DISTRICT FORUM CAN GRANT MAXIMUM OF 45 DAYS TIME TO THE OPPOSITE PARTY TO FILE HIS VERSION OR REPLY

Three Judges Bench of Supreme Court, answering a reference to it in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., has reiterated that the District Consumer Forum can grant a further period of 15 days (after the expiry of initial 30 days) to the opposite party for filing his version or reply and not beyond that.

ISSUE

The issue is within which time the opponent has to give his version to the District Forum in pursuance of a complaint filed by the complainant to the consumer forum under the provisions of section 12 of the Consumer Protection Act.

LAW

13. Procedure on admission of complaint – (1) ...............

(2) The District Forum shall, if the complaints admitted by it under Section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services, –

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

(b) ---------------

DR. J.J. MERCHANT CASE DECIDED ON 2002

 In this case, a three judge bench of Apex Court had held “there is legislative mandate to the District Forum or the Commissions to dispose of the complaints as far as possible within prescribed time of three months by adhering strictly to the procedure prescribed under the Act. The opposite party has to submit its version within 30 days from the date of the receipt of the complaint by him and Commission can give at the most further 15 days for some unavoidable reasons to file its version.”

KAILASH CASE DECIDED ON 2005

 In this case, another Three judges bench, held that limit of 90 days, as prescribed by the proviso to Rule 1 of Order 8 of the Civil Procedure Code, is not mandatory,but directory in nature, and further time for filing reply can be granted, if the circumstances are such that require grant of further time for filing the reply. In this case, Dr JJ Merchant case was also discussed and it was held that the observations made in that case, to the extent it deal with the Rule 1 of Order 8 of CPC was obiter.

VIEW HELD (EARLIER DECISION PREVAILS)

The Apex court said that since the issue discussed in Dr J.J. Merchant case is identical to the issue in the present case, it holds the field and not the latter view in Kailash case, since it deals with CPC provisions.

Also the law laid down in the Dr. J.J. Merchant case was decided on 2002, which is earlier in time and will prevail, but even a Bench of coordinate strength of this Court, which had decided the case of Kailash (decided on 2005) was bound by the view taken by a three-Judge Bench in the case of Dr. J.J. Merchant. As per the law laid down the subsequent Court ought to have respected the view expressed by the earlier Court. The established legal positions which are summarized below cannot be ignored:

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions: (i) The above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

WOMEN RIGHT OVER STRIDHANA PROPERTIES

The Hon’ble Supreme Court in Krishna Bhatacharjee Vs. Sarathi Choudhury and another (reported in 2015 AIR SCW 6386) have decided on the claim made by women over her Stridhana properties, the apex court observed who is the “aggrieved person” as defined under the Protection of Women from Domestic Violence Act, 2005 and whether the claim was barred by limitation and the relationship of husband and wife when there is a decree of judicial separation.

Stridhana properties means: Stridhana properties are properties gifted to the girl before her marriage, at the time of marriage or at the time of giving farewell or thereafter. It is her absolute property with all rights to dispose at her own pleasure. Husband has no control over her Stridhana properties, he may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. The Stridhana properties are not joint properties of the wife and husband, the husband will have no right or title over the Stridhana property.

Domestic violence includes Economic Abuse: The Protection of Women from Domestic Violence Act, 2005, is the beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence. The definition of “Domestic Violence” covers a range of violence including “Economic Abuse”.

Background before appealing to Supreme Court: The appellant (woman/wife) having lost the battle for getting her Stridhan back from her husband, before the learned Magistrate on the ground that the claim preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was not entertainable as she had ceased to be an "aggrieved person" under Section 2(a) of the 2005 Act and further that the claim as put forth was barred by limitation; preferred an appeal before the learned Additional Sessions Judge who concurred with the view expressed by the learned Magistrate. Subsequently approached the High Court of Tripura, Agartala in Criminal Revision, the High Court declined to interfere with the lower court findings, consequently wife preferred appeal, by special leave before the Supreme Court.

Difference between decree for divorce and judicial separation: There is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and legal relationship continues as it has not been snapped. Therefore wife does not cease to be an “aggrieved person” because of decree of judicial separation. Once decree for divorce is passed the parties become different, but that is not so when there is a decree for judicial separation.

