Legal Current Affairs for CLAT (November 2024) | Legal Reasoning for CLAT PDF Download

Invocation of Article 14

Why in News?

The Supreme Court recently ruled that Article 14 of the Constitution of India, 1950, cannot be used to justify illegal actions. In a case involving a petitioner seeking a compassionate appointment after the Haryana Government rejected his claim due to a time-bar under the 1999 policy, the Court emphasized the importance of adhering to legal policies. The petitioner argued for equal treatment based on others receiving appointments despite being time-barred, but the Court upheld the rejection, highlighting the need to uphold legal standards.

What was the Background of Tinku v. State of Haryana Case?

• Jai Prakash, a constable in the Haryana Police, died on duty on November 22, 1997, alongside another constable, Balwan Singh. 
• At the time of Jai Prakash's death, his son, the appellant, was only seven years old. The policy in place at that time, dated May 8, 1995, allowed for ex-gratia appointments for Class III and IV posts. 
• While Balwan Singh's widow received a compassionate appointment as a constable, Jai Prakash's wife, due to her illiteracy, applied for a compassionate appointment for her minor son instead of herself. 
• On April 15, 1998, the Director General of Police (DGP) in Haryana directed that the appellant's name be entered in the Minor's Register No. 47, indicating an intention to reserve a post for him. 
• When the appellant turned 18 on October 10, 2008, he approached the DGP with a request for appointment under the ex-gratia scheme, supported by his mother's representation. 
• However, the DGP rejected the claim on April 28, 2009, stating that 11 years had passed since Jai Prakash's death, making the application time-barred under the 1999 government instructions. These instructions required minors to attain majority within three years of the employee's death. 
• In response to the rejection, the appellant filed a writ petition in the High Court in 2009, invoking the principle of promissory estoppel based on earlier communications from the authorities. 
• After the High Court dismissed his petition, the appellant filed an intra-court appeal, which was also dismissed, leading to the current appeal before the Supreme Court.

Observations Made by the Court

The Court made several important observations regarding compassionate appointments:

Nature of Compassionate Appointments: The Court emphasized that compassionate appointments are not a vested right or an automatic condition of service for employees who die while in service. Instead, these appointments are exceptions to the usual process of recruitment, which requires proper advertisement and selection.

• Purpose of Compassionate Appointments: Compassionate appointments are meant to provide immediate support to families facing sudden financial hardship due to the loss of their sole breadwinner. However, these appointments must adhere to the requirements set forth in the relevant policy, instructions, or rules.
• Need for Policy or Rule: The Court held that compassionate appointments cannot be granted in the absence of a policy, instruction, or rule that provides for such appointments. This underscores the necessity of statutory backing for these claims.
• Limitation Period: The Court observed that the three-year limitation period from the date of death for a dependent to make a claim, including the attainment of majority as per the 1999 policy instructions, is not unjustified or illogical.
• Article 14 and Legal Sanctity: The principle of equality under Article 14 is based on positive law and can only be invoked to enforce claims with legal validity. It should not be used to perpetuate irregularities or illegalities.
• Wrongful Conferment of Benefits: The Court declared that conferring benefits wrongfully on certain individuals contrary to the scheme does not create a right for others to claim similar benefits under Article 14 of the Constitution.
• Claims Based on Irregular Benefits: The Court noted that entertaining claims based on previous irregular benefits would be contrary to the principles of justice and could lead to anarchy and lawlessness.
• Equity and Legal Basis: The Court maintained that equity cannot be used to confer benefits or advantages without a legal basis or justification, even if similar benefits were wrongly granted to others in the past.
• Perpetuating Illegalities: The Court argued that issuing directions to perpetuate illegalities would not only violate justice but also undermine its fundamental principles, making the law a casualty in the process.

Understanding Article 14 of the Indian Constitution

Article 14 of the Indian Constitution guarantees equality before the law and equal protection of the laws to all individuals within the territory of India.

Equality Before Law: This principle ensures that no individual enjoys special privileges. It means that:

• No one is above the law, regardless of their status, rank, or position.
• Everyone is subject to the same laws and jurisdiction of ordinary courts.

Equal Protection of Laws: This concept ensures equal treatment in similar circumstances. It implies that:

• Similar situations should be treated alike.
• Different situations can be treated differently, but there must be a reasonable basis for such differentiation.

Reasonable Classification Test: Any classification under Article 14 must meet two criteria:

• The classification should be based on intelligible differentia.
• There should be a rational connection between the differentia and the objective to be achieved.

Scope of Application: Article 14 applies to both citizens and non-citizens. It binds legislative and executive actions and protects individuals against arbitrary state actions.

Exceptions/Limitations: While Article 14 promotes equality, it does not require identical treatment in all cases. It allows for reasonable classification based on rational grounds. Special provisions for certain groups, such as women, children, and Scheduled Castes/Scheduled Tribes, do not violate Article 14.

Modern Interpretation: The modern interpretation of Article 14 includes:

• Prohibition against arbitrary actions.
• Principle of non-discrimination.
• Requirement for state actions to be fair, reasonable, and non-arbitrary.

Judicial Application: Courts have the authority to invalidate laws that create unreasonable classifications. Article 14 acts as a safeguard against arbitrary legislation and executive actions, ensuring rational and non-discriminatory treatment by the state.

Fundamental Right: Article 14 is a fundamental right and forms part of the basic structure of the Constitution. It cannot be suspended, even during emergencies, and is directly enforceable in courts.

When can Article 14 of the Constitution Be Invoked?

Legal Standing Requirements:

• Must show direct impact or injury.
• Involvement of state action is necessary.
• Any person, whether a citizen or non-citizen, can invoke it through writ petitions under Article 32 in the Supreme Court or Article 226 in High Courts.

Grounds for Challenge:

• Discriminatory laws or actions by the state.
• Arbitrary decisions by administrative authorities.
• Unreasonable classification of individuals.
• Breach of principles of natural justice.
• Different treatment of individuals in similar situations.

Burden and Evidence:

• Petitioner must establish a prima facie case of discrimination.
• Need to demonstrate unequal treatment of individuals who are alike.
• Absence of reasonable classification should be shown.
• Clear violation must be evidenced with specific proof.

Limitations:

• Cannot be used against private actions.
• Not applicable for claiming equality in illegal actions.
• Cannot challenge valid classifications.
• Not relevant where special provisions exist for protected classes.

Legal Tests Applied:

• Traditional reasonable classification test involving intelligible differentia and rational nexus.
• Modern arbitrariness test focusing on manifest arbitrariness and unreasonableness.
• Fair procedure test.

Available Remedies:

• Declaration of provisions as unconstitutional.
• Striking down discriminatory laws or actions.
• Mandamus for ensuring equal treatment.
• Prohibition against discriminatory practices.
• Awarding compensation in suitable cases.

Right To Be Forgotten

A recent ruling by the Delhi High Court has recognized the right to be forgotten as an integral part of the right to live with dignity under Article 21 of the Constitution of India. The bench, led by Justice Amit Mahajan, made this declaration in the case of ABC v. State & Anr.

Background of the Case

In the case of ABC v. State & Anr., a plea was submitted to the Delhi High Court requesting the masking of the petitioner’s name from the orders and pleadings in a criminal case. The petitioner argued that the proceedings against him had been quashed, and he sought to protect his privacy and reputation. His counsel contended that irreparable harm would occur to the petitioner’s social life and career prospects if his name remained public. The argument was made that the petitioner was entitled to protection under the right to privacy and the right to be forgotten, which are recognized as fundamental rights.

Court’s Observations

The Delhi High Court, in its ruling, directed the removal of the names of both the businessman and the complainant from the case records and search results. The court allowed the businessman to request portals and public search engines to mask the judgment by replacing names with anonymized identifiers. Justice Mahajan emphasized the responsibility of social media platforms and search engines to uphold the principles of the right to privacy and the right to be forgotten. Additionally, the court advised the removal of any supplementary material related to the criminal case to safeguard the privacy of the parties involved.

Understanding the Right to be Forgotten

Meaning

• The Right to be Forgotten allows individuals to have their private information removed from the internet, websites, or public platforms under certain conditions.
• This right is also known as the "Right to Erasure."
• The idea behind this right is that when someone uses data, they have the consent of the data owner. If the owner withdraws this consent, they have the right to have their data erased.

Historical Background

• The Right to be Forgotten has its roots in French law, specifically the concept of "Right to Oblivion."
• In 1998, a Spaniard named Mario Costeja Gonz’lez faced financial troubles and advertised a property for auction. This advertisement ended up on the internet and remained there even after his financial issues were resolved.
• Feeling that his reputation was severely damaged, Gonz’lez took the matter to court, leading to the birth of the Right to be Forgotten.
• The European Court of Justice ruled against Google, stating that under certain circumstances, individuals in the European Union could have their information removed from search results and public records databases.

Global Perspective

European Union (EU)

• The EU introduced the Right to be Forgotten in 2014 as part of the General Data Protection Regulation (GDPR).
• Criteria for the Right to be Forgotten in the EU include:
• Data no longer needed for its original purpose.
• Withdrawal of consent by the individual without a lawful basis to contradict it.
• Objection to the use of personal data for marketing purposes.
• Requests for deleting personal data can be denied on grounds such as:
• Use of data to exercise freedom of speech and expression.
• Use of data for public interest tasks or exercising official authority.
• Data processing necessary for public health purposes and serving the public interest.

United States of America

• In the U.S., laws related to the Right to be Forgotten could violate the First Amendment.
• The U.S. Supreme Court, in the case of Florida Star v. BJF (1989), ruled that the First Amendment's protection of a free press prevents laws banning the publication of truthful or embarrassing facts, as long as the information is legally obtained.

Landmark Judgments on Right to be Forgotten in India

Sri Vasunathan v. The Registrar General (2017)

• In this case, the Karnataka Court recognized the 'right to be forgotten' as an emerging trend, especially in sensitive cases involving women and cases of rape that impact the modesty and reputation of the individuals concerned.
• The court suggested that the 'right to be forgotten' should be upheld in such sensitive situations to protect the individuals' privacy and reputation.

X v. The India Today Group and Ors (2024)

• The Delhi High Court granted a John Doe order to remove news articles and social media posts about a businessman, following his acquittal in a criminal case.
• Justice Vikas Mahajan highlighted that the plaintiff's right to privacy outweighed the press's freedom of expression in this instance, emphasizing the importance of protecting individual privacy.

Justice KS Puttaswamy & Ors v. Union of India (2017)

• The Supreme Court acknowledged the 'Right to be Forgotten' as part of the Right to Life under Article 21 of the Constitution.
• However, the court clarified that this right is not absolute and outlined situations where it may not apply, such as in cases of public interest, public health, archiving, and research.
• The court emphasized that individuals should be able to remove their personal data when it is no longer relevant or serves a legitimate purpose, balancing privacy rights with other considerations.

Institution of National Importance

The Supreme Court's recent ruling in the Aligarh Muslim University (AMU) case, which designated AMU as an "Institution of National Importance," does not eliminate its minority status. The Court highlighted the need to balance national priorities with the protection of minority rights, countering the Union's argument for a more inclusive approach to reservations.

This decision reaffirms AMU's unique identity as recognized by the Constitution while ensuring alignment with broader social justice principles.

Background of Aligarh Muslim University through its registrar Faizan Mustafa v. Naresh Agarwal Case

• The Muhammadan Anglo-Oriental College was founded in Aligarh in 1877, initially linked with Calcutta University and later with Allahabad University.
• In 1920, the Aligarh Muslim University Act was enacted by the imperial legislature, leading to the establishment and incorporation of Aligarh Muslim University (AMU).

Two major amendments to the AMU Act were:

• The 1951 Amendment Act
• The 1965 Amendment Act, which altered provisions regarding religious instructions for Muslim students and the university's administrative framework.

These amendments brought significant changes, including:

• Eliminating the requirement for Court members to be Muslims.
• Shifting considerable powers from the Court to the Executive Council.

Challenges were raised in the Supreme Court under Article 32 against the 1951 and 1965 Amendment Acts, arguing they breached Article 30(1) of the Constitution.

• The petitioners contended that AMU, founded by Muslims (a religious minority), had the right to self-governance under Article 30(1) .
• The Union of India refuted this, claiming the institution was established by Parliament through the 1920 Act, not by the Muslim minority.

Main Legal Issues

• The key question was whether AMU qualifies as a minority educational institution under Article 30 of the Constitution.
• Central to this dispute is the interpretation of "establish and administer" in Article 30(1), which grants minorities the right to set up and manage educational institutions.
• The Court clarified that AMU's designation as an Institution of National Importance under Entry 63 of List I does not undermine its potential minority status.

History of Minority Rights and Aligarh Muslim University (AMU)

Historical Development: 

• 17th Century: The concept of minority rights began with the Peace of Westphalia treaties, focusing on protecting religious minorities. 
• Nationalism Shift: As nationalism grew in Europe, minority rights expanded to include national identities and groups. 
• 1878 Congress of Berlin: Protecting minority rights became a condition for new nations seeking international recognition. 
• League of Nations: After World War I, the League prioritized minority rights, especially in ethnically diverse regions of East-Central Europe. 
• Evolution of Minority Rights: Over time, the focus shifted from religious minorities to include linguistic, cultural, and national identities. 
• Role of Permanent Court: The Permanent Court of International Justice contributed to developing minority rights through landmark cases in the 1920s and 1930s.

