The petition filed by a lawyer named Ghanshyam Upadhyay seeks CBI inquiry under the supervision of the Court, and strict action against policemen involved in the killings of the four aides of Vikas Dubey
The petitioner says he is ‘disturbed and anguished’ at the growing tendency of police doing “instant justice” by killing accused under the guise of encounters, which on the face of it appears to be fake.
Petitioner demanded a CBI monitored probe in the encounter of four other co-accused who had killed UP police officials. The plea had mentioned the possibility of the petition being rendered infructuous if not listed urgently.
The petitioner has now informed the Supreme Court registry that he be allowed to amend the prayer in his petition.
“The provision of Order VII Rule 11 is mandatory in nature.”
In a judgment delivered today, the Supreme Court has observed that the provision of Order VII Rule 11 Code of Civil Procedure regarding ‘Rejection of Plaint’ is mandatory in nature.
“It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaintiff does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaintiff.”, the bench comprising Justices L. Nageswara Rao and Indu Malhotra said.
In this case, the Trial Court, had allowed the application filed by defendants under Order VII Rule 11(d), CPC holding that the suit filed by the Plaintiff was barred by limitation. The Suit was for cancellation of the sale deed (which was executed more than five years ago) on the ground that the sale consideration fixed by the Collector, had not been paid in entirety by the defendant. The period of limitation for a suit seeking a relief of cancellation of sale deed is three years, which commences from the date when the right to sue first accrues.
In the appeal upholding the rejection of plaint by the Trial Court, the Apex Court bench has succinctly summarized the law applicable for deciding an application for Rejection of Plaint under Order VII Rule 11 CPC. It noted that this provision provides an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. It said:
“The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.”
The Court made the following observations:
The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
The documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.
The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr., (2004) 9 SCC 512.
It is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. Hardesh Ores (P.) Ltd. v. Hede & Co. (2007) 5 SCC 614.
If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.
The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial. Saleem Bhai v. State of Maharashtra 7 (2003) 1 SCC 557.
“Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
While considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory.
Law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint. I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2 SCC 170.
If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, it should be nipped in the bud, so that bogus litigation will end at the earliest stage. Madanuri Sri Ramachandra Murthy v. Syed Jalal.
The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
In facts of the case, the Court observed that the plaintiffs by clever drafting of the plaint, attempted to make out an illusory cause of action, and bring the suit within the period of limitation. It said that the Plaintiffs deliberately did not mention the date of the registered Sale Deed since it would make it evident that the suit was barred by limitation. Further, the court observed that non payment of a part of sale consideration is not a ground for cancellation of a registered Sale Deed.
The bench added that there was delay of over 5 and ½ years after the alleged cause of action arose in 2009, and therefore the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. Dismissing the appeal by imposing costs of Rs. 1 Lakh on appellant, the court observed that the conduct of the Plaintiffs in not taking recourse to legal action for over a period of 5 and ½ years from the execution of the Sale Deed in 2009, for payment of the balance sale consideration, also reflects that the institution of the present suit is an after-thought.
Case name: DAHIBEN vs. ARVINDBHAI KALYANJI BHANUSALI (GAJRA)(D) THR LRS Case no.: CIVIL APPEAL NO. 9519 OF 2019Coram: Justices L. Nageswara Rao and Indu Malhotra
The Supreme Court on Wednesday recalled its March 27 order which allowed sale of 10% of unsold BS-IV vehicles for ten days after the lockdown, in areas except Delhi-NCR, after noting that the automobile dealers sold such vehicles during the lockdown in violation of the order.
Following the recall of the order, the bench headed by Justice Arun Mishra held that such vehicles sold during lockdown should not be treated as sold, and that the consideration received should be refunded to the purchasers. The Court also ordered that no such vehicle sold after March 31 should be registered.
“…the vehicles shall be treated to be with dealers as if they are not sold and consideration if any received shall be returned forthwith to the purchasers, no such vehicles sold after 31.03.2020 of BS-IV technology shall be registered”, ordered the bench, also including Justices S Abdul Nazeer and Indira Banerjee.
The Court pulled up the Federation of Automobile Dealers Association(FADA) and other dealers for selling more vehicles during lockdown.
