Showkat Aziz Zargar Vs Nabeel Showkat and Anr on 02 Sep 2022

Posted on September 18, 2023 by ShadesOfKnife

A single judge bench of J&K&L High Court held as follows, while declaring two judgments as per incuriam, relying on multiple Supreme Court decisions as Precedents.

From Paras 13-15,

13) It is a settled principle of interpretation of Statutes that words and expressions used in a Statute have to be assigned their plain meaning. A court does not have power to add or subtract something from a Statute which is not there. If a court finds some ambiguity in a Statute which becomes an impediment in achieving the aim and object of the Statute, the court can give a purposive interpretation to the Statute but where the language of the Statute is clear and unambiguous, it is not open to the Court to add, alter or supply words to the said Statute and no need of interpretation would arise. The purpose of interpretation of Statutes is to help the Judge to ascertain the intention of the Legislature and not to control that intention or to confine it within the limits, which the Judge may deem reasonable or expedient.
14) The Constitution Bench of the Supreme Court has, in the case of A. R. Antulay vs. R. S. Nayak, (1988) 2 SCC 602, held that if the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision. The Court observed that the question of interpretation arises only in the event of an ambiguity or if the plain meaning of the words used in the Statute would be self defeating.
15) Again, the Supreme in the case of Grasim Industries Ltd. vs. Collector of Customs, Bombay, (2002) 4 SCC 297, has followed the same principle and observed that where the words are clear and there is no obscurity or ambiguity, the intention of the legislature is to be gathered from the language used. The Court further observed that 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.

From Paras 22 and 24,

22) In a recent case of Abhilasha vs. Parkash & ors. (Criminal Appeal No.615 of 2020 decided on 15th September, 2020), a three Judge Bench of the Supreme Court considered the question as to whether a Hindu unmarried daughter is entitled to claim maintenance from her father under Section 125 of the Cr. P. C only till she attains majority or she can claim maintenance till she remains unmarried. The Court observed that a bare perusal of Section 125(1) of the Cr. P. C indicates that it limits the claim of maintenance of a child until he or she attains majority.
24) From the foregoing analysis of the law on the subject, it is clear that the Supreme Court has taken a consistent view that a major son or daughter cannot be awarded maintenance by a Magistrate in exercise of his powers under Section 125 of the Central Cr. P. C/488 of the Jammu and Kashmir Cr. P. C but in an appropriate case, a Family Court has jurisdiction to grant maintenance to a major Hindu daughter on the basis of a combined reading of the provisions contained in Section 125 of the Cr. P. C and Section 20(3) of the Hindu Adoption and Maintenance Act.

Finally,

27) For what has been discussed hereinbefore, the petition is allowed and the impugned order passed by the trial Magistrate as upheld by the Revisional Court is set aside and it is held that the respondents are entitled to maintenance from their father i.e., the petitioner herein, only up to the age of their majority. If any amount of maintenance has been paid by the petitioner to the respondents after the attainment of their age of majority, the same, having regard to the relationship between the parties, shall not be recovered from them. The amount deposited in the Registry pursuant to the order dated 11.09.2019, shall be released in favour of the petitioner. The petition stands disposed of accordingly.

Showkat Aziz Zargar Vs Nabeel Showkat and Anr on 02 Sep 2022

Maintenance cases index here.

Career Institute Educational Society Vs Om Shree Thakurji Educational Society on 24 Apr 2023

Posted on September 12, 2023 by ShadesOfKnife

A Division bench of Apex Court discussed the distinction between Ratio Decidendi and Obiter Dicta.

The distinction between obiter dicta and ratio decidendi in a judgment, as a proposition of law, has been examined by several judgments of this Court, but we would like to refer to two, namely, State of Gujarat & Ors. vs. Utility Users’ Welfare Association & Ors.8 and Jayant Verma & Ors. vs. Union of India & Ors.9

Testing for Ratio Decidendi:

The first judgment in State of Gujarat (supra) applies, what is called, “the inversion test” to identify what is ratio decidendi in a judgment. To test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case.

What is vital for decision making?

