Marriage and Family Law: An analysis
Recently, the High Courts of various jurisdictions have witnessed a surge of cases wherein inter-faith, inter-caste, LGBTQ, live-in, heterosexual couples wherein the man is under the age of 21 years and adulterous couples began approaching them under writ jurisdiction. Although, different words have been used to classify the type of relationship, the woes faced by the couple which forms the cause of action for approaching the jurisdictional High Court is similar i.e., threats being made by the parents, relatives or community towards their lives and well-being. Additionally, the prayer made in the petitions is similar as well i.e., protection of life and liberty as guaranteed under Article 21 of the Constitution of India.
However, even though, the cause of action made in the petitions is similar, the High Courts as a norm have granted protection to only inter-faith, inter-caste, and LGBTQ couples. While on the other hand have been ambivalent to grant similar relief in relationships of heterosexual couples wherein the man is under the age of 21 years, live-in and adulterous couples. The internecine between judges of the same High Court concerning the grant of relief in the latter type of relationships has only added fuel to flame and put the cherished rule of Stare decisis in jeopardy.
The present article attempts to highlight the erroneous jurisprudence laid down by the High Courts while refusing to grant protection to life of certain couples particularly adulterous couples. The article focuses specifically on addressing the jurisprudence relied upon by the High Courts of equating grant of protection vis-à-vis recognition of marriage/union for refusing protection to adulterous couples.
Jurisprudence as laid down by the High Court while refusing to grant protection:
The Hon’ble Rajasthan High Court in the matter of Rashika Kandal & Anr. v. State of Rajasthan & Ors, S.B. Crl. Msc. (Petition) No. 3023/2021 held that as the man in the relationship was married, the relationship does not constitute a legitimate and valid recognizable live-in relationship and thus refused to pass an order for protection of life and liberty.
A Division Bench of the Hon’ble Allahabad High Court in the matter of Aneeta & Anr. v. State of U.P. & Ors. Writ C No. 14443 of 2021 held that the married half of the adulterous couple would first be required to take a divorce from the spouse, and only after the grant of the same approach the High Court for protection of their life. Additionally, the High Court held that granting protection to the life of the couple who are in an illicit relationship would amount to the High Court assenting to this relationship.
The Hon’ble Punjab and Haryana High Court in the matter of Harpreet Kaur & Anr. v. State of Punjab CRWP-10399-2021 refused to grant protection of life as the High Court for two reasons. Firstly, such adulterous relationships do not fall within the phrase “live-in relationships” or “relationships” in the nature of marriage. Secondly, such relationships are in violation of Section 494 of the Indian Penal Code i.e., “Marrying again during the lifetime of husband or wife” and Section 495 of the Indian Penal Code i.e., “Same offence with concealment of former marriage from persons with whom subsequent marriage is contracted” and that granting protection to such couples would amount to protection against commission of the abovementioned offence.
A perusal of the above mentioned judgements would show that the predominant raison d’etre behind the refusal of the High Courts to grant protection order to adulterous couple is because in the opinion of the High Court it would amount to recognizing as well as giving a stamp of approval to their union, which in the High Court’s opinion would disturb the social and moral fabric of the society as well as be in violation of the personal laws and criminal laws of the country.
i. Is there a limitation as to who can seek the right to life as guaranteed and protected under Article 21 of the Constitution?
Article 21 of the Constitution of India states that, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Justice L. Nageswara Rao, a sitting judge of the Hon’ble Supreme Court of India while speaking at the Justice V.R.Krishna Iyer Memorial Lecture has stated Article 21 to be “the shining star in the constellations of rights provided to citizens by the constitution”. It is clarified that unlike Article 19 which is guaranteed only to the citizens of this country, Article 21 encompasses within its ambit all persons in the country. If the jurisprudence of the High Courts is accepted, it would lead to a situation wherein the light of this twinkling and shiny star would not be available to all, specifically individuals that have committed an act which is considered to be against the laws of the country when darkness befalls in their life.
