#022 Which country is cruel and which country is not? Extradition or no extradition?

Is country relevant for cruelty?

Euro-American countries and their courts seem to continuously entertain a view that courts and laws in non-Euro-American countries are cruel and no reliance can be placed on justice delivered through them.
Reasonableness of laws, sternness of punishments, adoption of procedures like audi alterim partem, corruption in police and judicial systems prevailing in different countries may determine and influence the outcomes both in civil and criminal cases. We cannot make generalisations and arrive at conclusions immediately after hearing the name of a country.
Countries in general, and Euro-American-countries in particular have to shed their colonial prejudices that their own judicial systems are perfect and the practices and systems in other countries are just shit.
We shall take up one or two cases:
Case: Albu Qatada. Euro-American-country: U.K. other-world: Jordan. issue: Many English consider as a turbulent priest, menace and peril. It appears that British Courts have not allowed his extradition to Jordan, where the British Courts believe that he will not receive justice and that he will be convicted using evidence obtained by torturing co-accused.

#020 A QUIZ ON PROVERBS OF LAW

1: The safety of the ___ is the highest law . ANSWER

2: It _____ no one to be wiser than the laws . ANSWER

3: Give me the making of the ____ of the people ; I care not who makes their laws . ANSWER

4: Where the law forbids any thing, and hath not determined a punishment, the punishment is in the discretion of the ___ . ANSWER

5: New ____, new laws . ANSWER

6: The ___ of the kingdom of England, is the law of England . ANSWER

7: The exposition of _____ is the best, and the strongest in law . ANSWER

8: Any thing in law is _____, in the same way in which it was found . ANSWER

9: The offspring of a lawful marriage does not more certainly know its ___ than its father . ANSWER

10: Bondage is miserable where the law is ___ or uncertain . ANSWER

#019 WIFE'S MENTAL CRUELTY TOWARDS HER HUSBAND

QUESTIONS
* Does a wife's not attending on or enquiring over telephone, about the well-being of her husband who has undergone byepass surgery - tantamounts to mental cruelty? Does it entitle an aggrieved husband for a divorce?

* Wife cooking separately for herself and going to Office, compelling the husband to dine in a hotel.

* Does the social status of a witness matter? Can a court treat the deposition of a servant as unreliable because of his low social status?



STATUTE
* Special Marriage Act 1954.
* Section 13 (1) and (1-a) of Hindu Marriage Act.

American Jurisprudence
The term "mental cruelty" has been defined as under:
"Mental Cruelty as a course of unprovoked
conduct toward one's spouse which causes
embarrassment, humiliation, and anguish so
as to render the spouse's life miserable and
unendurable. The plaintiff must show a
course of conduct on the part of the defendant
which so endangers the physical or mental
health of the plaintiff as to render continued
cohabitation unsafe or improper, although the
plaintiff need not establish actual instances of
physical abuse."

CASE NO.: Appeal (civil) 151 of 2004
PETITIONER: Samar Ghosh
RESPONDENT: Jaya Ghosh
DATE OF JUDGMENT: 26/03/2007
BENCH: B.N. Agrawal, P.P. Naolekar & Dalveer Bhandari

To see the full text of this judgement, please visit: http://www.judis.nic.in/supremecourt/chejudis.asp.

BRIEF OUTLINE OF EVENTS/FACTS
* 1984 - One female divorced I.A.S. Officer (divorced from her I.A.S. husband) and another I.A.S. Officer marry.
* Wife had a daughter from her first relationship. Her daughter lives with her.
* Wife took a unilateral decision not to conceive any child for two years from her second relationship.
* Rationing of love and affection administered to the second husband.
* Wife cooked food only for herself and went to office. Husband had to dine in a hotel.
* Husband felt like a stranger in his own family.
* Husband and wife virtually lived separately from 1985. Admitted separate living 1990.
* Wife told her daughter that her (second) husband was not her father and not to call him father.
* Wife told the second husband not to speak to her daughter.
* Wife told her daughter that she (wife) was divorcing her second husband.
* 1990: Wife literally asked the second husband and his domestic servant to get out of her flat. Wife said that her second husband had no self respect.
* 1996: Trial Court divorce.
* 2003: High Court reversed.
* 2004: Second husband appealed to Supreme Court.
* 2007: Supreme Court restored the trial court's judgement (divorce allowed).

IMPORTANT
Judgements of different courts vary, depending on the circumstances of each case. Case law precedents will, therefore, only be indicative of how things are likely to be where similar facts/events recur.

SOME OBSERVATIONS of the Supreme Court
there cannot be any comprehensive
definition of the concept of 'mental cruelty' within which
all kinds of cases of mental cruelty can be covered. No
court in our considered view should even attempt to give
a comprehensive definition of mental cruelty.