Continuing offence: The retention of Stridhana by the husband or any other family members is a continuing offence.  Neither the husband nor any other family members can have any right over the Stridhana and they remain the custodians. Wife as long as she remain the status of the “aggrieved person” can file for her right or claim under 2005 Act for her stridhana properties. In the above case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010 to the Magistrate. In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for Stridhana. Regard being had to the said concept of "continuing offence" and the demands made, the Hon’ble Supreme held that the application was not barred by limitation and the courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation.

The Hon’ble Supreme Court allowed the appeal and directed the concerned magistrate to proceed with the application filed by the appellant wife under provision of section 12 of Protection of Women from Domestic Violence Act, 2005.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

COMPACT DISC (C.D) RECODING IS A DOCUMENT OF EVIDENCE

The Hon’ble Supreme Court of India in Shamsher Singh Verma Versus State of Haryana decided matter in respect of Compact Disc (C.D) which is recording of a conversation as a document in evidence Act.

In the Criminal Appeal by Shamsher Singh Verma filed before the Supreme Court against the order of High Court of Punjab and Haryana at Chandigarh, whereby the said Court had affirmed the order passed by the Special Judge, Kaithal, rejecting the application of accused for getting exhibited the C.D. filed in defence by the accused.

The C.D. consists of recording of the conversation between the father of victim, son and wife of the accused.

The Hon’ble Supreme Court held that the C.D. is also a document under the evidence Act. The C.D. can be played to enable the public prosecutor to admit or deny the document and to get it verified by the forensic science laboratory

Prepared by: S. Hemanth
Advocate at Hemanth & Associates

A PRIVATE LIMITED COMPANY USING SERVICES IS A BODY CORPORATE AND NOT A NATURAL PERSON WHO NEEDS TO EARN HIS LIVELIHOOD

The complainant a private limited company availing services of bank for business purposes, its complaint is not maintainable before the Consumer Forum. The company is a body corporate and not a natural person who needs to earn his livelihood.

​

M/s Recorders and Medicare Systems Pvt. Ltd. through its Director and authorized signatory, Shri Jalesh Grover, has filed complaint before the National Consumer Disputes Redressal Commission, under section 21 of the Consumer Protection Act, 1986 against the State Bank of Patiala, claiming deficiency on the part of the respondent/opposite party bank on account of its failure to renew the insurance policy which it had been doing in its capacity as Monitoring Institution of the complainant Company and for which it had charged fees as consideration for its services.

​Since the services of the respondent Bank have been availed of by the complainant for business/commercial purposes, its complaint is not maintainable before the consumer Fora under the Consumer Protection Act, 1986 in view of the provisions of section 2 (1) (d). Although the explanation appended to section 2 (1) (d) of the Act provides that the "commercial purpose" does not include the services availed by the person exclusively for the purpose of earning his livelihood by means of self-employment. However, the explanation restricting the scope of the commercial purpose is of no avail to the complainant because complainant is a body corporate and not a natural person who needs to indulge to earn his livelihood. In view of this, we are of considered view that the complainant is not covered under the definition of consumer as defined under section 2 (1) (d) (ii) of the Act and as such the complaint is not maintainable before the consumer Forum.

The above was held by the National Consumer Disputes Redressal Commission (NCDRC) in ​M/s. Recorders and Medicare System Pvt. Ltd Vs ​State Bank of Patiala (SBP) and others.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

SUPREME COURT OF INDIA ON SECTION 6 OF THE HINDU SUCCESSION ACT – DAUGHTERS RIGHT TO PROPERTY

The Hon’ble Supreme Court decided on the matter whether Hindu Succession (Amendment) Act, 2005 will have retrospective effect. The Hon’ble Court held that an amended of a substantive provision is always prospective.

The following are most important declarations from the decision of the Hon’ble Supreme Court in Prakash Vs Phulavath, which affect the right of a daughter in respect of the property:

1. The rights under the amendment are applicable to living daughters of living coparceners as on 9^th September, 2005 irrespective of when such daughters are born.

2. Partitions effected before 20^th December, 2004 remain unaffected. The partition means a partition made by registered deed or effected by decree of a Court. In any case statutory notational partition remains valid and effective.

3. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective.

4. Birth of the daughter after the amendment is not necessary, all that is required is that daughter should be alive and her father also is alive on the date of the amendment.