Minority Rights in India: 

• British Rule: Introduced formal categorization of minorities based on religion and caste. 
• 1909 Morley-Minto Reforms: Introduced separate electorates and quotas for minority communities. 
• 1919 Montagu-Chelmsford Reforms: Further consolidated minority identities in political representation. 
• Constituent Assembly: Initially planned extensive minority protections, scaled back after Partition. 
• Final Constitution: Retained Articles 29 and 30 for cultural and educational protection of minorities. 
• Post-Independence: Additional protections for linguistic minorities through Articles 350A and 350B.

Aligarh Muslim University (AMU): 

• Early History: Founded in 1875 as Muhammadan Anglo-Oriental College by Sir Syed Ahmad Khan. 
• Decline and Revival: Faced decline by 1895 due to increased fees and stricter examination requirements. 
• Sir Syed Memorial Fund: Established in 1898 to raise funds for creating a university. 
• AMU Act 1920: Act passed to formalize university structure, creating governing bodies like the Executive Council, Academic Council, and Court.
• 1951 Amendment Act:Key Changes: Replaced the Lord Rector position with ‘Visitor’, held by the President of India. 
• Powers of the Visitor: Granted extensive inspection and inquiry powers over university operations. 
• AMU Court: Established as the supreme governing body with powers to review acts of the Executive and Academic Councils.

Evolution of AMU's Governance and Legal Challenges

Initial Changes and Expansions

• 1951 Amendment Act: Granted the Court the authority to create, modify, and revoke Statutes. Expanded the Ordinance-making powers to include aspects such as student admission, courses, fees, and faculty conditions.

1965 Amendment Act:

• Major Changes:
• Significantly curtailed the powers of the Court, restricting its role primarily to advisory functions. Transferred the power to make Statutes from the Court to the Executive Council.
• Required the Executive Council to obtain the Visitor's approval for new Statutes or amendments.
• Restructured the composition of the Court to include the Chancellor, Pro-Chancellor, and other members specified in the Statutes.
• Relegated the Court to a primarily advisory role for the Visitor and other University authorities.

Azeez Basha Case

• Background: 
• The Azeez Basha Case emerged as a legal challenge to both the 1951 and 1965 Amendment Acts concerning the governance of the Aligarh Muslim University (AMU).
• Key Issue:
• The central constitutional issue in the case revolved around Article 30 of the Indian Constitution, which pertains to the rights of minorities to establish and administer educational institutions.
• The case aimed to determine whether AMU qualified as a minority educational institution under this Article, especially in light of the 1965 amendments that had altered its governance structure.
• Focus on Minority Rights:
• The challenge to the constitutional validity of the amendments was scrutinized through the lens of protecting minority rights, as enshrined in Article 30.
• The court had to consider whether the changes made by the amendments infringed upon the rights of minorities to manage educational institutions, which is a crucial aspect of Article 30.

Understanding Article 30 of the Indian Constitution

• Article 30 of the Indian Constitution is designed to protect the rights of minorities in establishing and administering educational institutions. It serves two main purposes:
• Preventing discrimination against minorities in setting up educational institutions.
• Providing minorities with special protection in the administration of these institutions.
• While the right to establish educational institutions is not exclusive to minorities (as non-minorities have this right under Article 19(1)(g)), Article 30 gives minorities special protection in how they manage their institutions. This includes the right to choose the managing body, select teachers, control student admissions, and use properties/assets for the institution's benefit.
• Article 30 does not explicitly list restrictions, but courts have ruled that it is not an absolute right. Regulations can be imposed for reasons such as educational standards, discipline, health, sanitation, morality, and public order. However, these regulations must not infringe on the "minority character" of the institution, which is the special protection afforded by Article 30.
• The degree of state interference in minority institutions varies based on their status:
• Unaided and unrecognized institutions face minimal interference.
• Unaided institutions seeking recognition are subject to moderate regulation.
• Institutions receiving state aid can be regulated in fund usage without compromising their minority status.
• Minority institutions have the right to employ non-minority staff, including in leadership positions, as part of their protected right to choose in administration. This flexibility is crucial for the effective management of these institutions.

Article 30 and Educational Institutions

• Article 30 of the Indian Constitution goes beyond just religious education; it also encompasses secular education. This article empowers minorities to provide education in a manner that is consistent with their religious or linguistic identity.
• However, any regulations imposed must be relevant to the purpose of granting recognition or aid and should not infringe upon the minority character of the institution.

Entry 63 of List I

Entry 63 of List I, also known as the Union List, derives its significance from Article 246 of the Constitution. This article grants Parliament exclusive power to legislate on matters concerning certain institutions. Components of Entry 63

• Substantive Part: This part constitutionally declares Banaras Hindu University (BHU), Aligarh Muslim University (AMU), and Delhi University as institutions of national importance.
• Procedural Part: This part gives Parliament the authority to declare other institutions as nationally important.

Elevation of Status

• The Constituent Assembly intentionally granted an elevated status to BHU and AMU by including them directly in Entry 63.
• This decision reflects the Assembly's recognition of the significance of these institutions.

Limitations on Parliamentary Power

• Parliament cannot remove the status of "institution of national importance" from BHU or AMU through regular legislation.
• Such a action would require a constitutional amendment.
• While Parliament has the authority to declare new institutions as nationally important under Article 246, it cannot use this power to revoke the status already granted by the Constitution to the institutions listed in Entry 63.

Consensual Sexual Intercourse with Minor Wife Is Rape

Why in News?

Recently, the Bombay High Court in the case of S v. State of Maharashtra has emphasized that marriage cannot be used as a defense in cases of sexual offenses against minors, regardless of consent or marital status.

What was the Background of S v. State of Maharashtra Case?

Original Criminal case was filed against the appellant for the offences punishable under Sections 64(2)(f), 64(2)(i), 64(2)(m), 65(1) of the Bharatiya Nyay Sanhita, 2023 (BNS) and Sections 4, 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO)

Initial Relationship:

• The complainant was a minor girl.
• The appellant and complainant were in a love affair.
• The girl was 31 weeks pregnant at the time of filing the complaint.

Alleged Sequence of Events:

• The appellant allegedly had forcible sexual intercourse with the complainant.
• He continued the relationship on a false promise of marriage.
• After the complainant conceived, she requested him to marry her.
• The appellant performed an informal ceremony by exchanging garlands in front of neighbors.
• He rented a house and made her believe she was his wife.
• The appellant pressured the complainant to abort the pregnancy.
• Upon her refusal, he allegedly assaulted her.
• The complainant returned to her parents’ house.
• The appellant allegedly assaulted her twice at her parents’ house.
• He denied paternity of the child.
• The complainant filed a case with the Child Welfare Committee (CWC) of Wardha Police.
• During trial court proceedings, the complainant acknowledged showing photos of their garland ceremony to CWC officials.
• The appellant claimed the sexual acts were consensual.
• He argued that since they were married, the acts could not constitute rape.

This was a criminal appeal heard at the Bombay High Court’s Nagpur bench. The appeal challenged a trial court judgment from Wardha district.

Observations by the Bombay High Court

The Bombay High Court made several important observations regarding consent, evidence, and the trial court's judgment in cases involving minors and sexual offenses:

On Consent and Marriage:

• The court clarified that sexual intercourse with a girl below 18 years is considered rape, regardless of whether they are married.
• The defense of consensual sex with a wife does not apply when the wife is under 18 years old.
• Even in the case of a supposed marriage, non-consensual intercourse with a wife below 18 years constitutes rape.

On Evidence Assessment:

• The court found that the prosecution effectively proved the victim's age, confirming she was below 18 years at the time of the crime.
• The evidence provided by the Medical Officer was deemed corroborative and supportive of the victim's testimony.
• The victim's birth certificate and DNA report further validated her claims.
• Overall, the court considered the evidence presented to be credible and solid.

On Trial Court’s Judgment:

• The High Court concluded that the Trial Judge had acted appropriately and made no errors in their judgment.
• The findings of the Trial Court were backed by concrete reasoning and evidence.
• The court found no reason to dismiss or doubt the evidence presented during the trial.

Rejection of Appellant’s Argument:

• The Bombay High Court rejected the appellant’s argument that consensual intercourse with his wife could not be considered rape.
• The court adhered to the Supreme Court’s precedent regarding sexual intercourse with minors, emphasizing that marital status is irrelevant in such cases.

Upheld Conviction:

• The Bombay High Court upheld the conviction under rape charges and the POCSO Act, dismissing the appeal and maintaining the trial court’s verdict.

Reinforcement of Legal Principles:

• The court reinforced the principle that marriage cannot be used as a defense in cases involving sexual offenses against minors, regardless of consent or marital status.

Understanding the Offence of Rape

About: Rape, as outlined in the BNS (presumably a legal framework), is considered one of the most horrific crimes against women, with profound physical, emotional, and psychological impacts. The BNS addresses rape in a thorough manner, detailing the elements of the offence, penalties for offenders, and procedural requirements for ensuring justice.

Definition of Rape: According to the BNS, rape occurs when there is sexual intercourse with a woman against her will and without her consent. This can happen under specific conditions, such as:

• Consent obtained through coercion or force.
• Consent obtained through deception or false pretenses.
• Situations where the woman is unable to give consent due to factors like intoxication, mental incapacity, or being below the legal age of consent.

Elements of the Offence: To prove the offence of rape under the BNS, certain key elements must be established beyond a reasonable doubt:

• Absence of Consent: It must be demonstrated that the victim did not consent to the sexual act.
• Use of Force or Coercion: There must be evidence of force, coercion, or deception involved in the act.
• Sexual Penetration: The act of sexual penetration must be proven.

Voluntary Consent: The law emphasizes that consent must be given voluntarily and with a full understanding of the nature of the act, without any fear, pressure, or duress.

Legal Penalties and Punishments: The BNS prescribes severe penalties for individuals convicted of rape, reflecting the seriousness of the crime and its impact on the victim.

• Factors Influencing Severity: The severity of the punishment can vary based on factors such as:
• The age of the victim.
• The level of force or violence used.
• Aggravating factors like gang rape or repeat offenses.

Amendments: In 2013, significant changes were made to the Indian Penal Code (IPC) regarding rape laws through the Criminal Law (Amendment) Act, 2013, following the case of Mukesh & Anr v. State for NCT of Delhi & Ors (2017).

• Stricter Penalties: These amendments introduced stricter penalties, including the death penalty in cases where rape results in the victim’s death or leaves her in a persistent vegetative state.

Age of Consent under POCSO Act, 2012

• The POCSO Act of 2012 increased the age of consent for sexual activity from 16 to 18 years. This means that individuals under 18 are considered unable to give valid consent, even if they agree to the activity.
• In the case of State of Madhya Pradesh v. Balu (2004), the Supreme Court ruled that the consent of minors is not recognized legally, making it invalid.
• In the AK v. State Govt of NCT of Delhi (2022) case, the High Court clarified that the POCSO Act aims to protect children under 18 from sexual exploitation, not to criminalize consensual romantic relationships between young adults.
• In December 2022, the government informed Parliament that there are no plans to change the age of consent established by the POCSO Act.

Criminal Law Amendment Act, 2013

The Criminal Law Amendment Act of 2013 raised the age of consent from 16 to 18 years. This change means that any sexual intercourse involving an adult and a girl below 18 is considered rape, regardless of whether there is consent.

Presumption in Rape Cases

Recently, the Bombay High Court in the case of Aman Tagade v. State of Maharashtra has established a legal presumption that allegations of rape made by the victim and her family are to be taken as true and not fabricated. The court reasoned that no family would falsely accuse someone of such a serious crime involving their daughter.

Background of the Case

In the case at hand, the victim was a minor, under 18 years of age, and the accused was 17 years and 9 months old at the time of the incident. The complaint was filed at Narkhed Police Station based on the victim's report against the accused.

Sequence of Events According to the Prosecution

• The accused lured the victim to his house under the pretense of discussing academic matters.
• The victim went to the accused's house with her friend Hitesh.
• Once at the house, the accused allowed only the victim inside, locked the door, and took her to the bedroom, where he allegedly committed rape.

Events After the Incident

• Immediately after leaving the accused's house, the victim informed her friend Hitesh about the incident.
• She then reported the incident to her parents, who filed a police complaint.

Defense Argument

• The accused claimed he was being falsely implicated because he refused to marry the victim.
• He alleged that the victim was in a relationship with another person named Soukhya and that he had threatened to inform her parents about this relationship.

Trial Court Decision

• The trial court found the accused guilty under Sections 342 and 376(2) of the Indian Penal Code, 1860, and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).
• The accused appealed the trial court's decision to the Bombay High Court.

Legal Definition of a Child under POCSO

• The victim was considered a 'child' under Section 2(1)(d) of the POCSO Act, as she was below 18 years of age at the time of the incident.

