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The Hindu Undivided Family and Coparcenary: A critical analysis

Satyajeet A. Desai

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The Hindu Undivided Family is, as Hindu jurisprudence and law recognise, the normal condition of a Hindu family.

Hindu Undivided Family: Known by its popular acronym HUF, a joint Hindu family consists of all persons who have lineally descended from a common ancestor, and includes their wives and unmarried daughters. A daughter ceases to be a member of her father’s family on marriage, and becomes a member of her husband’s family.

Mitakshara Coparcenary: A Hindu Coparcenary is a much narrower body as compared to the Hindu Undivided Family. Generally speaking, it is a body of individuals who acquires interest by birth in the joint family property. They are the son, grandson and great grandson of the holder of the joint property for the time being. Therefore to become a coparcener, one has to be born into the family.

Before going any further, it is clarified that this article only deals with the Mitakshara system of Hindu law prevalent in a major portion of India, and not the Dayabhaga, which prevails in Bengal.

 I propose to discuss some critical aspects of the Hindu Undivided Family with specific emphasis on the Mitakshara coparcenary.

The beginning of an HUF: A Hindu Undivided Family comes into existence when a man gets married and has children. It consists of his wife sons and daughters. It is a body which fluctuates with births, deaths, marriage and adoption. A daughter, though a part of her father’s HUF, ceases to be a member and becomes a member of the HUF of her husband.

Reforms in Hindu Law: In 1955 and 1956, a sea change was brought about in the Hindu laws. Whereas Shastric or the ancient law prevailed up to 1955, major changes were afoot in 1955 and 1956, when four new legislations were put into place being the Hindu Succession Act, the Hindu Marriage Act, The Hindu Adoptions and Maintenance Act and the Hindu Minority and Guardianship Act. We are concerned with the Hindu Succession Act in this article.

 The development of the personal law applicable to Hindus has been from time to time refined, prompted by judicial precedents and also legislations such as The Hindu Succession Act, 1956 which has expanded and broadened the scope of its applicability. The passing of the amendments to the Hindu Succession Act in 2005 merited and conferred equality of status to daughters as coparceners, thus paving the way for inclusive application of the law, but now in an attenuated form. The progression of the Hindu law has therefore demonstrated it as being reformist and not being averse to adapting itself to neoteric situations, seeking to blend the ancient with the contemporary, resulting in adaption to extant situations in modern society and redeeming itself from becoming archaic and stunted while retaining many of its essential charesterics.

Undivided coparcenary interest: The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. No coparcener can claim a particular portion, as the whole concept is of unity of holdings. It changes with births and deaths in the family. Thus, it is based upon the concept of survivorship and is a fluctuating inter¬est, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family.

It would be seen that whereas an HUF consists of a man, his wife and his sons and daughters, a coparcenary consisted only of males born in the family. