217­-1219 OF 2017

Coram:

  • Dipak Misra J.
  • R F Nariman J.

 

Matter:

The petitioner who is 38 years of age suffers from Cerebral Palsy and has attained only 6-8 years of mental growth was raped by the Resp-2, and case was registered under the IPC and proceedings were made under the CrPC. Since the prosecutrix is a child in terms of her mental capacity, when it came to trial at the Sessions Court of Saket, issues relating to camera trial, videography, absence of congenial atmosphere, etc. emerged. The mother of the victim filed a petition before the Delhi HC u/s 482 of CrPC praying that the matter be transferred to Special Court under POCSO Act. The HC directed videography of the proceedings as the victim mainly communicates through gestures, but did not transfer the case under POCSA. The High Court directed that the case should be assigned to a trial court presided over by a lady Judge in Saket Court. The Petition before the Supreme Court purports to widen the scope of the term “child” under the POCSO Act to consider the functional age of the subject, rather than the biological age. The case also pertained to payment of compensation under the Act to the victim, since the accused had died during the pendency of the case.

 

Decision of the Court:

The court ruled that the term “child” under the Act cannot be interpreted widely to include the mental age of the person, and directed that the State Legal Services Authority, Delhi shall award the compensation keeping   in   view   the   Scheme   framed   by   the   Delhi Government. The Court considered the mechanism of interpretation (literal or purposive) adopted by the Courts in various precedents and concluded that the distinction between adjudication and law-making must be maintained. Earlier decisions were examined, which ruled that judges must not proclaim that they are playing the role of law-makers merely for an exhibition of judicial valor.

 

Relevant Portions of the Judgment

“…….the only conclusion that can be arrived at is that definition in Section   2(d)   defining   the   term   “age”   cannot   include mental age…”

“….this is a fit case where the victim should be granted the maximum compensation envisaged under the scheme….”

“…..under our constitutional scheme, Judges only declare the law; it is for the legislatures to make the law.”

“…..A legislative judgment is anathema….”

5 CONTROVERSIAL CASES THAT ALTERED THE INDIAN LEGAL SYSTEM

Controversies have a power of shaping the outcome of an incident, altering the course of an event, and sometimes even setting right what could otherwise have gone wrong; while on the other side of the coin, it also sometimes ruins the true essence of the subject matter. India has had a series of controversial Court cases that led to the amendment of laws or shaped new legislations altogether. Here we analyze a list of top 5 controversial Court cases that altered the Indian legal system in some way.

  1. The Shah Bano Begum Case (Mohd. Ahmed Khan v. Shah Bano Begum)

The case played a major role in shaping the law on maintenance to wife, as it upheld the provision under CrPC as non-violative of the Islamic personal law on maintenance, and directed the husband to pay maintenance to his first wife who he had divorced by way of Talaq a few years after taking a second wife of younger age. It led to severe protests from the Islamic religious factions, and in turn the Government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 nullifying the effect of the judgment and lay down that the maintenance only needed to be paid upto 90 days after divorce or during the iddat period. However, the Supreme Court again in cases of Daniel Latifi and Shahima Farooqi, upheld the earlier decision of the Court to ensure adequate protection and equal rights to Muslim women after divorce.

  1. The Nanavati Case (K.M. Nanavati v State of Maharashtra)

That is one name Bollywood popularized among the masses by the movie starring Akshay Kumar and Ileana DCruze, but their real story is no less than a movie tale. The change brought by the case in the Indian system was that it was the last case where jury trial was held in India. The plot is no less than a crime-romance drama that unfolded in 1959 where Mr. Nanavati who was a Naval Commandant shot dead a business tycoon Mr.Prem Ahuja who was in an illicit relationship with his English wife Sylvia. There was major public support for Mr. Nanavati as he was an honorable man of values, and was intimidated by the ‘playboyish’ attitude of the businessman who indeed had no interest in marrying Sylvia even if she sought divorce from Nanavati. In a series of twists and turns, Nanavati was acquitted by the Jury, then re-tried and convicted by the HC, and eventually pardoned by the Governor and released from prison after 3 years.