However, such is not the true position of law in this country. The Hon’ble Supreme Court of India in the matter of State of Andhra Pradesh v. Challa Ramkrishna Reddy and Ors. Civil Appeal No. 3969 of 1989 has held that, “Right to life is one of the basic human right. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate thar right. A prisoner, be convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including right to life guaranteed to him under the Constitution”
Thus, if one accepts the jurisprudence laid down by the High Courts, it will lead to an absurd situation wherein the life of individuals that have committed an act to be in violation of the criminal laws of the country and convicted of the same is protected. However, two adults making a conscious decision of living in adultery, agreeably in direct violation of marriage/personal laws or criminal laws of the country, are not entitled to protection of their life.
ii. Protection Granted to same-sex couples has not led to their relationship being recognized in Indian law as a valid marriage:
The best example one can take to hammer the point that grant of protection does not equal recognition or establishment of a valid marriage is to see the orders passed by High Courts when same-sex couples approach them seeking protection of life and liberty. The Hon’ble Supreme Court in the matter of Navtej Singh Johar v. Union of India, W.P. (Crl) No. 76 of 2016 has read down Section 377 of the Indian Penal Code thus legalizing same-sex couples to enter consensual physical relationships. However, their right to marry each other is not yet been approved in Indian law and thus is not legitimate in the eyes of the law if performed. Nonetheless, the Hon’ble Punjab and Haryana High Court in Paramjit Kaur v. State of Punjab CRWP-5024-2020 (O&M) while granting protection to a same-sex couple held that, “legitimacy of their relationship with each other, therefore, is of no consequence viz-a-viz their right to life and liberty”. It is this jurisprudence of separating legitimacy of relationship and protection of life and liberty that needs to be followed and applied by courts when deciding the protection plea of adulterous couples as well.
Like a farmer who separates the wheat from the chaff, the present article highlights the need for the judiciary to separate the issue of protection of life and examination of the legitimacy of a relationship in law. It is emphasized that right to protection of one’s own life stands on a higher pedestal than the rights available to an individual against their respective spouses. The spouse of the individual in an adulterous relationship, has the option of availing remedies as available to them under their personal laws, be it restitution of conjugal right under Section 9 of the Hindu Marriage Act, 1955 or divorce. Additionally, the spouse can avail the remedy of approaching the police and filing a criminal case if the facts so permit. On the other hand, the spouse in the adulterous relationship too has the option of availing the right of divorce or continue in the adulterous relationship without taking a divorce and wait for their spouse to take the requisite action. Thus, the court cannot lay down the jurisprudence of making it mandatory for a couple to first legitimize their relationship or for an individual to first avail their right to divorce before seeking enforcement of their fundamental right to life, such condition precedent flies in the teeth of India’s constitutional jurisprudence. Although this article has specifically delt with couples in adulterous relationships, the arguments made are applicable to any situation wherein a prayer for grant of protection of life and liberty is made.
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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren
On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.
The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.
In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.
While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.
The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.
Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.
The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.
Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.
In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.
It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.
Accordingly, the court will now hear the matter on 14 December.
DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT
The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.
The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.
On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.
In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.
In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.
The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.
Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.
The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.
SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT
The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.
The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.
The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.
It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”
The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.
In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.
However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.
Mr. Arvind Gupta, Advocate on Record has filled the present petition.
Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court
The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.
The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.
Also, the court imposed a cost of Rupees one lakh on Singh.
In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.
While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.
The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.
However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.
It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.
Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.
The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.
Post-conviction compounding of offences is permissible: Himachal Pradesh High Court
The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.
The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.
Thus, the petitioner had sought compounding of offences.
In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.
However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.
The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.
‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’
The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.
The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.
In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.
However, the court disallowed the claims on two grounds:
Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.
In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.
Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.
The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.
The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.
Accordingly, the court dismissed the petition.
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