A small collections of Judgments which state that, All/any agreements against Public Policy are Void.
Author: ShadesOfKnife
Bai Tahira A Vs Ali Hussain Fissalli Chothia and Anr on 06 Oct 1978
A full bench of Apex Court held that, a statutory right created as a projection of public policy can not be negated by a contract.
The last defence, based on mehar payment, merits more serious attention. The contractual limb of the contention must easily fail. The consent decree of 1962 resolved all disputes and settled all claims then available But here is a new statutory right created as a projection of public policy by the Code of 1973, which could not have been in the contemplation of the parties when in 1962, they entered into a contract to adjust their then mutual rights. No settlement of claims which does not have the special statutory right of the divorcee under s. 125 can operate to negate that claim.
Citations : [1979 SCC CRI 473], [1979 SCR 2 75], [1979 AIR SC 362], [1979 MPLJ SC 132], [1979 CRLJ SC 151], [1979 SCC 2 316]
Other Sources :
https://indiankanoon.org/doc/359354/
https://www.casemine.com/judgement/in/575fd27f607dba63d7e69d57
Index is here.
Bulbuli Saikia Vs Jadav Saikia on 17 May 2022
Single Judge bench of Gauhati High Court held, any agreement which is against public policy is void.
From Para 18,
18. In Ranjit Kaur (Supra), the Division Bench of Punjab and Haryana High Court held that maintenance is a statutory right, which the legislature has framed irrespective of nationality, cast or creed of the parties. The statutory liability under Section 125 is, therefore, distinct from the liability under any other law. Therefore, the statutory right of a wife of a maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision. Therefore, giving effect to an agreement, which overrides this provision of law, that is, Section 125 of Cr.P.C. would tantamount to not only giving recognition to something, which is opposed to public policy, but would also amount to negation of it. The law makes a clear distinction between a void and illegal agreement and void but legal agreement. It has also been held that an agreement by which the wife waived her right to claim maintenance would be a void agreement as against public policy.
Index is here.
Kamal Anant Khopkar Versus Union of India and Anr
A full bench of Apex Court began looking into the Constitutional validity of Section 15 – General rules of succession in the case of female Hindus from Hindu Succession Act 1956.
Learned Additional Solicitor General appears for the Union of India and asks and gets a period of six weeks to file counter affidavit by the Union of India
More time given… already 4 years passed but the Central government did not file the Counter.
Another petitioner also challenged the same provision of HSA and this one got tagged with above main case…
The National Highway Projects in the State of Bihar Vs State of Bihar on 10 May 2022
The Court-1 of Patna High Court passed the following guidelines to the State and Oil Companies…
69. In furtherance of the above discussions, we find it necessary to issue the following directions:-
i) The Chief Secretary, Government of Bihar, to convene a meeting of all stakeholders to examine the best and most efficient way to realize the multifarious benefits arising from the establishment of petrol pumps with equal importance being placed upon economic, social and environmental aspects. Also ensure that a sample survey for ascertaining the requirement of additional fresh Petrol Pumps/Gas Retail Outlets is carried out at the earliest.
ii) The Development Commissioner, Government of Bihar, who is already seized of the matter shall take expedient steps in furtherance of the action(s) taken thus far.
iii) The State, National Highways Authority of India and the Oil Marketing Companies consider constituting Public toilets and public conveniences at places easily identifiable and accessible by the public at large, and in this regard, signboards of “Public Toilets” or “Private Toilets” be displayed at the retail outlets. Such facilities should be easily accessible by the ladies walking or driving on the roads.
iv) The amenities constructed should be done so, keeping in mind accessibility for persons with disabilities. The State has a responsibility to provide them equitable access to basic amenities while undertaking road travel, in light of the Constitution of India and the various international Human Rights obligations.
v) All toilets be adequately staffed for taking care and maintaining the same with a proper system for the disposal of sanitary napkins.
vi) Authorities may also consider making it necessary/mandatory for all the Dhabas/ Restaurants on the highways to make available public toilets and drinking water facilities for the use of the general public. While granting permission to such establishments, authorities should consider incorporating specific conditions regarding the provision of toilets and restrooms. Also, maintain the same hygiene, failing which their registration/ permit is cancelled.
vii) The State Authorities and corresponding Central Authorities will take expedient steps to check the practice of the black-marketing or open unauthorized sale of petrol/diesel and initiate action after the proper investigation against units aiding the perpetuation of such practice.
viii) The Oil Marketing Companies to take steps to verify the continued interest or otherwise of the allottees/proposed allottees. The entire pending
process of allotment shall be finalized within the time stipulated in the minutes of the Development Commissioner, Bihar.
ix) The authorities may consider the development of a mechanism to:-
(a) institute a randomized checking system to ensure facilities and resources’ quality and proper availability.
(b) in consultation with OMCs and furtherance of the Statutory obligation take constructive steps to ensure sustainable use of resources and all other
related issues.
(c) Prepare a digital platform furnishing complete information of such places of convenience to the general public with a provision of lodging online remarks.
Maintenance after Mutual Consent Divorce
A (legal) cancer that is (Multiple) Maintenance after Mutual Consent Divorce dealt by various Courts.