“It passes comprehension, how sale of vehicles could have been taken place during the lockdown. It was stated that may be that online sales have taken place and it was also stated in the affidavit that distress sales had taken place. Be that as it may, since the transactions given in the tabular form indicate more sales as compared to the data of non-lockdown period, we have no hesitation in recalling the order allowing the vehicles to be sold for 10 days after the lockdown was over”, the SC observed.
The bench noted that the earlier order granting relief to the dealers was made owing to the lockdown, at the request of the Association, to make up for the loss of six days before the March 31 deadline on account of declaration of national lockdown on March 24.
Noting that more vehicles were sold during the lockdown ,the Court held :
“In view of the fact that Members as well as Non-Members had sold more vehicles during lockdown period, we have no hesitation to recall the order dated 27.03.2020 to aforesaid extent as it was passed only on the consideration that during lockdown, they would not be able to sell any vehicle that was the sole consideration for this Court to pass the order.”- Supreme Court.
The benefit of the Courts order could not have been taken “two-ways” by making more sales during the period of lockdown and grace period of ten days further after 31.03.2020, the bench said.
On the aspect of registration of vehicles, the court asked the Centre through Senior Advocate Aishwarya Bhati to submit the verified details of vehicles which were uploaded on the government’s e-portal, “Vahan” so as to ascertain whether the transactions during lockdown were genuine or they have been “back-dated”.
“we request Ms. Aishwarya Bhati, learned Additional Solicitor General of India, to make verification as per the list submitted as to which vehicles were actually put on the E-Vahan portal of the Government and the data from other States of which data was not uploaded on E-Vahan portal also to be ascertained and filed before this Court before the next date of hearing, only thereafter we will consider question of registration and not before that”, the Court said.
The Federation of Automobile Dealers Association of India (FADA) submitted a complete affidavit with details of sold but unregistered BS-IV vehicles to the Supreme Court as part of its plea that registration of these vehicles is allowed beyond the original March 31 deadline, in the wake of the COVID-19 lockdown.
On the last date of hearing, the Court had directed the ASG to collect details from all the RTOs throughout India and furnish information regarding number of vehicles sold in the BS-IV category are sold and registered after lifting of the lock-down.
March 27 order
In a slight relief for the automobile industry, the Supreme Court had on March 27 granted some relaxations to the March 31 deadline for the sale and registration of BS IV vehicles.
The Court allowed the sale of 10% of unsold BS IV compliant vehicles for 10 days, after the end of the 21-days countrywide lockdown.
However, the Court noted that such sale was not permissible in Delhi-National Capital Region. Sold BS IV vehicles had to be registered within 10 days of sale & BS IV vehicles brought before March 31 can be registered later too.
The court passed the order in a petition moved by Federation of Automobiles Dealers Association (FADA), which sought 30 days extension of March 31 deadline, citing lockdown.
The FADA had submitted that 7 lakh two wheelers, 15,000 passenger cars, and 12,000 commercial vehicles remained unsold and this was causing a huge liquidity crisis to the industry.
The Court added that borrowers may seek the moratorium as a matter of right if they could establish that the growth and continuity of their business would be affected.
The Karnataka High Court yesterday held that the Reserve Bank of India (RBI) is required to monitor the implementation of its March 27 circular granting a loan moratorium to borrowers in the face of the COVID-19 pandemic.
The Court directed three private banks to extend the benefit of the moratorium on loan repayment to a borrower in line with the RBI’s circular, and directed RBI itself to ensure that the circular is implemented.
The order was passed by the Single Judge Bench of Justice Suraj Govindaraj.
The Court was hearing a plea filed by the owner of a Technology Park and a five-star hotel in Bangalore, who had procured term loans from three different banks – HDFC Bank, Federal Bank, and Aditya Birla Finance – amounting to a total of Rs. 475 crore.
In order to service the loans, escrow accounts were set up to deposit the money earned by the petitioner through lease rentals and revenues from the hotel. Additionally, a pari passu hypothecation of all of petitioner’s securities was created in favour of the banks.
When the nationwide COVID-19 lockdown was imposed, the petitioner’s business establishments had to be closed down. The RBI had, on March 27, issued a circular which called for banks to grant a moratorium on payment of installments of term loans taken by borrowers for a period of three months. The period of moratorium was subsequently extended by the RBI.