The credibility of the witness does not depend upon his financial
standing or social status only. A witness which is natural and truthful should be
accepted irrespective of his/her financial standing or social status.

.


BLOGGER'S VIEWS
* I.A.S. Officers are also ordinary citizens in the eyes of law.
* The judgement contains a comparative discussion of the Fault theory and the Breakdown theory. This case is worth reading for aggrieve spouses and their lawyers.

CASES OF RELEVANCE
* N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para
30 observed as under :-
"The enquiry therefore has to be whether
the conduct charges as cruelty is of such a
character as to cause in the mind of the
petitioner a reasonable apprehension that it
will be harmful or injurious for him to live with
the respondent."

* Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105.
* Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC 619
* Janmohamadkhan v. Haizunnisa Yasinkhan, (1981) 4 SCC 250.
* Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706
* A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22
* Vinita Saxena v. Pankaj Pandit reported in (2006) 3 SCC 778
* American Case: Jem v. Jem [(1937) 34 Haw. 312
* American case: Fleck v. Fleck 79 N.D. 561
* American case: Donaldson v. Donaldson [(1917) 31 Idaho 180,
170 P. 94]
* Canadian case: Chouinard v. Chouinard 10 D.L.R. (3d) 263].
* Canadian case: Knoll v. Knoll 10 D.L.R. (3d) 199, the Ontario
Court of Appeal
* Canadian case: Luther v. Luther [(1978) 5 R.F.L. (2d) 285, 26
N.S.R. (2d) 232, 40 A.P.R. 232], the Supreme Court of
Nova Scotia.
* Canadian case: Zalesky v. Zalesky 1 D.L.R. (3d)
471, the Manitoba Court of Queen's Bench.
* Australian case: Dunkley v. Dunkley (1938) SASR 325.
* Australian case: La Rovere v. La Rovere [4 FLR 1], the Supreme
Court of Tasmania.

#018 CASE OF HUSBAND REMARRYING AS WIFE DIDN'T RESPOND TO CALLS FOR COHABITATION

QUESTIONS
* Can a Hindu husband remarry, if wife does not respond for several years to husband's calls for cohabitation?
* Is he liable to pay maintenance to wife U/S 125 of Criminal Procedure Code?

STATUTE
1. Section 125 (3) of Criminal Procedure Code.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is a just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.

CASE NO.: Appeal (crl.) 179 of 2008
CASE NO.: Appeal (crl.) 126 of 2008
PETITIONER: Ahilyabai
RESPONDENT: Meharwan Singh
DATE OF JUDGMENT: 15/01/2008
BENCH: S.B. SINHA & V.S.SIRPURKAR
Judgement: somewhat in favour of wife.

To see the full text of this judgement, please visit: http://www.judis.nic.in/supremecourt/chejudis.asp.

BRIEF OUTLINE OF EVENTS/FACTS
* 1978-79: Married.
* 1982: Gauna ceremony.
* Husband wrote three letters calling upon the wife to join her matrimonial home.
* 1997: Husband remarried on the plea that wife didn't join her marrital home.
* 2002: Wife sought maintenance u/s 125 of Cr. P.C.
* Magistrate of the trial court ordered payment to the wife of a maintenance of Rs. 1,000 p.m.,
* Revisional Court didn't allow the maintenance.
* High Court refused to intervene.
* Supreme Court restored the order made by the Magistrate; (i.e. allowed the maintenance of Rs. 1,000/-.)

IMPORTANT
Judgements of different courts vary, depending on the circumstances of each case. Case law precedents will, therefore, only be indicative of how things are likely to be where similar facts/events recur.

SOME OBSERVATIONS
--

BLOGGER'S VIEWS
*The Supreme Court has relied on the provisions of Sec. 125(3).
*I also feel that husband's contracting a second marriage is adequate for attracting the provisions of Sec. 125(3).

CASES OF RELEVANCE
Kamlabai Vs.Gajanand 1984 MPWN 170.

#017 SEIZING AND IMPOUNDING PASSPORTS

QUESTIONS
1. Whether a Police Officer can seize passports?
2. Whether a Police officer can impound passports?
3. Whether a Passport Authority can impound passports?
4. Whether courts can impound passports?
5. Whether the power of Courts to impound documents, applies to passports?

STATUTE
1. Section 102 of Cr.P.C. (Criminal Procedure Code).
2. Section 10 (3)(e) of Passport Act 1967.
3. Sec. 104 of Cr. P.C.
4. Art. 21 of Constitution - (includes freedom to travel).

CASE NO.: Appeal (crl.) 179 of 2008
PETITIONER: SURESH NANDA
RESPONDENT: C.B.I.
DATE OF JUDGMENT: 24/01/2008
BENCH: P.P. NAOLEKAR & MARKANDEY KATJU

To see the full text of this judgement, please visit: http://www.judis.nic.in/supremecourt/chejudis.asp.

BRIEF OUTLINE OF EVENTS/FACTS
An NRI on a visit to India. Police seize his passport, as a part of their investigation of the case pending against him. They submit the passport to the court along with other case documents.

Unable to travel abroad, the NRI approaches the trial court seeking an order to release his Passport. The trial court orders release, imposing some conditions on him. The NRI appeals to High Court, aggrieved by the conditions. The H/C refuses to order release of the Passport. The NRI appeals to the Supreme Court. The Supreme Court orders release of the Passport.

IMPORTANT
Judgements of different courts vary, depending on the circumstances of each case. Case law precedents will, therefore, only be indicative of how things are likely to be where similar facts/events recur.

SOME OBSERVATIONS
*Distinction between seizing and passport and impounding a passport is to be noted.
*Where provisions of a general law and special law overlap, the special law prevails.

BLOGGER'S VIEWS
*Court's powers to impound documents may not include passports. This is to be done by the Passport Authority.
*Police may seize passports for the purpose of investigation u/s 102 of Cr.P.C., but they cannot impound it (retain it for long). If they want impounding to be done, they should send the passport to the Passport Authority, with supporting reasons.
CASES OF RELEVANCE
Satwant Singh's case.
Maneka Gandhi's case.

#016 HINDU ADOPTION ACT UNJUST TO WOMEN

CASE NO.: Appeal (civil) 7764 of 2001
PETITIONER: Brijendra Singh
RESPONDENT: State of M.P. & Anr.
DATE OF JUDGMENT: 11/01/2008
BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

STATUTE
Hindu Adoption and Maintenance Act 1956.
Section 8 of the Act reads as follows:
8. Capacity of a female Hindu to take in
adoption : Any female Hindu
(a) who is of sound mind,
(b) who is not minor, and
(c) who is not married, or if married,
whose marriage has been dissolved or whose
husband is dead or has completely and finally
renounced the world or has ceased to be a
Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind,
has capacity to take a son or daughter in
adoption.

BRIEF THEME OF THE CASE
1948.
Crippled girl, having practically no legs.
Given in marriage to a man.
Reason: Comply with a village custom that every virgin girl should be married.
The husband abandoned her without consummation (marriage maturing into sexual union).
She lived in her birth village with her parents.
Taking pity her parents gave her 32 acres of land for her maintenance.

1970.
The lady adopted a son. The adopted son was looking her welfare.

1974.
The useless husband died.

1981.
The land fell under Madhya Pradesh Land Ceiling. The Revenue Authorities wanted to take over her excess land.

She would have been entitled to hold upto 54 acres of land, some land for herself and some land for her son.

The Revenue Authorities disbelieved adoption and contested the fact, stating that she was not a divorced woman and she did not have the legal capacity to adopt a son.

Now, the legal battle between her and the Sub Divisional Officer started.

July 1989.
She executed a registered will in favour of her adopted son.

Dec. 1989.
She died.

The trial court upheld the adoption made by her. The High Court reversed it.

The Supreme Court in the judgement discussed in length about her capacity to adopt a son, mostly jurisprudential jargon.

BLOGGER'S VIEWS
The Hindu adoption law is pro-male. In the instant case, the property in question, the lady did not inherit from her husband. It is a property which her parents gave.

Courts in India make substantial distinction between divorced women, and women living like divorced women. This distinction seems to be purely technical. Are facts NOT more important than technicalities?

The Court, in this case, has also discussed the distinction between adoptiong children for religious reasons (offering annual 'pindams' to ancestors, doing karma kaand`as etc.) and adopting children for secular reasons (passing on property to sons, their looking after the adopted parents).

#015 WITHDRAWAL OF CRIMINAL CASE FILED AGAINST HUSBAND WHERE HUSBAND HAS WITHDRAWN HIS DIVORCE PETITION

Transfer Petition (civil) 457 of 2006
PETITIONER: ARCHANA
RESPONDENT: VIMALENDRA PAL SINGH BHADAURIA
DATE OF JUDGMENT: 08/02/2008
BENCH: H.K. SEMA & MARKANDEY KATJU

STATUTES
Sec. 498A of I.P.C. (Harassment for dowry)
Sec. 482 of Cr.P.C. (High Court's powers to quash proceedings)
Sec. 320 of Cr.P.C. (Non-compoundability of crimes).

BRIEF DETAILS OF THIS CASE
Wife entering into settlement with husband.
Husband agreeing not to press on the divorce proceedings.
Wife praying for quashing for F.I.R. filed by her against husband and the criminal proceedings pending in a Session Court.

VERDICT
Supreme Court consented.

