Shrikrishna Vs Sunita Bai on 02 May 2024

Posted on May 11, 2024 by ShadesOfKnife

A single judge of MP High Court at Indore bench held as follows,

From Para 13,

13. From the record, it is evident that learned JMFC has passed the order by dismissing the application under Section 125 of Cr.P.C. on the ground that
since the respondent did not get divorce from her earlier husband and without getting divorce she entered into second marriage. Hence, she cannot be
ascertained as a legally wedded wife of the petitioner and she is not entitled for the claim of maintenance.

From Paras 15-18,

15. It is unearthed from the aforesaid provision that an illegitimate child is entitled to get maintenance but an illegitimate wife is not entitled to get maintenance. The intention of legislature is obvious that maintenance can only be granted in favour of legally wedded wife. On this issue the law laid down by the full Bench in the case of Savitaben Somabhai Bhatia vs. State of Gujarat and Ors. reported as 2005 Lawsuit (SC) 466, is also poignant to be pointed out here:
“There may be substance in the plea of learned counsel for the appellant that law operates harshly against the woman who unwittingly gets into relationship with a married man and Section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression ‘wife’ as per Section 125 of the Code refers to only legally married wife.“
16. In view of aforesaid settled propositions and provisions of law, it is crystal clear that the wife should be a “legally wedded wife” for claiming maintenance from her husband. A woman, having solemnized second marriage to another person is only entitled to get maintenance from that person, when the first marriage has been declared either null and void or she has obtained a divorce decree from her first husband. The aforesaid view has recently been endorsed by this Court in the cases of Sangeeta Rathore W/o Naresh Rathore Vs. Naresh Rathore, 2023 LawSuit (MP) 470 and Kewal Singh Vs. Durgabai, 2024 LawSuit (MP) 179.
17. In conspectus of the aforesaid settled proposition, in this petition filed under Section 125 Cr.P.C., the term “wife” under Section 125 Cr.P.C. envisages a situation wherein she, having a living spouse, cannot seek maintenance from her second husband without getting divorce from her earlier husband. Nevertheless, this Court finds it unfortunate that many women, specially those belonging to the poorer strata of society, are routinely exploited in this manner, and that legal loopholes allow the offending parties to slip away unscathed and unquestioned. In spite of the social justice factor embedded in Section 125 Cr.P.C., the objective of the provision is frustrated as it fails to arrest the exploitation which it seeks to curb. In the instant case, while the Court sympathizes with the position of the Respondent, it is constrained to deny her maintenance as per the law of the land which stands as of today. However, the Respondent has the liberty to avail other remedies that may be better suited to the facts and circumstances of this case, such as seeking of compensation under Section 22 of the D.V. Act.
18. In the result thereof, the order of the learned Revisional Court awarding the maintenance to the respondent is found against the law and is also suffering from infirmity and illegality. Accordingly, the impugned order of the learned Revisional Court is set aside and the order of learned trial Court dated 06.09.2021 is hereby affirmed.

Shrikrishna Vs Sunita Bai on 02 May 2024

Index of Maintenance cases u/s 125 CrPC is here.

Achin Gupta Vs State of Haryana and Anr on 03 May 2024

Posted on May 4, 2024 by ShadesOfKnife

A division bench of the Apex Court held as follows,

From Para 31-32,

31. We are of the view that the category 7 referred to above should be taken into consideration and applied in a case like the one on hand a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of her husband and his close relatives is with an oblique motive then even if the FIR and the chargesheet disclose the commission of a cognizable offence the Court with a view to doing substantial justice should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the submission canvassed by the counsel appearing for the Respondent No. 2 and the State is to be accepted mechanically then in our opinion the very conferment of the inherent power by the Cr.P.C. upon the High Court would be rendered otiose. We are saying so for the simple reason that if the wife on account of matrimonial disputes decides to harass her husband and his family members then the first thing, she would ensure is to see that proper allegations are levelled in the First Information Report. Many times the services of professionals are availed for the same and once the complaint is drafted by a legal mind, it would be very difficult thereafter to weed out any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the First Information Report and the chargesheet papers disclose the commission of a cognizable offence. If the allegations alone as levelled, more particularly in the case like the one on hand, are to be looked into or considered then why the investigating agency thought fit to file a closure report against the other co-accused? There is no answer to this at the end of the learned counsel appearing for the State. We say so, because allegations have been levelled not only against the Appellant herein but even against his parents, brother & sister. If that be so, then why the police did not deem fit to file chargesheet against the other co-accused? It appears that even the investigating agency was convinced that the FIR was nothing but an outburst arising from a matrimonial dispute.
32. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatred towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why we are saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatred for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilised for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases, where wife complains of harassment or ill-treatment, Section 498A of the IPC cannot be applied mechanically. No FIR is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty.