In Jayant Verma (supra), this Court has referred to an earlier decision of this Court in Dalbir Singh & Ors. vs. State of Punjab10 to state that it is not the findings of material facts, direct and inferential, but the statements of the principles of law applicable to the legal problems disclosed by the facts, which is the vital element in the decision and operates as a precedent, albeit operates as res judicata. Even the conclusion does not operate as a precedent. Thus, it is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding as a legal precedent is the principle upon which the case is decided and, for this reason, it is important to analyse a decision and isolate from it the obiter dicta.

Career Institute Educational Society Vs Om Shree Thakurji Educational Society on 24 Apr 2023

Rangesh Srinivasan Vs Madhulika Bawa on 07 Jun 2023

Posted on September 5, 2023 by ShadesOfKnife

A single bench of Delhi High Court held as follows,

From Paras 12-14,

12. Going a step deeper, there is another aspect. While exercising the revisional scrutiny of an interim maintenance order passed in proceedings under Section 125 CrPC, the revisional court for yet another reason cannot impose as a pre-condition to grant of stay on operation of the assailed interim maintenance order, such general rider of deposit of the entire amount of awarded maintenance ignoring the overall circumstances of the case. The provision under Section 397 CrPC confers suo motu powers on the Court of Sessions and the High Court. Wherever the statute confers suo motu powers on any judicial authority, such powers are always implicitly accompanied with attendant duty to invoke the powers in order to meet the ends of justice. Once an illegality, incorrectness or impropriety in a judicial order is brought to the notice of the revisional court under Section 397 CrPC, the Court cannot justifiably refuse to entertain the challenge on the grounds of non-compliance with the order impugned before it. From that angle also, in my view, there cannot be generalized direction not to stay the operation of the interim maintenance order solely on the ground that the revisionist did not deposit the entire amount of awarded maintenance. Of course, if otherwise the factual and legal matrix justifies, grant of stay can be denied as well.
13. It is clarified that in the present case this court has refrained itself from analysing as to whether operation of the interim maintenance order facing appellate challenge is otherwise liable to be stayed or not. This issue has to be considered by the learned Additional Sessions Judge on the facts and circumstances of the case in the backdrop of settled legal position.
14. In view of above discussion, the petition is allowed and accordingly the impugned order is set aside, consequently remanding the matter back to the learned Additional Sessions Judge to decide afresh as to whether the interim maintenance order passed by the magisterial court is liable to be stayed during pendency of the appeal.

Rangesh Srinivasan Vs Madhulika Bawa on 07 Jun 2023

Citations: [2023 Latest Caselaw 774 Del]

Other Sources:

https://indiankanoon.org/doc/185965631/

https://www.casemine.com/judgement/in/6481f4e9e2788a042a651529

https://www.latestlaws.com/judgements/delhi-hc/2023/june/2023-latest-caselaw-774-del

https://www.the-laws.com/Encyclopedia/browse/Case?CaseId=103202750100&Title=RANGESH-SRINIVASAN-Vs.-MADHULIKA-BAWA

https://legiteye.com/in-crl-mc-4349-of-2023-del-hc-once-an-illegality-or-impropriety-in-a-judicial-order-is-brought-to-notice-of-revisional-court-it-cannot-justifiably-refuse-to-entertain-the-challenge-on-grounds-of-non-compliance-with-the-order-impugned-before-it-delhi-high-court-justice-girish-kathpalia-07-06-2023/

Index of PWDV Act cases here. Index of Maintenance cases u/s 144 BNSS (125 Cr.P.C.) here.

Anshu Gupta Vs Adwait Anand on 09 Aug 2023

Posted on August 31, 2023 by ShadesOfKnife

A single judge from High Court of Uttarakhand passed this Judgment declaring that mother is also liable to pay maintenance to minor child. Interesting…