5. If the father had died prior to the commencement of the amendment (here, father self earned property died intestate) the amendment provision will not apply.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

HUSBAND’S ILLICIT RELATIONSHIP IS NOT ALWAYS CRUELTY

The Hon’ble Supreme Court Acquited Appellants Due to Lack of Evidence to Prove Mental Cruelty U/S 498a

The prosecution case was that the husband, Rakesh had an extra marital affair with Jasuben, a divorcee. This illicit relationship shattered his marital relation with his deceased wife Biniben. The said Biniben committed suicide on 4/3/04 by consuming poison. The death of the deceased was known to her parents only on 17/3/04.  After the knowledge of her suicide her mother filed complaint at Jamnagar police station and pursuant to the statement of 21 witnesses the police filed charge sheet u/s 498 A, 306, 201 and 114 of IPC against father-in -law of the deceased as accused 1, husband as Accused 2, mother-in-law as accused 3 and Jasuben as Accused 4. The elder brother and wife of accused 2 were exonerated by the trial court due to lack of evidence against them. Other accused were convicted by the trial court and they preferred appeal in the High court The Honorable high court also upheld the conviction of the trial court. Against the finding of high court the appellants moved appeal before the Apex court.

The Bench presided over by Justice Sudhanshu Jyoti Mukhophadya and Justice Deepak Misra had scrutinized minute aspects of the sections the appellants have been charged, and with reference of similar citations reached the conclusion to acquit the appellants.

The SC observed that the prosecution had produced and based on the deposition of PW 21 the sister of the deceased it was quite clear the deceased had obtained a divorce with 2nd accused and stayed on the terrace of the house. She had also intimated that after the festival of Holi she will return to her parental house.

The apex court further analyzed whether the charges framed u/s of IPC is applicable to the appellants in the instant case. The alleged charges of mental cruelty inflicted on the deceased by her husband owing to his extramarital affair wouldn’t attract Section 498 A as the cruelty defined in the section require proper evidence of such imposition of harassment on the deceased. The court observed that the in laws of the deceased were alleged to take her daily earnings but that was also not proved.  Any torture stated in Section 498 A and demand of dowry is not committed by accused and hence alleged cruelty by them in laws is also not proved and does not attract the explanation cruelty or harassment in section 498 A.

The endurance of mental cruelty depends on the mental status of each individual as per the court and the Bench affirmed that a fact of husband having an illicit relation imposed mental cruelty on the deceased is not proved by any strong undeniable evidence or fact. Another point of consideration by the court was the element of abetment or instigation u/s 306. Court observed that the suicide note of the deceased states that she was possessive about her husband and due to emotional stress she relieved her husband through the act of suicide that does not come under the ambit of abetment stated in section 306.

On the conclusion Apex Court has found that the accused appellants are not guilty u/s 306 and 498A of IPC hence the conviction is not sustainable u/s 201. The appellants were acquitted on the light of the above findings.

[Ghusabhai Raisangbhai Chorasiya & Others Vs State of Gujarat – 2015 AIR SCW 3950]

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

DIVORCED WIFE CANNOT FILE PETITION FOR MAINTENANCE

From section 125 of the Cr.P.C it is seen that, to file a petition, the status of wife and husband should exist between the petitioner and the respondent. In addition she should show that she does not have any source of income and she is unable to maintain herself.

High Court of Karnataka in Dr.Shrishail Ramakrishna Bijapure Vs Smt. Vidya  

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

DELAY IN LODGING CHEQUE BOUNCE CASE SHOULD BE CONSIDERED FIRST

Application to condone the delay in lodging complaint under negotiable instrument act must be considered before issuing summons to accused

In this case, High Court of Karnataka held that the Magistrate had committed a serious error in not considering the application under section 142 (b) of the Negotiable Instruments Act, 1881 at the initial stage. The case was remitted back to the Magistrate to consider the said application first and then pass appropriate orders, if necessary.

High Court of Karnataka in G Ravi Vs Shivanand Revappa Rebbanavar

Prepared by: S. Hemanth

Advocate at Hemanth & Associates 

WIFE MAINTENANCE FACTORS TO BE CONSIDERED

The Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and to all those he is obliged under law and also statutory but involuntary payment or deductions from his income. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she used to when she lived with her husband and she does not feel handicapped in the prosecution of her case. The amount when fixed cannot be excessive.

