Annadurai Vs Jaya on 21 Apr 2023

Posted on April 30, 2023 by ShadesOfKnife

A single judge of Madras High Court held that the maintenance arrears of a deceased daughter are her property and such property is inheritable to her mother under HSA.

From Para 2, (crucial piece of fact)

2.The fact of the case is that the petitioner is the husband. The respondent is the mother-in-law of the petitioner. The petitioner married the respondent’s daughter Saraswathi in the year 1991. Due to misunderstanding, they separated. The petitioner/ husband by filing a divorce petition under Section 13 (1)(i) (b) of Hindu Marriage Act before the Sub Court, Seyyur, got a divorce decree by an order dated 20.01.2005. Thereafter, Saraswathi filed a maintenance case in M.C.No.1 of 2014 before the Judicial Magistrate No.II, Madurantagam. After trial of the maintenance case, the learned Judge awarded a monthly maintenance of Rs.7,500/- payable by the petitioner/husband to his wife Saraswathi on 22.01.2021 and the amount was ordered to pay from the date of petition i.e. on 04.01.2014.

Continuing from same Para,

For collecting the arrears of maintenance, the wife Saraswathi filed an application in CMP.No.678 of 2021 in M.C.No.1 of 2014 before the Judicial Magistrate No.II, Maduranthagam. In the petition, she claimed the arrears of maintenance amount of Rs.6,37,500/-. Pending petition, the wife
Saraswathi died on 05.06.2021. Thereafter, her mother filed CMP.No.2529 of 2021 to implead her as a petitioner and to permit her to recover the
arrears of maintenance amount of Rs.6,22,500/-. The learned Judge, after hearing both the parties, allowed the petition for impleading the mother-in-law of the petitioner as petitioner for collecting the arrears of maintenance amount of Rs.6,22,500/- on the ground that she all along acted as a
guardian to the deceased wife Saraswathi as she was mentally affected and also a legal heir to the deceased daughter. Aggrieved by this order, the
petitioner/husband filed the present criminal revision case, which is under challenge.

My Assessment:

Once the competent Court held that the divorce was granted on the ground of desertion, there is no scope of granting maintenance u/s 125 CrPC, in the view of Sec 125(4) CrPC. All this farce could have been avoided if the Petitioner herein, moves to cancel the maintenance Order, on the weight of divorce on the ground of desertion.

Annadurai Vs Jaya on 21 Apr 2023

Rakesh Raman Vs Kavita on 26 Apr 2023

Posted on April 27, 2023 by ShadesOfKnife

A division bench of the Supreme Court held as follows in a divorce matter between a couple who lived separately for 25 years…

From Para 8,

8. This case has travelled from the Family Court to the High Court and now finally to this Court. The decision of Delhi High Court is of 08.04.2011, which goes back to twelve years. We have to take into consideration all the facts which are before us as of now. To our mind the facts which we must take into account are: (i) that the “couple” is now living separately for the last almost 25 years, and all these years there has been no cohabitation between them. (ii) That there is no child out of the wedlock, and the couple lived together as husband and wife for barely 4 years. (iii) That repeated efforts by the Courts for reconciliation or settlement have resulted in failure.

From Para 10,

10. The husband and wife, who are before us have been living separately since the last 25 years. There is no child out of the wedlock. There are bitter allegations of cruelty and desertion from both the sides and multiple litigations between the two in the last more than 25 years. This embittered
relationship between the appellant and the respondent which has not witnessed any moment of peace for the last 25 years is a marital relationship only on paper. The fact is that this relationship has broken down irretrievably long back.

From Paras 12 and 13,

12. Other aspect which we must consider is the fact that for the last 25 years the appellant and respondent, are living separately, and have not cohabitated. There is absolutely no scope of reconciliation between the parties. There is in fact no bond between the two and as the Law Commission in its 71st report said about such a marriage, which is a marriage which has de facto broken down, and only needs a de jure recognition by the law. The same was reiterated by the Law Commission in its 217th report.
13. Under similar circumstances, this Court in R. Srinivas Kumar v. R. Shametha3, Munish Kakkar v. Nidhi Kakkar4 and Neha Tyagi v. Lieutenant Colonel Deepak Tyagi5 has held that an irretrievable marriage is a marriage where husband and wife have been living separately for a considerable period and there is absolutely no chance of their living together again. In all the above cited three cases, this Court in exercise of its power under Article 142 of the Constitution of India has dissolved the marriage on the ground of irretrievable breakdown as a ground, which otherwise does not exist under the Hindu Marriage Act.

Finally, Para 20,

20. However, considering the fact that the appellant/husband is an employee in Life Insurance Corporation, as we have been informed at the Bar and his present salary is more than Rs.1,00,000/(One Lakh Rupees) per month, we deem it fit and proper that he gives an amount of Rs.30,00,000/ (Thirty Lakh Rupees) to the respondent/wife as permanent alimony. This amount of Rs.30,00,000/ (Thirty Lakh Rupees) shall be deposited in the name of the respondent, within a period of four weeks from today with the Registry of this Court. The decree of divorce shall be made effective only from the date of such a deposit. On the event of such deposit, the Registry after verifying the credentials of the respondent/wife shall disburse the amount to the respondent/wife without further reference to this Court.

Rakesh Raman Vs Kavita on 26 Apr 2023

Jitendra Kumar Rode Vs Union of India on 24 Apr 2023

Posted on April 27, 2023 by ShadesOfKnife

A division bench of Apex Court passed these guidelines, with respect to digitization of Court records in all High Courts as well as District Courts.

From Paras 39-42,

39. Before parting with the present leave petition another important issue must be dealt with, i.e. the digitization of records. Technology has, in the present time become increasingly enmeshed with the systems of dispute resolution and adjudication with the trends pointing leading to all the more interplay, both supplementary and complimentary between technology and law.
40. On 24.9.2021, the learned E-committee of the Supreme Court of India issued an SOP for digital preservation. Step by step implementation of the digitization process involves eighteen steps therein. Primarily, it requires all High Courts to establish Judicial Digital Repositories (JDR) as well as the
standardized system therefor; A digitisation cell at each of the High Courts is to be established to monitor the progress on day to day basis; It is the work of the cell to manage contracts with vendors for specialized services; an online data tracking system to keep track of the data transferred to the High Courts and to facilitate the receipts for each set of transferred records to the District Courts as well; District Courts to have backups
of all data transferred to the High Court on a monthly basis while maintaining an independent record thereof.
41. It cannot be doubted that had there been properly preserved records of the Trial Court, the issue in the present appeal as to whether the High Court could uphold a conviction having not perused the complete Trial Court record, would not have arisen. Judicial notice can be taken of the fact that, in accordance with the SOP issued, private entities providing specialized service have been contracted, and therefore considering the importance and essentiality of such record, a robust system of responsibility and accountability must be developed and fostered in order to ensure the proper protection and regular updation of all records facilitating the smooth functioning of the judicial process.
42. Therefore, this Court finds it fit to issue the following directions:
1. The Registrar General of the High Courts shall ensure that in all cases of criminal trial, as well as civil suits, the digitization of records must be duly undertaken with promptitude at all District Courts, preferably within the time prescribed for filing an appeal within the laws of procedure.
2. The concerned District Judge, once the system of digitization along with the system of authentication of the digitized records is in place in their judgeship, to ensure that the records so digitized are verified as expeditiously as possible.
3. A continually updated record of Register of Records digitized shall be maintained with periodic reports being sent to the concerned High Courts for suitable directions.
4. Interlocutory application(s), if any, shall stand disposed of.

Jitendra Kumar Rode Vs Union of India on 24 Apr 2023

Javed Ahmad Vs State of U.P. and Anr on 13 Feb 2023

Posted on April 13, 2023 by ShadesOfKnife

A single judge bench of Allahabad High Court held as follows,

It is true that filing of first information report (F.I.R.) is not a condition precedent to exercise the power under Section 438(1) Cr.P.C., as held in Gurbaksh Singh Sibbia Vs. State of Punjab,(1980) 2 SCC 565, but at the same time it is also to be kept in mind, as held in the aforesaid case by the Hon’ble Apex Court, that“when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based onconcrete facts (and not vague or general allegations) relatable to a specific offence or particular offences. Applications for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court which is considering the application, the extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier,so long as the facts are clear and there is reasonable basis for apprehending arrest.“

Then, What is ‘Reason to Believe‘?

The Hon’ble Apex Court in Adri Dharan Das Vs. State of West Bengal, (2005) 4 SCC 303 has emphasized over this requirement and held as under.
“Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 CrPC convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that has some sort of vague apprehension that some one is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out of for granting of the relief sought. (Para 16)”
The aforesaid theory makes the legal position explicit that Section 438 (1) of Cr.P.C. applies not only at post FIR stage, but it does not require that the offence must have been registered. It is contemplated by this section that if a person is going to apply for anticipatory bail, he must have a reasonable belief that he may be arrested on accusation of having committed a non-bailable offence.

Javed Ahmad Vs State of U.P. and Anr on 13 Feb 2023

In Re Policy Strategy for Grant of Bail (Guidelines Issued) on 31 Jan 2023

Posted on April 4, 2023 by ShadesOfKnife

A 3-judge bench passed these directions, in relation to release of undertrial prisoners/convicts who were granted bail.

With a view to ameliorate the problems a number of directions are sought. We have examined the directions which we reproduce hereinafter with
certain modifications:
“1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department].
2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the
Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release.
3) NIC would make attempts to create necessary fields in the e-prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA.
4) The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety.
5) In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties.
6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation.
7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts
may not impose the condition of local surety.”
We order that the aforesaid directions shall be complied with.

In Re Policy Strategy for Grant of Bail (Guidelines Issued) on 31 Jan 2023

Shades of Knife

True Colors of a Vile Wife

Month: April 2023

Annadurai Vs Jaya on 21 Apr 2023

Rakesh Raman Vs Kavita on 26 Apr 2023

Jitendra Kumar Rode Vs Union of India on 24 Apr 2023

Javed Ahmad Vs State of U.P. and Anr on 13 Feb 2023

In Re Policy Strategy for Grant of Bail (Guidelines Issued) on 31 Jan 2023