MS Godrej Sara Lee Limited Vs Excise and Taxation Officer cum AO and Ors on 01 Feb 2023

Posted on October 25, 2023 by ShadesOfKnife

A division bench of Supreme Court held that, Not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for a Writ’s dismissal.

Further it was held that, A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest.

From Para 4,

4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable”. In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.

MS Godrej Sara Lee Limited Vs Excise and Taxation Officer cum AO and Ors on 01 Feb 2023

Citations : [2023 INSC 92], [2023 SCC ONLINE SC 95]

Other Sources :

https://indiankanoon.org/doc/62928741/

https://www.casemine.com/judgement/in/63dc0f95831db01604ba254b

https://www.courtkutchehry.com/Judgement/Search/AdvancedV2?docid=2368646

https://www.indianemployees.com/judgments/details/m-s-godrej-sara-lee-ltd-vs-the-excise-and-taxation-officer-cum-assessing-authority

https://www.verdictum.in/court-updates/supreme-court/godrej-taxation-alternative-remedy-not-absolute-writ-petition-maintainability-entertainability-apex-court-1460513

Godrej Sara Lee Limited Vs The Excise and Taxation officer-cum-Assessing Authority & Ors (Supreme Court)

Deepti Vs Anil Kumar on 19 Sep 2023

Posted on October 15, 2023 by ShadesOfKnife

A division bench of Delhi High Court held that Family Courts cannot grant divorce on ground of Irretrievable Breakdown of Marriage.

From Para 4,

4. The Respondent also alleged that from the very first day of marriage, Appellant created scenes at night hours and most of the times did not allow him to enjoy his conjugal rights. She refused him to have access to her and inflicted cruelty upon him. He further alleged that he was allowed by the Appellant only 30-35 times (approximately) to enjoy conjugal relations since their marriage.

From Para 7 and 8,

7. In respect of the ground of cruelty, the Family Court has held that “there was no normal and healthy sexual relationships between (Respondent) and his wife (Appellant) and same has resulted in striking at the very foundation of their marriage. It has been well settled that normal and healthy sexual Relationships between both spouse is one of the basic ingredients for happy and harmonious marriage as the marriage without sex is an anathema. Sex is foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue.”
8. The Family Court after holding that there was denial of conjugal relations, noticed that parties had been living separately for more than 11 years and held that the marriage had broken down beyond repair and thus held that the Respondent had successfully established cruelty and thus granted a decree of divorce against the Appellant.

From Para 17,

17. Said ground is clearly not available to the Respondent and the Family Court has erred in returning a finding that there is denial of conjugal relationship by the Appellant. The allegations of the Respondent of denial of conjugal relationship are vague and without any specifics. He has alleged that he was allowed by the Appellant only 30-35 times (approximately) to enjoy conjugal relations since their marriage. This clearly shows that there was never any complete denial.

From Para 25,

25. In terms of the Judgment of the Constitution Bench of the Supreme Court in Shilpa Sailesh (supra), the power to grant divorce on the ground of irretrievable breakdown of marriage is exercised by the Supreme Court under Article 142 of the Constitution of India to do complete justice to both the parties. Such a power is not vested in the High Courts leave alone the Family Courts.
26. In the instant case, the Family Court has merely considered the fact that the parties have lived separately for 11 years and granted divorce on the ground of breakdown of marriage. Such an exercise of powers is not conferred on the Family Court. Family Courts have to restrict their considerations to the parameters of the provision of grant of divorce strictly in accordance with the Act. Irretrievable breakdown of marriage is not a ground in the Act.
27. Even the Supreme Court while considering exercise of discretionary powers under Article 142 of the Constitution of India takes into account several factors and longevity of period is only one of them. Reference may be had to Para 41 of Shilpa Sailesh (supra) extracted hereinabove. Supreme Court has placed a word of caution that “grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties. It is obvious that this Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established.”
28. In the present case, the Family Court has erred in travelling beyond the scope of its powers to grant divorce.

Deepti Vs Anil Kumar on 19 Sep 2023

Bimla Tiwari Vs State of Bihar and Ors on 16 Jan 2023

Posted on October 12, 2023 by ShadesOfKnife

In this reportable decision of Supreme Court, it was held that the process of criminal law, particularly in matters of grant of bail, is not akin to money recovery proceedings. Recovery of money is essentially within the realm of civil proceedings.

