Aparna Bhat and Ors Vs State of Madhya Pradesh and Anr on 18 Mar 2021

Posted on March 23, 2021 by ShadesOfKnife

A 2-judge bench of Supreme Court passed the following directions in regards to bail proceedings in sexual offences (only applicable to women survivors).

From Para 45 and 46,

44. Having regard to the foregoing discussion, it is hereby directed that henceforth:
(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;
(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;
(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;
(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;
(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;
(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and
(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.
45. Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

Aparna Bhat and Ors Vs State of Madhya Pradesh and Anr on 18 Mar 2021

Tarlochan Dev Sharma Vs State of Punjab and Ors on 25 July 2001

Posted on March 22, 2021 by ShadesOfKnife

(The popular meaning also must not be resorted to)

Tarlochan Dev Sharma Vs State of Punjab and Ors on 25 July, 2001

Citations : [2001 AIR SC 2524], [2001 JT SC 5 645], [2002 LW 1 19], [2001 SCALE 4 472], [2001 SCC 6 260], [2001 SCR 3 1146], [2001 AIR SC 2689], [2001 AIR SCW 2689], [2001 JT 5 645]

Other Sources :

https://indiankanoon.org/doc/1389589/

https://www.casemine.com/judgement/in/5609ada0e4b0149711411e78

Paramjit Kumar Saroya Vs Union of India and Anr on 28 May 2014

Posted on March 21, 2021 by ShadesOfKnife

Sitting on a Division bench of Punjab and Haryana High Court, Justice Sanjay Kishan Kaul held that, Appeals under the Maintenance and Welfare of Parents and Senior Citizens Act 2007 can be filed by any of the affected parties.

We may add at this stage that in order to have assistance to this Court in view of the complexity in the matter involved, we considered it appropriate not only for the counsels to assist us, but to appoint Amicus Curiae to have dispassionate view of the matter. We, thus, appointed Mr. Puneet Bali, Senior Advocate as the Amicus Curiae to be assisted by Ms. Divya Sharma, Advocate. They have done a comprehensive research on various aspects of the matter and this includes the Parliamentary debates when the Bill for enactment of the said Act was introduced. A perusal of these debates reflect that therehas been no debate qua Section 16(1) of the said Act, nor has any intent been reflected to exclude the right of appeal to persons other than thesenior citizens or parents, unlike the debate on Section 17 of the said Act where the right of legal representation has been excluded.

And here is the conclusion.

We are thus of the view that Section 16(1) of the said Act is valid, but must be read to provide for the right of appeal to any of the affected parties.

Paramjit Kumar Saroya Vs Union of India and Anr on 28 May 2014

Citations : [2014 AIR P&H 121], [2014 SCC ONLINE P&H 10864]

Other Sources :

https://indiankanoon.org/doc/156882703/

https://www.casemine.com/judgement/in/5609a051e4b01497113e6023

Rakesh Kumar Paul Vs State of Assam on 16 Aug 2017

Posted on March 18, 2021 by ShadesOfKnife

A 3-judge bench of Apex Court held as follows regards to default bail u/s 167 CrPC,

From Para 4,

Therefore, the question before us is whether, pending investigation, the petitioner could be kept in custody for a maximum period of 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. without a charge sheet being filed.

From Para 25,

25. While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed given the range available. Undoubtedly, the Legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, the sentencing judge has no option but to give a sentence “not less than” that sentence provided for. Therefore, thewords “not less than” occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 167 of the Cr.P.C. these words must relate to an offence punishable witha minimum of 10 years imprisonment.

From Para 31,

31. In the 154th Report, the Law Commission noted that the unanimous opinion of members of the Bench and the Bar, prosecuting agencies and senior police officers during legal workshops held at various places was that the investigation of serious offences punishable with a sentence of 7 years or more should invariably be undertaken by senior officers. The Law Commission concluded, as a result of these extensive discussions, that it was desirable toseparate the investigating police from the law and order police and as many as seven reasons were given for arriving at this conclusion in Chapter II of the Report.

From Paras 40 and 41,

40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court – he made no specific application for grant of ‘default bail’. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail – such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.
41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.

Then finally in Paras 46 and 47,

46. It was submitted that as of today, a charge sheet having been filed against the petitioner, he is not entitled to ‘default bail’ but must apply for regular bail – the ‘default bail’ chapter being now closed. We cannot agree for the simple reason that we are concerned with the interregnum between 4th January, 2017 and 24th January, 2017 when no charge sheet had been filed, during which period he had availed of his indefeasible right of ‘default bail’. It would have been another matter altogether if the petitioner had not applied for ‘default bail’ for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for ‘default bail’ during the interregnum between 4th January, 2017 and 24th January, 2017 as is evident from the decision of the High Court rendered on 11th January, 2017. On the contrary, he had availed of his right to ‘default bail’ which could not have been defeated on 11th January, 2017 and which we are today compelled to acknowledge and enforce.
47. Consequently, we are of opinion that the petitioner had satisfied all the requirements of obtaining ‘default bail’ which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail.

Rakesh Kumar Paul Vs State of Assam on 16 Aug 2017

Citations : [2017 SCC ONLINE SC 924], [2017 ALLCC 101 287], [2017 ACR 3 2474], [2017 ALT CRL AP 3 141], [2017 CCR SC 3 371], [2017 DLT 242 79], [2017 ILR KER 3 673], [2017 JLJR 4 37], [2017 KHC 4 470], [2017 KLT 4 284], [2017 MLJ CRL 4 62], [2017 PLJR 4 53], [2017 RCR CRIMINAL 3 996], [2017 SCALE 9 24], [2017 UC 3 1756], [2017 SCC 15 67], [2018 SCC CRI 1 401], [2017 AIR SC 3948], [2017 AIC 178 75], [2018 CRI LJ 155]

Other Sources :

https://indiankanoon.org/doc/194334432/

https://www.casemine.com/judgement/in/599a9dfd4a93262f6c14fba6

https://www.indianemployees.com/judgments/details/rakesh-kumar-paul-versus-state-of-assam

Fakhrey Alam Vs State of Uttar Pradesh on 15 Mar 2021

Posted on March 18, 2021 by ShadesOfKnife

A Division bench of Supreme Court in this Order held as follows in regards to Default bail u/s 167 CrPC,

On the second aspect we cannot lose sight of the fact that what was envisaged by the Legislature was that the investigation should be completed in 24 hours but practically that was never found feasible. It is in these circumstances that Section 167 of the Cr.P.C. provided for time period within which the investigation should be completed, depending upon the nature of offences. Since, liberty is a Constitutional right, time periods were specified in the default of which the accused will have a right to default bail, a valuable right.
If we look at the scenario in the present case in that conspectus, the charge sheet under the provisions of law as originally filed on 04.09.2017 were required to be filed within 90 days but was actually filed within 180 days. This was on the premise of the charge under Section 18 of the UAPA Act. However, no charge sheet was filed even within 180 days under the UAPA Act, but post filing of the application for default bail, it was filed after 211 days. Thus, undoubtedly the period of 180 days to file the charge sheet qua UAPA Act had elapsed. We do not think that the State can take advantage of the fact that in one case there is one charge sheet and supplementary charge sheets are used to extend the time period in this manner by seeking to file the supplementary charge sheet qua the offences under the UAPA Act even beyond the period specified under Section 167 of the Cr.P.C beyond which default bail will be admissible, i.e, the period of 180 days. That period having expired and the charge sheet not having been filed qua those offences (albeit a supplementary charge sheet), we are of the view the appellant would be entitled to default bail in the aforesaid facts and circumstances.
We need only emphasize what is already observed in Bikramjit Singh case (supra) that default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right as it is, a procedure established by law under Article 21 of the Constitution. Thus a fundamental right is granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) of the Cr.P.C. are fulfilled.
In fact in the majority judgment of this Court it has been held that an oral application for grant of default bail would suffice [See. Rakesh Kumar Paul vs. State of Assam]3. The consequences of the UAPA Act are drastic in punishment and in that context, it has been held not to be a mere statutory right but part of the procedure established by law under Article 21 of the Constitution of India.

Fakhrey Alam Vs State of Uttar Pradesh on 15 Mar 2021

Citations :

Other Sources :

State of Goa Vs Fouziya Shaikh on 12 Mar 2021

Posted on March 17, 2021 by ShadesOfKnife

Supreme Court said, State Election Commissioner cannot be a Government functionary as this Constitutional body is supposed to be independent body.

From Para 52,

52. Given the fact that the scheme contained in Part XV is bodily lifted into the provisions contained in Part IX-A, the powers exercised by the SEC under Article 243ZA(1) are the same as those vested in the Election Commission of India under Article 324 of the Constitution of India. As has been pointed out in Mohinder Singh Gill (supra) and the aforesaid decisions, the entire supervision and conduct of elections to municipalities is vested in a constitutional authority that is the SEC which is to supervise and conduct elections by giving orders and directions to the State Government as well as authorities that are set up under State statutes for the purpose of supervision and conduct of elections. The power thus conferred by the Constitution is a power given to the SEC not only to carry out the constitutional mandate but also to fill in gaps where there is no law or rule governing a particular
situation during the conduct of an election. The SEC, being anindependent constitutional functionary, is not only to be obeyed by the State Government and the other authorities under local State statutes,but can also approach the writ court under Articles 226 and 227 of the Constitution of India to either enforce directions or orders issued by itor to ask for appropriate orders from High Courts in that behalf.

From Para 63 (Final observations)

63. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results.
I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles
226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced.
II. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner.
III. The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the process of election.
IV. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA(1) can set right such infraction. For this purpose, it can direct the State
Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf. It is entirely upto the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the
election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.
V. Judicial review of a State Election Commission’s order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.
VI. Article 243ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats.
VII. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-obstante clause contained in Article 243ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the concerned statute does not give such orders the status of a statutory provision.
VIII. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies.
IX. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities.
X. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition.

From Para 68,

68. The most disturbing feature of these cases is the subversion of the constitutional mandate contained in Article 243K of the Constitution of India. The State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities. The importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause (2) of Article 243K. Insofar as the manner and the ground for his removal from the office is concerned, he has been equated with a Judge of a High Court. Giving an additional charge of such an
important and independent constitutional office to an officer who is directly under the control of the State Government is, in our view, a mockery of the constitutional mandate. We therefore declare that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243K. The State Government is directed to remedy this position by appointing an
independent person to be the State Election Commissioner at the earliest. Such person cannot be a person who holds any office or post in the Central or any State Government. It is also made clear that henceforth, all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government. If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office. The directions contained in this paragraph are issued under Article 142 of the Constitution of India so as to ensure that the constitutional mandate of an independent
State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future.

State of Goa Vs Fouziya Shaikh on 12 Mar 2021

Citations :

Other Sources :

https://indiankanoon.org/doc/68534005/

https://www.indianemployees.com/judgments/details/state-of-goa-anr-versus-fouziya-imtiaz-shaikh-anr

Sartaj Singh Vs State of Haryana on 15 Mar 2021

Posted on March 16, 2021 by ShadesOfKnife

Supreme Court held that, even after getting discharged, an accused can be made to face trail u/s 319 CrPC, if new facts/evidence emerge during trial, even at chief-examination of prosecution witnesses.

From Para 6,

6.2 Considering the law laid down by this Court in Hardeep Singh (supra) and the observations and findings referred to and reproduced hereinabove, it emerges that
(i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-in-chief
of the witness concerned and the Court need not wait till the cross-examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and
(ii) a person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.
6.4 In the case of Rajesh v. State of Haryana (2019) 6 SCC 368, after considering the observations made by this Court in Hardeep Singh (supra) referred to hereinabove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the chargesheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in chargesheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.

Sartaj Singh Vs State of Haryana on 15 Mar 2021

Citations :

Other Sources :

https://www.indianemployees.com/judgments/details/sartaj-singh-versus-state-of-haryana-anr-etc

Dr. Rajesh Pratap Giri Vs State of U.P. and Anr on 05 Mar 2021

Posted on March 15, 2021 by ShadesOfKnife

A bench of three-judges categorically held that, once an Anticipatory Bail is granted it protected the grantee/accused until the end of trial and there is no need to obtain Regular Bail, after Charge sheet is filed by Police into the Court. This cites the 5-judge constitution bench decision in Sushila Aggarwal here.

From Para 2,

2. The present Criminal Appeals by way of Special Leave arise out of the impugned orders dated 11.12.2019 and 20.12.2019 passed by the Allahabad High Court. By order dated 11.12.2019, the High Court, on an application made by the complainant/respondent no. 2, indicated that the anticipatory bail granted to the appellant/accused by the Trial Court vide order dated 21.10.2019 had come to an end with the filing of a chargesheet, and directed him to surrender and apply for regular bail. The appellant subsequently filed an application for recall/modification of the order dated 11.12.2019 passed by the High Court, which was dismissed by the second impugned order dated 20.12.2019.

From Para 8,

8. In view of the above, we are of the opinion that the High Court wrongly held that the anticipatory bail granted to the appellant by the Trial Court vide order dated 21.10.2019 had come to an end with the filing of the chargesheet. We therefore set aside the impugned orders passed by the High Court and restore the anticipatory bail granted to the appellant by the Trial Court vide order dated 21.10.2019.

Dr. Rajesh Pratap Giri Vs State of U.P. and Anr on 05 Mar 2021

Citations : [2021 LawSuit(SC) 166], [MANU/SC/0305/2021]

Other Sources :

https://indiankanoon.org/doc/161262593/

https://lawsuitcasefinder.com/casedetail?id=U2FsdGVkX1plo2tUxa2cMAz7KRvWCQqG8B12T11THz0P2wMgs5

Index of all Anticipatory Bail Matters is here

Palla Shanthi Kiran Vs State of A.P. and Ors on 17 Jun 2020

Posted on March 14, 2021 by ShadesOfKnife

Relying on Chanmuniya case, Single-judge bench of AP High Court held that, in case of nullity of marriage under Section 11 or 12 of HMA, 125 CrPC cannot be invoked by knife.

Palla Shanthi Kiran Vs State of A.P. and Ors on 17 Jun 2020

Citations : [2020 ALT CRI 2 227], [2020 ALT 4 329]

Other Sources:

https://www.casemine.com/judgement/in/5f4398cd4653d009c1ff7665

https://www.legitquest.com/case/palla-shanthi-kiran-v-the-state-of-ap-and-ors/1C400E

The Lower Family Court dismissal order is here:

Palla Shanthi Kiran Vs Gadde Dileep on 29 Apr 2019

Rameshchandra Rampratapji Daga Vs Rameshwari Rameshchandra Daga on 13 Dec 2004

Posted on March 14, 2021 by ShadesOfKnife

A division bench of Supreme Court held that, Alimony and maintenance can be given even if a marriage is held to be null and void.

From Para 18,

18. In the present case, on the husband’s petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void — meaning non-existent in the eye of the law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan case, the expression used in the opening part of Section 25 enabling the “court exercising jurisdiction under the Act” “at the time of passing any decree or at any time subsequent thereto” to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as “at the time of passing of any decree”, it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13.
19. Learned counsel for the husband has argued that extending the benefit of Section 25 to even marriages which have been found null and void under Section 11 would be against the very object and purpose of the Act to ban and discourage bigamous marriages.
20. It is a well-known and recognised legal position that customary Hindu law like Mohammedan law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping in consideration the present state of the statutory Hindu law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent. It is with the purpose of not rendering a financially dependent spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in a marriage relationship.
21. Section 25 is an enabling provision. It empowers the court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.
22. The facts of the present case fully justify grant of maintenance both to the wife and the daughter. The evidence of the wife has been believed by the courts below and according to us rightly so. From the circumstances preceding and attending the marriage, it can safely be inferred that the present husband must have made reasonable enquiries about the previous marriage of the present wife. The wife’s version is natural and inspires belief that the document of chhor chithhi was shown and given to the husband. It is proved from the photocopy of the foil of registration, placed on record. According to the wife, the husband did receive the document of chhor chithhi but has not produced it before the Family Court. It is argued that it is open to the wife, if the document was registered, to get a copy from the registration office. Even if that was possible, we find no ground to disbelieve her version that the fact of her previous marriage was not concealed from the present husband. The husband is an advocate. His falsehood went to the extent of denying his second marriage and calling his wife only to be a governess of his children from the first wife. He unsuccessfully denied even the parentage of daughter Puja, born through him. He failed to lead any evidence on the illegitimacy of the child. After the second marriage the parties lived as husband and wife and they had a considerably long married life of about nine years from 1981 to 1990. In such a situation, the Family Court and the High Court were fully justified in holding that the wife deserves to be granted maintenance under Section 25 of the Act.

Rameshchandra Rampratapji Daga Vs Rameshwari Rameshchandra Daga on 13 Dec 2004

Citations : [2005 ALD SC 2 62], [2005 BOMCR 3 834], [2005 CTC 1 66], [2005 DMC SC 1 1], [2005 GLH 1 288], [2005 GLR 2 939], [2005 JCR SC 2 306], [2004 JT SC 10 366], [2005 KLT SC 1 188], [2005 LW 4 11], [2005 MLJ SC 2 49], [2004 SCALE 10 391], [2005 SCC 2 33], [2005 AIR SC 422], [2005 GUJLR 2 939], [2005 GUJ LR 2 939]

Other Sources :

https://indiankanoon.org/doc/938507/

https://www.casemine.com/judgement/in/5609adffe4b0149711412a91

Index of Maintenance Judgements under HMA is here.

Shades of Knife

True Colors of a Vile Wife

Tag: Reportable Judgement or Order

Aparna Bhat and Ors Vs State of Madhya Pradesh and Anr on 18 Mar 2021

Tarlochan Dev Sharma Vs State of Punjab and Ors on 25 July 2001

Paramjit Kumar Saroya Vs Union of India and Anr on 28 May 2014

Rakesh Kumar Paul Vs State of Assam on 16 Aug 2017

Fakhrey Alam Vs State of Uttar Pradesh on 15 Mar 2021

State of Goa Vs Fouziya Shaikh on 12 Mar 2021

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