While upholding a divorce decree that was granted in favour of the husband, the Chhattisgarh High Court at Bilaspur has in an extremely laudable, learned, landmark and latest judgment titled Smt Nalini Mishra vs Surendra Kumar Patel in FA(MAT) No. 8 of 2020 that was pronounced finally on August 18, 2022 observed that the act of a wife visiting the office premises of the husband and creating scenes with abusive language amount to cruelty. The Division Bench of Hon’ble Shri Justice Goutam Bhaduri and Hon’ble Shri Justice Radhakishan Agrawal observed that, “…when a wife goes to the office premises of the husband, abuses him and accuses him of certain relation, naturally it would result into diminishing the image of the husband before the colleagues and the office stature will certainly go down.” The Court was also of the firm view that abusing in-laws, stopping the husband to meet his parents, and forcing the husband to leave the marriage function of his younger brother are also unnatural cruel acts as such acts would bring down the image and the prestige of a family in the public eye which may also amount to cruelty.
At the outset, this learned judgment authored by Hon’ble Shri Justice Goutam Bhaduri for a Division Bench of Chhattisgarh High Court comprising of himself and Hon’ble Shri Justice Radhakishan Agrawal first and foremost puts forth in para 1 that, “The instant appeal is against the judgment and decree dated 17.12.2019 passed in H.M.A. 677/2017 by the learned family Court, Raipur, whereby the application filed by the husband seeking divorce on the ground of cruelty was allowed. The present appeal is by the wife.”
To put things in perspective, the Division Bench then envisages in para 2 that, “The brief facts of the case are that the husband levelled allegation that the marriage in between the parties solemnized on 31.10.2010 and out of the said wedlock a child was born. Thereafter, with the passage of time, it is alleged that the wife used to spent money as per her own choice and the visit of the husband to his parents was objected & eventually stopped. It is stated whenever he wanted to visit his parents, the wife used to abuse him resulting into stoppage of meeting of the husband with his parents. It was further alleged that without the consent and permission of the husband she went to a place called Belpahad for her business at Mahanadi coalfield for the business of coal shifting and when the husband tried to intervene, he was abused and insulted. The respondent/husband further alleged that the wife used to take away the entire salary of the husband and used to spent in her business and if a query was made about the expenses, it was reciprocated with the abuses. It is alleged that the wife procured 5 vehicles on loan without the consent of the husband and she deliberately stopped to discharge her household responsibilities including taking care of the child. It is stated that even the husband was stopped to attend the marriage of his real brother and the maternal sister of the husband when wanted to visit their place to appear in an examination from outside, the wife alleged illicit relation of the girl with the husband. It was further alleged that the husband is having an illicit relation with an office colleague. In a result, the husband on different occasions made a police report explaining the facts.”
Further, it is then stated in para 3 that, “It is further alleged that at one occasion the wife had surreptitiously stolen away the valuable papers which were kept in the car and the report having been made about such theft, after CCTV footage when it was discovered that the wife had done this, she was arrested in a criminal case. Referring to a particular date, it is stated by the husband that the wife used to abuse and bald allegations were made against the husband and even at a point of time she assaulted the younger sister of the respondent, therefore, on various grounds, the husband sought decree of divorce.”
To be sure, the Division Bench then discloses in para 5 that, “Learned family Court framed issue on the ground that whether the husband was treated with cruelty by wife or not. On behalf of the husband/respondent, two witnesses were examined namely Surendra Kumar Patel i.e. the husband himself as PW-1 and sister of the wife namely Rohini Mishra (PW-2). Whereas on behalf of the wife, she examined herself as DW-1 and one witness Ananda Pathak, another sister. The learned family Court after evaluating the facts & evidence, allowed the application of the husband, thereby decree of divorce was granted. Being aggrieved by such judgment and decree, the present appeal is by the wife.”