From Paras 9-11,

9. We have indicated on more than one occasion that the process of criminal law, particularly in matters of grant of bail, is not akin to money recovery proceedings but what has been noticed in the present case carries the peculiarities of its own.
10. We would reiterate that the process of criminal law cannot beutilised for arm-twisting and money recovery, particularly while opposing the prayer for bail. The question as to whether pre-arrest bail, or for that matter regular bail, in a given case is to begranted or not is required to be examined and the discretion isrequired to be exercised by the Court with reference to the material on record and the parameters governing bail considerations. Putting it in other words, in a given case, theconcession of pre-arrest bail or regular bail could be declined even if the accused has made payment of the money involved oroffers to make any payment; conversely, in a given case, the concession of pre-arrest bail or regular bail could be granted irrespective of any payment or any offer of payment.
11. We would further emphasize that, ordinarily, there is nojustification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the personapprehending arrest ought to make payment. Recovery of money is essentially within the realm of civil proceedings.

From Para 15,

15. Thus, it is noticed that these criminal proceedings are being prosecuted only as money recovery proceedings. We have expressed reservations even as regards the aforesaid order dated 10.03.2022, wherein the High Court has proceeded on the propositions of offer made by the co-accused of payment of the sum of Rs.6,00,000/- (six lakhs) and acceptance thereof by the informant (present petitioner). However, since the said order is not before us, we would refrain from making any directions in that regard and else, in our view, even the said order too, on the proposition of granting bail with reference to payment, has its own shortcomings.
16. Even when we are not modifying the condition in the said order dated 10.03.2022 for the same being not before us, so far as the impugned order dated 14.11.2022 is concerned, in our view, it shall be in the interest of justice to annul the requirement of payment of a sum of Rs. 75,000/- (seventy-five thousand) by the accused-respondent No. 2. Hence, the order granting pre-arrest bail to the respondents stands affirmed but, the condition therein, of payment of Rs.75,000/- (seventy-five thousand) by the respondent No.2, stands annulled.

Bimla Tiwari Vs State of Bihar and Ors on 16 Jan 2023

Index of all Bail Matters is here.

Shane George Dsouza Vs State of NCT of Delhi on 04 Oct 2023

Posted on October 12, 2023 by ShadesOfKnife

A division bench of Supreme Court held that criminal proceedings cannot be converted into recovery proceedings.

This Court has repeatedly held that the condition of deposit of such amount cannot be a condition of bail. In this case, the appellant had not volunteered to deposit the sum of Rs.10,00,000/- (Rupees ten lakhs). The direction in the order dated 18th January, 2023 is not only of imposing a condition on the appellant of bringing a sum of Rs.10,00,000/- (Rupees ten lakhs) to the Trial Court but a permission has been granted to release the amount to the victim. It is a settled law that criminal proceedings cannot be converted into recovery proceedings.
Hence, in the facts of the case, there was no justification for imposing the condition of deposit of Rs.10,00,000/- (Rupees ten lakhs). Accordingly, the appeal must succeed and we set aside clause (a) of the operative part of the order dated 18th January, 2023 passed by the Additional Sessions Judge-05, New Delhi District, Patiala House Courts, New Delhi. The rest of the conditions shall remain as it is.

Shane George Dsouza Vs State of NCT of Delhi on 04 Oct 2023

Index of all Bail matters is here.

Mahima Chaturvedi Vs Deepak Malhotra on 26 Jul 2021

Posted on October 10, 2023 by ShadesOfKnife

A division bench of Delhi High Court held as follows while denying interim maintenance to a working wife.

From Para 5,

5. The learned Family Judge has observed in its order dated 18.06.2020 that the Object and Intent of Section 24 is to support the spouse who has no independent source of income. The learned Family Court has relied on the income affidavit of the appellant to arrive at a conclusion that the appellant is drawing a salary of Rs. 85,000/- per month and relied on the judgment of this Court in case titled K.N. vs R.G. Reported as MAT. APP(FC) no. 93/18 (date of decision – 12.02.2019) to hold that the provision of Section 24, Hindu Marriage Act, are not meant to equalise the income of wife with that of the husband.