  1. Mathura rape Case (Tukaram and Anr v State of Maharashtra)

The rape case that rocked India from its roots, both in terms of public conscience and in terms of law. In 1972, the 14-16 year old girl Mathura who had to visit the Police Station in her small village to give a statement about a complaint of abduction that had been filed by her brother (but she was not abducted; she was only in love with a village boy and was with his family by free will) was raped by two policemen inside the Police Station. The case created much public uproar and social chaos as several women rights activists took to streets to seek justice for her after the accused were acquitted by the Court for lack of incriminating evidence. Though the offenders were not punished, the case created a tremor in the system that spoke volumes for women who were victimized. Under the present system, a woman should not be arrested after sunset and before sunrise unless there is permission from the Judicial Magistrate and at least one woman Police Officer is present at the time.

  1. Vishakha Case (Vishakha and Ors v State of Rajasthan)

The case was a landmark decision in terms of setting stringent rules to tackle sexual harassment at workplace. The decision came in a Petition filed by Vishakha and some other activists against the Govt of Rajasthan and the Union of India, after which the Vishakha Guidelines were adopted to protect women from sexual assault and harassment at their workplace. It came after public outrage broke out upon the acquittal of a few upper class men who had been alleged of raping a poor lower caste woman who spoke up against child marriage in the village.

  1. Kesavananda Bharati case (Kesavananda Bharati v State of Kerala)

After a series of cases in which the Legislature and Court seemed to be at a war in respect to the former’s power to amend the Constitution, this case finally set an end to the tug of war and upheld the Fundamental Rights as supreme “Basic Structure” of the Constitution. Though the case was in respect of the acquisition of the Petitioner’s land by the Govt., the judgment had an impact that went farther into limiting the power of the Govt to alter the provisions of the Constitution. In addition, the strength of the Bench (13) made sure that the verdict would be a strong precedent.

BOMBAY HC: FATHER MUST PAY MAINTENANCE TO MINOR SON

A recent decision of the Bombay HC (Nagpur Bench) has reiterated a Father’s responsibility to pay maintenance to his minor son, even when the wife had left him and was residing separately with the minor son.

Title: Neeraj Kumar Kapoor Chand Jain Vs Sweety

Case No: Criminal Revision Application No.33 of 2017

Coram: V.M. DESHPANDE, J.

Matter:

The case came before the HC as a Criminal Revision Application from the husband after the wife had secured an Order from the Family Court directing him to pay Rs.7000/- per month to the wife and child. The husband contested the Order of the Family Court stating that the wife had withdrawn co-habitation with him, and an Order for Restitution of Conjugal Rights was secured him from the competent Court at Bhopal. But the wife submitted before the HC that she has already challenged the said Order before the HC at Jabalpur and it was pending. The minor child is a 6-year old boy, and it was laid down before the Court that the father had not taken up any responsibility for his son since June 2012.

Decision:

The Court went on to consider the income of the husband and dismissed the revision application of the husband, upholding the lower Court’s verdict making him liable to pay Rs. 7000/-. The Court also went ahead and stated that “Rs. 7000/- is also not on the higher side”, considering that “the boy is at an age where he requires more attention on every aspect of his life”.

Relevant Remarks:

Some major remarks made by the Court were:

It is the duty of every father to maintain his minor child.

“…Father is duty bound to provide al facilities for education and health for his minor son or daughter…”

“The wife may withdraw the company, but that does not absolve the responsibility of the father to provide maintenance to his son or daughter…”

NITHARI ACCUSED SENTENCED TO DEATH

The brutal and shocking Nithari murders have not vanished from the conscience of Indians, especially the residents of Noida where the serial killings took place. The accused were recently found guilty and sentenced to death by the CBI Special Court in one of the cases of the total 16 cases against the accused businessman Mohinder Singh Pandhel and his domestic help Surender Koli. The cases rattled India in 2006 when the matter came to light when the residents and Police unearthed the bodies of several children and young women who had disappeared from the area in the past two years. The accused were immediately taken into custody, and investigations were completed, revealing incidents of abduction, rape, sexual abuse, murder and even suspected cannibalism.

The CBI Special Court convicted the duo and sentenced them to death on 24th July 2017, after a protracted legal battle that went on for years after the crime was discovered. The verdict came in the case of rape and murder of a 20 year old woman Pinki Sarkar who was abducted, raped and murdered before being dismembered and buried in the vicinity of the crime scene which was the place of residence of the accused. The prosecutor Mr. JP Sharma relied on an arena of factual and scientific evidence to prove the offence in Court, and the defense lawyers argued on circumstantial evidence on the claim that Koli was in fact at another place on the alleged date of the incident. However, the Court took heed of the plethora of incriminating evidence available against the accused and convicted them of the offenses.

It is only the second case where conviction has been secured, among the 16 cases that were registered against the accused in the bizarre incident. But it certainly comes as a relief to the families of the many victims who are awaiting justice even after a decade of the crime.

Delhi High Court Decision on GST on Lawyers

The GST has been here for barely a month now, but its anomalies have already dragged it to Court to resolve the ambiguities raised by the various Notifications issued by the Govt under the GST regime. The Delhi HC was recently faced with the first case of this sort, filed by a lawyer, questioning the confusion caused to him by some Notifications.

Title: J. K. Mittal & Co. v Union of India

Citation: W.P. (C) NO. 5709 OF 2017; CM NO. 23814 OF 2017 (Delhi High Court)

Coram:

  • MURALIDHAR, J.
  • PRATHIBA M. SINGH, J.

 

Matter: GST Notifications – contradiction with GST Council recommendations – confusion w.r.t “reverse charge” mechanism – imposition on services of lawyers.

 

Brief Statement of Facts:

The petition was filed by Mr. J K Mittal citing that these Notifications will have adverse consequences on lawyers in general; earlier Notifications of the Govt stood for the exemption of liability of lawyers/Firms in respect of all services provided by them to clients and only the client was to pay on the reverse-charge basis. He points out the technical disparities between the wordings used in the subsequent Notifications, in effect limiting the exemption only to representational services rendered by lawyers to clients. an additional difficulty pointed out by him is that the Finance Act had earlier required lawyers to register as service-providers, but the subsequent change of bringing it under the reverse-charge category did not bring with it any provision for de-registration.

 

Decision of the Court:

Delhi High Court clarified in its order that no coercive action should be taken against any lawyer or law firms for non-compliance with any legal requirement under the CGST Act, the IGST Act or the DGST Act till a clarification is issued by the Central Government.

 

Relevant portions of the Order

“….it is plain that as of date there is no clarity on whether all legal services (not restricted to representational services) provided by legal practitioners and firms would be governed by the reverse charge mechanism…”

“….There is therefore prima facie merit in the contention of Mr Mittal that the legal practitioners are under a genuine doubt whether they require to get themselves registered under the three statutes…”

“…no coercive action be taken against any lawyer or law firms for non-compliance with any legal requirement under the CGST Act, the IGST Act or the DGST Act till a clarification is issued by the Central Government and the GNCTD and till further orders in that regard by this Court…”

“…any lawyer or law firm that has been registered under the CGST Act, or the IGST Act or the DGST Act from 1st July, 2017 onwards will not be denied the benefit of such clarification as and when it is issued.

“…..if an appropriate clarification is not able to be issued by the [UoI and GNCTD] by the next date, the Court will proceed to consider passing appropriate interim directions…”

GST IS ALREADY IN COURT: CHECK OUT WHY?

GST has been here for barely a month and it has already been dragged to Court by a lawyer in Delhi challenging the Govt Notifications imposing GST on the services of lawyers. The petition was filed by Mr. J K Mittal citing that these Notifications will have adverse consequences on lawyers in general; since the effect of imposition of ‘reverse charge’ on services would mean that GST will be collected from persons registered under one of the GST Acts (CGST, IGST or Delhi GST Act) would have to pay the GST in respect of a service availed from a person who is not registered under any of these Acts.

The Petition challenged the rules on the basis that there is no corresponding provision or machinery in the system to implement the rule, thus making is impracticable. The earlier Notification stood for the exemption of liability of lawyers/Firms in respect of all services provided by them to clients and only the client was to pay on the reverse-charge basis. He points out the technical disparities between the wordings used in the subsequent Notifications, in effect limiting the exemption only to representational services rendered by lawyers to clients. an additional difficulty pointed out by him is that the Finance Act had earlier required lawyers to register as service-providers, but the subsequent change of bringing it under the reverse-charge category did not bring with it any provision for de-registration.

The number of confusions raised by the apparently contradictory provisions on the earlier and current schemes, and the various Notifications under GST, led the Delhi High Court to clarify in its order that no coercive action should be taken against any lawyer or law firms for non-compliance with any legal requirement under the CGST Act, the IGST Act or the DGST Act till a clarification is issued by the Central Government and the GNCTD and till further orders in that regard by this Court. The Court also stated that if an appropriate clarification is not able to be issued by the Govt by the next date, the Court will proceed to consider passing appropriate interim directions.

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