When the petitioner approached the banks for availing the moratorium, the request was denied. HDFC Bank claimed that since there were rentals being received by the petitioner from the IT Park, there was no need for the moratorium.
The issue was raised before an Ombudsman where Federal Bank said that while it is not opposed to granting moratorium provided HDFC Bank granted the same. Aditya Birla said that the charge created on securities is parri passu and the other two banks had been unilaterally appropriating the petitioner’s cash flow.
The same contentions were made before the High Court, wherein both Federal Bank and Aditya Birla Finance Ltd argued that they didn’t oppose the grant of the moratorium, provided HDFC Bank also extended the benefit.
Before the High Court, the RBI said that it had allowed the banks to exercise their discretion in granting moratorium, given that the banks are best suited to assess the requirements and conditions of their lenders. It was, therefore, incumbent on the banks to justify their decision to deny loan moratorium to the petitioner, the RBI had submitted.
What the Court held
The Court was faced with a number of questions to be answered in this matter.
Whether a writ of mandamus can be issued against private banks to implement RBI’s March 27 circular?
The Court noted that the aim of issuing the circular was to ease the burden on the public, and it can be said that the circular was issued in the public interest. Therefore, it would attract a public law element.“The said circular having been issued to protect and preserve the economy of the country on account of COVID-19 pandemic. The issuance of the circular is in public interest, interest of the economy and the country. The enforcement thereof would also come within the purview of enforcing a public duty.”Karnataka High Court
Therefore, a writ of mandamus in such a case would be maintainable, the Court concluded.
Whether the March 27 circular was mandatory, directory, or discretionary?
Whether the grant of moratorium is at the discretion of the bank or as a corollary would it be a right to be exercised by the borrower?
In answering this question, the Court examined the circular’s phraseology and the details pertaining to the FAQs published by the three banks on their websites. The banks had declared on their websites that all borrowers were eligible to avail the moratorium.
The Court thus said,
“…the banks cannot take one stand in the public domain and a contradictory stand while implementing what they have stated in the public domain.”
It is the discretion of the borrower to avail the benefit of the loan moratorium, the Court said. It added that while the RBI’s circular gives discretion to the banks to grant the moratorium,
“it is mandatory for the Banks to ensure the continuity of viable businesses, in that, the non-grant of moratorium should not result in adversely affecting the survival and continuity of a viable business.”
Karntaka High Court
The Court added that borrowers may seek the moratorium as a matter of right if they could establish that the growth and continuity of their business would be affected.
The contention of the banks that since the loan was structured, the borrower did not need to avail the moratorium, was rejected. The Court held that since the RBI circular does not specifically address the question of whether it would be applicable to structured loans, the ambit would have to be considered to be extended for structured loans also.
The Court was also faced with the question whether one bank can deny a moratorium request when other Banks in the consortium are agreeable to the same.It was held that the banks, keeping in mind the viability of a business, cannot refuse to grant moratorium when other banks are willing to extend the benefit.
As regards the responsibility of the RBI in ensuring implementation of the circular, the Court said that its contention that the dispute is between the borrower and the lender banks cannot be accepted.
“…the dispute arises out of the implementation or not of a circular issued by the RBI. RBI is therefore directed to monitor the implementation of the Circular, including verification of whether there are Board approved policies formulated by each of the lenders, direct all the banks to submit the Board-approved policies for approval to the RBI, to approve such board-approved policy, verify if such a board-approved policy contains objective criteria, set up a proper and effective grievance redressal forum for any aggrieved borrower to approach on account of the improper or non-implementation of the policy and/or circular etc.”
The Court therefore directed the RBI to enforce the recovery package as put forth in its March 27 circular.
The communications sent by HDFC Bank to the petitioner in the instant case rejecting the moratorium request have been quashed by the Court. All three banks have been directed to grant moratorium as requested by the borrower, subject to the petitioner making payment of interest.
The moratorium is directed to be granted for the entire period as stipulated by the RBI’s circular and the money recovered by the respondent banks towards loan instalments are directed to be returned to the petitioner.
The petitioner was represented by Senior Counsel Basavaprabhu S Patil and Advocate Smitha Singh.
The Centre was represented by Additional Solicitor General MB Nargund and Advocate MN Kumar.RBI was represented by Senior Counsel RVS Nailk and Advocate T Suranarayanawith King and Partridge.