From Paras 17-22,

17. The provisions of Section 125 (1) Cr.P.C. makes it clear that the liability to maintain a minor child is always on “any person”, if he has sufficient means neglects and refuses to maintain a minor child and such “person” is directed to give the monthly allowance as maintenance at the rate deemed fit to the Magistrate.
18. “The person” word denotes not only the male but a female gender and it cannot be said that such person can only qualify father and not the mother. Section 2 (y) of Cr.P.C. provides as under:- “(y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code. ”
19. According to Section 2(y) of Cr.P.C., the words and expressions used in the Cr.P.C. but have not been defined in the Cr.P.C., shall have the same meanings assigned to them as defined in the Indian Penal Code. Section 8 of IPC is quoted hereunder:- “8. Gender.—The pronoun “he” and its derivatives are used of any person, whether male or female.”
20. This definition of gender gives an indication that “he” and its derivatives are used of any person whether male or female.
21. Under Section 11 of the IPC, the “person” has also been defined, which includes any company or Association or body of persons, whether incorporated or not.
22. From the meticulous examination of these words having been defined in the Indian Penal Code, it can safely be inferred that any “person” use in the provisions of section 125(1) Cr.P.C. includes both mother and father.

From Para 25,

25. It is clear from the aforesaid sub-Section (2) of Section 126 Cr.P.C. that there is no such word “father” or “husband” in the aforesaid sub-section, as it was there in the old Cr.P.C. Section 488 sub-Section (6). Now, in place of “father” or “husband”, “person” has been incorporated and it is provided that “all evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made……….” Thus, this case law is also of no help to the revisionist and the same is distinguished by this Court on the aforesaid reasons.

Finally from Para 28,

28. The provisions of Section 125 Cr.P.C. has already been changed, as discussed above and according to the language of the present Section 125 Cr.P.C., in the opinion of this Court “person” would include both male and female and in reference to a minor child whether legitimate or illegitimate mother or father having sufficient means if neglects and refuses to maintain such minor child would be held liable to pay the maintenance of such child.

Anshu Gupta Vs Adwait Anand on 09 Aug 2023

Citations:

Other Sources:

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990

Posted on August 6, 2023 by ShadesOfKnife

A single judge from Gauhati High Court held as follows,

From Paras 11, 12 and 13,

11. Under Chapter XXXII, Section 401 of the Code provides that. “Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.” The proviso to section 431 is not relevant here. The order for payment of maintenance was an order under the code for payment of money, for the recovery of which no method had been expressly provided. Accordingly, under section 431 of the code, I think the maintenance; money could be recovered, as if it were fine.
12. Section 421 of the Code provides for recovery of fine and the procedure laid down for the purpose was by issue of warrant for attachment and sale of any movable property belonging to offender in this case the present petitioner (opposite party in the maintenance proceeding) or issue of warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: The provision to Section 421 clearly stipulates that “no such warrant shall be executed by the arrest or detention in prison of the offender.”
13. On consideration of the above provisions, there should be no doubt that for recovery of money as maintenance which has to be in accordance with the procedure for recovery of fine no warrant of arrest or detention of the petitioner could have been ordered. I, therefore think that the impugned order dated 1.9.89 was clearly erroneous and has to be set aside.

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990 (IndianKanoon Ver)

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990 (Casemine Ver)

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990 (LegalData Ver)

Citations: [1990 GAULR 2 328], [1991 CRLJ 1843], [1990 SCC ONLINE GAU 36], [1990 GAU LR 2 328], [1991 CRI LJ 1843]

Other Sources:

https://indiankanoon.org/doc/1507653/

https://www.casemine.com/judgement/in/56eaaa49607dba3c8ce3ef96

https://legaldata.in/court/read/2541018

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986

Posted on July 26, 2023 by ShadesOfKnife

A single judge of Delhi High Court held as follows,

From Paras 18 to 26,

18. Under Section 12 (1) (a), therefore, the requisite is that ordinary and complete sexual intercourse has not taken place between the parties owing to the impotence of the respondent. The words ‘impotence of the respondent’ would, to my mind, mean incapacity of the respondent to have sexual intercourse. The Supreme Court has said in Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137, that “A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility”.
19. As stated above, consummation means capacity to have ‘ordinary and complete sexual intercourse’. The above stated observation of the Supreme Court in AIR 1970 SC 137, therefore, must mean that a party is impotent if his or her mental or physical condition is such, that practically speaking, it is impossible for him or her to have ordinary and complete sexual intercourse. In the instant case it is instant case it is stated by the appellant in her deposition that the respondent was unable to have any, even a partial or incipient, sexual intercourse with the appellant.
20. Respondent has himself written in his diary Ex. PW1/2, that the is a Homosexual. The appellant has stated in her deposition that the respondent told her that he was a homosexual, that he was unable “to perform sexual intercourse with me and with females in general”. In other words, the respondent was incapable of having Hetrosexual intercourse with any woman.
21. As sexual intercourse essentially has two participants, it must be ordinary and complete for both the participants, individually, and together as a marital unit. For the man participant sexual intercourse is complete when he has an orgasm and for a woman participant sexual intercourse is complete when she has an orgasm (See Encyclopaedia Brittanica: 15th Ed: 1968; Macropaedia, Vol. 16, p. 594: Sexual Response).
22. No sexual intercourse has been taken place between the parties, there is no question is this case whether sexual intercourse was ordinary any complete.
23. In this case there is unrebutted evidence of the petitioner that no sexual intercourse has taken place between the parties. As no sexual intercourse has taken place between the parties, in this case, the requirements of Section 12(1) (a) of the Act are satisfied.
24. In the above view of the matter no purpose would be served by remitting the case back to the District Judge, as in my view, there is no reason why the statement given by the wife ought not to be accepted.
25. I am of the view that in view of her statement recorded in the court, the wife is entitled to a decree of nullity of marriage on the ground mentioned under Section 12(1)(a) of the Act and the judgment of the Additional District Judge needs to be set aside which is hereby set aside.
26. A decree of nullity of marriage is granted to the wife under section 12(1)(a) of the Hindu Marriage Act.

Indian Kanoon Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (IK Version)

Casemine Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (CM Version)

Supreme Today Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (ST Version)

Legal Data Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (LD Version)

Citations: [1986 DMC 2 65], [1986 DRJ 10 286], [1986 SCC ONLINE DEL 42], [1987 PLR DEL 91 12], [1986 AIR DELHI 399], [1986 ILR DELHI 2 659]

Other Sources:

https://indiankanoon.org/doc/913344/

https://www.casemine.com/judgement/in/560909b5e4b01497111707b8

https://legaldata.in/court/read/6288

Lanka Venkateswarlu (D) by LRs Vs State of AP and Ors on 24 Feb 2011

Posted on July 22, 2023 by ShadesOfKnife

A division bench of Supreme Court held as follows,

From Para 26,

26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the
parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.

Citations: [2011 SCALE 2 703], [2011 AIR SC 1199], [2011 AIR SC 1459], [2011 SUPREME 2 174], [2011 AIOL 144], [2011 SLT 2 378], [2011 BOMCR SC 5 857], [2011 JT 2 540], [2011 SCC 4 363], [2011 MHLJ SC 4 104], [2011 RCR CIVIL SC 2 880], [2011 ALR 86 59], [2011 AWC SC 3 2295], [2011 SCSUPPL CHN 2 130], [2011 CLT SC 112 152], [2011 KCCR SN 2 124], [2011 LW 3 26], [2011 SCR 3 2172909 CIVIL APPEAL NO OF 2913 2005], [2011 BOMCR 5 857], [2011 KCCRSN 2 124], [2011 RCR CIVIL 2 880], [2011 AIR SCW 1459]

Other Sources:

https://indiankanoon.org/doc/912526/

https://www.casemine.com/judgement/in/5609af08e4b0149711415652

https://vlex.in/vid/c-no-002909-002913-852352762

State of U.P Vs Santosh Kumar and Ors on 3 Sep 2009

Posted on June 18, 2023 by ShadesOfKnife

A decision from the erudite pen of Justice Dalveer Bhandari ji… clearly says, if demand for dowry is satisfied, such act of dowry giver constitutes an offence under section 3 of DP Act.

From Para 40,

40. Section 4 of the Dowry Act deals with penalty for demanding dowry, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be. The object of section 4 is to discourage the very demand for property or valuable security as consideration for a
marriage between the parties thereto. Section 4 prohibits the demand for ‘giving’ property or valuable security which demand, if satisfied, would constitute an offence under section 3 read with section 2 of the Act.