From Para 35,

35. In one of the recent pronouncements of this Court in Mahmood Ali & Ors. v. State of U.P & Ors., 2023 SCC OnLine SC 950, authored by one of us (J.B. Pardiwala, J.), the legal principle applicable apropos Section 482 of the CrPC was examined. Therein, it was observed that when an accused comes before the High Court, invoking either the inherent power under Section 482 CrPC or the extraordinary jurisdiction under Article 226 of the Constitution, to get the FIR or the criminal proceedings quashed, essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance, then in such circumstances, the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines.

Achin Gupta Vs State of Haryana and Anr on 03 May 2024

Index of Quash judgments is here.

K Sreekanth Naik Vs P Nalini and Anr on 25 Apr 2024

Posted on May 3, 2024 by ShadesOfKnife

A single judge bench of Andhra Pradesh High Court held that an Order for Maintenance passed without adhering to the guidelines issued by Apex Court in Rajnesh Vs Neha is liable to be set aside.

From Para 5,

5. During the hearing, it is brought to the notice of the Court that both parties have not complied with the directions of the Hon’ble Apex Court enunciated in the judgment of Rajnesh V. Neha & Anr.,1 concerning the filing of affidavits disclosing the assets and liabilities. Considering the submissions made, I have gone through the observations in Rajnesh V. Neha (cited supra) case. The said judgment has brought revolutionary change in the procedure to be followed by the Courts in dealing with the applications filed under Chapter IX of the Cr.P.C. The Hon’ble Supreme Court has issued comprehensive procedural and normative directions streamlining the maintenance laws, inter alia, directing that the parties in a maintenance application have to file affidavits of disclosure of their assets and liabilities, which must be considered by Courts while deciding the application. It is also held that, in case of a dispute on the declaration made in the affidavits of disclosure, the aggrieved person can seek leave of the Court to serve interrogatories on the opposite side and seek production of relevant documents as provided under Order 9 of the Code of Civil Procedure, and in case a false statement or misrepresentation is made, the Court can initiate proceedings under section 340 of the Cr.P.C., or for Contempt of Court.