Court’s Observations

• The court noted the importance of the victim's prompt reporting of the incident, which was seen as a strong point for the prosecution.
• The court also addressed the timeline of the medical examination, detailing the victim's referral from the Government Hospital to Mayo Hospital in Nagpur, and the examination conducted at Rural Hospital, Narkhed at 1:00 AM.
• The defense's argument regarding the possibility of intervening sexual activity was rejected by the court.
• The court made specific observations about the victim's testimony, highlighting its credibility and significance in the case.

The Court referenced the Supreme Court's observations from Bharwada Bhoginbhai Hirjibhai v. State (1983) regarding the:

• Rarity of false rape allegations in Indian society,
• Social stigma and consequences faced by victims,
• Reluctance to report such incidents due to societal pressures.

Modification of Conviction

• The Court modified the conviction from Section 376(2) to Section 376(1) of the IPC.
• Reduced the sentence from 10 years to 7 years imprisonment.
• Maintained other aspects of the trial court's judgment.

Punishments Under POCSO

• Penetrative Sexual Assault : Section 4 of the POCSO Act mandates rigorous imprisonment of not less than 10 years, which may extend to life imprisonment, along with a fine.
• Aggravated Penetrative Sexual Assault : Section 6 increases the minimum punishment to rigorous imprisonment of 20 years, which may extend to life imprisonment.

All About False Rape Allegations

• Definition : A false rape case involves situations where someone is wrongly accused of rape. These cases are complicated and sensitive, touching on legal, social, and psychological issues.
• Rarity of False Accusations : While false accusations do happen, they are much less common than actual cases of sexual assault. Falsely accusing someone of rape not only harms the accused but also damages the credibility of real victims and hinders efforts to fight sexual violence.
• Importance of Investigation : Investigating false rape allegations requires a careful balance between protecting the rights of the accused and seeking justice for potential victims. Law enforcement agencies need to conduct thorough and unbiased investigations, collecting evidence and verifying testimonies to establish the truth of the claims.
• Misconceptions about False Allegations : The belief about how often false rape allegations occur needs to be examined carefully using empirical evidence and legal analysis.

Section 303(2) of BNS

Recently, the Madras High Court, in the case of Jebaraj @ Jeyaraj v. The State of Tamil Nadu, ruled that for non-cognizable and bailable offenses, it is necessary to obtain prior permission from the magistrate before filing a complaint.

Background of the Case

• In October 2024, a local vulcanizing shop owner reported the theft of three lorry tyres worth around Rs. 3,000.
• After reviewing CCTV footage, the owner identified Jebaraj, the petitioner, as the thief and filed a police complaint.
• This led to the registration of a First Information Report (FIR) against Jebaraj under Section 303(2) of the Bharatiya Nyaya Sanhita 2023 (BNS).

Legal Technicalities

• The case hinged on the value of the stolen property, which was Rs. 3,000, below the Rs. 5,000 threshold for minor offenses.
• Jebaraj applied for anticipatory bail and sought to quash the FIR in the Madras High Court.

Court Observations

• The Madras High Court noted that the theft involved old tyres worth Rs. 3,000, falling under Section 303(2) of BNS.
• For thefts involving property valued under Rs. 5,000 and first-time offenders, the punishment is community service.
• The court classified the offense as non-cognizable, bailable, and requiring prior Magistrate’s order for FIR registration under Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
• The court found the FIR was improperly registered without the necessary Magistrate’s order.
• Despite the anticipatory bail petition being technically inadmissible (since the offense is bailable), the court exercised its powers under Section 482 of the Code of Criminal Procedure, 1973 (CrPC).
• The Madras High Court quashed the FIR against Jebaraj, nullifying the criminal proceedings due to procedural irregularities in the FIR’s registration.

Understanding Section 303 of the BNS Act

Section 303 falls under Chapter XVII of the BNS Act, which deals with offences against property. This section specifically addresses the legal definitions and implications of theft.

Key Provisions of Section 303:

• Definition of Theft: Theft occurs when someone dishonestly intends to take movable property out of another person's possession without their consent. The act of moving the property with this intention constitutes theft.
• Explanation of Theft:
  • A thing is not considered movable property and thus not subject to theft while it is attached to the earth. However, once it is severed from the earth, it becomes capable of being stolen.
  • Moving a thing and severing it from the earth in the same act can constitute theft.
  • Causing a thing to move can involve removing an obstacle preventing its movement, separating it from another thing, or physically moving it.
  • Causing an animal to move also involves moving everything that the animal subsequently moves.
  • Consent, as mentioned in this section, can be express or implied and may be given by the person in possession or someone authorized to give such consent.

Illustrations of Theft:

• Example 1: If Z entrusts his plate to A, a warehouse keeper, and A sells it to a goldsmith while Z is away, A has not committed theft because the plate was not in Z's possession.
• Example 2: If A gives his watch to Z, a jeweler, for regulation, and Z takes it to his shop. If A forcefully takes his watch from Z's hand without any lawful reason, he has not committed theft because his actions were not dishonest.
• Example 3: If A asks Z's wife for charity and she gives him money, food, and clothes that belong to Z, A may not have committed theft if he believed Z's wife had the authority to give these items away.
• Example 4: If A, knowing that Z's wife has no authority to give away Z's property, takes a valuable item from her, he commits theft.
• When a person, in good faith, believes that property belonging to Z is actually their own and takes it out of Z's possession, they do not commit theft because they are not acting dishonestly.
• Subsection (2) states the punishment for committing theft, which can include imprisonment for up to three years, a fine, or both. For a second or subsequent conviction, the punishment is rigorous imprisonment for a term of not less than one year and up to five years, along with a fine.
• There is a proviso in this subsection that applies to cases of theft where the value of the stolen property is less than five thousand rupees and the person is being convicted for the first time. In such cases, if the value of the property is returned or the stolen property is restored, the person may be punished with community service instead of imprisonment.

Preliminary Inquiry into Sexual Assault Allegations

Recently, the Allahabad High Court in the case of XXX v. State of U.P. has ruled that in instances of sexual assault and molestation allegations, directing the police to conduct a preliminary inquiry and relying on their report in favor of the accused is neither appropriate nor lawful.

Background of XXX v. State of U.P Case

• Application Under Section 156(3) of CrPC: The applicant, who is the victim in this case, filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC).
• Allegations Against the Opposite Party: The victim alleged that while she was on her way to work after finishing her teaching duties at school, the opposite party verbally abused her and behaved in an obscene manner.
• Attempted Molestation: The opposite party allegedly tried to touch the victim inappropriately, molested her, and thereby outraged her modesty.
• Husband's Intervention: When the victim screamed, her husband rushed to the scene, but the opposite party attempted to flee and threatened the victim's husband.
• Pattern of Behavior: This incident was described as part of a routine pattern of behavior by the opposite party towards the victim, which had been reported to the police previously without any action taken.
• Chief Judicial Magistrate's (CJM) Decision: An application was submitted to the Chief Judicial Magistrate (CJM) under Section 156(3) of the CrPC. However, the CJM dismissed the application based on the preliminary inquiry report, stating that:
• The application was motivated by personal animosity between the applicant and the opposite party.
• The reports did not provide evidence against the opposite party.
• The alleged acts did not constitute a cognizable offence.

Aggrievement and High Court Intervention:

• The applicant, dissatisfied with the CJM's decision, filed a revision application to the Allahabad High Court.

High Court Observations:

• The Allahabad High Court noted that the purpose of a preliminary inquiry is to determine whether the information received indicates a cognizable offence, not to assess the truthfulness of the allegations.
• The preliminary inquiry should be based on the specific facts and circumstances of the case.
• The court referred to legal precedents, stating that a magistrate may direct a preliminary inquiry under Section 156(3) of the CrPC before initiating criminal proceedings.
• The magistrate must carefully consider the allegations, the timing of the incident, and whether a cognizable offence is remotely suggested.
• Preliminary inquiries in cases involving fiscal matters, family disputes, commercial offences, medical negligence, corruption, or cases with significant delays in prosecution are permissible, but this list is not exhaustive.
• In cases involving allegations of sexual assault and molestation, it is neither appropriate nor lawful to direct the police to conduct a preliminary inquiry and rely on their report in favor of the accused. 
• The Allahabad High Court, based on this principle, set aside an order by the Chief Judicial Magistrate (CJM) and remanded the case back to the CJM. The court instructed the CJM to provide the applicant with an opportunity for a hearing, following the precedents established by the Supreme Court.

Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

Section 175(3) of BNSS empowers a Magistrate to order an investigation for a cognizable offense before taking cognizance.

• If a cognizable offense is indicated, the Magistrate must direct the registration of an FIR for investigation.
• If the information does not clearly disclose a cognizable offense but suggests the need for inquiry, a preliminary inquiry may be conducted to determine if a cognizable offense is present.
• Any judicial magistrate can order an investigation under Section 175(3) of the CrPC before acknowledging the offense.

Essential Elements:

• The power to order a police investigation under Section 175(3) is applicable at the pre-cognizance stage.
• A Magistrate can invoke this power before taking cognizance of the offense.
• An order under Section 175(3) serves as a reminder to the police to exercise their investigative powers.

Case Laws

Har Prasad v. State of UP (2006)

• The Supreme Court ruled that when an application under Section 156(3) of the CrPC reveals the commission of a cognizable offence, it is the duty of the concerned Court to order the registration and investigation of the offences.
• At the stage of Section 156(3) CrPC, which is the cognizable stage, if a cognizable offence is disclosed through an application, crime detection and prevention are the primary responsibilities of the police, not the Court.

Lalita Kumari v. Govt. of UP (2014)

• The Supreme Court stated that if the information received does not reveal a cognizable offence but suggests the need for an inquiry, a preliminary inquiry may be conducted to determine whether a cognizable offence is disclosed.

Priyanka Srivastava and Ors v. State of UP and Ors (2015)

• The Supreme Court emphasized that applications under Section 156(3) of the Code of Criminal Procedure should be supported by an affidavit sworn by the applicant seeking the Magistrate’s jurisdiction.

Estoppel

Why is it in the News?

The Kerala High Court recently made an important ruling in a custody dispute, clarifying that a party is not prevented from challenging a court order if the mistake was made by the court itself. The court emphasized its responsibility to correct its own errors and stated that custody orders can be modified if circumstances change.

The case involved a father seeking custody of his child after the court had initially granted permanent custody to the mother, with the father having visitation rights based on a mediation settlement.

Background of the Amith v. Divya Case

• The case revolves around a custody dispute between a divorced couple over their minor child, with the father working in Dubai and the mother pursuing higher studies in Canada.
• Initially, the couple reached a mediation settlement granting permanent custody of the child to the mother, along with visitation rights for the father.
• After remarrying and moving to Canada, the mother left the child with her parents in India while she continued her studies.
• The father filed several applications in the Family Court seeking:
• Permanent custody of the child.
• Permission to take the child to Dubai for education.
• Interim custody of the child.
• The mother filed cross-applications, including requests to:
• Take the child to Canada.
• Modify the existing visitation rights.
• The Family Court initially rejected some of the mother’s applications and allowed the father to take the child to Dubai in the upcoming academic year under certain conditions.
• Both parties subsequently filed original petitions challenging the Family Court’s decisions, leading to further legal proceedings in a higher court.

Court's Observations

The court found a significant mistake in the single judge's decision, pointing out that the main issues of the original petitions regarding the Family Court's orders were not properly addressed.

• Modification of Custody Orders: The court emphasized that custody orders, whether temporary or permanent, are subject to change based on evolving circumstances and are not fixed.
• Procedural Complications: The bench noted the potential procedural difficulties that could arise if court records are not maintained accurately, which could hinder the Family Court's jurisdiction in future cases.
• Legal Doctrine of Estoppel: The court provided a detailed interpretation of estoppel, explaining that while parties benefiting from an order may be barred from challenging it, this principle cannot supersede equity and good conscience.
• Mother's Right to Future Custody: The court remarked that the mother's ability to seek future custody in Canada seemed like an unmerited advantage gained due to the court's mistake, not justified by prior Family Court orders.
• Doctrine of Approbate and Reprobate: The bench suggested that the respondent was improperly using this doctrine to maintain an undeserved benefit and obstruct the review petition.
• Rectifying Court Errors: The court asserted that when it makes an error, there can be no valid estoppel against the party seeking correction, highlighting its duty to rectify its own mistakes.

Understanding Estoppel

• Definition: Estoppel is a legal principle that stops an individual from contradicting a previous statement or behavior if others have relied on it to their disadvantage.
• Purpose: The doctrine aims to ensure fairness and consistency in legal and personal interactions.
• Origin: Estoppel is rooted in the Latin maxim “allegans contraria non audiendus est,” which means a person should not be heard when alleging contradictory facts.