State of U.P Vs Santosh Kumar and Ors on 3 Sep 2009

Citations: [2009 AIR SC 2687], [2009 SCC 9 626], [2010 MWN CR 1 39], [2009 AIOL 1115], [2009 ANJ SC 2 350], [2009 JT 11 592], [2009 SCALE 12 269], [2010 SCC CRI 1 88], [2009 SCR 14 106], [2009 SUPREME 6 448], [2010 ECRN SC 1 196], [2010 MLJ CRL 1 679], [2010 ALL LJ 1 180]

Other Sources:

https://indiankanoon.org/doc/521213/

https://www.casemine.com/judgement/in/5609aecee4b0149711414da5

Sankar Prasad Shaw and Ors Vs The State and Anr on 27 Jul 1990

Posted on June 18, 2023 by ShadesOfKnife

A single judge of Calcutta High Court held as follows,

From Paras 5 and 6,

5. So, as per the definition, dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parents of either party to the marriage or to any other person, at or before or after the carriage in connection with the marriage of the said parties. Sri Mukherjee has laid emphasis on the words ‘given’ or ‘agreed to be given’ at or before or after the marriage in connection with the marriage. Judged in terms of the definition, the learned counsel has submitted that in the case in hand, neither party to the marriage nor their relations had ever given or agreed to give any property or valuable security to the other party at or before or after the marriage, and, therefore, the learned counsel argues, s. 4 of the Act is not attracted to the case in hand.
6. I find much substance in the submissions of the learned counsel for the petitioners. The complaint petition does not disclose that the complainant had given any property or valuable security or that he had agreed to give such things to the accused petitioner No. 1, either at or before or after the marriage between Usha Shaw and petitioner No. 1 or to his parents or other relations. Although in common parlance we very often use the term “dowry demand” in the cases where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage, yet, in my opinion this will not amount to demand for dowry under the Act in view of the definition of dowry contained in s. 2 the Act. Demand for dowry under the Act and in the legal sense will mean the demand for dowry only when it refers to property or valuable security given or agreed to be given at or before or after the marriage. The alleged offence as made out in the complaint petition may attract the penal provisions as contained in s. 498A of the Indian Penal Code. The Parliament in its wisdom appended the explanation as to what “cruelty” means and has constructed sub clause (b) of s. 498A in the following words, “Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”. In my opinion, if the cases of this nature are to be brought within the ambit of s. 4 of the Act, then the word ‘dowry’ under s. 2 of the Act shall have to be redefined in the light of sub-clause (b) under s. 498A of the Indian Penal Code. The term “extortion demand” popularised by the media may also find a place in the definition of dowry.

Sankar Prasad Shaw and Ors Vs The State and Anr on 27 Jul 1990 (CM Ver)

Other Sources:

https://indiankanoon.org/doc/946303/

https://www.casemine.com/judgement/in/56095f9ee4b01497112cab8b

Captain Manjit Singh Virdi (Retd.) Vs Hussain Mohammed Shattaf and Ors on 18 May 2023

Posted on May 30, 2023 by ShadesOfKnife

A division bench of Apex Court passed this reportable judgment relying on a earlier decision.

From Para 11,

11. The law on issue as to what is to be considered at the time of discharge of an accused is well settled. It is a case in which the Trial Court had not yet framed the charges. Immediately after filing of chargesheet, application for discharge was filed. The settled proposition of law is that at the stage of hearing on the charges entire evidence produced by the prosecution is to be believed. In case no offence is made out then only an accused can be discharged. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reasons to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the Court.
12. The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap2.

Captain Manjit Singh Virdi (Retd.) Vs Hussain Mohammed Shattaf and Ors on 18 May 2023

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

Showkat Aziz Zargar Vs Nabeel Showkat and Anr on 02 Sep 2022

Career Institute Educational Society Vs Om Shree Thakurji Educational Society on 24 Apr 2023

Rangesh Srinivasan Vs Madhulika Bawa on 07 Jun 2023

Anshu Gupta Vs Adwait Anand on 09 Aug 2023

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986

Lanka Venkateswarlu (D) by LRs Vs State of AP and Ors on 24 Feb 2011

State of U.P Vs Santosh Kumar and Ors on 3 Sep 2009

Sankar Prasad Shaw and Ors Vs The State and Anr on 27 Jul 1990

Captain Manjit Singh Virdi (Retd.) Vs Hussain Mohammed Shattaf and Ors on 18 May 2023