It cannot be glossed over that the Division Bench then lays bare in para 10 that, “In the backdrop of facts, we would like to deliberate upon evidence to find out whether sufficient evidence exist over the cruelty as against the husband. The husband Surendra Kumar Patel was examined as PW-1. As per the statement, both of them met in the year 2009 thereafter fell in love and got married on 31.10.2010 is not in dispute. It is further stated that after marriage, the entire salary of the husband was being taken away by the wife and she used to spend money according to her own choice and will. He further stated that whenever he wanted to visit his parents, it was objected by the wife and even hurled severe abuses. He stated that as a result of it, there was a complete stoppage of meeting of the husband with his parents. He further stated that even giving the entire salary part to the wife, she demanded more money for her business as she was engaged in a coal handling business and on her pressure, the husband took a loan of Rs.5 Lakhs from his friends to procure the vehicle for the business of wife. Narrating an incident of 09.12.2016 it is deposed that the marriage of the brother of the respondent was fixed and he went to attend the marriage, but over the phone he was abused severely, he had to leave the procession of marriage in the mid way and had to come back. He further stated that when he came back at that time she also started abusing to the extent that the neighbors had to intervene to console.”
Furthermore, it is then revealed in para 11 that, “Further narrating an incident it is stated that the cousin sister of the respondent namely Shweta had to come to Raipur to appear in a P.S.C. exam and the respondent being brother asked her to stay in their house. However, when she came, the wife made allegation of illicit relation in between them and abused. Subsequently, she made a complaint to the office that the husband has an illicit relation with a lady colleague of the office and when he wanted to console, threat was extended that he would be inculpated in a criminal case. It is further deposed that because of the torture meted out, the earlier husband of the appellant got separated and eventually he died. Narrating the further incident of 03.05.2018, it is stated that when the respondent after parking his car in the office went along with higher officials for some official work and when came back he found the door of the car opened and it was observed that the important papers from the car were stolen which includes ATM Card, Adhar Card etc. along with official important documents, for which on the basis of CCTV footage a report was made and it was found that it was the wife who had stolen the said documents, for which she was arrested for the offence under Section 379 IPC and subsequently was released. It is stated that in order to damage the reputation and causing harm to the husband, the wife had done such act.”
Most significantly, the Division Bench minces no words to hold in para 16 that, “The over all assessment of the evidence, therefore, would show that the appellant/wife used to abuse the husband on trivial issues of which the husband made complaint many times, which is proved by Ex. P-1, P-2 & P-3, however, the same being non-cognizable, the police did not take cognizance of it. The fact remains that the husband made complaint to the police about the rash and abusive behaviour coupled with the fact that the complaint was made that he was physically abused with the scratches on his neck. The statement of Surendra Kumar Patel (PW-1) read with Ex. P-4 supported by statement of Rohini Mishra (PW-2) would show that the wife has made void allegation of illicit relationship of the husband with a lady outside the marriage and even a complaint was made by the wife to the Chief Minister to transfer the husband from a particular posting in the office with allegation of illicit relations. Apart from it, the statement of Surendra Kumar Patel (PW-1) & Rohini Mishra (PW-2) it is established that the wife used to visit the office of the husband and create scene with abusive language. In such a situation when a wife goes to the office premises of the husband, abuses him and accuses him of certain relation, naturally it would result into diminishing the image of the husband before the colleagues and the office stature will certainly go down. Except such oral bald allegation by the wife, the allegation could not be established. Even it is stated that the wife used to abuse the in-laws and stopped the husband to meet his parents, which would also amount to cruelty. To pull back the husband to attend the marriage procession in the mid way, whereby the husband was forced to leave the marriage of his younger brother is also an unnatural cruel act. Such act would bring down the image and the prestige of a family in the public hike, which may also amount to cruelty.”
Most forthrightly, the Division Bench then hastens to add in para 17 that, “Taking into over all evidence, we are of the opinion that the judgment and decree passed by the learned Family Court do not require any interference and we affirm the finding arrived at by the Family Court.”
Finally, the Division Bench then concludes by holding in para 18 that, “In a result, the appeal fails and is dismissed.”
All told, the Chhattisgarh High Court has in this notable judgment affirmed the finding arrived at by the Family Court. The Court made it indubitably clear that frequent visits to husband’s office to create scene with abusive language would amount to cruelty. The decree of divorce was thus upheld. Very rightly so!
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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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