High Court of Karnataka in K R Arun Vs Smt. M. Latha

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

REVIEWING OF THE SANCTION TO PROSECUTE A PUBLIC SERVANT

Reviewing or reconsidering of the earlier order refusing to grant sanction to prosecute a public servant is possible in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority.

In this case, the petitioner, a public servant, while working as Deputy Electrical Inspector, was trapped by the Lokayukta Police, on 18.12.2010, while allegedly taking bribe money of Rs. 18,000/- from the 4^th respondent, an electrical contractor. Upon completion of investigation, to prosecute the petitioner, sanction was sought, under S.19 of the Prevention of Corruption Act, 1988 (for short ‘the Act’) from respondent No. 1. Government of Karnataka, on the basis of the material placed by the Investigating Agency and on examination of the case, found no justification to grant the sanction. By order dated 28.03.2013, sanction for prosecution of petitioner was rejected.

Additional Director General of Police, Karnataka Lokayukta, furnished clarification with reference to the said order of rejection and requested the 1^st respondent to reconsider its decision and accord sanction. Government of Karnataka having reconsidered the matter and accorded sanction for prosecution of the petitioner, vide Government Order dated 03.07.2014, as at Annexure – A, this case was filed to quash the said order.

The Hon’ble High Court of Karnataka in Shri L. Megha Naik Vs. State of Karnataka by its Principal Secretary to the Government, Energy Department, Bengaluru and others, followed the proposition law laid down in the case of Nishant Sareen. The Hon’ble High Court of Karnataka held that if the respondent had any grievances against the first order, refusing to grant sanction, ought to have challenged the said order. The said order having been allowed to become final and the power of sanctioning authority being not of continuing character i.e., in the absence of any other fresh material, could not be exercised, the case/writ petition filed by the petitioner was allowed.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

ADVOCATE ALONE CANNOT SETTLE THE MATTER BEFORE LOK ADALATH

In this case, the petitioner/plaintiffs assailing the impugned award contents that the plaintiffs have not affixed their signatures to the compromise; award/decree is passed on the basis of a compromise signed by their Counsel. The same is patently illegal and therefore, requires to be set aside. It is on the basis of the signature of their Advocate, compromise is recorded and an award/decree is passed which is patently illegal and therefore, he submits the impugned award requires to be set aside.

As could be seen from the compromise, acting on the family agreement and partition deed under which the properties of the joint family are partitioned by metes and bounds, an attempt is made to convey properties which had fallen to their respective shares in favour of others, probably, to make adjustments. The plaintiffs have not agreed to the said compromise and as is clear from the facts, they have not affixed the signatures to the compromise. This goes to show that the very purpose of referring the matter to Lok Adalath and conducting Lok Adalath is defeated. In the Lok Adalath, the parties have to come face to face, sit together and resolve the dispute with the assistance of the Counsel and the members of the Lok Adalath. If the parties are not coming together, the Advocates for the parties cannot force compromise upon them and the Lok Adalath cannot accept such compromise.

The Hon’ble High Court of Karnataka allowed the writ petition and the order passed by the Lok Adalath was set aside. The original suit was restored to its file.  [Sri. Govardhana and Another Vs. Appi and Others]

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

USELESS FORMALITY THEORY

Union of India, vide Memorandum dated December, 24, 1997, unveiled a new industrial policy for the North-Eastern region. In the said policy, in order to give stimulation to the development of industrial infrastructure in the North-Eastern region, the said region was made tax free zone for a period of ten years giving incentives to those who wanted to establish industries in that region.

However, on December, 31, 1999, another Notification was issued whereby exemption of central excise was withdrawn in respect of goods falling under Chapter 21.06 (pan masala) and Chapter 24 (tobacco and tobacco substitutes, including cigarettes, chewing tobacco etc.).

This withdrawal Notification was challenged by the appellant by filing the writ petition in the High Court of Gauhati. The learned single Judge dismissed the writ petition. However appeal preferred by the appellant was allowed by the Division Bench vide judgment dated December, 03, 2012.   