- Ruchi Agarwal Vs Amit Kumar Agrawal and Ors on 5 Nov 2004 [SC: Once MCD done with agreement on no future claims, maintenance cannot be claimed later]
- Ganesh Vs Sudhirkumar Shrivastava and Ors on 22 Apr 2019 [SC: A Mother getting MCD could not have waived off the right to maintenance of her daughter from her father]
- Rajnesh Pal Naidu Vs Neha Naidu Joshi and Anr on 04 Nov 2020 [SC: Lots of guidelines for the menace of maintenance litigation in India]
- Prasenjit Mukherjee Vs State of West Bengal and Ors on 02 Sep 2021 [Calcutta HC: Referred to Larger (Division Bench)]
Index of Maintenance judgments under Hindu Marriage Act is here.
Ganesh Vs Sudhirkumar Shrivastava and Ors on 22 Apr 2019
Supreme Court says,
Terms from Consent Sheet for MCD:
5) The applicant has released the right of, monthly maintenance, permanent alimony and stridhan on non-applicant.
6) The applicant has released the right of monthly maintenance to the daughter with the non-applicant. The applicant has fully accepted responsibilityBefore we part with, we must also express our reservation insofar as Term No.6 is concerned, which was incorporated in the order on 08.11.2017 by the Principal Judge, Family Court, Aurangabad. It was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan but she could not have given up the rights which vest in the daughter insofar as maintenance and other issues are concerned.
We, therefore, exercising our powers under Article 142 of the Constitution of India, set-aside Clause (6) of the Consent Terms. Rest of the order stands unaltered and ought to be given effect to.
Prasenjit Mukherjee Vs State of West Bengal and Ors on 02 Sep 2021
A single judge of Calcutta High Court held as follows:
On an examination of the controversy involved in the present case in the background of the law laid down in Rakesh Malhotra (supra) once it comes to the knowledge of the learned Magistrate that the marriage between the parties have been dissolved by a decree of divorce under the relevant provisions of Section 13B of the Hindu Marriage Act and it is found that the wife has received a lump-sum amount as onetime payment towards maintenance, what would be the procedure adopted in the following circumstances:
(a) A fresh case under Section 125 of the Code of Criminal Procedure is filed.
(b) The proceedings under Section 125 of the Code of Criminal Procedure was pending and the Civil Court has dissolved the marriage by decree of divorce and there was no information before the Civil Court regarding the pendency of the proceedings under Section 125 of the Code of Criminal Procedure.
(c) Procedure/steps to be adopted by the learned Magistrate if the proceedings under Section 125 of the Code of Criminal Procedure and the proceedings under Section 13B of the Hindu Marriage Act (which has already been decided) are in different sub-divisions or different districts or different States.
As the aforesaid questions involve serious ramification so far as the proceedings under Section 125 of the Code of Criminal Procedure are concerned, I am of the view that the same is to be referred and settled by a Larger Bench (as there are conflicting judgments of this Court on the point).
Accordingly, the record of the case be placed before The Hon’ble The Chief Justice (Acting), High Court at Calcutta.
The case was ordered to be listed but it’s been over 8 months, the Judges did not find time to look in it…
MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022
Supreme Court referred to the Part II of the First Schedule of the Cr.P.C. to decide if a penal provision in any law is a cognizable or non-cognizable offence.
5.1 The short question which is posed for consideration before this Court is, whether, the offence under Section 63 of the Copyright Act is a cognizable offence as considered by the Trial Court or a non-cognizable offence as observed and held by the High Court.
5.2 While answering the aforesaid question Section 63 of the Copyright Act and Part II of the First Schedule of the Cr.P.C. are required to be referred to.
5.3 Thus, for the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is acognizable offence. Only in a case where the offence is punishable for imprisonment for less than three years or with fine only the offence can be said to be non-cognizable. In view of the above clear position of law, the decision in the case of Rakesh Kumar Paul (supra) relied upon by learned counsel appearing on behalf of respondent no.2 shall not be applicable to the facts of the case on hand. The language of the provision in Part II of First Schedule is very clear and there is no ambiguity whatsoever.
Citations :
Other Sources :
Prabha Tyagi Vs Kamlesh Devi on 12 May 2022
A division bench of Apex Court as follows,
From Para 52,
52. In view of the above discussion, the three questions raised in this appeal are answered as under:
“(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?” It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.
“(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?” It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.
“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?” It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.
Citations : [2022 SCC ONLINE SC 607]
Other Sources :
https://indiankanoon.org/doc/85317640/
https://www.casemine.com/judgement/in/627eb23ab50db90fd1943198
https://www.indianemployees.com/judgments/details/prabha-tyagi-vs-kamlesh-devi
https://www.scconline.com/blog/post/2022/05/18/right-residence-shared-household-actual-residence-domestic-violence-subsisting-domestic-relationship-supreme-court-india-judgments-legal-law-research-updates-news/
This decision (with respect to shared householding requirement in DV cases) overrules decision by Andhra Pradesh High Court here.
Index of DV Cases here.
