Rajnesh Pal Naidu Vs Neha Naidu Joshi and Anr on 04 Nov 2020

Posted on November 4, 2020 by ShadesOfKnife

Rajnesh saar tried to hide his true financial status and got caught. Supreme Court became hyper and is jumping to “framing guidelines on payment of maintenance in matrimonial matters“. One bad apple, screws other good apples too… And this was passed on Sep 11th, 2019…!!!

The next hearing is scheduled on 14th October, 2019

Rajnesh Vs Neha and Anr on 11 September, 2019

Here is the earlier Bombay High Court Judgment.

Rajnesh Vs Neha and Anr on 14 August, 2018

Find the Earlier SC reportable judgment here.

Then, Supreme Court passed General Directions in regard to the menace of multiple maintenance litigation between spouses as follows.

Some crucial procedural guidelines with respect to interim maintenance proceedings…

(xi) Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of India :
(a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrate’s Court, as the case may be, throughout the country;
(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;
(c) The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent.
If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings.32
On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;
(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.
(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof.
(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC;
On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it necessary to do so;
The income of one party is often not within the knowledge of the other spouse. The Court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.
(g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended / supplementary affidavit, which would be considered by the court at the time of final determination.
(h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C., and for contempt of Court.
(i) In case the parties belong to the Economically Weaker Sections (“EWS”), or are living Below the Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit would be dispensed with.
(j) The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to decide the I.A. for Interim Maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.
(k) A professional Marriage Counsellor must be made available in every Family Court.

Some crucial procedural guidelines with respect to Permanent alimony

(i) Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.
(ii) In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid.
(iii) Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family.
(iv) If there are any trust funds / investments created by any spouse / grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.

Final Directions
In view of the foregoing discussion as contained in Part B – I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India :
(a) Issue of overlapping jurisdiction
To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:
(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.
(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B – III of the judgment. he aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B – IV above.
(e) Enforcement / Execution of orders of maintenance
For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.

Note: In my opinion, since all these proceedings are Civil in nature (no criminal liability at all meaning No jail), no one has to bother much about the same, as no care of concern is shown to address root causes:

Why do these proceedings take years together?
- Allowance of endless adjournments
- No strict demand for filling up of vacant Judge or magistrate posts/constituting additional Courts.
- No Case calendar approach (passed by one of the judges in this case here), despite the name-sake tag of summary proceedings.
Which husband in his sane mind, will want to live with a woman who drags him (and his family, in most cases!) to Court correctly/maliciously? Such relationship is dead for all practical purposes.
If there was such neglect by husband/male person, why no legal termination of marriage is NOT invoked suo moto/automatically?

Action Item:

This shall be addressed in one of my future PILs here.

Rajnesh Pal Naidu Vs Neha Naidu Joshi and Anr on 04 Nov 2020

Citations: [2020 SCC ONLINE SC 903], [(2021) 1 SCC (Cri) 749], [(2021) 2 SCC 324], [(2021) 2 SCC (Civ) 220], [(2020) 11JT 558], [2020 (6) KHC 1]

Other Sources : https://indiankanoon.org/doc/117541087/

https://www.casemine.com/judgement/in/5fa2f5f68e5f67910ddaf6ce

The HC dismissed the Crl Writ Petition challenging the Family Court Order in the 125 CrPC case.

Rajnesh Vs Neha and Anr on 14 Aug 2018

Family Court case no: Petition No. E-443/ 2013

A clarification was sought in this WP here. Order passed is given below.

Amarjeet Singh Vs Union of India on 14 Oct 2022

Another 2-judge bench of Apex Court has to Order re-circulation of above judgment in Aditi Sharma Vs Jitesh Sharma, because the Trial Court Judges stopped following Supreme Court judgement here. Exactly after 3 long years!!!

Index of all maintenance judgment is here.

Post Views: 1,178

Dr. Haniraj L. Chulani Vs Bar Council of Maharashtra and Goa on 8 Apr 1996

Posted on November 4, 2020 by ShadesOfKnife

Supreme Court held that,

A short but an interesting question falls for determination in the present case. It runs as under :
“Whether the respondent-State Bar Council of Maharashtra & Goa was justified in refusing enrollment of the appellant as an advocate under the Advocates Act, 1961 as he is a medical practitioner who does not want to give up his medical practice but wants simultaneously to practice law.

The Court also made the following points for consideration:

1. Whether impugned Rule (l) framed by the State Bar Council of Maharashtra & Goa suffers from the vice of excessive delegation of legislative power and hence is void and inoperative at law.
2. Whether the said rule is violative of Article 19(1)(9) and is not saved by sub-article (6) thereof.
3. Whether the aforesaid rule is violative of Articles 14 and 21 of The Constitution.

It is held as follows,

Point No.2.
It is no doubt true that under Article 19, sub-Article (1)(g) all citizens have a right to practise any profession, or to carry on any occupation, trade or business and any profession may include even plurality of professions. However, this is not an absolute right. It is subject to sub-Article (6) of Article 19 which lays down that nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. It cannot be gainsaid that litigants are also embers of general public and if in their interest any rule imposes a restriction on the entry to the legal profession and if such restriction is found to be reasonable Article 19(1)(g) would not get stultified. It is true that the appellant as a citizen of India having obtained the qualification required for being enrolled as an advocate can legitimately aspire to be enrolled as an advocate but his aforesaid right is fettered by the impugned rule framed by the State Bar Council. We have to consider whether the said restriction imposed by the rule is in any way unreasonable. We have to keep in view the fact that the impugned rule restricts entry of a person who is otherwise qualified for being enrolled as an advocate if he is already carrying on any other profession. Question is whether such a person carrying on other profession can be validly told off the gates by the State Bar Council by resorting to the impugned rule. In our view looking to the nature of the legal profession to which we have made detailed reference earlier the State Bar Council would be justified in framing such a rule prohibiting the entry of a professional who insists on carrying on other profession simultaneously with the legal profession. As we have seen earlier legal profession requires full time attention and would not countenance an advocate riding two horses or more at a time. He has to be full time advocate or not at all. Learned senior counsel for the appellant submitted that, even though the appellant is a practising surgeon he undertaking, if given entry to the legal profession, not to practice medicine during the court hours. This is neither here nor there. It is obvious that even though medical profession also may be a dignified profession a person cannot insist that he will be a practising doctor as well as a practising advocate simultaneously. Such an insistence on his part itself would create an awkward situation not only for him but for his own clients as well as patients. It is easy to visualize that a practising surgeon like the appellant may be required to attend emergency operation, even beyond court hours either in the morning or in the evening. On the other hand the dictates of his legal profession May require him to study the cases for being argued the next day in the court. Under these circumstances his attention would be divided. We would naturally be. in a dilemma as to whether to attend to his patient on the operation table in the evening or to attend to his legal profession and work for preparing cases fur the next day and to take instructions from his clients for efficient conduct of the cases next day in the court. If he is an original side advocate he may be required to spend his evenings and even late nights for making witnesses ready for examination in the court next day. Under these circumstances as a practising advocate if he gives attention to his clients in his chamber after court hours and if he is also required to attend an emergency operation at that very time, it would be very difficult for him to choose whether to leave his clients and go to attend his patient in the operation theater or to refuse to attend to his patients. If he selects the first alternative his clients would clamour, his preparation as advocate would suffer and naturally it would reflect upon his performance in the court next day. If on the other hand he chooses to cater to the needs of his clients and his legal work, his patients may suffer and may in given contingency even stand to lose their lives without the aid of his expert hand as a surgeon. Thus he would be torn between two conflicting loyalties, loyalty to his clients on the one hand and loyalty to his patients on the other. In a way he will instead of having the best of both the worlds, have worst of both the worlds. Such a person aspiring to have simultaneous enrollment both as a lawyer and as a medical practitioner will thus be like ’trishanku’ of yore who will neither be in heaven nor on earth. It is axiomatic that an advocates has to burn midnight oil for preparing his cases for being argued in the court next day. Advocate face examination every day when they appear in courts. It is not as if that after court hours advocate has not to put in hard work on his study table in his chamber with or without the presence of his clients who may be available for consultation. To put forward his best performance as an advocate he is required to give wholehearted and full time attention to his profession. Any flinching from such unstinted attention to his legal profession would certainly have an impact on his professional ability and expertise. If he is permitted to simultaneously practise as a doctor then the requirement of his full time attention to the legal profession is bound to be adversely affected. Consequently however equally dignified may be the profession of a doctor he cannot simultaneously be permitted to practise law which is a full time occupation. It is for ensuring the full time attention of legal practitioners towards their profession and with a view to bringing out their best so that they can fulfill their role as an officer of the court and can give their best in the administration, of justice, that the impugned rule has been enacted by the State legislature. It, therefore, cannot be said that it is in any way arbitrary or that it imposes an unreasonable restriction on the new entrant to the profession who is told not to practise, simultaneously any other profession and if he does so to deny to him entry to the legal profession. It is true as submitted by learned senior counsel for the appellant that the rule of Central Bar Council does not countenance an advocate simultaneously carrying on any business and it does not expressly frawn upon any simultaneous profession. But these are general rules of professional conduct. So far as regulating enrollment, to the profession is concerned it is the task entrusted solely to the State Bar Council by the Legislature as seen earlier while considering the scheme of the Act. While carrying on that task if the entry to the profession is restricted by the State Bar Council by enacting the impugned rule for not allowing any other professional to enter the Bar. When he does not want to give up the other profession but wants to carry on the same simultaneously with legal practice, it cannot be said that the Bar Council has by enacting such a rule imposed any unreasonable restriction on the fundamental right of the prospective practitioner who wants to enter the legal profession.

