COUPLES INDULGED IN PRE-MARITAL SEXUAL INTERCOURSE CONSIDERED TO BE MARRIED

The Hon’ble High Court of Judicature at Madras in Aysha Vs Ozir Hassan, held that if a bachelor who has completed 21 years of age and a spinster who completed 18 years of age indulges into a sexual act, then they would be considered as legally wedded couple. The Hon’ble Court was of further view that even after such a sexual relationship, if both decides to separate; the husband or wife cannot marry without getting a decree of divorce from the court of law.

Consequently, any couple who choose to consummate their sexual cravings then that act becomes a total commitment with adherence to all consequences that may follow except on certain exceptional considerations. Therefore, the marriage formalities as per respective religious customs viz., tying of thali, exchange of garlands, exchanging of finger rings, circling around the matrimonial fire pit or registering of marriage at a Government Registration Office is only to comply with each one’s respective religious customs for the satisfaction of the society.

The Hon’ble Court further observed, if any couple, subject to their attaining the mandatory age of freedom, who indulge in sexual gratification, then that would be considered as valid marriage and they could be termed as “husband and wife”, as a result of their choice of freedom. On the other hand, in some cases, both bachelors and spinsters, who adhering to all formalities of their respective religion and culture with marriage solemnized, find it that their conjugal rights for sexual consummation had not been fulfilled, then such a marriage is deemed to be a failure, void or lapse. So in total, what is expected after adhering to norms and formalities is the sexual consummation by the couple. Hence, the main legal aspect for valid marriage is consummation or sexual interaction.

The Hon’ble Court further observed that, if necessary, either party may approach the Family Court for declaration to the effect of marital status by supplementing documentary proof of evidence in order to prove the sexual relationship. After such a declaration from the concerned forum, the victim can establish herself in all the government records or any other relevant records where she can encrypt her name as wife to her counterpart. Legal rights applicable to the normal wedded couples will also be applicable to couples who have had sexual relationships which are established.

The Hon’ble High Court held that the main legal aspect for valid marriage viz., consummation between both spouses has happened even before the formalities. If the consummation has taken place between the spouses (bachelors and spinsters) then from that time onwards both are declared husband and wife. This declaration will not be prejudicial to either party. This Court’s further view is that this declaration would strengthen the Indian Culture and would protect the young women’s welfare, character and status among the society. This pertinent view of this Court is in order to protect Women’s Civil Rights and personal life. This Court further opines that it is an appropriate time to prevent the Indian Culture from deteriorating further when it comes to living honestly as spouses. It is an imperative need that the morals and ethics of Indian Culture is taken to the next level and maintained so as to never slander the life of an innocent woman. Finally and most importantly the Courts do give paramount importance to the customs and rights to every religion so long as it remains in tandem with civil rights that are controlled by the Courts.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

RIGHT TO PROPERTY IS A HUMAN RIGHT

In a Land Acquisition matter, the High Court vide its impugned Judgment rejected the claim of the Appellants for any compensation due to them for the land taken by the Respondent authorities, without resorting to any procedure prescribed by law. The land in dispute was owned by the predecessors-in-interest of the Appellants.  A very large chunk of land including the said land stood notified under Section 4 of the Land Acquisition Act, 1894 ('Act') for the establishment of a project for industrial development. No subsequent proceedings were taken up thereafter, and the acquisition proceedings lapsed. The Predecessors-in-interest of the Appellants being illiterate farmers were absolutely unaware of their rights and hence too inarticulate to claim them. The actual physical possession of the said land was taken by the State authorities and handed over to the Maharashtra Industrial Development Corporation ('Development Corporation') in the year 1964 itself.  Similarly situated persons who were also deprived of their rights in a similar manner were granted compensation. The Respondent authorities realising that grave injustice had been done to the Appellants, in respect of the land in dispute, issued a fresh notification under Section 4 of the Act, however, no further proceedings under the Act were initiated.  The Appellants had been pursuing the authorities persuading them to complete the deemed acquisition proceedings, but despite their efforts, even a declaration under Section 6 of the Act was not issued , later the Development Corporation, under the instructions of the Government of Maharashtra handed over the possession of the said land to the City Industrial Development Corporation of Maharashtra ('CIDCO').  Appellants were unable to get any compensation for the said land or even for that matter, any land in lieu of the lands so taken, in spite of their best efforts made in this regard.  As the Appellants were unable to get any relief from any authority, though they were continuously pursuing their remedies by approaching the Special Land Acquisition Officer, as well as the Revenue Authorities of the State, without any success whatsoever and eventually moved before the High Court. The High Court dismissed their plea only on the grounds of delay, and the non-availability of certain documents. Consequently an appeal was filed to the Supreme Court.

The Supreme Court observed, the Appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is pertinent to note that even after the Right to Property seized to be a Fundamental Right, taking possession of or acquiring the property of a citizen most certainly tantamount to deprivation and such deprivation can take place only in accordance with the "law", as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice.

The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension.

In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, in a democratic body polity, which is supposedly governed by the Rule of Law, the State should be allowed to deprive a citizen of his property, without adhering to the law.

Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. 

The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. 

The High Court committed an error in holding the Appellants non-suited on the ground of delay and non-availability of records, as the court failed to appreciate that the Appellants had been pursuing their case persistently. Accepting their claim, the statutory authorities had even initiated the acquisition proceedings in 1981, which subsequently lapsed for want of further action on the part of those authorities. The claimants are illiterate and inarticulate persons, who have been deprived of their fundamental rights by the State, without it resorting to any procedure prescribed by law, without the court realising that the enrichment of a welfare State, or of its instrumentalities, at the cost of poor farmers is not permissible, particularly when done at the behest of the State itself. The Appellants belonged to a class which did not have any other vocation or any business/calling to fall back upon, for the purpose of earning their livelihood.

Depriving the Appellants of their immovable properties was a clear violation of Article 21 of the Constitution. In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfillment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

The findings of the High Court, that requisite records were not available, or that the Appellants approached the authorities at a belated stage are contrary to the evidence available on record and thus, cannot be accepted and excused as it remains a slur on the system of governance and justice alike, and an anathema to the doctrine of equality, which is the soul of our Constitution. Even under valid acquisition proceedings, there is a legal obligation on the part of the authorities to complete such acquisition proceedings at the earliest, and to make payment of requisite compensation. The appeals etc. are required to be decided expeditiously, for the sole reason that, if a person is not paid compensation in time, he will be unable to purchase any land or other immovable property, for the amount of compensation that is likely to be paid to him at a belated stage.

In order to redress the grievances of the Appellants, the Respondent-authorities would notify the land in dispute Under Section 4 of the Act within a period of 4 weeks from today. Section 6 declaration will be issued within a period of one week thereafter. As the Appellants have full notice and information with respect to the proceedings, publication in the newspapers either of the notification or of the declaration under the Act is dispensed with. Notice under Section 9 of the Act will be served within a period of 4 weeks after the publication of Section 6 declaration and award will be made within a period of three months thereafter. The deemed acquisition proceedings would thus, be concluded most expeditiously. Needless to say, the market value of the land in dispute will be assessed as it prevails on the date on which the Section 4 notification is published in the Official Gazette. Payment of compensation/award amount will be made to the claimants/persons-interested immediately thereafter, along with all statutory benefits. The Appellants shall be entitled to pursue the statutory remedies available to them for further enhancement of compensation, if so desired.

- Tukaram Kana Joshi and Ors. thr. Power of Attorney Holder vs M.I.D.C. and Ors. (AIR2013SC565)

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Prepared by: S. Hemanth

Advocate at Hemanth & Associates

MERE EFFLUX OF TIME AND ESCALATION OF PRICE, NO GROUND TO DENY RELIEF OF SPECIFIC PERFORMANCE

The ultimate question that has now to be considered is whether the Plaintiff should be held to be entitled to a decree for specific performance of the agreement of 22.12.1970. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the Plaintiffs are in no way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the Plaintiffs to have the agreement enforced in law.

The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance.

Efflux of time and escalation of price of property, are to be read as a bar to the grant of a decree of specific performance would amount to penalizing the Plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final Court.

