Exception of customary divorce under Hindu Marriage Act not attracted in absence of declaration from civil court regarding its validity: Calcutta High Court - The Daily Guardian
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Exception of customary divorce under Hindu Marriage Act not attracted in absence of declaration from civil court regarding its validity: Calcutta High Court

The sum and substance of this judgement is that merely obtaining a customary divorce will certainly not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act. It merits no reiteration that for Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognised by custom to obtain the dissolution of a Hindu marriage.

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In a recent, remarkable, righteous and rational decision titled Smt. Krishna Veni Vs The Union of India and others in WPA No. 2346 of 2018 delivered on February 18, 2021, the single Judge Bench of Justice Sabyasachi Bhattacharyya has held that merely obtaining a customary divorce will not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act. It has been made absolutely clear that the validity of such a divorce has to be established by a deed of declaration. Very rightly so!

To start with, the ball is set rolling in para 1 of this notable judgment wherein it is put forth that, “The present challenge has been preferred by Smt. Krishna Veni, the second wife of Sardar Natha Singh (since deceased), who was a freedom fighter getting pension from the Central Government under the Swatantra Sainik Samman Pension Scheme, 1980 till his demise on August 25, 1984. The petitioner, relying on a deed of declaration of divorce, purportedly executed by respondent no.11, the first wife and Sardar Natha Singh, the husband of the petitioner, claimed widow pension under the said Scheme, which was refused by a communication dated March 6, 2012 issued by the Assistant Secretary to the Government of West Bengal on the ground that such deed of divorce dated December 19, 1956 was not acceptable under the Hindu Marriage Act, 1955, in the absence of a decree for divorce obtained from a competent court of law.”

To put things in perspective, it is then laid down in para 10 that, “For Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom, to obtain the dissolution of a Hindu marriage. In the present case, the petitioner did not approach the civil court for declaration regarding validity of the divorce deed.”

As it turned out, the Bench then states in para 11 that, “There was nothing to prevent the petitioner from approaching the competent civil court for such declaration. The burden and initial onus lies on the petitioner to prove the existence of a custom having the force of law, to be proved by evidence – oral or documentary – in order to attract the benefit of Section 29(2) of the Hindu Marriage Act.”

Needless to say, it is then stated in para 12 that, “Section 2(1)(b) of the Hindu Marriage Act, 1955 stipulates that the Act applies to Sikhs as well. Thus, the provisions of the Act, including Section 13 thereof (pertaining to divorce), applies to Sikhs in general. Admittedly, the petitioner, respondent no.11 and their deceased husband are/were Sikhs by religion. Hence, the marriage between the respondent no.11 and her deceased husband could only be dissolved by a decree of divorce passed by a competent court on any of the grounds as mentioned in Section 13 of the Act, unless the existence of any contrary custom was proved by evidence.”

Be it noted, it is then pointed out in para 13 that, “. In order to justify an exception to Section 13 within the purview of Section 29(2), the petitioner had to approach a civil court and establish by evidence that the dissolution of the marriage between the respondent no.11 and her deceased husband was recognized by custom. All Sikhs do not come within the purview of such exception, unless any custom to the contrary is proved by cogent evidence. The respondent-authorities do not have the jurisdiction in law to decide the matrimonial status of the private parties and/or the validity of the deed of declaration, which could only be done by adduction of adequate evidence before a civil court. Unfortunately, neither does the writ court, with its constraints in taking evidence on disputed questions of fact, has the scope to decide such issue.”

While elaborating further along with the relevant case law, it is then envisaged in para 14 that, “In Gurdit Singh (supra), the Supreme Court was dealing with an issue which arose in a civil suit. The trial court had decreed the marriage-in-question to be valid. The appellate court reversed such decree on the premise that the marriage between the parties was invalid, being not justified by any custom. Upon the issue being remitted to the trial court, after giving the parties an opportunity to lead further evidence, the trial court answered the issue regarding the existence of such custom in the negative, which was endorsed by the appellate court. In second appeal, the High Court held that a custom was proved under which Mst. Angrez Kaur, respondent could validly marry Sunder Singh, even though her first husband was alive. While considering such matter, the Supreme Court observed that the witnesses examined on behalf of the appellant had admitted the existence of a custom permitting the Hindu husband to divorce his wife. Upon such premise, the Supreme Court proceeded to endorse such view.”

While citing yet another relevant case law, the Bench then observes in para 15 that, “ In Balwinder Singh (supra), the matter in issue before the Supreme Court also arose from a civil suit, wherein the trial court declared the marriage solemnized between the parties in accordance with Hindu rites and ceremony as null and void and granted a decree of nullity of marriage. The appellate court had found that the evidence adduced by the appellant was not sufficient and reliable enough to establish the existence of the custom amongst the Sikhs Jats of District Amritsar to which District the appellant and its parents belonged, under which the marriage between the appellant and his previous wife could be dissolved otherwise than through court as per the provisions of the Hindu Marriage Act.”

It would be pertinent to mention that it is then stated in para 16 that, “While dealing with such question, the Delhi High Court considered the evidence adduced by the parties and sanctioned the dissolution of marriage by execution of a deed of divorce.”