HDFC Bank was represented by Senior Counsel Udaya Holla and Advocate HN Vasudevan.
Federal Bank was represented by Advocate Vijay Kumar V and Aditya Birla Housing Finance Ltd was represented by Senior Counsel Dhyan Chinnappa and Advocate Rawley Muddappa.
Senior Advocate SK Dhingra passed away while in Supreme Court premises and could not be tended to due to unavailability of any medical staff or assistance. Precious time was also lost due to strict protocol.
The Supreme Court Advocates on Record Association (SCAORA) has written to the Chief justice of India, Justice SA Bobde, to look into the news of the sudden demise of Senior Advocate SK Dhingra in the Court’s premises due to unavailability of medical assistance.
The SCAORA passed a resolution on Thursday, July 9, taking note of lack of medical facilities in the Supreme Court after the tragic incident of the passing of Senior Advocate SK Dhingra came to light.
There was no medical staff, facilities, doctor on duty, or even an ambulance in the Supreme Court premises at the time the veteran lawyer was in need of medical assistance.
Furthermore, the security protocol as regards entry and exit gates in the Supreme Court were also not relaxed during this emergency situation due to which precious time was lost that could have been useful in providing emergency medical facility to the lawyer, the SCAORA has said.”…such untimely demise of Mr. S. K. Dhingra was reportedly also due to the refusal by the Supreme Court security to allow the entry of the vehicle from Gate B despite being told of the emergency medical situation – which wasted crucial time that could have led to providing emergency medical treatment to Mr. S.K. Dhingra, Advocate, and saved his life. Should this be the position, it is an utter failure of the Supreme Court administration and security.”SCAORA said in its resolution
An immediate and time-bound inquiry against the personnel concerned is also being pressed for by the SCAORA in its resolution, which calls for penal action to be taken, including prosecution for criminal negligence and dismissal from service, against the persons concerned.
In light of this tragic incident, the lack of state of the art medical facilities in the Supreme Court becomes glaring and the association has requested for the facilities to be provided for the benefit of lawyers and others who visit the Supreme Court.”SCAORA further demands that the Supreme Court security be directed to be of assistance during an emergency medical situation within the Supreme Court premises.
In the 21st century, a Standard Operating Procedure (SOP) issued by the Government that promotes digital methods of education must “be hailed a big progressive measure taken by the Government in making digital position of India stronger and firmer in the Comity of Nations”, the Bombay High Court said recently.
The Court made the observation while dealing with a petition filed against such an SOP brought about by the State (Imran Israel Sheikh v. Union of India and others).
The plea prompted the Court’s criticism when it was appraised that the petitioner had not approached the Government to address the cited grievances.
The Nagpur Bench of of Justices SB Shukre and SM Modak observed,
“If the Standard Operating Procedure encourages e-learning, any citizen of India questioning its intentions and purposes would only be acting against interest and well being of his own country. A citizen of India, however, may come across some issues in effective implementation of the Standard Operating Procedure but for that matter his duty would be to point out the same to the concerned authority, so that necessary corrective measures are taken by the authority.”
In this case, the Bench opined that “In the present form of petition with the kind of prayers that the petition makes, we are of the prima- facie impression that the petition represents only a regressive step in the field of education.”
The Court noted that the petition did not point towards any inherent contradictions, defects or lacunae in the policy move underlying the June 15 SOP so as to term it arbitrary, irrational or unreasonable.
Rather, the Bench noted that the grievances were primarily oriented around difficulties in implementing the SOP. As such, the Court remarked that there was no reason for the Court to interfere on grounds of violation of any fundamental right to education.
The Bench proceeded to direct the petitioner to approach the Government authorities to redress the cited lacunae in the SOP “with necessary facts and proofs, and not just surmises or imaginary facts.”
The Bench added that the petitioner may approach the Court again if the Government does respond to such representations.
The Gujarat High Court has issued notice in a petition calling for Government directions that “place of manufacture” of products sold over e-commerce portals to be displayed to prospective consumers (Yatin S. Soni v. Union of India and Ors).
A Division Bench of Chief Justice Vikram Nath and Justice JB Pardiwala has directed the Union of India, to file a response to the petition by affidavit.