Types of Estoppel

• Res Judicata (Estoppel by Record): This type of estoppel stops the same parties from re-litigating the same issue once it has been decisively resolved by a competent court. Basis in Law: This concept is codified in Sections 40-44 of the Indian Evidence Act.
• Estoppel by Deed: When parties to a formal agreement or deed have acted upon its contents, they cannot later deny the facts it contains. However, fraudulent deeds are exceptions to this rule.
• Estoppel by Conduct: This occurs when a person's behavior or omission leads another to believe in a certain fact, causing them to rely on it. The person cannot later deny the validity of their representation.
• Promissory Estoppel: If someone makes a promise that leads another to act upon it, they are prevented from going back on the promise, even without formal consideration. Key Case: The concept was introduced in English law through the case of Central London Property Trust v High Trees House Ltd. In Indian law, promissory estoppel applies to both private and government parties under Section 115 of the Indian Evidence Act.

Who Can Be Estopped?

• Tenants, Licensees, and Possessors: Tenants or licensees cannot deny their landlord's title at the beginning of their tenancy as per Section 116 of the Indian Evidence Act, 1872. Even if the ownership changes, tenants cannot dispute the new owner's title during their tenancy unless fraud is involved.
• Acceptor of Bill of Exchange, Bailee, or Licensee: The acceptor of a negotiable instrument cannot dispute the drawer's authority if the instrument is validly issued, according to Section 117 of the Indian Evidence Act, 1872. A bailee who receives goods for safekeeping cannot dispute the title of the bailor unless a third party claims a superior title.
• Minors: Generally, minors are not bound by estoppel since contracts with minors are void from the beginning. However, under English law, minors may be estopped to the extent of restoring benefits received, as seen in the case of Leslie v Sheill.
• Government and Government Agencies: While governments are typically exempt from estoppel in sovereign acts, promissory estoppel can bind them in cases of clear, unambiguous promises leading to detrimental reliance. However, estoppel does not apply if enforcing the promise would violate the law or public interest.

Exceptions to Estoppel

• Fraud or Misrepresentation: Estoppel cannot be used to protect fraudulent or illegal acts. A forged deed or fraudulent representation nullifies estoppel.
• Competency of Parties: Parties invoking estoppel must have the legal capacity to make or rely upon the statements.
• Public Interest and Sovereign Acts: Governments are exempt from estoppel in sovereign functions.

Application of Res Judicata

Background of the Case

• The appellant (husband) and the respondent (wife) were legally married.
• The husband initiated a divorce case under Section 13 of the Hindu Marriage Act, 1955, citing desertion as the primary reason.
• This initial case was the first divorce petition filed by the husband against the wife.
• However, the court dismissed this case, stating that the husband failed to prove desertion by the wife.

Observations of the Court

• The Court noted that the second petition introduced new elements, including litigation costs and a specific incident of assault from 2020.
• The Court referenced Section 11 of the Civil Procedure Code, 1908, which deals with res judicata, to assess whether the fundamental cause of action had changed between the two petitions.
• The Court found that the addition of new grounds and incidents in the second petition indicated a potentially different cause of action, allowing for the appeal to be upheld.
• As a result, the impugned decree was set aside, and the present appeal was allowed.

What is Res Judicata?

• Res Judicata is a legal doctrine that prevents the re-litigation of a matter that has already been adjudicated by a competent court.
• The term "Res Judicata" can be broken down as follows:
• 
  
  • "Res" means "subject matter."
  • "Judicata" means "adjudged" or "decided."
• Section 11 of the Code of Civil Procedure, 1908 (CPC) embodies this doctrine:
• It states that once a matter is finally decided by a competent court, no party can reopen it in subsequent litigation.
• This principle aims to prevent multiple proceedings for the same issue and protect parties from being vexed twice for the same cause.
• The principle of res judicata is based on three judicial maxims:
• Nemo debet bis vexari pro una et eadem causa:
• This maxim means that no person should be troubled twice for the same cause.
• Interest reipublicae ut sit finis litium:
• This maxim emphasizes the state's interest in bringing an end to litigation.
• Res judicata pro veritate occipitur:
• This principle asserts that a judicial decision must be accepted as correct.
• Essential Elements of Res Judicata
• Matter in Issue Must Be the Same:
• To apply res judicata, the matter in the subsequent suit must be directly and substantially the same as in the former suit.
• Same Parties:
• The former suit must have been between the same parties, or parties under whom they claim.
• Same Title:
• The parties must be litigating under the same title in both suits.
• Competent Jurisdiction:
• The court that decided the former suit must have had jurisdiction to try the subsequent suit.
• Heard and Finally Decided:
• The matter in issue must have been heard and finally decided by the former court.

In the case of (TAPPC SOCIETY) v. Kilari Anand Paul, the court ruled that a valid "deemed service by refusal" could only occur if the notices were sent to the correct address.

Determining the Applicability of Res Judicata in Divorce Cases

Res Judicata in Divorce Cases

• The difference in reliefs between previous and later proceedings in marital status cases does not affect the relevance of the doctrine of Res Judicata.
• For Res Judicata to apply, the cause of action in both cases must be different.
• Example: A husband initially filed a suit for restitution of conjugal rights, which was dismissed due to findings of cruelty and the wife being turned out of the house. Later, he filed for divorce on grounds including desertion. The issue of desertion was held to be barred by Res Judicata.

Balveer Singh v. Harjeet Kaur (2017)

• Delivered by the Uttarakhand High Court.
• The appellant sought divorce under Section 13-A of the Hindu Marriage Act, 1955.
• The main issue was whether this petition was barred by Section 11 of the Code of Civil Procedure (CPC), which deals with res judicata.
• An earlier case under Section 9 of the Hindu Marriage Act, related to restitution of conjugal rights, had been resolved.
• The Court held that proceedings under Section 13-A of the Act are not barred by Res Judicata based on prior proceedings under Section 9 of the Act.

Fundamental Distinction

The primary difference between a suit for declaration and a suit for injunction lies in their respective objectives and the nature of the relief sought.

• Suit for Declaration: A suit for declaration aims to establish the legal status or rights of the parties involved. It seeks a court's pronouncement on a specific issue, declaring the rights of the parties without necessarily seeking a change in the current situation. For instance, if a person claims ownership of a property based on a will but faces disputes from others, they can file a suit for declaration to affirm their ownership rights.
• Suit for Injunction: On the other hand, a suit for injunction seeks to restrain a party from taking certain actions that may harm the interests of the plaintiff. It aims to prevent potential harm or infringement of rights. For example, if a neighbor plans to construct a building that infringes on a property boundary, the affected party can file a suit for injunction to prevent such construction.

Section 80 of the CPC

• Section 80 of the CPC plays a crucial role in both types of suits by ensuring that the government or public servants are given prior notice before legal action is taken against them. This provision aims to provide an opportunity for the authorities to reconsider their legal position and make necessary amendments if advised by legal experts. The underlying principle is to promote justice and avoid unnecessary litigation.
• In the case of Bihari Chowdhary v. State of Bihar (1984), the Supreme Court emphasized that the objective of Section 80 is the advancement of justice. This highlights the importance of giving authorities a chance to rectify their actions before being dragged into legal battles.
• Section 80 of the CPC applies to various types of suits, including those for injunctions, declarations, and damages. However, it does not extend to writ petitions filed before the High Court or the Supreme Court.

No Amendment of Plaint

• The Jharkhand High Court has ruled that plaintiffs cannot make amendments to their pleadings that would change the fundamental nature of a case or harm the accrued rights of the opposing party, particularly after the evidence has been concluded. Justice Subhash Chand emphasized that such amendments, like altering the source of title claimed by the plaintiff, are detrimental to the defendant's position.
• In the case at hand, the plaintiff sought to cancel a sale deed on the grounds that it was executed in violation of Section 46(1)(b) of the Chota Nagpur Tenancy Act.

Background of the Case

• The legal dispute originated when Balram Mahato initiated legal proceedings against Kiran Devi Tulsiyan and Arun Kumar Sanganeria concerning a property matter in Jharkhand.
• Mahato asserted that he inherited the property through a lineage connecting Hargovind Mahato to Amrit Mahato, and eventually to himself as the rightful legal heir.
• The crux of the lawsuit challenged a sale deed wherein one defendant allegedly transferred property to the wife of the other defendant, claiming this transaction breached Section 46(1)(b) of the Chotanagpur Tenancy (CNT) Act, 1908.

Amendment Controversy

• Following the completion of pleadings and evidence, Mahato sought to modify his original plaint by substituting “Dalgovind Mahato” with “Chutu Mahato” in several crucial paragraphs.
• Additionally, the proposed amendments included vague references to prior sale deeds that might contravene the CNT Act, lacking specific details.
• The defendants vehemently opposed these amendments, contending that they would fundamentally alter the essence of the case and prejudice their rights, particularly since evidence had already been recorded.
• The suggested changes would effectively rewrite the narrative of property inheritance and the basis of Mahato’s initial claim.
• This contention regarding procedural amendments became the focal point of the legal dispute, ultimately leading to its escalation to the Jharkhand High Court for resolution.

What did the Court observe?

• The High Court carefully reviewed the proposed amendments and determined that they would fundamentally change the nature of the original plaint, particularly regarding the source and lineage of property ownership.
• The Court highlighted an important legal principle that amendments to pleadings are not allowed if they significantly alter the core nature of the original suit or harm the accrued rights of the opposing party.
• The proposed amendment was problematic because it aimed to change the property’s inheritance narrative after the evidence had been presented, which would undermine the cross-examination and evidence already on record.
• The Court expressed concern about the vagueness of the amendment, especially the plaintiff’s attempt to introduce references to unspecified previous sale deeds without providing specific details such as dates, parties involved, or circumstances.
• Justice Subhash Chand emphasized that such amendments would cause irreparable harm to the defendants’ rights, which had been established through the evidentiary process, and therefore cannot be legally allowed.
• The Court ultimately ruled that allowing such an amendment would be equivalent to permitting the plaintiff to introduce an entirely new case after the evidence stage, which is not permissible under established legal principles.

Overview of Order VI Rule 17 of the Code of Civil Procedure (CPC)

Judicial Discretion in Amendments :

• Courts have the authority to permit amendments to pleadings at any stage of the legal proceedings.
• The main goal is to ensure justice and address the actual issues in dispute between the parties.
• Amendments are not automatically granted; they are subject to the court's careful consideration.

Conditions for Allowing Amendments :

• Amendments can be made at any time before the trial begins.
• When deciding on an amendment, the court will consider whether it:
• Promotes the interests of justice.
• Aids in determining the true disputes between the parties.
• Does not unfairly disadvantage the other party.

Limitations on Amendments After Trial Commencement :

• Once the trial has started, amendments are limited.
• An amendment is permissible only if the party can demonstrate:
• They acted with due diligence.
• The issue could not have been raised earlier.
• There are compelling reasons for the amendment.

Guiding Principles for Amendments :

• The court's main concern is to facilitate a fair resolution of the case.
• Technical barriers should not hinder substantive justice.
• Amendments should aim to clarify and narrow down the real issues in dispute.

Judicial Considerations for Amendments :

• Impact on the other party.
• Current stage of the proceedings.
• Reasons for the proposed amendment.
• Potential for irreparable prejudice.
• Good faith nature of the amendment.

Practical Implications of Order VI Rule 17 :

• Encourages thorough and accurate pleadings from the outset.
• Allows flexibility to rectify unintentional omissions.
• Prevents technical shortcomings from undermining substantive justice.
• Requires parties to be diligent and honest in presenting their cases.

Recommendations for Parties Involved :

• Prepare pleadings carefully and thoroughly from the beginning.
• If amendments are essential, provide clear and convincing justifications.
• Be ready to demonstrate due diligence in the amendment process.
• Recognize that the court's primary objective is to resolve the actual controversy at hand.

Drafting an Amendment of Plaint: Procedure and Considerations

1. Preliminary Assessment:

• Identify the specific provisions of the original plaint that need amendment.
• Analyze the necessity and legal implications of the proposed changes.
• Ensure alignment with the core claims and relief sought in the original plaint.

2. Draft Amendments:

• Prepare a detailed draft of the proposed amendments with precision and clarity.
• Ensure changes do not alter the original cause of action and maintain consistency with legal arguments.

3. Legal Consultation:

• Seek professional legal advice to review the proposed amendments.
• Validate compliance with procedural requirements and substantive law.

4. Documentation Preparation:

• Integrate approved amendments into the original plaint document, clearly marking modifications.
• Prepare multiple copies for court filing and service.

5. Court Filing:

• Submit the amended plaint to the appropriate court, paying requisite fees.
• Ensure compliance with procedural guidelines for filing amendments.

6. Service of Amended Plaint:

• Serve a copy of the amended plaint to the opposing party using prescribed methods.
• Maintain proof of service for court records.

7. Judicial Consideration:

• Await the court’s decision on allowing the amendments, being prepared to argue their necessity.
• Demonstrate that the amendments serve justice and do not prejudice the opposing party.

Grounds for Seeking Amendment of Plaint

• Rectification of typographical errors or inaccuracies.
• Inclusion of additional facts or claims arising after the filing of the original plaint.
• Change in circumstances or discovery of new evidence.
• Correction of technical or procedural defects in the original plaint.

Section 46 in the Chota Nagpur Tenancy Act, 1908

• Overview: Section 46 addresses the conversion of praedial conditions during the preliminary assessment of village rent rates. Praedial conditions refer to non-monetary obligations that tenants historically owed to their landlords.
• Responsibilities of the Revenue Officer:
  • Identify the praedial conditions applicable to each class of tenants in the village.
  • Document findings on the praedial conditions that tenants are required to render.
  • Assess the cash value of these praedial conditions.
  • Prepare a statement following the format outlined in Schedule II of the Act.
• Recording Cash Value:
  • The commuted cash value of praedial conditions will be recorded separately from rent.
  • For raiyats (tenant cultivators), it will be included in the total rent payable.
  • For tenure-holders, it will be entered in the khewat (land revenue record).
• Guiding Principles: The Revenue Officer must adhere to the provisions of Section 111 of the Act, paying particular attention to the proviso in Section 105(3).
• Special Consideration: Praedial conditions that are already payable in cash by custom or contract will continue to be governed by the proviso in Section 105(3) of the Act.

Section 19(b) of Specific Relief Act, 1963

The case revolves around an unregistered sale deed between the Respondent No. 1 (Plaintiff) and the original Defendant No. 1, the owner of the suit property. After this agreement, Defendant No. 1 sold the property to Defendants 2 and 3.

• Supreme Court's Ruling: The Supreme Court, in the case of Manjit Singh & Anr v. Darshana Devi & Ors, upheld the High Court's decision that the subsequent purchasers (Defendants 2 and 3) could not be considered bona fide purchasers under Section 19(b) of the Specific Relief Act, 1963.
• Key Points:Section 19(b) of the Specific Relief Act: This section is crucial in determining whether a subsequent purchaser can be considered bona fide. It was emphasized that this section is an exception to the general rule, placing the burden of proof on the subsequent purchaser to demonstrate their bona fide status. 
• Good Faith and Due Diligence: The court highlighted that acting in good faith requires due care and caution. There should be no dishonesty or negligence in the actions of the purchaser. 
• Importance of Title Inquiry: The court ruled that a subsequent purchaser cannot be deemed bona fide if they fail to conduct proper inquiries about the title or interest in the property. This underscores the importance of thorough investigations in real estate transactions. 
• Case Reference: The court referred to the case of RK Mohammed Ubaidullah v. Hajee C. Abdul Wahab (2000) to support its interpretation of Section 19(b). 
• Outcome: The Supreme Court found no error in the High Court's decision and dismissed the appeal, reinforcing the standards for bona fide purchasers under Section 19(b) of the Specific Relief Act.

Understanding Section 19 (b) of the Specific Relief Act (SRA)

Section 19 of the SRA outlines the individuals against whom relief for specific performance can be enforced.

Key Points of Section 19 (b)

• Applicability: Section 19 (b) pertains to persons claiming under someone else by a title that arises after the original contract is made.
• Exclusions: It excludes transferees who have paid value (money), acted in good faith, and had no notice of the original contract.

Legal Precedent: Maharaj Singh & Ors v. Karan Singh (2024)

• In this case, the court ruled that if subsequent purchasers (defendants) fail to prove that they entered into the sale deed in good faith and without notice of the original contract, a decree for specific performance can be granted against them.

Landmark Judgments on Bona fide Subsequent Purchaser

Daniels v. Davison (1809)

• When a tenant is in possession of a property under a lease or an agreement, any potential buyer of that property must inquire about the specific terms of the tenant's possession.
• A tenant who holds both a lease and an agreement to purchase has an equitable interest in the property. This equitable interest safeguards the tenant's rights against a subsequent purchaser who fails to investigate the nature of the tenant's possession.
• In such cases, the claim of the subsequent purchaser is rejected due to their lack of inquiry into the tenant's possession details.

Bhiwandi and Nizampur v. Kailash Sizing Works (1974)

• In this case, the Court highlighted the difference between honest mistakes or carelessness and dishonest actions.
• An authority is deemed dishonest if they suspect wrongdoing but do not investigate further.
• The Court concluded that recklessness and bad faith are treated similarly under the law, as both pertain to the actor's actual state of mind.
• However, while the law equates recklessness and bad faith, their moral blameworthiness may vary.

Kailash Etc Works v. Munlity B & N (1968)

• A person cannot be deemed honest if they act without fairness or integrity.
• Acting with knowledge or awareness that harm is likely to occur, or with gross or willful negligence, is incompatible with honesty.
• The determination of whether a person acted honestly depends on the specific circumstances of each case.
• The Court emphasized that the core of good faith involves:
• Honest assessment based on factual information.
• Exclusion of:
• Deception or fraud.
• Unfairness or lack of integrity.
• Gross or willful negligence.

Section 13(1)(iii) of Hindu Marriage Act

Why in News?

A bench of Justice Ranjan Roy and Justice Om Prakash Shukla held that mere existence of mental disorder of any degree is not sufficient in law to justify the dissolution of marriage.

The Allahabad High Court held this in the case of Pawan Kumar Pandey v. Sudha.

What was the Background of Pawan Kumar Pandey v. Sudha Case?

• Marriage and Initial Issues: The appellant (husband) and the respondent (wife) were married according to Hindu customs. Initially, the wife moved into her husband's home, but soon after, the husband sought a divorce under Section 13 of the Hindu Marriage Act (HMA).
• Allegations of Mental Illness: The husband claimed that his wife was suffering from schizophrenia, a condition he became aware of only after their marriage. He described her behavior as erratic, including actions like leaving the house at night without informing anyone and losing track of her clothing.
• Wife's Counterclaims: The wife countered these allegations by accusing her husband and his family of mistreating her. She requested that the court dismiss her husband's divorce petition.
• Family Court Decision: The Family Court rejected the husband's petition for divorce under Section 13 of the HMA.
• Appeal to Higher Court: The husband appealed the Family Court's decision, seeking to challenge the judgment and decree. The appeal was filed under various legal provisions, including the Family Courts Act, the HMA, and the Civil Procedure Code (CPC).

Observations made by the Court

The Court examined the case of divorce based on the grounds of “cruelty ” and “desertion .”

• Willful Desertion: The Court found evidence of willful desertion by the respondent, as she lived with the appellant for only a few days and did not return to cohabit with him for over a decade. This behavior indicated that the respondent had abandoned the relationship, demonstrating animus deserendi (the intention to desert), which is a key factor in establishing desertion.
• Section 13 (1) (iii) of HMA: The Court clarified that the mere existence of a mental disorder is not sufficient to justify the dissolution of a marriage under this section. The degree of mental illness must be such that the spouse seeking relief cannot reasonably be expected to live with the other.
• Schizophrenia and Evidence: While the husband successfully proved that the wife suffers from schizophrenia, he failed to demonstrate that the condition was severe enough to constitute grounds for divorce. The evidence presented, mainly consisting of doctor’s prescriptions, did not establish that the mental disorder had grave consequences as required under Section 13 (1) (iii) of the HMA.
• Decision: The Court ultimately set aside the decree of the Lower Court and allowed the appeal, ruling in favor of the appellant (husband) and against the respondent (wife).

Section 13(1)(iii) of HMA

Grounds for Divorce: Section 13 of the Hindu Marriage Act (HMA) outlines the grounds on which a divorce can be granted. Section 13 (1) (iii) specifically pertains to cases where one spouse is suffering from a mental disorder.

Key Conditions: For a divorce to be granted under this section, the following conditions must be met:

• The respondent (spouse) must be incurably of unsound mind or suffering from a mental disorder, which can be continuous or intermittent.
• The severity of the condition must be such that the petitioner cannot reasonably be expected to live with the respondent.

Explanation of Terms:

• Mental Disorder: This includes mental illness, arrested or incomplete development of the mind, psychopathic disorders, or any other disorder or disability of the mind. Schizophrenia is specifically included under this definition.
• Psychopathic Disorder: This refers to a persistent disorder or disability of the mind, which may or may not involve low intelligence, resulting in abnormally aggressive behavior or other significant impairments.

Medical Treatment for Mental Disorders in Divorce Cases

• Medical treatment for mental disorders in divorce cases can vary in necessity and feasibility.

Landmark Judgments on Mental Health in Divorce

Ram Narain Gupta v. Smt. Rameshwari Gupta (1988)

• Each case of schizophrenia should be evaluated individually; simply labeling someone as schizophrenic is not enough.
• Schizophrenia varies in intensity among individuals, and not all cases are the same.
• Under Section 13(1)(iii) of the law, it is not sufficient to prove the existence of a mental disorder to justify the dissolution of a marriage.
• The burden of proof lies with the spouse claiming the existence of a serious mental disorder.
• The degree of mental disorder must be such that it makes cohabitation unreasonable for the spouse seeking relief.
• Not all mental abnormalities are grounds for divorce.

Kollam Chandra Sekhar v. Kollam Padma Latha (2014)

• The court referenced the case of Whysall v. Whysall (1959), which defined a spouse as ‘incurably of unsound mind’ if their mental condition makes normal married life impossible and there is no hope for future improvement.
• In this case, the court found that the respondent, despite having schizophrenia, was in better health at the time of the judgment.
• As a result, the court rejected the request for dissolution of marriage.

Forcing Wife to Leave Job Amounts to Cruelty

Forcing a wife to quit her job can be considered a form of cruelty. This was the ruling of a bench led by Chief Justice Suresh Kumar Kait and Justice Sushrut Arvind Dharmadhikari in the Madhya Pradesh High Court case of X v. Y.

Background of the Case: X v. Y

• The couple got married on April 19, 2014.
• The wife started working as an Assistant Manager at LIC Housing Finance Limited in 2017.
• The husband pressured his wife to leave her job and stay home until he found employment.
• After the wife filed for divorce, the husband submitted a petition under Section 9 of the Hindu Marriage Act, 1955, which was later withdrawn.
• The Trial Court initially denied the divorce, leading to the appeal in the High Court.

Court's Findings

• The Court stated that neither spouse has the right to dictate the other's employment choices.
• In this case, the husband’s insistence on his wife quitting her job was deemed cruel.
• As a result, the Court granted permission for the marriage to be dissolved.

Understanding Cruelty in the Context of the Hindu Marriage Act, 1955

• Definition: Cruelty is a ground for divorce under Section 13 (ia) of the Hindu Marriage Act (HMA).
• Legal Evolution: Before 1976, cruelty was only a basis for judicial separation under Section 10 of the HMA. The amendment in 1976 made it a ground for divorce.
• Nature of Cruelty: Cruelty is linked to human behavior and varies with social context, lifestyle, relationships, and emotional states.
• Mental Cruelty: False accusations and wrongful legal actions causing severe emotional distress are considered mental cruelty.

Acts that Constitute Mental Cruelty

Repeated Threats of Suicide

• In the case of Pankaj Mahajan v. Dimple @ Kajal (2011), the Court determined that repeated threats to commit suicide by one spouse would constitute mental cruelty towards the other spouse.

Accusations of Unchastity

• The Court in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate (2003) ruled that making baseless and offensive accusations of unchastity, such as indecent familiarity with someone outside the marriage or allegations of extramarital affairs, amounts to mental cruelty.
• Such accusations, especially when directed at an educated wife, are considered one of the worst forms of cruelty and insult under Indian standards.

Nature of Cruelty

• In the case of A Jayachandra v. Aneel Kaur (2005), the Court emphasized that cruelty must be more than the ordinary wear and tear of married life.
• The conduct complained of must be grave and weighty, leading to the conclusion that one spouse cannot be expected to live with the other.

Unfounded Allegations of Adultery

• In R. Balasubramaniam v. Vijayalakshmi Balasubramanian (1999), the Court held that making unfounded allegations of adultery against the wife constitutes cruel conduct by the husband and entitles the wife to seek relief.

Denial of Sexual Intercourse

• In the case of Vidhya Viswanathan v. Kartik Balakrishnan (2014), the Court ruled that a prolonged denial of sexual intercourse by the wife without valid reasons amounts to mental cruelty.

Lodging of FIR against the Husband

• In Narasimha Sastry v. Suneela Rani (2020), the Court clarified that merely filing an FIR does not constitute cruelty by default.
• However, if a husband is acquitted of allegations made under Section 498A of the IPC by his wife, it indicates that he has suffered cruelty, especially when serious allegations were involved.

Landmark Cases on Mental Cruelty

Dastane v. Dastane (1975)

• This case was decided before the legal inclusion of mental cruelty in the Hindu Marriage Act (HMA).
• The Supreme Court made important observations about mental cruelty:
• Any behavior by the respondent that makes it harmful or injurious for the petitioner to live with them, or creates a reasonable fear of such harm, constitutes cruelty.
• Cruelty is determined by inferring the nature of the conduct and its impact on the complaining spouse.
• The physical impact on the spouse does not need to be considered; proving or admitting the conduct is sufficient.
• Matrimonial duties and responsibilities vary significantly from one household to another.
• When a spouse complains of cruelty, the court should not look for a standard of living but consider the specific circumstances.

Naveen Kohli v. Neelu Kohli (2004)

• In this case, the Supreme Court clarified the meaning of "cruelty" in Section 13(1)(ia) of the Hindu Marriage Act.
• Key points from the judgment:
• Cruelty refers to human conduct or behavior concerning matrimonial duties and obligations.
• Physical violence is not necessary to prove cruelty; a consistent pattern of behavior causing severe mental distress can also constitute cruelty.
• Mental cruelty can involve verbal abuse and insults using offensive language, leading to a constant disruption of the other party's mental peace.

Doctrine of Res Judicata and Permanent Alimony

Recently, the Rajasthan High Court addressed the applicability of the doctrine of Res Judicata in cases involving permanent alimony and stridhan. The court ruled that this doctrine does not apply to these specific reliefs.

Background of the X v. Y Case

• The case involves a matrimonial dispute between a wife and husband who were married on June 12, 2017, in the Udaipur District of Rajasthan.
• Shortly after their marriage, the husband allegedly began subjecting the wife to mental harassment, particularly concerning some gold ornaments she owned.
• The wife accused her husband of having an illicit relationship with another woman before their marriage and pressuring her to quit her job.
• On January 25, 2018, the husband reportedly expelled the wife from their matrimonial home, forcing her to live with her parents.
• The husband was residing in Gandhinagar, Gujarat, at this time.
• Subsequently, the wife discovered that her husband had obtained an ex parte divorce decree on March 8, 2021, from a court in Gandhinagar.
• In response to this, the wife filed an application in the Family Court in Udaipur seeking divorce, permanent alimony, and possession of her stridhan (personal property).
• However, the Family Court dismissed her application, stating that it was barred by res judicata due to the previous divorce decree.
• The wife then appealed to the Rajasthan High Court, challenging the dismissal of her claims for permanent alimony and recovery of her stridhan.
• She argued that the ex-parte divorce decree should not prevent her from seeking these legal remedies.

Observations of the Rajasthan High Court

• Interpretation of Section 25 of the Hindu Marriage Act, 1955 (HMA): The court highlighted that Section 25 is a social welfare provision aimed at securing women’s rights.
• Continuous Nature of the Provision: The court emphasized that this provision is continuous and can be invoked at any stage of matrimonial proceedings.
• Legislative Intent: The legislative intent behind Section 25 is to provide financial independence to women.
• Purposive Interpretation: The court stressed the need for a purposive interpretation of the provision that advances social justice.
• Socio-Economic Context of Women in Rajasthan: The court acknowledged the significant social and financial barriers faced by women in Rajasthan, which justified the need for such legal provisions.
• Jurisdictional Considerations: The court noted that Section 19 of the Hindu Marriage Act, 1955 allows a wife to file petitions in the court within whose jurisdiction she resides. This further supported the wife’s case in seeking permanent alimony and recovery of her stridhan.

In a recent judgment, the Rajasthan High Court emphasized the importance of ensuring that women do not have to go through unnecessary hardships to seek fundamental legal rights. The court highlighted several key points regarding stridhan, previous divorce decrees, procedural approaches, legal interpretation, and the applicability of the doctrine of Res Judicata.

• Stridhan refers to the personal property of a woman, which is considered her absolute right. The court stressed that the husband has no control over stridhan, and it cannot be interfered with by anyone else.
• The court noted that an ex parte divorce decree had already been issued by the Gujarat Court, and such a decree can only be challenged in the appellate court.
• Emphasizing the procedural approach, the court argued that procedure should serve justice and not hinder it. Rigid procedural interpretations that could prevent substantive justice were discouraged.
• The court applied the “golden rule” of legal interpretation and the maxim “ut res magis valeat quam pereat,” focusing on ensuring the smooth functioning of the legal system and achieving the true legislative intent of laws, particularly in relation to Section 25 of the Hindu Marriage Act (HMA).
• The Rajasthan High Court ruled that the doctrine of Res Judicata does not apply to permanent reliefs and stridhan under Section 25 of the HMA.
• Overall, the court’s observations aimed at ensuring justice, safeguarding women’s rights, and interpreting laws in a way that aligns with their social welfare objectives.

Understanding the Principle of Res Judicata

The principle of Res Judicata means that an issue should not be judged more than once. It prevents the filing of a subsequent suit for the same issue that has already been decided by the court.

This principle is founded on three Latin maxims:

• Interest Reipublicae Ut Sit Finis Litium: This maxim signifies the state's interest in bringing an end to litigation.
• Nemo Debet Bis Vexari Pro Una Et Eadem Causa: This means that no individual should be troubled for the same reason twice.
• Res Judicata Pro Veritate Occipitur: This implies that a judicial decision must be accepted as correct. In cases of conflicting judgments, it leads to embarrassment for the judiciary.

Essential Elements of Res Judicata

• Same Matter in Issue: The matter in the subsequent suit must be directly and substantially the same as in the former suit.
• Same Parties: The former suit must have been between the same parties, or parties under whom they claim.
• Same Title: The parties must be litigating under the same title in both suits.
• Competent Jurisdiction: The court that decided the former suit must have had jurisdiction to try the subsequent suit.
• Heard and Finally Decided: The matter in issue must have been heard and finally decided by the former court.

Extent and Applicability of Res Judicata

• The doctrine of res judicata applies to various areas such as civil suits, execution proceedings, taxation matters, industrial adjudication, administrative orders, and interim orders.
• Section 11 of the Code of Civil Procedure (CPC) codifies the doctrine of res judicata, but it is not exhaustive.

Permanent Maintenance under Section 25 of the HMA

• Permanent Maintenance refers to the maintenance granted indefinitely after the conclusion of separation or divorce proceedings.
• According to Section 25 of the Hindu Marriage Act (HMA), 1955, either spouse (husband or wife) is entitled to receive maintenance from the other spouse. This can be in the form of a lump sum or monthly payments.
• The duration of such maintenance cannot exceed the lifetime of the applicant or continue until the applicant remarries.

Life Interest of Woman

The Supreme Court clarified that under Section 14(2) of the Hindu Succession Act, 1956, a Hindu woman with a restricted estate in property cannot claim absolute ownership or transfer such property through a Will. 

• The ruling came while dismissing a case where the defendants claimed ownership of land bequeathed by their mother, whose limited life interest in the property prevented her from becoming its absolute owner.
• This judgment observes the distinction between Sections 14(1) and 14(2) regarding property rights for Hindu women.

What was the Background of Kallakuri Pattabhiramaswamy (Dead) Through Lrs. v. Kallakuri Kamaraju & Ors. case?

• The case involves a property dispute between two branches of the same family - step-brothers who are sons of Kallakuri Swamy from his two marriages.
• Through a partition deed dated 25th August 1933, Smt. Veerabhadramma (second wife) was given a life interest in 3.55 cents of land across various survey numbers in Teki, West Khandrika, and Angara villages.
• The partition deed stipulated that after Smt. Veerabhadramma’s death, this property would be equally divided between her son and her step-sons (sons from the first wife).
• Smt. Veerabhadramma passed away on 6th February 1973, which triggered the succession rights as per the 1933 partition deed.
• Before her death, Smt. Veerabhadramma had executed a registered Will dated 30th December 1968, purportedly bequeathing the scheduled properties to one of the defendants.
• The respondent-plaintiffs (sons from the first wife) filed Original Suit No.50 of 1984 seeking their share in the property as per the 1933 partition deed.
• The defendants (representing Smt. Veerabhadramma’s interests) contended that she had acquired absolute rights over the property under Section 14(1) of the Hindu Succession Act, 1956 and therefore had the right to bequeath it through a Will.
• The matter progressed through various courts, starting from the Trial Court to the High Court of Andhra Pradesh, and finally reached the Supreme Court through Civil Appeal No.5389 of 2012.
• The Supreme Court observed that under Hindu law, a woman’s right to maintenance is not statutorily created but originates from Shastric Hindu law, which was later given statutory recognition through various legislations.
• The Court distinguished between Sections 14(1) and 14(2) of the Hindu Succession Act, 1956, holding that property given in lieu of maintenance would transform into absolute ownership under Section 14(1), while property acquired under an instrument prescribing a restricted estate would fall under Section 14(2).
• In this case, the Court found that Smt. Veerabhadramma was granted full rights over 2.09 cents of land, which met her Shastric right to maintenance. The contested 3.55 cents was given as a restricted estate with a clear life interest.
• The 1933 partition deed was noted by the Bench to have created a new right for Smt. Veerabhadramma regarding the 3.55 cents, granting her only a life interest while designating the remainder to her two sons.
• The Court clarified that when property is given under an instrument establishing a new right for the first time, Section 14(2) applies, not Section 14(1).
• Following the principles from V. Tulsamma’s case, the Court emphasized that maintenance should be proper, appropriate, and sufficient to uphold the woman’s previous lifestyle, finding no evidence of inadequacy in the provided maintenance.
• The Court determined that since the 3.55 cents of land was explicitly granted as a restricted estate in the partition deed, Section 14(2) was applicable. This prevented the property from being converted into absolute ownership and rendered the Will ineffective concerning this property.

Section 14(1) and Section 14(2) of the Hindu Succession Act, 1956

Section 14(1) states that any property owned by a female Hindu, regardless of when it was acquired (before or after the Act), shall be held by her as the absolute owner. This eliminates the idea of limited ownership.

The Explanation to Section 14(1) provides a broad definition of “property” which includes:

• Movable and immovable property
• Property acquired through inheritance or devise
• Property received at partition
• Property obtained in lieu of maintenance or arrears of maintenance
• Property received as a gift from any person (relative or non-relative)
• Property acquired before, during, or after marriage
• Property gained through personal skill or exertion
• Property obtained through purchase or prescription
• Property held as stridhana before the Act’s commencement

Section 14(2) serves as an exception to Section 14(1) and specifically excludes property acquired through:

• Gift
• Will
• Any other instrument
• Court decree/order
• Award

• The exclusion under Section 14(2) applies only when the terms of acquisition explicitly prescribe a restricted estate in such property.
• Section 14(1) aims to address the limited estate concept under traditional Hindu Law by converting all limited estates held by Hindu women into absolute estates.
• Section 14(2) allows grantors to create restricted estates through specific instruments, as long as the restriction is clearly stated in the transfer document.
• The relationship between Sections 14(1) and 14(2) requires a careful examination of the source of a woman's right to determine whether the property becomes her absolute estate or remains restricted.

Historical Overview of Women's Property Rights in Hindu Law

Before the Hindu Succession Act (Traditional Hindu Law)

Mitakshara School

• Women were not recognized as coparceners.
• They had no inherent right to ancestral property.
• Their rights were limited mainly to maintenance provisions.
• Property rights were severely restricted, and women could only hold Stridhan, which includes gifts received during marriage and similar assets.

Dayabhaga School

• Offered a relatively more progressive approach compared to the Mitakshara School.
• Widows had the right to inherit their husband’s property.
• However, a key limitation was that the property would pass to male heirs upon the widow’s death, regardless of whether she had daughters.
• Daughters did not have independent inheritance rights under this system.

Features of the Hindu Succession Act, 1956

Unified Inheritance Law

• The Act created uniformity across different Hindu law schools regarding inheritance.
• It established clear and consistent succession rules applicable to Hindus, Buddhists, Jains, and Sikhs.

Women’s Rights

• The Act recognized and reinforced women’s right to inherit property.
• It established class I heirs, which include the widow, daughter, and mother, granting them equal rights.
• Women were granted absolute ownership of inherited property instead of a limited estate.
• The Act also removed restrictions on a widow’s right to remarry, further enhancing her rights and autonomy.

Limitations of Daughters' Rights in Hindu Succession

Daughters' Status in Joint Family Property

• Daughters were not considered coparceners in joint family property. This meant they did not have the same rights as sons in inheriting and managing ancestral property.

Ancestral Property Succession

• There was ongoing inequality in the way ancestral property was passed down. Sons had more favorable rights compared to daughters in inheriting ancestral property.

Rights of Married Daughters

• Married daughters had limited rights in comparison to sons when it came to inheriting and managing ancestral property. Their rights were not on par with those of their brothers.

Features of the Hindu Succession (Amendment) Act, 2005

Equal Coparcenary Rights

• The amendment granted daughters the status of coparceners by birth. This meant they had the same rights as sons in ancestral property from the moment of their birth.
• Daughters were given equal rights with sons in ancestral property, regardless of their marital status. This was a significant step towards gender equality in property rights.

Property Rights

• Daughters were given absolute ownership rights over inherited property. This meant they had the full right to manage and dispose of the property as they wished.
• Daughters had the right to dispose of inherited property, including the right to sell, mortgage, or otherwise transfer the property.
• In the case of partition, daughters were entitled to an equal share and had the right to demand partition of the property.

Key Principles

Retrospective Application

• The rights granted by the amendment applied to living daughters of living coparceners, even if the father had died before the 2005 amendment.

Absolute Ownership

• Women were given the authority to sell, mortgage, or dispose of inherited property without any restrictions related to remarriage.
• Women had full testamentary powers, allowing them to make decisions about the property without restrictions.

Fundamental Principles

• A woman’s life interest in inherited property becomes absolute ownership under Section 14(1) of the Hindu Succession Act (HSA) if the interest is based on pre-existing rights or maintenance.
• Life interests granted through new legal instruments creating restricted estates fall under Section 14(2) of the HSA, affecting the nature of ownership.

Enquiry Limits of Referral Courts in Case of Arbitration Agreement

The Supreme Court made an important ruling about the role of courts under Section 11(6) of the Arbitration & Conciliation Act, 1996. The Court emphasized that these courts should only check if there is a valid arbitration agreement, without getting into the details of the dispute. The Court criticized a High Court for looking too closely at the facts and rejecting an arbitration application. This ruling supports the 2015 amendment's goal of limiting judicial review at the Section 11 stage. Additionally, the Court mentioned the possibility of imposing costs on parties who misuse arbitration.

Background of the Goqii Technologies Private Limited v. Sokrati Technologies Private Limited case

• In this case, Goqii Technologies Private Limited, a wellness company, had a Master Services Agreement with Sokrati Technologies Private Limited, a digital marketing firm. Goqii paid Sokrati over Rs. 5.5 crore for services between August 2021 and April 2022. 
• However, following media reports of irregularities in the advertising sector, Goqii conducted an audit of Sokrati's activities, which raised concerns about return on investment and potential overcharges. In February 2023, Sokrati issued a demand notice under the Insolvency and Bankruptcy Code (IBC) for outstanding payments. 
• Goqii rejected this demand, citing audit findings, and initiated arbitration proceedings. When Sokrati did not respond to the arbitration notice, Goqii sought the appointment of an arbitrator through the Bombay High Court. Meanwhile, Sokrati filed a petition to initiate corporate insolvency proceedings against Goqii.
• The Bombav High Court rejected the request for appointing an arbitrator, which led to the current appeal in the Supreme Court.

What did the Court Observe?

• The Supreme Court noted that the inquiry under Section 11 of the Arbitration and Conciliation Act, 1996 is limited to checking the preliminary existence of an arbitration agreement, following the legislative intent of the 2015 amendment.
• The Court ruled that the High Court overstepped its jurisdiction by conducting a detailed factual examination and assessing the auditor’s report at the Section 11 stage.
• Citing its recent decision in SBI General Insurance Co. Ltd. v. Krish Spinning (2024), the Court emphasized that the referral court’s role is restricted to verifying the prima facie existence of the arbitration agreement, as clarified by the Constitution Bench in In Re: Interplay.
• The Court dismissed the idea that referral courts should evaluate the frivolity of disputes at the Section 11 stage, asserting that arbitral tribunals are better equipped to handle such issues with comprehensive pleadings and evidence.
• While warning against the misuse of arbitration, the Court granted arbitral tribunals the authority to impose costs on parties engaging in baseless or abusive proceedings.
• The Court noted the undisputed existence of the arbitration agreement in Clause 18.12 of the MSA, indicating that the Arbitral Tribunal could address the validity of the dispute as a preliminary matter.
• The Court ensured that the respondent retains the right to present all legal arguments and objections before the appointed arbitrator, maintaining that the limited review at the referral stage does not affect the parties’ substantive rights.

Section 11 of the Arbitration & Conciliation Act, 1996

• Section 11(1) and (2) : Anyone can be an arbitrator, regardless of nationality, unless the parties agree otherwise. The parties are also free to decide how to appoint arbitrators.
• Section 11(3) : In a tribunal with three arbitrators, each party appoints one arbitrator. The two appointed arbitrators then choose the third arbitrator, who will act as the presiding arbitrator.
• Section 11(4) and (5) : If the parties do not appoint arbitrators within 30 days, or if the two appointed arbitrators cannot agree on the third arbitrator, the Supreme Court or High Court (or their designate) can make the appointment upon request.
• Section 11(6A) : This provision, added by the 2015 amendment, limits the court’s examination to determining the existence of an arbitration agreement, regardless of previous judgments.
• Section 11(8) : The Court or its designate must seek written disclosure from prospective arbitrators under Section 12(1). They should consider the qualifications required by the parties’ agreement and other factors to ensure the arbitrators' independence and impartiality.
• Section 11(12) : This section distinguishes jurisdiction for international and domestic arbitration. Only the Supreme Court has authority for international commercial arbitration. For domestic arbitration, the relevant High Court within the jurisdiction of the principal Civil Court has authority.
• Section 11(13) : Applications for the appointment of arbitrators must be disposed of expeditiously, with a target timeline of 60 days from the date of service of notice on the opposite party.
• Section 11(14) : High Courts are empowered to frame rules for determining arbitral tribunal fees, taking into account the rates specified in the Fourth Schedule.

Understanding Section 11(6) of the Arbitration and Conciliation Act

Section 11(6) offers a solution when the agreed-upon method for appointing arbitrators breaks down. It addresses three particular situations:

• Failure to Follow Agreed Procedure: When a party does not adhere to the specified procedure for appointing an arbitrator.
• Inability to Reach Agreement: When the involved parties or the appointed arbitrators cannot come to an expected agreement regarding the appointment.
• Non-Performance by Designated Person or Institution: When a person or institution designated to carry out a specific function in the appointment process fails to do so.

According to Section 11(6), parties have the option to approach the Supreme Court or High Court (or their designated authorities) to intervene and take necessary actions in these situations. This is applicable unless the agreement stipulates alternative methods for securing appointments.

• Section 11(6A) : This section restricts judicial intervention by directing courts to focus solely on verifying the existence of an arbitration agreement. Courts should not consider previous judicial rulings when making this determination. This limitation applies to all applications under subsections (4), (5), and (6) of Section 11, ensuring a consistent standard of judicial review across various appointment scenarios.
• Section 11(6B) : This section clarifies that when the Supreme Court or High Court designates a person or institution to oversee arbitrator appointments, it does not delegate judicial power. This distinction preserves the courts' fundamental authority while facilitating the efficient management of the appointment process.

Section 11(6-A) of the Arbitration & Conciliation Act, 1996

Recently, the Supreme Court, in the case of Aslam Ismail Khan Deshmukh V. Asap Fluids Pvt. Ltd. & Anr., ruled that an arbitral tribunal has the power to impose costs on a party that prevents the other party from participating in arbitration proceedings. This decision highlights the principle of minimal court interference at the referral stage.

Background of Aslam Ismail Khan Deshmukh V. Asap Fluids Pvt. Ltd. & Anr Case

• Parties Involved: The petitioner is a Non-Resident Indian (NRI), while the respondents are Indian private companies.
• Shareholder Agreement: The petitioner and respondents entered into an agreement where the petitioner would hold shares in Respondent No. 1 and participate in its management.
• Dispute Over Shares: The Managing Director of Respondent No. 2 informed the petitioner that some of his shares in Respondent No. 1 were held by Respondent No. 2 for investor comfort, with specific conditions regarding their sale and pledge.
• Subsequent Agreements: Respondent No. 1 executed agreements with the petitioner, including a Service Agreement and a Commercial Expertise Agreement, outlining the petitioner’s role and share issuance.
• Key Disputes: The petitioner alleges that Respondent No. 2 did not transfer shares in Respondent No. 1 that rightfully belonged to him.

Background

• Respondent No. 1 allegedly did not issue share certificates for the additional 200,010 shares.
• Although the Petitioner was supposed to receive 400,000 equity shares according to the Shareholders Agreement, he never received the share certificates.
• Because he did not have the share certificates, the Petitioner was unable to exercise his "Right of First Refusal" as outlined in Clause 6 of the Shareholders Agreement.

Actions Taken by the Petitioner

• The Petitioner made several requests for either the share certificates or equivalent monetary compensation.
• He also sent an Arbitration Notice to both Respondents.

Legal Proceedings

• When there was no response from the respondents, the Petitioner filed two separate applications under Section 11(6) of the Arbitration & Conciliation Act, 1996, seeking adjudication of disputes related to the 400,000 equity shares.
• An arbitration clause was invoked in this process.

Respondents' Reply

• The Respondents replied after 10 months, denying all claims but appointing two arbitrators and asking the Petitioner to appoint a third arbitrator.
• They also contested that the dispute over 200,010 shares could not be referred to arbitration.

Petitioner's Resignation

• The Petitioner eventually resigned as Director from both Respondent No. 1 and its Dubai subsidiary, and this resignation was accepted through a Director’s Resolution.

Bombay High Court Ruling

• The Bombay High Court ruled that the Petitioner, a Non-Resident Indian living and working in Dubai, was involved in an "international commercial arbitration".
• As a result, the Section 11 applications filed before the court were deemed not maintainable.

Supreme Court Petition

• The Petitioner filed a petition with the Supreme Court aggrieved by the Bombay High Court's decision.

Observations of the Supreme Court

The Supreme Court made several important observations regarding the referral of disputes to arbitration and the powers of arbitral tribunals. Here are the key points:

Limited Jurisdiction Recognition:

• The Court recognized concerns about parties being compelled into arbitration due to the courts' limited jurisdiction under Section 11(6-A) of the Arbitration and Conciliation Act (A & C Act).
• There is a risk that some parties might exploit this limited judicial interference to force others into expensive and time-consuming arbitration proceedings.

Scope of Court's Examination:

• At the referral stage, courts should only examine two key aspects:
• The existence of a valid arbitration agreement between the parties.
• Whether the application for the appointment of an arbitrator was filed within three years.

Powers of Arbitral Tribunal:

• The Arbitral Tribunal has the authority to impose the entire arbitration costs on parties who misuse the court's limited jurisdiction.
• This serves as a safeguard against parties attempting to force others into unnecessary arbitration.

Referral of Issues to Arbitration:

• Courts should refer matters such as time-barred claims and the inclusion of non-signatories to arbitration.
• A detailed examination of these issues should be left to the Arbitral Tribunal.

Limitation Period Analysis:

• Courts should conduct only a prima facie examination of the limitation period at the referral stage.
• A detailed evidentiary inquiry into time-barred claims should be avoided, as such determinations are better suited for the arbitrator's decision.

Trust in Arbitral Tribunal:

• The Court expressed confidence in arbitral tribunals' ability to identify frivolous litigation.
• Arbitrators are considered more capable of conducting thorough examinations of pleadings and evidence.

Precedential Support:

• The Court reaffirmed principles established in two previous cases:
• In Re: Interplay
• SBI General Insurance v Krish Spinning

Judicial Restraint:

• Courts should avoid intricate evidentiary inquiries at the referral stage.
• The focus should be on maintaining a balance between judicial oversight and arbitral autonomy.

Conclusion:

• The Supreme Court concluded that the arbitral tribunal has the authority to impose costs on parties who misuse the court's limited jurisdiction at the referral stage.
• The Court allowed the present petition and approved the appointment of a sole arbitrator to resolve the dispute arising from the service agreement between the parties.

Overview of Section 11 of the A & C Act

• Nationality of Arbitrators: Any individual, regardless of nationality, can serve as an arbitrator unless the parties involved agree to different terms.
• Appointment Procedure:Parties have the freedom to establish their own procedure for appointing arbitrators, with consideration to subsection (6). In the absence of such an agreement, the following process applies:
  • For a tribunal consisting of three arbitrators:
    • Each party appoints one arbitrator.
    • The two appointed arbitrators then select the third arbitrator, who will act as the presiding arbitrator.
• Role of Arbitral Institutions:
  • The Supreme Court and High Courts have the authority to designate graded arbitral institutions responsible for appointing arbitrators (subsection 3A).
  • In regions lacking graded arbitral institutions, the Chief Justice of the High Court may maintain a panel of arbitrators. These arbitrators are considered arbitral institutions and are entitled to fees as specified in the Fourth Schedule.
• Appointment in Case of Failure (subsection 4):
  • If a party fails to appoint an arbitrator within 30 days of receiving a request, or if the two appointed arbitrators cannot agree on the third within 30 days, the designated arbitral institution will make the appointment.
  • For international commercial arbitration, the Supreme Court designates the institution; for other types of arbitration, the High Court is responsible.
• Sole Arbitrator Appointment: If the parties cannot agree on a sole arbitrator within 30 days, the appointment will be made according to subsection (4).
• Failure to Act under Agreed Procedure (subsection 6): If a party, appointed arbitrators, or a designated person/institution fails to act according to the agreed procedure, the court-designated arbitral institution will make the appointment.
• Disclosure Requirements: Before appointing an arbitrator, the arbitral institution must obtain a written disclosure from the prospective arbitrator in accordance with Section 12(1). The institution should also consider any qualifications required by the parties’ agreement and the contents of the disclosure.
• International Commercial Arbitration (Subsection 6-A): In international commercial arbitrations, for the appointment of a sole or third arbitrator, the designated institution may appoint an arbitrator of a nationality different from that of the parties involved.
• Multiple Appointment Requests: If multiple requests for appointment are made to different institutions, the one receiving the first request will be considered competent to make the appointment.
• Time Frame for Appointment: The arbitral institution is required to dispose of an application for appointment within 30 days of serving notice on the opposing party.