From Paras 7-14,

7. The aforesaid Judgment in the case of Rajnesh (cited supra) has been recently reiterated by the Hon’ble Supreme Court in the case of Aditi alias Mithi V. Jitesh Sharma 2 and expressing anguish over noncompliance/ improper compliance of the directions laid down in case of Rajnesh (supra) and directed re-circulation of the judgment for compliance thereof.
8. It is acknowledged that both parties have failed to submit the affidavits disclosing their assets and liabilities. Learned counsel for the Petitioner has relied on the decision of High Court of Patna in between Gitanjali Devi @ Gitanjali Kumari V. State of Bihar and another3, wherein, it is observed that the impugned order of granting maintenance amount is liable to be set aside for the reason that it has not followed the procedure prescribed by the Hon’ble Apex Court.
9. By following the principles laid down in the Aditi alias Mithi’s case cited supra, the High Court of Madras in Balram Dixit V. Smt. Kiran Dixit and another (Criminal Revision No.1255 of 2023, dated 17.01.2024) also set aside the maintenance awarded by the learned Principal Judge, Family Court,Gwalior and further directed the both parties to submit fresh affidavits of disclosure of assets and liabilities with complete particulars in compliance with the directions of the Hon’ble Supreme Court laid down in the case of Rajnesh’s case cited supra.
10. Learned counsels representing both sides submit that because of lack of proper instructions, both parties could not comply with the directions of the Hon’ble Apex Court and at present, they are ready to comply with the observations made in the judgments referred to supra, by filing the affidavits and both parties submits that the Respondent-husband is paying interim maintenance amount @ Rs.8,000/- per month vide orders dated 26.09.2019 in Crl.M.P.No.39 of 2019 in F.C.O.P.No.183 of 2018 and he is ready to pay such maintenance amount during the pendency of FCOPs and after its restoration.
11. In view of the same, this Court refrains from delving into the merits of the case at this juncture, as the impugned order passed in F.C.O.P.No.183 of 2018 is liable to be set aside for the reason that it has not followed the procedures prescribed by the Hon’ble Apex Court.
12. The impugned order passed in F.C.O.P.No.183 of 2018, is accordingly, set aside and the matter is remitted back to the learned Judge, Family Court – cum – VII Additional District Judge, Ananthapuramu for fresh consideration and by following the procedures which are laid down in the judgment of the Hon’ble Supreme Court.
13. This Court further directs the both parties to submit affidavits disclosing their assets and liabilities, giving complete particulars, in accordance with the directives of the Hon’ble Apex Court as laid down in the case of Rajnesh (supra) before the Family Court. The Family Court must ensure strict adherence to these guidelines. If any of the affidavits are found to be lacking in necessary particulars, the learned Judge shall direct to produce the relevant information from the respective party.
14. The Family Court shall dispose of the F.C.O.P.No.183 of 2018 afresh after giving reasonable opportunity to both parties to let in further evidence, if any. In the meantime, the Respondent-husband is directed to pay maintenance amount of Rs.8,000/- per month to the Petitioner-wife till the disposal of the FCOP. Both parties are directed to bear their own costs.

K Sreekanth Naik Vs P Nalini and Anr on 25 Apr 2024

Disclaimer: This is a case that I handled myself for the husband. This is my first reportable judgment.

Citations: [2024 Latest Caselaw 3581 AP]

Other Sources:

https://indiankanoon.org/doc/7473550/

https://www.casemine.com/judgement/in/671c878cafb795648bb5985d

https://mynation.net/docs/1098-2023/

https://latestlaws.com/judgements/andhra-high-court/2024/april/2024-latest-caselaw-3581-ap

Index of Maintenance cases under section 125 CrPC is here.

Bipin Chander Jaisinghbhai Shah Vs Prabhawati on 19 Oct 1956

Posted on March 13, 2024 by ShadesOfKnife

A division bench of Apex Court held as follows, (with respect to ‘desertion’)

Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.

Bipin Chander Jaisinghbhai Shah Vs Prabhawati on 19 Oct 1956

Citations: [1957 AIR 176], [1956 SCR 838]

Other Sources:

https://indiankanoon.org/doc/1131783/

Index of Divorce judgments is here.

Savitri Pandey Vs Prem Chandra Pandey on 8 Jan 2002

Posted on March 13, 2024 by ShadesOfKnife

A division bench of Apex Court held as follows, (with regards to Cruelty)

From Para 6,

6. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.

From Para 19, (with regards to the time limit to file an appeal against an Order of Family Court)

At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.

This judgment led to the passing of amendment here.