REASONS
Special nature of the case. Need for flexibility in case of marrital disputes.

IMPORTANT CASE WHERE GUIDELINES CAN BE FOUND

CASE NO.: Appeal (crl.) 383 of 2003
PETITIONER: B.S. Joshi & Ors.
RESPONDENT: State of Haryana & Anr.
DATE OF JUDGMENT: 13/03/2003.
BENCH: Y.K. Sabharwal & H.K. Sema.

URL WHERE THESE TWO CASES CAN BE SEEN
Click to go to: http://www.judis.nic.in/supremecourt/chejudis.asp

#014 ACQUITTAL WHERE CORPUS DELICTI HAS NOT BEEN PROVED

CASE NO.: Appeal (civil) 1107 of 2005
PETITIONER: K.T. Palanisamy
RESPONDENT: State of Tamil Nadu
DATE OF JUDGMENT: 11/01/2008
BENCH: S.B. SINHA & DALVEER BHANDARI

TRIAL COURT: Life Imprisonment.
High Court: Confirmation.
Supreme Court: Acquittal.

BLOGGER'S VIEWS
Key elements which the Apex Court examined/observed:

1. Distinction between MAY BE and MUST BE/SHOULD BE

12. It is now well settled that in a case where an offence is said to
have been established on circumstantial evidence alone, indisputably all the links
in the chain must be found to be complete as has been held in Sharad
Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622] in the
following terms :
A close analysis of this decision would show that
the following conditions must be fulfilled before a
case against an accused can be said to be fully
established:
(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned 'must or should' and
not 'may be' established. There is not only a
grammatical but a legal distinction between 'may
be proved' and 'must be or should be proved as was
held by this Court in Shivaji Sahebrao Bobade v.
State of Maharashtra where the following
observations were made:
certainly, it is a primary principle that the accused
must be and not merely may be guilty before a
Court can convict, and the mental distance
between 'may be' and 'must be' is long and divides
vague conjectures from sure conclusions.
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that the
accused is guilty.
(3) the circumstances should be of a conclusive
nature and tendency.
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
153. These five golden principles, if we may say
so, constitute the panchsheel of the proof of a case
based on circumstantial evidence.

2. Need for proving "Corpus delicti" (material evidence such as dead body):

13. In this case, corpus delicti has not been proved. The same need
not be but the death as a fact must be proved. Even death has not been proved in
this case. No piece of mortal remains of the deceased was found. If the
prosecution witnesses are to be believed they had no reason to suspect the
appellant herein at the relevant point of time.

#013 RAPE CASE WHERE THE DEFENCE OF CONSENT FAILED

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1279 OF 2001
Nehru @ Jawahar .........Appellant
Versus
State of Chhatisgarh ........
Respondent
Date of Judgement: 13th June 2008.
JUDGMENT
Dr. ARIJIT PASAYAT, J

You can see the full judgement by starting a case numberwise query as "Appeal (cr), No. 1279, and year 2001. URL: Click.

BLOGGER'S BRIEF REVIEW
This is a simple case of conviction for rape u/s 376 of I.P.C. The trial court awarded seven years R.I. The High Court reduced to five years R.I. The accused pushed it to Supreme Court. The defence of the accused: The raped girl (14 years) gave consent.

The Apex Court observed the following reply given by the victim during her cross-examination. :

"13. Having taken me inside the school accused
unloaded the wood stack I was carrying on my head and
told me to go inside the room but I didn't go into the
room. Thereupon accused caught hold me- when I
shouted accused gagged me and thereafter he took me
inside the room and made me to lie thereafter he lifted
my petticoat. When I hit him with the leg he caught hold
my leg. I had beaten him with the hand also thereupon
accused caught hold my hand, when accused released
my mouth, I tried to yet, he again gagged me.

14. The flooring of the room of the school is of stone
where accused had made me lie on the ground. I tried to
release myself from the grip of the accused with the
result my body waist had scratched."

The Supreme Court rightly observed:

8. Above being the position the plea of consent is without
substance.
9. The appeal lacks merit, deserves dismissal, which we
direct.

The accused has wasted seven years (2001 to 2008) in the Supreme Court.

#012 DOWRY HARASSMENT- DEATH OF MOTHER- CUSTODY OF CHILD WITH MATERNAL GRAND PARENTS

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO. 4960 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 1243 OF 2008


NIL RATAN KUNDU & ANR. ... APPELLANTS

VERSUS

ABHIJIT KUNDU ... RESPONDENT

IMPORTANCE
The Supreme Court reiterated that welfare of the child is important in deciding on the child's custody. In this case, the trial court and the High Court decided the custody of the child in favour of the natural guardian father, taking a legalistic view. The Supreme Court allowed the child custody in favour of the maternal grand parents.