The plea has been moved by Yatin Sureshbhai Soni, an Ahmedabad-based lawyer, who is appearing party-in-person.“There are large number of people, who wish to give preference to purchase products which are ‘Made in India’ and manufactured by Indian Companies, if available in the open market as they belong to Swadeshi School of thought.”Soni, in his Petition
Soni states that the plea is being filed “in public interest” to achieve the State’s object of self-reliance, or “atmanirbharat abhiyan” as highlighted by Prime Minister Narendra Modi in a televised public address.
While taking note of the popularity of e-commerce websites for retail shopping, the petitioner points out that it is impossible to ascertain a particular product’s country of manufacture.
The petition argues that this information should be disclosed from both the Constitutional rights and consumer protection perspective.
He submits that such disclosure is imperative in furthering a citizen’s right to be informed, a facet of the Constitutional right to free speech, as well as principles of consumer protection.
Therefore, the Court has now been urged to direct the government entities to mandate e-commerce websites to specify the following details:
The nationality of the company and place of manufacture of the product,
The percentage of Indian stakeholding in the company, where the company is “foreign” but has Indian investment,
Colours to identify each of the above categories and sub-categories, so as to inform “illiterate and semi-literate persons” of these categories and the place of origin of products.
The petition further prays that the government be directed to penalise any non-disclosure of such requested information.
The case is expected to be next taken up on July 29, once the Union files its affidavit in response to the petition.
However, the Court clarified that school authorities have no right to make online education compulsory for students, or charge any extra fee for the same.
The Karnataka High Court today stayed the part of the state government orders dated June 15 and June 27 which had imposed a ban on conduct of online classes for school students from LKG to Class 10.
The interim order was passed in a batch of pleas challenging the state government’s move to ban online classes for primary school students.
The order passed by a Division Bench of Chief Justice Abhay Shreeniwas Oka and Justice Natraj Rangaswamy reads,
“That part of the orders dated June 14 and June 27 which impose ban/embargo on conduct of online classes by the schools from LKG to Class 10 will remain stayed.”
Karnataka High Court
However, the Court clarified that school authorities have no right to make online education compulsory for students, or charge any extra fee for the same. The Bench held,
“Our order should not be construed to mean that students who do not opt for online education should be deprived of their normal education as and when the schools are able to start education.”
The Court further observed,
“Prima facie, it appears to be very strange to us as to why the state came out with an embargo even on interaction with parents of pre-primary school children for 30 mins as per June 27 order. The June 27 order says interaction with parents would only be for 30 mins, that too for one day in a week.”
Moreover, the Bench stated that the conclusion which could be drawn was that right to have online education for pre-primary students was completely taken away by the June 27 order. It opined,
“Prima facie, we find that both the government orders have encroached upon fundamental rights under 21 and 21A of the Constitution.”
The Court noted that the academic term for this year had already commenced, and with schools being closed, the only way of imparting education was by providing the facility of online coaching/online training.
Additionally, the Court said that even assuming that both state government orders were passed under Article 163 of the Constitution, even then, the same cannot curtail fundamental rights guaranteed under Articles 21 and 21A of the Constitution.
On the point of Pragyata Guidelines relied upon by the state, the Court firstly noted that restrictions put in the June 27 order were directly picked up from clauses 3.1.3 of said guidelines.
In this regard, the High Court opined that when the said guidelines are read as a whole, it does not intend to put an embargo on online learning, especially in light of schools being shut till July 31.
“Therefore, prima facie, we are of the view that impugned orders are not issued in excercise of any statutory power. By enacting a law, reasonable restrictions could have been imposed on exercise of fundamental rights. But the Karnataka Education Act, 1983 cannot be the law which permits the state government to do that.”
The Court also said that it would not interfere with the recommendations of the committee of experts appointed by the state government on conduct of online classes.
“It is not necessary for us to interfere with that part of the order as there is nothing wrong if the government constitutes a committee of experts so that the opinion of the experts is available to the state government for decision making process.”
When the matter came up for hearing few days ago, the Court heard arguments made by the counsel for the petitioners as well as Advocate General Prabhuling Navadgi, who was appearing for the state.
Firstly, AG Navadgi contended that the state government was not against imparting education to students by means of online classes.