Dr. Haniraj L. Chulani Vs Bar Council of Maharashtra and Goa on 8 April 1996

Citations : [1996 SUPREME 3 443], [1996 SCC 3 342], [1996 AIR SC 1708], [1996 SCALE 3 354], [1996 ALT SC 2 31], [1996 GLH 1 734], [1996 SCC 3 343], [1996 SUPP SCR 1 51], [1996 TAXMAN SC 86 70], [1996 JT SC 4 162]

Other Sources :

https://indiankanoon.org/doc/77295/

https://www.casemine.com/judgement/in/5609acdbe4b014971140fd9a

Index of Bar Council Antics is here.

Post Views: 529

Amardeep Singh Vs Harveen Kaur on 12 Sep 2017

Posted on November 4, 2020 by ShadesOfKnife

A division bench of Supreme Court held that the 6 months of cooling period prescribed in Mutual-Consent divorce proceedings under Hindu Marriage Act are directional in nature and not mandatory.

18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :
i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
iv) the waiting period will only prolong their agony.
19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.
21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
22. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.

Amardeep Singh Vs Harveen Kaur on 12 Sep 2017

Citations : [2017 SCC 8 746], [2017 SCC ONLINE SC 1073], [2017 AIR SC 4417], [2017 ALT 5 23], [2017 BOMCR 6 773], [2017 CGLJ 4 157], [2017 CTC 5 665], [2017 DLT 242 264], [2017 DMCSC 3 277], [2017 ILR KER 4 1], [2017 ILR 4081], [2017 JLJR 4 21], [2017 JCC 3 2196], [2017 KHC 4 683], [2017 KLJ 4 179], [2017 KLT 4 367], [2017 MPLJ 4 41], [2017 MHLJ 5 804], [2017 PLJR 4 37], [2017 RLW SC 4 2910], [2017 RCR CIVIL 4 608], [2017 SCALE 11 258], [2017 WLN SC 3 145], [2017 SCC CRI 3 505], [2017 SCC CIV 4 804]

Other Sources :

https://indiankanoon.org/doc/79830357/

https://www.casemine.com/judgement/in/59b82810ce686e45ff91e3ea

https://www.indianemployees.com/judgments/details/amardeep-singh-versus-harveen-kaur

Additional guidelines/factors were issued in Amit Kumar Vs Suman Beniwal here.

Index of Divorce cases is here.

Post Views: 667

Samta Naidu Vs The State of MP on 2 March 2020

Posted on November 2, 2020 by ShadesOfKnife

Supreme Court held that, a second complaint is maintainable, if the first complaint was disposed without looking into merits of the case. But such second complaint must bring about new facts to the fore and the reasons for late introduction via second complaint have to be explained.

Samta Naidu Vs The State of MP on 2 March 2020

Citations :

Other Sources :

https://indiankanoon.org/doc/136092640/

https://www.indianemployees.com/judgments/details/samta-naidu-anr-versus-state-of-madhya-pradesh-and-anr

Samta Naidu & Anr. vs. State of Madhya Pradesh and Anr.

Post Views: 107

Police-Forces (Restriction of Rights) Act, 1966

Posted on November 2, 2020 by ShadesOfKnife

The following is the punishable offence in this Act.