However, after notifying Section 154 of the Act of 2003, which had nullified the effect of Notification No. 32 of 1999 retrospectively thereby annulling the effect thereof altogether, respondent No. 1 herein passed recovery order dated June, 03, 2003 for recovery of a sum of Rs. 2,93,43,244/- (Rupees two crores ninety three lakhs forty three thousand two hundred and forty four only) from the appellant, which was the benefit that had been drawn by the appellant for the period November, 1999 till February, 2001 in terms of Notification No. 32 of 1999. By another order dated June, 06, 2003 issued by respondent No. 1, the appellant was directed to pay the excise duty for the said period for which the benefit had been availed. He also rejected the pending claim of refund for the period from March, 2001 till May, 31, 2003. There recovery orders were challenged by the appellant by filing appeal before the Commissioner (Appeals). This order of pre-deposit was challenged by the appellant by filing four writ petitions in the High Court of Gauhati. The learned single Judge of the High Court, however, dismissed these writ petitioners vide order dated May, 18, 2004. The appellant carried this issue of pre-deposit to a higher forum in the form of writ appeals before the Division Bench of the said Court. The Commissioner (Appeals) heard the appeals and passed the orders dated June 15, 2005 deciding the appeals in favour of the appellant. He held that issuance of show-cause notice was mandatory before a valid recovery of demand could be made from the appellant and, thus, remitted the matter to the adjudicating authority, both the appellant as well as the Revenue filed appeals aggrieved against the order dated June, 15, 2005 passed by the Commissioner (Appeals). The Customs Excise & Service Tax Appellant Tribunal (for short ‘CESTAT’) decided these appeals vide common order dated May 28, 2007. It reversed the order of Commissioner (Appeals), which resulted in allowing the appeal filed by the Revenue and dismissing the appeal preferred by the appellant.

One of the issued was whether recovery proceedings can be initiated without show-cause notice under section 11A of the Excise Act, which is mandatory?

The Supreme Court held that “the appellant was accorded certain benefits under Notification dated July, 08, 1999. This Notification stands nullified by Section 154 of the Act of 2003, which has been given retrospective effect. The legal consequence of the aforesaid statutory provision is that the amount with which the appellant was benefitted under the aforesaid Notification becomes refundable. Even after the notice is issued, the appellant cannot take any plea to retain said amount on any ground whatsoever as it is bound by the dicta in R.C. Tobacco (supra). Like-wise, even the officer who passed the order has no choice but to follow the dicta in R.C. Tobacco (supra). It is important to note that as far as quantification of the amount is concerned, it is not disputed at all. In such a situation, issuance of notice would be an empty formality and we are of the firm opinion that the case stands covered by ‘useless formality theory’.

The Supreme Court held that by the factual matrix the non-issuance of notice before sending communication dated June, 23, 2003 had not resulted in any prejudice to the appellant and it may not be feasible to direct the respondents to take fresh action after issuing notice as that would be a mere formality.

[M/s Dharampal Satyapal Ltd., Vs. Deputy Commissioner of Central Excise, Gauhati and Ors.;   2015 AIR SCW 3884]   

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

SANCTION TO PROSECUTE POLICE OFFICER

In the this case, the allegation was that the police officer/appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time.

The Hon’ble Supreme Court held that by the factual matrix, it is evident that the whole allegation is on police excess in connection with the investigation of a criminal case. The said offensive conduct is reasonably connected with the performance of the official duty of the appellant. Therefore, the learned Magistrate could not have taken cognizance of the case without the previous sanction of the State Government. The High Court missed this crucial point in the impugned order. [D.T. Virupakshappa Vs. C Subash]

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

INTENTION OF BIDDER NOT BONAFIDE, POSSESSION CAN RESUME

In this case, the respondent had participated in an auction conducted by the appellants for disposal of certain booths situated in Sector 9 at Panchkula and had offered the highest bid of Rs. 4 lakhs for booth No. 103 situated in the said sector. As he was the highest bidder, subject to the conditions of the auction, he has allotted the said booth vide Memo No. 12351 dated 14^th September, 1988. The respondent had deposited Rs. 40, 000/-, being 10% of the amount of bid, immediately and thereafter he had further deposited a sum of Rs. 60,000/- so as to make 25% of the total amount offered by him.

The balance amount of Rs. 3 lakhs was to be paid by the respondent to the appellant authorities in 10 half yearly instalments along with interest @10% per annum. There was a condition in the auction sale that in case of default in payment, the respondent had to pay interest @10% per annum on the unpaid amount and it was also open to the appellant to impose further amount of penalty and the resume possession of the both.