Fees Determination:

• The fees and payment method for the arbitral tribunal are set by the arbitral institution, following the rates in the Fourth Schedule.
• This provision does not apply to international commercial arbitrations or cases where parties have agreed to fee determination according to the rules of the arbitral institution.

Non-Delegation of Judicial Power:

• When the Supreme Court or High Court designates a person or institution, it is not considered a delegation of judicial power.

Examination Confined to Existence of Arbitration Agreement under Section 11 (6-A) (6B):

• These provisions were introduced by the 2015 Amendment.
• When the Supreme Court or High Court reviews an application under subsections (4), (5), or (6), their examination is limited to the existence of an arbitration agreement.
• This applies regardless of any judgment, order, or decree.
• Courts must focus on core preliminary issues as outlined in Section 11(6-A) of the Act.
• The purpose of judicial review at this stage is to facilitate the arbitration process, not to take over the Arbitral Tribunal's jurisdiction.

Limited Intervention by Courts:

• Courts can decline to refer a dispute to arbitration even if an arbitration agreement exists, if the dispute does not align with the agreement.
• The 2015 amendment narrowed the scope of Section 11 to a preliminary determination of the existence of an arbitration agreement.
• Courts should verify if the agreement includes a clause for arbitration related to the disputes between the parties.
• In certain situations, like insurance contracts, courts can assess the issue of non-arbitrability at the reference stage.
• Courts should not adopt a completely hands-off approach; limited intervention is allowed to facilitate the arbitration process.

Prima Facie Examination:

• The prima facie examination involves determining whether the subject matter of the dispute is arbitrable, but this should be done sparingly.
• Courts need to check if the dispute aligns with the arbitration agreement between the parties.
• If there is no connection between the dispute and the arbitration agreement, the reference to arbitration can be denied, even if an agreement exists.

Government Entity and Arbitral Award

A bench of Chief Justice Dr. DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra held that there cannot be any special treatment given to the party because it is a government entity.

The Supreme Court held this in the case of International Seaport Dredging Pvt Ltd v. Kamarajar Port Limited.

Background of the case

• The Respondent issued a Letter of Award to the Appellant for a project at Kamarajar Port, worth approximately Rs. 274 crores.
• A contract was signed on August 12, 2015, to complete certain works.
• Disputes arose, leading the Appellant to invoke the arbitration clause.
• Arbitration proceedings commenced, resulting in an award on March 7, 2024.
• The Respondent challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996, seeking a stay of execution.
• The High Court granted a conditional stay, requiring the Respondent to furnish a bank guarantee within eight weeks.
• The Appellant contested this decision, arguing that the award should be treated as a money decree and the Respondent should deposit the full amount for a stay.
• The Supreme Court clarified that an application under Section 34 does not make the award unenforceable unless the Court grants a stay.
• The Court also noted that the High Court's stay was based on the Respondent providing a bank guarantee for the principal amount, not covering interest and costs.
• The Supreme Court ruled that arbitration proceedings should not be treated differently based on whether the respondent is a statutory undertaking. The Court emphasized that the Arbitration and Conciliation Act (A & C Act) is a comprehensive legal framework that does not make a distinction between governmental and private entities. 
• Therefore, the form of security required should be the same regardless of whether a party is a statutory body, a governmental entity, or a private entity. 
• Key Points: 
  • The Supreme Court clarified that the High Court's decision regarding the grant of stay should not have been influenced by the respondent's status as a statutory authority. 
  • Governmental entities should be treated similarly to private parties in arbitration proceedings under the A & C Act, unless specified otherwise by law.
  • The Court rejected the argument that the High Court was correct in requiring the respondent to furnish bank guarantees based solely on its status as a statutory body.
    
• What is a Government Entity? 
  • According to Collins Dictionary, an 'entity' is something that exists independently and has its own distinct identity. The term 'Government' refers to a group of individuals responsible for governing a country. 
  • Under Goods and Services Tax, a 'Government Entity' is defined as an authority, board, society, trust, or corporation established by an Act of Parliament or State Legislature, or by the Government with 90% or more equity participation or control. These entities are set up to carry out functions entrusted by the Central Government, State Government, Union Territory, or local authority.

Should a Government Entity Be Treated Differently under the A & C Act?

Pam Developments Private Limited v. State of West Bengal (2019):

• Section 18 of the Arbitration and Conciliation Act (A & C Act) emphasizes that all parties should be treated equally.
• The Act's mandate means that the Government cannot be given special treatment as a party.
• Therefore, under the Arbitration Act, there is no distinction or differential treatment for the Government when considering applications for staying a money decree in proceedings under Section 34.
• Similarly, no exceptional treatment should be given to the Government in applications for stay under Section 36 in proceedings under Section 34 of the A & C Act.

Tokyo Engineering Corporation v. Indian Oil Corporation Limited (2021):

• The Court ruled that the involvement of public corporations does not influence the discretion under Order XLI Rule 5.
• Government Corporations are obligated to pay large amounts specified in Arbitral Awards, and this consideration should not affect the legal principles involved.

Cross Examination in Show Cause Proceedings

Recently, the Madras High Court made an important ruling in the case of Nalin Gupta v. Commissioner of Customs. The court highlighted the importance of following the correct procedure in show cause proceedings. Specifically, it stated that the response to the show cause notice should be based on its merits first, and only then can procedural requests, such as cross-examination, be made. This sequence is crucial and cannot be altered.

Background of the Case

• A Show Cause Notice was issued by the Principal Commissioner of Customs, Preventive Commissionerate, Chennai-III on 28th September 2022.
• The case falls under Section 28(4) of the Customs Act, 1962 (CA), which requires determination of duty or interest within one year from the date of notice.
• The appellant argues that the limitation period for determining the duty expired on 27th September 2023.
• The Customs Department contends that the time period was extended to 27th September 2024 through an Order dated 7th May 2024.
• The Madras High Court directed the department to conclude the proceedings under Section 28(9) of the Customs Act, 1962.
• The assessee challenged the Madras High Court's order.

Key Observations by the Madras High Court

1. Cross-Examination Rights:

• A party cannot demand cross-examination of witnesses in a Show Cause proceeding without first addressing the merits of the notice.
• Requests for cross-examination without substantive replies should be rejected outright.

2. Limitation Period and Extensions:

• Clarified the sequence of extensions under Section 28(9):
• The initial limitation period (6 months/1 year) must first expire.
• Extensions can only be considered after this expiry, not preemptively.

3. Procedural Sequence:

• Emphasized the correct procedural order:
• First, respond to the Show Cause Notice on merits.
• Then, make procedural requests like cross-examination.
• This sequence is mandatory and cannot be reversed.

4. Extension Powers:

• Senior officers can grant extensions only after the initial statutory period ends:
• For cases under clause (a): Additional 6 months.
• For cases under clause (b): Additional 1 year.

Extensions are not automatic; they are at the discretion of the court. If no orders are issued within the extended period, the proceedings conclude automatically, as if no notice was ever issued. In this case, the appeal became ineffective due to the communication on 7th May 2024, which validly extended the limitation period. Therefore, the challenge to the limitation was premature, and the Madras High Court dismissed the appeal.

Understanding a Show Cause Notice

A Show Cause Notice is an official communication issued by a court, government agency, or other authoritative body to an individual or entity, requesting them to explain or justify their actions, decisions, or behavior. The purpose of this notice is to provide the recipient with an opportunity to respond or clarify specific concerns or alleged violations.

Section 28(9) of the Customs Act, 1962: An Overview

• Section 28(9) of the Customs Act, 1962, pertains to the determination of duty or interest by the proper officer under sub-section (8).
• The sub-section outlines the time frames within which the proper officer must make this determination, depending on the type of case.
• For cases falling under clause (a) of sub-section (1), the determination must be made within six months from the date of notice.
• For cases falling under sub-section (4), the determination period is extended to one year from the date of notice.
• The first proviso to Section 28(9) allows a senior officer to extend the period specified in clause (b) by one additional year, considering the circumstances that prevented the proper officer from making the determination.
• The second proviso to Section 28(9) states that if the proper officer fails to determine within the extended period, the proceedings shall be deemed concluded as if no notice had been issued.
• Section 28(9-A) outlines exceptions where the limitation period can be paused, such as when a similar matter is pending before higher authorities, an interim stay order has been issued, specific directions have been given by the Board, or the Settlement Commission has admitted an application.

No Cross Examination Request

Without a Reply in Show Cause Notice

Section 124: Issue of Show Cause Notice Before Confiscation of Goods

• Section 124(b) of the Customs Act mandates the issuance of a show cause notice before the confiscation of goods.
• The noticee is legally obligated to respond to this notice as per the provisions of the Act.

Section 138B: Relevancy of Statements Under Certain Circumstances

• Subsection (1) of Section 138B states that a statement made and signed by a person before a gazetted officer of customs during an inquiry or proceeding under the Customs Act is relevant for proving the truth of its contents in any prosecution for an offence under the Act.
• This is applicable when the person who made the statement is unavailable, such as in cases where they are deceased, missing, incapable of providing evidence, or being deliberately kept away by the opposing party.
• The statement is also admissible if the court believes it serves the interests of justice, even if the person who made it is available as a witness.
• The provisions of subsection (1) apply to proceedings under the Customs Act, other than court proceedings, in a similar manner as they do in court proceedings.

Condition of Pre-Deposit

In a recent ruling, the Rajasthan High Court, led by Justice Arun Monga, determined that the requirement for a pre-deposit under Section 148 of the Negotiable Instruments Act, 1881, is not mandatory. This decision was made in the case of Asha Devi v. Narayan Keer & Anr.

Background of the Case

Asha Devi, the petitioner, sought to suspend her sentence under Section 389 of the Criminal Procedure Code, 1973 (CrPC).

• The Sessions Court ruled that Asha Devi must pay 20% of the fine/compensation amount as per Section 148 of the Negotiable Instruments Act, 1881 (NI Act), to suspend her sentence.
• Failure to make this payment would result in the enforcement of the sentence imposed by the trial Court.
• The Sessions Court's decision was based on the premise that Section 148 of the NI Act requires a minimum of 20% of the fine amount to be paid to the complainant for the suspension of the sentence.
• Asha Devi, facing financial difficulties as a daily wage worker, argued that she could not afford to deposit such a large sum, prompting her appeal to the High Court.
• The Rajasthan High Court considered Asha Devi's financial situation and concluded that imposing the 20% pre-deposit condition would infringe upon her rights.
• The Court emphasized the importance of allowing Asha Devi to defend herself in the ongoing appeal, given her financial distress.
• As a result, the Court set aside the requirement for a 20% pre-deposit of interim compensation, prioritizing justice and the petitioner's rights.

Understanding Section 148 of the Negotiable Instruments Act (NIA)

Section 148 of the Negotiable Instruments Act (NIA) deals with the power of the Appellate Court to order payment pending appeal against conviction.

Section 148 (1): Condition of Pre-Deposit on Appeal

• Non-obstante Clause: This clause indicates that the provision overrides something in the Criminal Procedure Code (CrPC). It comes into play when an appeal is filed by the drawer against a conviction under Section 138 of the NIA.
• Appellate Court's Power: The Appellate Court may require the appellant to deposit a sum that is at least 20% of the fine or compensation awarded by the trial Court.
• Proviso: The amount specified in this section is in addition to any interim compensation the appellant may have paid under Section 143 A of the NIA.

Section 148 (2): Timeline for Deposit of Amount

• The amount specified in subsection 1 must be deposited within 60 days from the date of the order.
• This period can be extended by up to 30 days if sufficient cause is shown.

Section 148 (3): Direction for Release of Amount

• During the appeal process, the Appellate Court has the authority to order the release of the amount deposited by the appellant.
• Proviso: If the appellant is acquitted, the Court will direct the complainant to repay the released amount to the appellant. This repayment will include interest at the bank rate published by the Reserve Bank of India at the beginning of the relevant financial year.
• Time Period for Repayment: The repayment should be made within sixty days from the date of the order or within such further period not exceeding thirty days as directed by the Court, provided the complainant shows sufficient cause.

Landmark Judgments on Section 148 of NIA

Jamboo Bhandari v. MP State Industrial Development Corporation Ltd & Ors (2023):

• The Court emphasized a purposive interpretation of Section 148 of the NIA.
• Generally, the Appellate Court is justified in imposing a deposit condition under Section 148 of the NI Act.
• However, there are exceptions where a 20% deposit may be unjust or could deprive the appellant of their right to appeal.
• In such exceptional cases, the Appellate Court can suspend the sentence without the 20% deposit condition, but reasons for this decision must be recorded in writing.
• The Court reiterated that when the Appellate Court identifies an exceptional case, it should document the reasons for this conclusion.

Surinder Singh Deswal v. Virender Gandhi (2019):

• The Court examined whether the 2018 amendment to Section 148 of the NI Act was retrospective or prospective in application.
• It concluded that the amendment did not take away or affect any vested right of appeal for the accused-appellant.
• No substantive right of appeal was deemed to be compromised by the amendment.
• The Court determined that the amendments to Section 148 of the NIA are retrospective in nature based on the statement of object and reasons for the amendment and a purposive interpretation of the same.