3. Restrictions respecting right to form association, freedom of speech, etc.—

(1) No member of a police-force shall, without the express sanction of the Central Government or of the prescribed authority,— (a) be a member of, or be associated in any way with, any trade union, labour union, political association or with any class of trade unions, labour unions or political associations; or (b) be a member of, or be associated in any way with, any other society, institution, association or organisation that is not recognised as part of the force of which he is a member or is not of a purely social, recreational or religious nature; or (c) communicate with the press or publish or cause to be published any book, letter or other document except where such communication or publication is in the bona fide discharge of his duties or is of a purely literary, artistic or scientific character or is of a prescribed nature. Explanation.—If any question arises as to whether any society, institution, association or organisation is of a purely social, recreational or religious nature under clause (b) of this sub-section, the decision of the Central Government thereon shall be final.(2) No member of a police-force shall participate in, or address, any meeting or take part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be prescribed.

… and the following is the Punishment

4. Penalty.—

Any person who contravenes the provisions of section 3 shall, without prejudice to any other action that may be taken against him, be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.

Police-Forces (Restriction of Rights) Act, 1966

Post Views: 129

Lily Thomas and Ors Vs Union of India and Ors 05 May 2000

Posted on November 2, 2020 by ShadesOfKnife

In this landmark precedent from Supreme Court, it was held that marriages performed after converting to Islam are not acceptable as valid marriages. This is popularly known as Love Jihad in India.

Casemine version:

Lily Thomas and Ors Vs Union of India and Ors 05 May 2000 Casemine

Indiakanoon version:

Lily Thomas and Ors Vs Union of India and Ors 05 May 2000

Citations : [2000 ALLMR SC 3 251], [2000 AIR SC 1650], [2000 UJ SC 2 1113], [2000 SCALE 4 176], [2000 SCC CRI 1056], [2000 SUPREME 3 601], [2000 AIR SC 1760], [2000 CRLJ SC 2433], [2000 JT 5 617], [2000 SCC 6 224], [2000 BOMCR SC SUPP 1 464], [2000 AIR SCW 1760]

Other Sources :

https://indiankanoon.org/doc/80351/

https://www.casemine.com/judgement/in/5609ad87e4b0149711411995

Post Views: 65

Love Jihad marriages in India

Posted on November 2, 2020 by ShadesOfKnife

The following is a small compilation (State-wise) of Love Jihad marriages in India, wherein the bride had converted to Islam from other religions, before performing marriage, which is loosely called as Love Jihad, as it is popularly held that Muslims do such thing, to propagate their religion. Such marriages are held to be unacceptable by Supreme Court here and by Allahabad High Court here.

Uttar Pradesh:

On 2020-09-23:

Priyanshi @ Km Shamreen and Anr Vs State of UP and 3 Ors on 23 Sep 2020

On 2020-10-08:

Pooja @ Zoya Vs State of UP and 3 Ors on 08 Oct 2020

Post Views: 108

Request for Approval of revised estimates for Polavaram Project

Posted on November 1, 2020 by ShadesOfKnife

Just read and enjoy !!!

Request for Approval of revised estimates

Post Views: 131

Noor Jahan Begum @ Anjali Mishra and Anr Vs State of UP and 4 Ors on 16 Dec 2014

Posted on November 1, 2020 by ShadesOfKnife

Based on the landmark judgment from Supreme Court is here, Allahabad High Court held against the Love Jihad marriages in India.

Noor Jahan Begum @ Anjali Mishra and Anr Vs State of UP and 4 Ors on 16 Dec 2014

Citations :

Other Sources :

https://indiankanoon.org/doc/22354729/

Many such Love Jihad marriages are listed here, for awareness purpose, as nothing can be done to such legally major ladies.

Post Views: 61

Shades of Knife

True Colors of a Vile Wife

Rajnesh Pal Naidu Vs Neha Naidu Joshi and Anr on 04 Nov 2020

Dr. Haniraj L. Chulani Vs Bar Council of Maharashtra and Goa on 8 Apr 1996

Samta Naidu Vs The State of MP on 2 March 2020

Police-Forces (Restriction of Rights) Act, 1966

Lily Thomas and Ors Vs Union of India and Ors 05 May 2000

Love Jihad marriages in India

Request for Approval of revised estimates for Polavaram Project

Noor Jahan Begum @ Anjali Mishra and Anr Vs State of UP and 4 Ors on 16 Dec 2014