From Para 9,

9. Hence, we are clear that the appellant is a well-qualified professional and is drawing a salary of 85,000/- month which is adequate for a comfortable life. In K.N. v. R.G., it has been held that the provision of section 24 are not meant to equalize the income of the spouses but only to see that no spouse should suffer due to paucity of income. The purpose to grant maintenance is to tide over litigation expenses and to provide a comfortable life to the spouse.

Mahima Chaturvedi Vs Deepak Malhotra on 26 Jul 2021

Index of Maintenance Orders under HMA here.

Poonam Sethi Vs Sanjay Sethi on 07 Jan 2022

Posted on October 10, 2023 by ShadesOfKnife

A division bench of Delhi High Court held as follows,

From Para 57,

57. Each and every individual is entitled to basic resources like food, shelter, clothing, education, medical expenses and other necessities required to live a dignified life. Morally and legally, it the obligation of both the parents to provide these amenities, according to the status of life being led by them, to their children by way of maintenance.

Poonam Sethi Vs Sanjay Sethi on 07 Jan 2022

Index of Maintenance Orders under HMA here.

Niharika Kundu Vs Shankar Ghosh on 12 Sep 2023

Posted on October 10, 2023 by ShadesOfKnife

A division bench of Delhi High Court caught a liar in a HMA 24 proceeding.

From Para 6,

6. It is not in dispute that the appellant was M. Phil at the time of her marriage and was pursuing Ph.D which she has completed and is now having the qualification of Ph.D (Management) with professional qualification in Computers. While on the other hand the respondent is a simple graduate. It is also not denied that appellant was working at the time of her marriage at a Diamond Jewellery Showroom and was getting Rs.12,000/- per month. She had left her job since she was unable to attend her office since 22.05.2015.
7. From the submissions it is evident that not only is the appellant highly qualified but had been working even at the time of her marriage.

From Para 8,

8. The second aspect of significance is that the respondent had claimed that the appellant is working in the office of M.P. Udit Raj in Connaught Place and her claim that she is unemployed, is incorrect. In support of his assertions he had relied upon a CD showing the appellant working in the office of Mr. Udit Raj and also marking her attendance in the Register. The appellant who had initially taken a stand that she was not working, when confronted with this CD, gave an explanation that she has a friend working in the office of Mr. Udit Raj and at times when she goes to visit her friend, she also looks after the office work.

Niharika Kundu Vs Shankar Ghosh on 12 Sep 2023

Citations: [2023 SCC OnLine Del. 5624]

Other Sources:

https://indiankanoon.org/doc/116590874/

https://www.casemine.com/judgement/in/650084c876bd087c6be01592

https://www.courtkutchehry.com/Judgement/Search/t/5125330-niharika-ghosh-niharika-kundu

Maintenance denied to Highly qualified wife , who approach the Ld. court with unclean hands : DHC as on 21 September 2023

Index of Maintenance Orders under HMA here.

National Insurance Company Ltd Vs MS National Building Construction India Ltd and Ors on 12 Sep 2023

Posted on October 1, 2023 by ShadesOfKnife

A division bench of Supreme Court held as follows,

On behalf of the petitioner, it has been urged that the provision of Order V Rule 2 of the Code of Civil Procedure requires service of summons with
plaint.
We accept the petitioner’s argument on the legal proposition that service contemplated in terms of Order V Rule 2 of the Code would imply service of summons along with the copy of the plaint.

NIC Ltd Vs MS NBCI Ltd and Ors on 12 Sep 2023

Kulvinder Singh Gehlot Vs Parmila on 22 Aug 2023

Posted on September 24, 2023 by ShadesOfKnife

A division bench of Delhi High Court granted divorce to a couple who are separated for over 17 years…

From Para 17,

17. The divorce has been sought on the ground of cruelty. While “physical cruelty” is visible and easy to comprehend and determine, the more challenging aspect is “mental agony” which has been recognized as part of “cruelty” which once established, is a valid ground of divorce. The contours of “mental cruelty” were defined in case of V. Bhagat v. D. Bhagat (1994) 1 SCC 337, wherein the Hon’ble Supreme Court held that mental cruelty in Section 13(1)(ia) of the Act, 1956 can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put-up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the party.What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case.

