“It is settled legal proposition that
the evidence of a prosecution witness
cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and cross-examined him.
The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent that their version is found to be dependable on a
careful scrutiny thereof."
Jan 27, 2013
Jan 26, 2013
Sanjay Bhardwaj & Ors. v. The State & Anr
Hon'ble High Court of delhi 2009 observed as
a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree.
a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree.
Jan 24, 2013
Rameshbhai Dabhai Naika Vs State of Gujarat & Others SC 654 OF 2012 - 18.01.12
what would be the status of a person, one of whose parents belongs to the scheduled castes/scheduled tribes and the other comes from the upper castes, or more precisely does not come from scheduled castes/scheduled tribes-
Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the Legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. -
we propose to consider why the observation in Valsamma to the effect that an intercaste marriage or a marriage between a tribal and a non-tribal the woman becomes a member of the family of her husband and takes her husband’s caste (Paragraph 31 of the judgment) is not the ratio of that decision and more importantly what inequitable and anomalous results would follow if that proposition is taken to its next step to hold that the offspring of such a marriage would in all cases take the caste from the father. -
It seems a matter of grim irony that two nineteenth century decisions of the Privy Council that were rendered in their time to advance and safeguard the interests of Hindu widows should be relied upon and used for complete effacement of the caste and the past life of a woman as a result of her marrying into a different caste. -
the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an intercaste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well.
Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the Legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. -
we propose to consider why the observation in Valsamma to the effect that an intercaste marriage or a marriage between a tribal and a non-tribal the woman becomes a member of the family of her husband and takes her husband’s caste (Paragraph 31 of the judgment) is not the ratio of that decision and more importantly what inequitable and anomalous results would follow if that proposition is taken to its next step to hold that the offspring of such a marriage would in all cases take the caste from the father. -
It seems a matter of grim irony that two nineteenth century decisions of the Privy Council that were rendered in their time to advance and safeguard the interests of Hindu widows should be relied upon and used for complete effacement of the caste and the past life of a woman as a result of her marrying into a different caste. -
the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an intercaste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well.
Court on its own motion (LAJJA DEVI) through: NEMO Vs State
Hon'ble High Court of delhi observed as on 27.07.12
1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of less than 21 year could
be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their
custody?
3) If yes, can she be kept in the protective custody of the State?
4) Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage of her own?
5) Whether there may be other presumptions also which may arise?”
In such circumstances, allowing the husband to consummate a marriage may
not be appropriate more so when the purpose and rationale behind the PCM
Act, 2006 is that there should be a marriage of a child at a tender age as he
or she is not psychologically or medically fit to get married. There is another important aspect which is to be borne in mind. Such a marriage, after all, is voidable and the girl child still has right to approach the Court seeking to exercise her option to get the marriage declared as void till she attains the age of 20 years.
Answers to question-
1- voidable and PCM override HMA
2&3- yes but not for long period and free if above 20 - and it's on case to case basis
4&5- no
1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of less than 21 year could
be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their
custody?
3) If yes, can she be kept in the protective custody of the State?
4) Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage of her own?
5) Whether there may be other presumptions also which may arise?”
In such circumstances, allowing the husband to consummate a marriage may
not be appropriate more so when the purpose and rationale behind the PCM
Act, 2006 is that there should be a marriage of a child at a tender age as he
or she is not psychologically or medically fit to get married. There is another important aspect which is to be borne in mind. Such a marriage, after all, is voidable and the girl child still has right to approach the Court seeking to exercise her option to get the marriage declared as void till she attains the age of 20 years.
Answers to question-
1- voidable and PCM override HMA
2&3- yes but not for long period and free if above 20 - and it's on case to case basis
4&5- no
Rajendra Shrivastava Vs State of Maharashtra, (2010) 112 BomLR 762
Whether sc & st act may be add with sec 498a- Hon'ble High Court of Bombay observed as
“When a woman born in a scheduled caste or a scheduled tribe marries to a person belonging to a forward caste, her caste by birth does not change by virtue of the marriage. A person born as a member of a scheduled caste or a scheduled tribe has to suffer from disadvantages, disabilities and indignities only by virtue of belonging to the particular caste which he or she acquires involuntarily on birth. The suffering of such a person by virtue of caste is not wiped out by a marriage with the person belonging to a forward caste. The label attached to a person born into a scheduled caste or a scheduled tribe continues notwithstanding the marriage. No material has been placed before us by the applicant so as to point out that the caste of a person can be changed either by custom, usage, religious sanction or provision of law.”
“When a woman born in a scheduled caste or a scheduled tribe marries to a person belonging to a forward caste, her caste by birth does not change by virtue of the marriage. A person born as a member of a scheduled caste or a scheduled tribe has to suffer from disadvantages, disabilities and indignities only by virtue of belonging to the particular caste which he or she acquires involuntarily on birth. The suffering of such a person by virtue of caste is not wiped out by a marriage with the person belonging to a forward caste. The label attached to a person born into a scheduled caste or a scheduled tribe continues notwithstanding the marriage. No material has been placed before us by the applicant so as to point out that the caste of a person can be changed either by custom, usage, religious sanction or provision of law.”
Jumma Masjid Vs Kodimaniandra Deviah, AIR 1962 S C 847
the Supreme Court laid down the law as follows :
"Where the transferee knew as a fact that the transferor did not possess the title which he repre-sents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application ....."
"It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given the relevant words of Section 43 were 'where a person erroneously represents', and now, as amended by Act 20 of 1929 they are 'where a person fraudulently or erroneously represents' and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently is making the representation, and that what is material is that he did make a representation and the transferee has acted on it."
"Where the transferee knew as a fact that the transferor did not possess the title which he repre-sents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application ....."
"It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given the relevant words of Section 43 were 'where a person erroneously represents', and now, as amended by Act 20 of 1929 they are 'where a person fraudulently or erroneously represents' and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently is making the representation, and that what is material is that he did make a representation and the transferee has acted on it."
Jan 20, 2013
Centre For PIL & Anr Vs Union of India & Anr, AIR 2011 SC 1267
Supreme Court of India considered the argument of unanimity, or consensus, in the matter of the appointment of the Central Vigilance
Commissioner and observed as under
“It was further submitted that if unanimity is ruled
out then the very purpose of inducting the Leader
of the Opposition in the process of selection will
stand defeated because if the recommendation of
the Committee were to be arrived at by majority it
would always exclude the Leader of the
Opposition since the Prime Minister and the Home
Minister will always be ad idem.
We find no merit in these submissions. To accept
the contentions advanced on behalf of the
petitioners would mean conferment of a “veto
right” on one of the members of the HPC. To
confer such a power on one of the members would
amount to judicial legislation.”
Commissioner and observed as under
“It was further submitted that if unanimity is ruled
out then the very purpose of inducting the Leader
of the Opposition in the process of selection will
stand defeated because if the recommendation of
the Committee were to be arrived at by majority it
would always exclude the Leader of the
Opposition since the Prime Minister and the Home
Minister will always be ad idem.
We find no merit in these submissions. To accept
the contentions advanced on behalf of the
petitioners would mean conferment of a “veto
right” on one of the members of the HPC. To
confer such a power on one of the members would
amount to judicial legislation.”
Jan 14, 2013
Subscribe to:
Posts (Atom)