Simply put, it is then mentioned in para 17 that, “The Andhra Pradesh High Court, in Doddi Appa Rao (supra), was also considering a case where a civil court had decreed a suit for declaration that the marriage of the plaintiff and the defendant therein was dissolved as per caste custom and usage. In such context, it was held by the Division Bench of the Andhra Pradesh High Court that the Central Administrative Tribunal ought to have honoured such decree.”

It would be useful to also note that it is then specified in para 18 that, “In G. Thimma Reddy (supra), the learned Single Judge considered several factors apart from the registered deed of divorce, including that the factum of divorce was disregarded on a flimsy ground that the stamp affixed to the document of divorce was in the name of a wrong person. The court also took into consideration the fact that the spouses were living separately and in possession of lands settled in their favour, for which no need for divorce was there. Oral evidence was also adduced by several witnesses, one of them a caste elder who had also attested the document. P.Ws 1 to 3 therein spoke of existing custom in the caste of the spouses sanctioning such divorce. Moreover, the adjudication in the said report was in the context of a land dispute between the parties.”

As a corollary, it is then pointed out in para 19 that, “As such, in each of the judgments cited by the petitioner, a valid decree, sectioning the respective documents of divorce, had been passed by competent civil courts. In the present case, however, no such decree was obtained by the petitioner.”

In addition, it is then also brought out in para 20 that, “That apart, it is pleaded by the writ petitioner herself that the Government of India, Ministry of Home Affairs, New Delhi, sanctioned payment of political pension to the first wife, that is, respondent no.11 with effect from August 26, 1984 by a letter dated February 14, 1986 and Pension Payment Order was issued accordingly in favour of respondent no.11. For whatever reason such pension might have been withheld subsequently, the initial grant of pension to respondent no. 11 is an endorsement of the fact that the first wife was found eligible for such pension by the respondent authorities and she had already started getting pension.”

Perhaps more crucially, it is then elaborated in para 21 that, “It is relevant to mention here that a suit-in-question was filed by respondent no.11, inter alia, for declaration that she was the only married wife and the only widow of Sardar Natha Singh (since deceased) and was entitled to widow pension and that the present petitioner was not the wife and widow of Sardar Natha Singh. Learned counsel for the petitioner argues that the said suit was dismissed for default and the subsequent restoration application filed by respondent no.11 met with the same fate. As such, it is contended that respondent no.11 is debarred from raising the contentions on which declaration was sought by her in the dismissed suit.”

To state the obvious, the Bench then notes in para 22 that, “Order IX Rule 9 of the Code of Civil Procedure debars a plaintiff from bringing a fresh suit in respect of the same cause of action in the event of dismissal of a suit for default. However, it is well-settled that such a dismissal, ipso facto, would not take away the right of the plaintiff which was under consideration in the suit. Such right, if available otherwise to the plaintiff in accordance with law, subsists despite the dismissal of the suit for default. The plaintiff in such a suit may very well raise a defence on the basis of such right in a different suit or legal action and/or may agitate the same right in a suit filed by her on a subsequent cause of action.”

Of course, it is then rightly stated in para 23 that, “Thus, in the present case, the dismissal of the suit of respondent no.11 for default does not preclude the said respondent from staking her claim before any authority other than a civil court, that too in a suit filed by her on the self-same cause of action, and/or setting up a defence in the writ petition on the basis of such claim.”

Most significantly, it is then aptly observed in para 24 that, “In the utter absence of any evidence, let alone conclusive, that the divorce decree executed purportedly between respondent no.11 and her deceased husband was endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted. Thus, the spouses had to revert back to Section 13 of the Act, which sanctions dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law.”

What’s more, it is then also pointed out in para 25 that, “Such facts, coupled with the fact that pension was granted earlier in favour of respondent no.11 upon a valid sanction being issued by the respondent-authorities, it would be unjust to deprive respondent no.11 from such pension at the behest of the petitioner, merely on the basis of the petitioner’s assertion on oath in this writ petition that a deed of divorce, supported by valid and recognized customs, was executed between respondent no.11 and her deceased husband.”

As was anticipated, the Bench then goes on to add in para 26 that, “ I must note that, in view of the long-pending litigation between the private parties, it would be lucrative to direct pension to be paid equally between the petitioner and respondent no.11. However, such a course of action would be grossly illegal. Although my empathy goes fully with the petitioner, who is an unemployed lady of about 63 years as per her own affidavit, this court does not have the power to enact law but is bound by the provisions of law as the Parliament, in its wisdom, chose to promulgate. Where a conflict arises between individual conscience of the concerned Judge and judicial conscience, supported by law of the land, the former has to give way to the latter.”

Now coming to the concluding paras. It is held in para 27 that, “In such view of the matter, the writ petition fails. Accordingly, WPA No.2346 of 2018 is dismissed on contest without any order as to costs.” Finally, it is then held in the last para 28 that, “Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.”

To conclude, the sum and substance of this noteworthy judgment is that that merely obtaining a customary divorce will certainly not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act. It merits no reiteration that for Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom to obtain the dissolution of a Hindu marriage. Very rightly so!

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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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