From Paras 22 and 23,

22. During the trial, the allegations had not been established as held by the Order of Ld. Mahila Court, South District and amounts to a clear and categorical character assassination of the appellant as well as his family members.
23. It is not under challenge that the criminal proceedings under Section 107/151 Cr.P.C. were initiated against the parties. A Police Station is not the best of places for anyone to visit. It is a source of mental harassment and trauma each time he was required to visit the Police Station, like the “Damocles Sword” hanging over his head, not knowing when a case would be registered against him and he would be arrested. The respondent had done everything to get the appellant and his family entrapped in the criminal case. Such conduct of making false allegations and constant threat of being summoned to Police Station are the acts which severely impact the mental balance and all the acts of cruelty.

From Para 27,

27. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the “Fault theory”, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period continuous separation, it may be fairly surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. The Family Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased to be effective and would be a greater source of misery for the parties. The Family Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.

Kulvinder Singh Gehlot Vs Parmila on 22 Aug 2023

Citations: [2023 SCC ONLINE DEL 5122]

Other Sources:

https://indiankanoon.org/doc/186009176/

https://www.casemine.com/judgement/in/64e4d541d2752322a69ddb3d

https://www.verdictum.in/court-updates/high-courts/constant-threat-of-arrest-and-wifes-false-allegations-has-become-source-of-mental-cruelty-delhi-hc-grants-divorce-to-aggrieved-husband-1491232

Index of Divorce Judgments here.

Bhawna Vs Bhay Ram and Ors on 17 Feb 2023

Posted on September 14, 2023 by ShadesOfKnife

A division bench of Apex Court declared the act of imposing cost of DV complainant to examine witnesses.

The appellant is the complainant in a case under the Protection of Women from Domestic Violence Act, 2005. In the trial, the right of the appellant to lead evidence was closed and the complaint was rejected. Therefore, the appellant had filed an appeal. The Appellate Court allowed the appeal directing the trial court to reopen the case and allow the appellant to lead evidence subject to her paying cost of Rs.20,000/- per witness. When the appellant moved the High Court against the said order, the High Court reduced the cost to Rs.10,000/- per witness. In addition, the Appellate Court as well as the High Court said that the appellant will not be entitled to maintenance during the said period.
In a complaint filed under the Protection of women from Domestic Violence Act, 2005, it is not open to the Court to impose such onerous conditions upon the appellant, who claims to be a victim of domestic violence. What the Appellate Court and the High Court have ordered are actually in the nature of penalty for the appellant not proceeding with the trial. In the first instance, it is impermissible in law.
Therefore, the appeal is allowed and that portion of the order of the Appellate Court and the High Court imposing the cost upon the appellant for examination of every witness and also depriving the appellant of interim maintenance is set aside.
The trial court shall permit the appellant to lead evidence without imposing the onerous conditions.
Physical presence of the parents-in-law of the appellant, who are also the respondents herein, shall be dispensed with by the trial court.

Bhawna Vs Bhay Ram and Ors on 17 Feb 2023

Index of DV cases is here.

Shades of Knife

True Colors of a Vile Wife

Tag: 2-Judge (Division) Bench Decision

MS Godrej Sara Lee Limited Vs Excise and Taxation Officer cum AO and Ors on 01 Feb 2023

Deepti Vs Anil Kumar on 19 Sep 2023

Bimla Tiwari Vs State of Bihar and Ors on 16 Jan 2023

Shane George Dsouza Vs State of NCT of Delhi on 04 Oct 2023

Mahima Chaturvedi Vs Deepak Malhotra on 26 Jul 2021

Poonam Sethi Vs Sanjay Sethi on 07 Jan 2022

Niharika Kundu Vs Shankar Ghosh on 12 Sep 2023

National Insurance Company Ltd Vs MS National Building Construction India Ltd and Ors on 12 Sep 2023

Kulvinder Singh Gehlot Vs Parmila on 22 Aug 2023

Bhawna Vs Bhay Ram and Ors on 17 Feb 2023