Savitri Pandey Vs Prem Chandra Pandey on 8 Jan 2002

Citations: [AIR 2002 SUPREME COURT 591], [2002 (2) SCC 73], [2002 AIR SCW 182], [2002 ALL. L. J. 355], [2002 ALL CJ 1 122], [2002 (2) SRJ 553], [2002 (1) SLT 103], [(2002) 1 ALL WC 472], [(2002) 1 JCR 377 (SC)], [2002 (1) LRI 28], [(2002) 1 JT 25 (SC)], [2002 (1) UJ (SC) 273], [(2002) 1 MARRILJ 277], [2002 (1) ALL CJ 22], [2002 UJ(SC) 1 273], [2002 (1) BLJR 378], [(2002) 3 CIVILCOURTC 318], [(2002) 1 RECCIVR 719], [(2002) 6 BOM CR 511], [(2002) 1 HINDULR 338], [(2002) 2 MAHLR 263], [(2002) 2 PAT LJR 256], [(2002) 2 JLJR 135], [(2002) 2 GUJ LR 1369], [(2002) 1 KER LJ 193], [(2002) WLC(SC)CVL 116], [(2002) 1 SCALE 33], [(2002) 1 RAJ LW 183], [(2002) 3 GUJ LH 470], [(2002) 1 DMC 177], [(2002) 1 ANDH LT 55], [(2002) 1 CURCC 7], [(2002) 22 OCR 280], [(2002) 1 UC 299], [(2002) 1 SCJ 6], [(2002) 46 ALL LR 465], [(2002) 2 CAL HN 50], [(2002) 2 BLJ 177], [(2002) 1 SUPREME 90], [(2002) MATLR 224], [2002 (1) MARR LJ 277], [(2002) 4 CURCRIR 254], [(2002) 1 CAL HN 124], [(2002) 1 ALLCRILR 658], [(2002) 1 CALLT 32]

Other Sources:

https://indiankanoon.org/doc/325522/

https://www.casemine.com/judgement/in/56e0f1ad607dba38965f8bcd

https://www.the-laws.com/Encyclopedia/browse/Case?caseId=002002900000&title=savitri-pandey-vs-prem-chandra-pandey

Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002 – Case Summary

https://www.indianemployees.com/judgments/details/savitri-pandey-vs-prem-chandra-pandey

http://roundup.manupatra.in/trans/viewdoc.aspx?i=ptiDy4oUEz7W4RhahAaT6h93RFUeTV40hI1vo81W7g5uCfRP5tL0pktJVchar(43)F5g3qk&id=zwKDa4S8QbBCBSkXPhUPwY5CqQmaAQ/9fT/TmfIpDN9bjNPkWKzs5n8Hchar(43)U/Dqe21io8GIp7cHk/RGFLXdXEB6A==

Index of Divorce judgments is here.

Grasim Industries Ltd Vs Collector of Customs Bombay on 04 Apr 2002

Posted on February 12, 2024 by ShadesOfKnife

Sitting on the full bench of Apex Court, Justice Arijit Pasayat, held as follows, while interpreting the statutes passed by the Legislature.

From Para 9,

No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. As stated by the Privy Council in Crawford v. Spooner [(1846) 6 Moore PC 1] “we cannot aid the Legislature’s defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there”. In case of an ordinary word there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding the particular case. This principle is too well settled and reference to few decisions of this Court would suffice. [See: Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, Palghat and Anr. (AIR 1990 SC 1747), Union of India and Anr. v. Deoki Nandan Aggarwal (AIR 1992 SC 96), Institute of Chartered Accountants of India v. Price Waterhouse and Anr. (1997 (6) SCC 312) and Harbhajan Singh v. Press Council of India and Ors. (JT 2002 (3) SC 21)]

Grasim Industries Ltd Vs Collector of Customs Bombay on 04 Apr 2002

Court Kutchehry Version:

Grasim Industries Ltd Vs Collector of Customs Bombay on 04 Apr 2002 (CK)

Satender Kumar Antil Vs CBI and Anr on 07 Oct 2021 (and other Directions)

Posted on February 7, 2024 by ShadesOfKnife

A division bench of Apex Court passed these guidelines with respect to issue of Summons and Warrants and Recall of NBW,

After filing of chargesheet/complaint taking of cognizance
a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
c) NBW on failure to failure to appear despite issuance of Bailable Warrant.
d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.

Satender Kumar Antil Vs CBI and Anr on 07 Oct 2021

Citations: [(2021) 10 SCC 773], [2022 LiveLaw (SC) 577]

Other Sources:

https://indiankanoon.org/doc/16350770/

https://www.casemine.com/judgement/in/62ba660db50db90d4b55ecaf

A corrected Reportable judgment is passed on 11 Jul 2022…

Satender Kumar Antil Vs CBI and Anr on 11 Jul 2022

Further time is given to comply with the directions earlier given on 03 Feb 2023…

Satender Kumar Antil Vs CBI and Anr on 03 Feb 2023

Supreme Court also directed as follows.