He further informed the Court that it had to look into various factors such how education could be provided in rural areas, and whether it could be given in vernacular languages etc., among others. He further asserted that the state wanted to ensure that not a single student loses this academic year.
Navadgi further stated that an impression is being created by the petitioners that the government had acted in hurry. An interim arrangement has been made by the government till the expert committee files it report. Therefore, there is no violation of any Act, Navadgi submitted.
“Such woman has right to live in society with dignity and not as destitute.”
A woman who lived like a wife and in the perception she was treated as the wife cannot be deprived of the maintenance, the Tripura High Court has held.
Justice S. Talapatra observed that such a woman also has right to live in society with dignity and Section 125 of the Code of Criminal Procedure must be interpreted in the light of legislative changes which has taken into its embrace the changing reality of the man-woman relationship.
In this case, the contention put forth by the husband was that the woman seeking maintenance against him had ‘married’ him while his spouse was alive, and thus she was not his wife as there was no marriage legally between them. The Family Court observed that the marriage has been proved by the evidence, even though the husband had his spouse living at the relevant point of time, but the fact was grossly suppressed from the woman at the time of the marriage. The Court had observed that the husband could not be allowed to take advantage of his own wrong.
Before the High Court, it was contended that woman except those are legally married could not be included within the class of “wife‟ for purpose of section 125(1) of the CrPC.
The courttook note of the concept of maintenance as per Protection of Women from Domestic Violence Act, 2005. It said that the court should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that the parliament would legislate only for purpose of bringing about an effective result. It said:
“A woman who lived like a wife and in the perception she was treated as the wife cannot be deprived of the maintenance. For this purpose a co-terminus provision for granting maintenance may be looked into and a uniformity in the definition may be brought in. The provision of maintenance for the Hindu wife is also available in section 18 of the Hindu Adoption and Maintenance Act, 1956. But the most recent legislation which according to me has taken into its embrace the changing reality of the man-woman relationship is the Protection of Women from Domestic Violence Act, 2005.. ………….. When one statute ensures maintenance for the person to be in the relationship in the nature of marriage, the other statute cannot be interpreted to abrogate the provision relating to grant of maintenance. Thus, a purposive interpretation would be extremely instrumental and evocative for achieving its object. Moreover, such interpretation will be harmonious to the constitutional empathy embedded in Article 21 of the Constitution of India as, such woman has right to live in society with dignity and for not as destitute.”
Taking note of the pleading, the Court observed that the woman was not aware that the husband was married but they have lived for more than ten years as husband and wife after a ritual on the day of Dol Purnima. The bench then dismissed the Revision Petition observing that the husband failed to disprove the above aspect.
Case name: Bibhuti Ranjan Das vs. Gouri DasCase no.: CRL.REV.P 81 of 2019Coram: JUSTICE S. TALAPATRACounsel: Advocates R. Chakraborthy, . A. Debbarma, S. Bhattacharjee
A court here on Wednesday turned down a petition accusing Bollywood bigwigs like Salman Khan, Ekta Kapoor, Sanjay Leela Bhansali and Karan Johar, among others, of abetment to actor Sushant Singh Rajputs suicide.
Chief Judicial Magistrate Mukesh Kumar dismissed the petition filed by local advocate Sudhir Kumar Ojha, pointing out that the matter lay outside the courts jurisdiction.
Interestingly, in the petition filed barely three days after the 34 years old actor was found hanging from the ceiling of his Mumbai residence on June 14, Ojha had also named among “witnesses” Bollywood stormy petrel Kangana Ranaut who came out with a couple of angry messages blaming nepotism and favouritism in the film industry for the tragedy.
A serial litigant, who has in the recent past come up with petitions against top film and political personalities and even foreign heads of states, few of which went beyond the admission stage, Ojha remained unfazed by the CJMs order.
“I will challenge the CJMs decision before the district court. Bihar is in pain over the death of Sushant Singh Rajput. We must act to bring those, who drove a jovial young man like him to take such an extreme step, to justice”, he told reporters.
Incidentally, many film personalities, especially those hailing from Bihar, have expressed apprehensions of foul play in the Patna-born actors death and sought a CBI inquiry.
These include Shekhar Suman and singer-turned-politician and BJP MP Manoj Tiwari.