- Satya Jain (D) Thr. L.Rs. and Ors Vs Anis Ahmed Rushdie (D) Thr. L.Rs. and Ors. (AIR 2013 SC 434)

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

THE POWER TO INTERDICT A PROCEEDING EITHER AT THE THRESHOLD OR AT AN INTERMEDIATE STAGE IS INHERENT IN A HIGH COURT (SECTION 482)

A criminal complaint lodged before the court under the provisions of Chapter XV of the Code of Criminal Procedure or an FIR lodged in the police station under Chapter XII of the Code has to be brought to its logical conclusion in accordance with the procedure prescribed, power has been conferred Under Section 482 of the Code to interdict such a proceeding in the event the institution/continuance of the criminal proceeding amounts to an abuse of the process of court. An early discussion of the law in this regard can be found in the decision of R.P. Kapur v. State of Punjab AIR 1960 SC 866 wherein the parameters of exercise of the inherent power vested by Section 561A of the repealed Code of Criminal Procedure, 1898, (corresponding of Section 482 Code of Criminal Procedure, 1973) had been laid down in the following terms:

(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;

(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction;

(iii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and

(iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.

The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.

- Satish Mehra Vs State of N.C.T. of Delhi and Anr.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

LODGING TWO FIR AGAINST SAME PERSON IN RESPECT OF SAME CASE

The validity of registration of the second FIR against same person in respect of same case was decided by the Supreme Court.

The Appellants lodged the FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including the Appellant No. 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it noted, the complaint was filed by another member of the Governing Body of the Society and the allegation was that the accused persons, twelve in numbers, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates.

The Hon’ble Judges, in Surender Kaushik and others Vs State of Uttar Pradesh and others observed:

The lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint.

If the involvement of the number of accused persons and the nature of the allegations are scrutinized, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is impossible to say that the principle of sameness gets attracted. If the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The Appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. The Hon’ble Court concludes and held that the second FIR is recognised and will not be quashed.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

SETTLEMENT OF DISPUTE PUNISHABLE UNDER SECTION 498-A OF INDIAN PENAL CODE

Whether the Criminal Courts dealing with the complaints Under Section 498-A of Indian Penal Code can refer the matter to mediation for the settlement of dispute was examined by the Supreme Court.

The Hon’ble Supreme Court in K.Srinivas Rao Vs D.A.Deepa, held that though offence punishable Under Section 498-A of Indian Penal Code is not compoundable, in appropriate cases if the parties are willing and if it appears to the Criminal Court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation.

The Hon’ble Supreme Court had issued directions that “(b) The criminal courts dealing with the complaint under Section 498-A of the Indian Penal Code should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A of the Indian Penal Code is not diluted. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case. (c) All mediation centers shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

PRESUMED MARRIAGE ENOUGH FOR RELIEF UNDER PWDV ACT

Whether a relationship in the nature of marriage which existed will entitle woman to claim and receive maintenance under the DV Act, 2005

The Appellant, who was married to the Respondent in the year 2006, had filed a petition Under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the DV Act') seeking certain reliefs including damages and maintenance. During the pendency of the aforesaid application the Appellant filed an application for interim maintenance which was granted by the learned trial court on 13.02.2008 at the rate of Rs. 2000/- per month. the Respondent sought a recall of the order dated 13.02.2008 on the ground that he could subsequently come to know that his marriage with the Appellant was void on the ground that at the time of the said marriage the Appellant was already married to one Rohit Kumar Mishra. The learned trial court by order dated 7.8.2009 rejected the aforesaid application on the ground that notwithstanding the certificate issued Under special marriage act (first marriage) would still require to the adduced and only thereafter the certificate can be held to be valid. The High Court held that the marriage certificate dated 18.04.2003 was conclusive proof of the first marriage of the Appellant, which had the effect of rendering the marriage between the Appellant and the Respondent null and void. Accordingly, it was held that as the Appellant was not the legally wedded wife of the Respondent she was not entitled to maintenance granted by the learned courts below.

The Hon’ble Supreme Court in Deoki Panjhiyara Vs Shashi Bhushan Narayan Azad and Anr, [Criminal Appeal Nos. 2032-2033 of 2012] had observed:

If according to the Respondent, the marriage between him and the Appellant was void on account of the previous marriage of the Appellant, the Respondent ought to have obtained the necessary declaration from the competent court in view of the highly contentious questions raised by the Appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a "relationship in the nature of marriage" would be justified. In the absence of any valid decree of nullity or the necessary declaration the court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued Under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the Appellant, was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance.

The Hon’ble Court concluded that “the interference made by the High Court with the grant of maintenance in favour of the Appellant was not at all justified”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates