LEXKHOJ FLASHBACK 2016 (March-April): COMPILATION OF IMPORTANT JUDGMENTS

lexkhoj-flashbackAs 2016 is going to end soon and we are about to see the dawn of 2017, it is apt time to re look at what Supreme Court and High Courts said this year. What new interpretation of law did the Apex Court offer and what Law has been struck down? We at LEXKHOJ, have compiled important Judgments (Monthly Basis) delivered by the Supreme Court and High Courts this year. Judgments pronounced in the month of March & April  2016 can be read here…

March 2016

Filing Petition in SC during pendency of proceedings before HC is an abuse of process of law

The Supreme Court of India reprimanded a petitioner for filing a Writ Petition under Article 32 of the Constitution, during pendency of a Writ before the High Court for the same relief, and imposed costs of Rs. 1 lakh on the petitioner, terming it as an abuse of process of law.

“Having invoked a constitutional remedy before the High Court under Article 226 of the Constitution of India, the petitioner cannot, under Law, file another petition under Article 32 of the Constitution of India on identical set of facts for identical reliefs,” the Bench comprising Justice Kurian Joseph and Justice R.F. Nariman observed.

Child Marriages do not become automatically void: Madras HC

Madras High Court in M. Janaki Vs. K. Vairamuthu, has clarified that Child marriages do not automatically become void. Division Bench comprising of Justices S. Manikumar and C.T. Selvam made this observation while hearing an appeal against a Family court order rejecting a divorce petition, holding that it was a child marriage and hence void.

The court observed “The conditions for a Hindu marriage are informed in Section 5 of the Hindu Marriage Act, 1955. Section 5(3) places requirement that the bridegroom should have been completed aged of 21 years and the bride 18 years at the time of marriage. Noteworthy it is that the breach of such condition does not render the marriage void under Section 11 or voidable under Section 12.”

Supreme Court summarizes Law on Mitakshara Joint family property, prior to 2005 amendment 

Supreme Court, in Uttam vs. Saubhag Singh, has summarized the law governing the Mitakshara joint family property, prior to the amendment of 2005. Apex Court bench comprising of Justices Kurian Joseph and R.F. Nariman was hearing an appeal arising from a suit for partition, which was dismissed both by Trial Court and the High Court, holding that the date of the birth of the plaintiff in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable.

The Apex Court summarized the law regarding the joint family property governed by Mitakshara School as follows.

1.     When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).

2.     To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.

3.     A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.

4.     In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property. On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

5.     On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.

Politics without principle and politicians without character are the most damaging elements of the social order: Orissa HC

 Justice S.K Sahoo in his introductory paragraph in the Judgment dismissing the petition under Section 482 CrPC preferred by the NCP leader, to quash the complaint lodged against him by his rival BJD leader remarked “Who says politicians only fight amongst themselves at the time of election? Politics and conflicts are the two sides of the same coin. Political conflicts can go to any extent and it is not merely the difference of opinion but sometimes it is full of mudslinging and character assassination. Lack of political ideologies appears to be a common feature in such never ending conflicts. Politics without principle and politicians without character are the most damaging elements of the social order.”

No names and marks on Vehicle number plates: Allahabad HC

Allahabad High Court, in Agnivesh vs. State of UP, has reiterated that no person shall be allowed to use personal identification names and marks on registration plates. Division Bench comprising of Chief Justice Dr. Dhananjaya Yeshwant Chandrachud and Justice Yashwant Varma issued these orders in a PIL filed by Law students.

The Court observed that putting of the names of offices and designations seems to be an effort to shield the holder from compliance with traffic regulations and prevent the traffic police from taking necessary enforcement action in accordance with law. This is clearly impermissible, the Bench said.

SC orders sterilization of nuisance causing stray dogs

The Supreme Court has directed all states to sterilize and vaccinate stray dogs under supervision of Animal Welfare Board of India using provisions of the Prevention of Cruelty to Animals Act for controlling its population and rabies.

A bench headed by Justice Dipak Misra however remained silent on the question of culling of nuisance-causing dogs.

The bench took note of the submission of amicus curiae and senior lawyer Dushyant  Dave that though the Act and Rules provide for sterilization of dogs so that safety of the human beings is not jeopardized, yet they are not being sterilized by the authorities, either for lack of funds or due to apathy.

Counter claim can be filed even after Framing of Issue, if recording of evidence is not concluded: SC

The Supreme Court has observed that Counter claim can be filed even after framing of issues, if the recording of evidence is not concluded. Apex Court Bench comprising of Justices Jagdish Singh Khehar and C.Nagappan made this observation in Vijay Prakash Jarath vs. Tej Prakash Jarath.

Court said “It is not a matter of dispute in the present case that cause of action for which the counter-claim was filed in the present case arose before the respondent-plaintiff filed the suit (out of which these petitions/appeals have arisen). It is therefore apparent that the appellants before this Court were well within their right to file the counter-claim.”

Arbitrator cannot award PendenteLite Interest, if contract expressly bars the same

The Three Judge Bench of the Apex Court comprising of Justices Ranjan Gogoi, Arun Mishra and Prafulla C. Pant reiterated that if contract expressly bars award of interest pendente lite, the same cannot be awarded by the Arbitrator. The Court also clarified that that the bar in Arbitration Contract to award interest on delayed payment by itself will not be readily inferred as express bar to award interest pendente lite by the Arbitral Tribunal.

The Division Bench of Apex Court had referred to the Three Judge Bench after it doubted the correctness of dictum in Board of Trustees for the Port of Calcutta v. Engineers-De-Space-Age (1996) 1 SCC 516; and Madnani Construction Corporation (P) Ltd. v. Union of India and Others (2010) 1 SCC 549.

Is husband entitle to get Divorce from ‘Cruel Wife’?

Does only a Wife get divorce on the ground of Cruelty? Do Husbands get Divorce from a ‘cruel’ wife? Delhi High Court recently witnessed such a case, when a wife appealed against the Divorce decree granted by the Family Court on the ground that she treated her husband with cruelty. The Delhi High Court, by dismissing her appeal and upholding the view adopted by the family court, also said that wife taunting and assaulting husband for not being able to satisfy sexual desire are grave and weighty matrimonial offences/misconducts.

The Court observed “It has come on record that the appellant taunted the respondent for not being able to satiate her sexual desire on account of his being heavy weight. When the parents and other people from Ghaziabad came and fought with the respondent; abused him and even assaulted him is also a serious incident, and each of this aforesaid incidents are grave and weighty matrimonial offences/misconducts by the appellant, which cannot be described as events relating to normal wear and tear of a marriage. Such events are clearly destructive of the matrimonial bond and would naturally give rise to a bonafide and genuine belief and apprehension in the mind of the respondent that it is not safe for him to peacefully and mentally continue the relationship with the appellant.”

Supreme Court Dismisses Plea Seeking Changing Name From India To ‘Bharat’

The Supreme Court today dismissed a plea demanding changing the name of ‘India’ to ‘Bharat’ as it took strong exception to the petitioner asking him whether he thinks it has nothing else to do and reminded him that Public Interest Litigations (PILs) are meant for “poor”.

“The PIL is for poor people. You think we have nothing else to do,” a bench comprising Chief Justice TS Thakur and Justice UU Lalit said while rejecting the PIL. The bench told Niranjan Bhatwal, a social activist from Maharashtra who filed the PIL, that such pleas should not be entertained.

April 2016

Stop selling Vehicles with Air bags unless it is cent percent flawless: NCDRC tells Hyundai

National Consumer Forum has come down heavily on Hyundai Motors India Ltd. for selling vehicles with defective air bags. Commission presided by Justice J.M. Malik observed that the company should stop selling such like vehicles with Air Bags unless or until they are cent percent without flaws of any kind. Dismissing the revision petition filed by the motor company against the orders of District and State Consumer Forums which held it responsible for selling defective Air bags, the commission imposed on Hyundai further fine of one Lakh. One Leela Sahu, who had purchased a car with air bag facility had complained against Hyundai claiming that when she met with an accident, the air bag did not deploy.

Supreme Court invokes Article 142 to waive cooling period in a mutual consent divorce plea

Invoking Article 142 of the Constitution of India to do ‘complete justice’ to a couple who had decided to part with each other after living separately for last five years, the Supreme Court has waived statutory cool-off period of six months and granted them divorce. The couple who approached the Family court were told to wait till October to formally end the marriage. The Husband approached the Apex Court through a Special Leave Petition and the Wife submitted before the Bench headed by Justice Kurian Joseph that she needs a change in environment and thus, she has  proposed  to  move  to  New York and it would be difficult for her  to  get  back  to  India  after  six months or even in the near future.

Waiving the statutory period of six months mandated by Section 13-B(1) of the Hindu Marriage Act, 1955, the Supreme Court invoking its power under Article 142 of the Constitution, declared their marriage as dissolved. (Nikhil Kumar vs Rupali Kumar)

A person can change his religion and faith but not the caste to which he belongs, as caste has linkage to birth: SC 

In an important judgment, the Supreme Court has upheld election of Mr. Mohammed Sadique from a constituency reserved for Scheduled Castes in Punjab by setting aside the High Court judgment which had invalidated the same. Dismissing the Election petition which was allowed by the High Court, the Supreme Court Bench comprising of Justices Ranjan Gogoi and Prafulla C. Pant has reiterated that a person can change his religion and faith but not the caste, to which he belongs, as caste has linkage to birth.

Pvt. Educational Institutions cannot be allowed to create business empires charging exorbitant fees; Himachal Pradesh HC

A Private Educational Institution which approached the High Court against the orders to refund the fees it took from some persons desirous of getting admission for MBA PGDM Course, had to face the music as Justice Tarlok Singh Chauhan, who heard the petition,not only dismissed it with costs, but also made a highly critical remark about the institution to the effect that it is no less than a commercial shop, where the aspiring needs of the students stand defeated due to its malpractices and frivolous activities.

The private institutions cannot be permitted to operate like money minting institutions, the innocent people of this State cannot be allowed to be duped any further, observed the High Court of Himachal Pradesh which directed the Government to investigate all the private Educational institutions in the state and to ensure that no one is allowed to charge fee towards building fund, infrastructure fund, development fund etc.

No TDS is deductible on tips received by Hotel employees: Supreme Court

The Supreme Court in ITC LIMITED GURGAON vs. COMMISSIONER OF I.T. (TDS) DELHI, has categorically held that ‘tips’ received by Hotel employees does not amount to ‘salary’ from their employer and hence the employer need not deduct the tax at source under Section 192 of the Income Tax Act, though the same would be chargeable in the hands of the employees as“income from other sources”.

The Court also observed that there is no vested right in the employee to claim any amount of tip from his employer,(mandatory condition for Section 15 to apply) and tips being purely voluntary amounts that may or may not be paid by customers for services rendered to them would not, fall within Section 15(b) at all.

Madras HC asks bar council not to remain mute spectator to Law colleges ‘selling’ Law degrees

Madras High Court coming down against Law colleges ‘selling’ Law Degrees, observed that this kind of procuring law degrees fraudulently has to be prevented by Bar Council and action should be taken against those colleges for selling degrees or conferring degrees on people, who do not even attend classes.

The bench observed that it was shameful for the Bar Council to remain a mute spectator to sale of law degrees by ‘Letter Pad’ colleges and called for urgent remedial steps to contain the menace. “Many persons roaming in the corridors of the court, one fine day, take the avatar of an ‘advocate’. This only proves the fact that many law colleges are selling law degrees to unqualified persons and it is evident that anybody can procure a law degree, without even attending classes. This is nothing but fraud”, the Bench comprising of Justices V. Ramasubramanian and N. Kirubakaran observed while upholding the enrollment rules of Bar Council of Tamil Nadu.

#Sabarimala: You cannot deny entry of Women based on Traditions which are against the Principles of the Constitution: SC

The Supreme Court reiterated its opposition to the ban on entry of women into Kerala’s famous hill shrine of Sabarimala saying that denying the right to enter and pray cannot be justified on the basis of traditions which violated constitutional principle.

“You cannot deny entry of women based on traditions which are against the principles of the Constitution” said the three-Judge bench headed by Justice Dipak Misra.

Jaising said that women cannot be subjected to differential treatment. The apex court reiterated that it would decide on the right of women to enter the temple on the basis of constitutional principles. The hearing in the case would resume on April 18. The court is hearing a PIL, filed by Indian Young Lawyers’ Association (IYLA), seeking entry of women in the Sabarimala temple, located on a hill-top in the Western Ghat mountain ranges of Kerala’s Pathanamthitta District.

Married daughter can be allowed to inherit father’s property: SC

 In a landmark judgment, The Supreme Court announced that a married daughter is entitled to inherit her father’s property, even if his wife and son are alive.

A bench of justices JS Khehar and C Nagappan pronounced,”There can be no doubt that where a member of a cooperative society nominates a person in consonance with provisions of the rules, on the death of such member, the cooperative society is mandated to transfer all the share or interest of such member in the name of the nominee.”

“The rights of others on account of inheritance or succession is a subservient right. Only if a member had not exercised the right of nomination under Section 79 of the Act, then and then alone, the existing share or interest of the member would devolve by way of succession or inheritance”, they said.


Compiled by Mr. Vishnu Tandi


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