The Supreme Court held that from the facts it shows that the respondent committed several irregularities in making payment of the remaining amount; respondent is not having bona fide intention and is merely trying to remain in possession without making payment of the bid amount, which he had agreed to pay. It would be open to the appellant to take possession of the booth in question in accordance with law.  [HUDA & another Vs. Kedar Nath; 2015 AIR SCW 3947].

Prepared by: S. Hemanth

Advocate at Hemanth & Associates 

ALLEGATION THAT THE APPELLANT HUSBAND PLAYED FRAUD ON THE FAMILY COURT AND OBTAINED DECREE OF DISSOLUTION OF MARRIAGE

ALLEGATION THAT THE APPELLANT HUSBAND PLAYED FRAUD ON THE FAMILY COURT AND OBTAINED DECREE OF DISSOLUTION OF MARRIAGE

The appellant husband filed a petition under Section 13(1) (i-a) and (i-b) of the Hindu Marriage Act, 1955, for dissolution of marriage. The notice issued to 1^st respondent-wife was retuned as refused, the Family Court held service of notice on the wife as sufficient. The 1^st respondent-wife was placed ex parte and the case was adjourned. The first respondent-wife’s counsel filed vakalathnama and an application under Order IX, Rule 7 of C.P.C, the said application was allowed, the ex parte order was set aside. The 1^st respondent-wife was absent and evidence was closed. Appellant-husband got himself examined as P.W-1 and got marked Exs. P1 to P4. Cross-examination of P.W-1 was taken as nil, the family Court allowed the petition and dissolved the marriage of the parties.

The 1^st respondent-wife challenged the judgement of the dissolution of marriage before the High Court on the grounds of fraud.

The main allegation made by the 1^st respondent-wife is that the husband played fraud on the Family Court and obtained the decree of dissolution of marriage. In support of such submission, she submitted that she had not engaged any Counsel in the case and that blank Vakalathnama was taken at the time of settlement for their mutual divorce and that she never appeared before the Family Court.

No question as to whether the appellant-husband played fraud on the Family Court and obtained the decree of dissolution of marriage or whether the appellant-husband committed any offence punishable under the provisions of Indian Penal Code was framed by the High Court. The High Court failed to notice that this is a case in which there is a disputed question of fact which cannot be decided without faming a proper issue and in absence of evidence on record. Consequently the Hon’ble Supreme Court had set aside the impugned judgement passed by the Division Bench of the High Court of Karnataka and thereby the appellant-husband appeal was allowed. [Sunil Vs. Sakshi@Shweta].

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

ONCE THE LABOUR COURT HAS EXERCISED THE DISCRETION JUDICIALLY, THE HIGH COURT CAN INTERFERE WITH THE AWARD, ONLY IF IT IS SATISFIED THAT THE AWARD OF THE LABOUR COURT IS VITIATED BY ANY FUNDAMENTAL FLAWS

ONCE THE LABOUR COURT HAS EXERCISED THE DISCRETION JUDICIALLY, THE HIGH COURT CAN INTERFERE WITH THE AWARD, ONLY IF IT IS SATISFIED THAT THE AWARD OF THE LABOUR COURT IS VITIATED BY ANY FUNDAMENTAL FLAWS

The appellant was served with article of charge alleging that he had secured appointment by producing a false transfer certificate. The enquiry officer submitted the report holding the appellant guilty for his misconduct. After affording opportunity to the appellant to show cause against the proposed punishment, the disciplinary authority passed the order imposing punishment of dismissal from service.

The appellant raised an industrial dispute before the III Additional Labour Court, Bangalore. The Labour Court directed the management of the corporation to reinstate the appellant in his original post with continuity of service but without backwages. In the Labour Court, appellant has produced notarized copies of orders passed by the respondent-Corporation in respect of other workmen, who have committed similar misconduct but were awarded lesser punishments.

The respondent-Corporation filed a writ petition before the High Court. The learned Single Judge allowed the writ petition holding that the punishment of dismissal from service was proportionate to the proved misconduct against the appellant.

The Supreme Court observed that the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India. The High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws.

The Supreme Court held that they do not find that the award passed by the Labour Court suffers from any such flaws. The appeal was allowed and the order of the High Court was set aside and the award passed by the Labour Court is restored. [K.V.S. Ram Vs. B.M.T.C]

Prepared by: S. Hemanth

Advocate at Hemanth & Associates