The judgment in the present case i.e. “Satender Kumar Antil Vs. CBI” reported in (2022) 10 SCC 51 and the judgment in Siddharth’s case (supra) should be incorporated as part of the curriculum of the State Judicial Academies and the National Judicial Academy.

Interim directions given on 21 Mar 2023 considering the States and High Courts did not provide the required information to Amicus

Satender Kumar Antil Vs CBI and Anr on 21 Mar 2023

Some individual cases were filed alleging non-compliance of this Order by some Magistrates… SC passed this order on 02 May 2023

Satender Kumar Antil Vs CBI and Anr on 02 May 2023

Final Judgment on 13 Feb 2024

Satender Kumar Antil Vs CBI and Anr on 13 Feb 2024

Supreme gave another ‘last’ change on 07 May 2024 to file affidavits that have not complied with the directions issued in this case.

Satender Kumar Antil Vs CBI and Anr on 07 May 2024

Notices must not be issued via WhatsApp, says Supreme Court.

Satender Kumar Antil Vs CBI on 21 Jan 2025

Negating the plea of State of Haryana, Supreme Court held that notices u/s 41A of Cr.P.C. or u/s 35 of BNSS cannot be sent via WhatsApp or any other electronic communication medium, unlike section 530 BNSS, which mandates that, Trials, Inquires and Proceedings that may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.” So, Parliament says, Courts can use technologia but Police must use postman.

Satendar Kumar Antil Vs CBI and Anr on 16 Jul 2025

Index of NBW Judgments is here.

Amit Kumar Vs Suman Beniwal on 11 Dec 2021

Posted on January 17, 2024 by ShadesOfKnife

In addition to the guidelines issue in Amardeep Singh Vs Harveen Kaur here, Additional guidelines/factors were issued in this case.

From Para 27,

27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B (2) of the Hindu Marriage Act, the Court would consider the following amongst other factors:
(i) the length of time for which the parties had been married;
(ii) how long the parties had stayed together as husband and wife;
(iii) the length of time the parties had been staying apart;
(iv) the length of time for which the litigation had been pending;
(v) whether there were any other proceedings between the parties;
(vi) whether there was any possibility of reconciliation;
(vii) whether there were any children born out of the wedlock;
(viii) whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc.

Amit Kumar Vs Suman Beniwal on 11 Dec 2021

Index of Divorce cases is here.

Nahar Singh Yadav and Anr Vs Union of India and Ors on 19 Nov 2010

Posted on November 13, 2023 by ShadesOfKnife

A Full Bench of the Apex Court passed these broad factors while considering transfer petitions u/s 406 Cr.P.C.

From Para 24,

24.Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 of the Cr.P.C. should be
exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said Section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:-
(i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution;
(ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;
(iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State Exchequer in making payment of travelling and other expenses of the official and non-official witnesses;
(iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and
(v) existence of some material from which it can be inferred that the some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.

Nahar Singh Yadav and Anr Vs Union of India and Ors on 19 Nov 2010

Citations : [2011 AIR SC 1549], [2011 RCR CRIMINAL SC 1 120], [2011 SCC CRI 1 39], [2011 AIR SC 325], [2011 SCC 1 307], [2010 AIOL 798], [2010 SLT 9 322], [2010 JT 12 641], [2011 CRLJ SC 997], [2010 SCALE 12 199], [2010 SUPREME 7 729], [2010 AIC 96 1], [2011 ECRN 1 717], [2011 KCCR 2 845], [2011 AIR SCW 325], [201 OJ 13 (ADDL.) S.C.R. 851]

Other Sources:

https://indiankanoon.org/doc/668282/

https://www.casemine.com/judgement/in/5609aedde4b0149711414eec

https://vlex.in/vid/nahar-singh-yadav-and-572148534

https://www.latestlaws.com/latest-caselaw/2010/november/2010-latest-caselaw-867-sc/

Index of Transfer Judgments is here.

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)

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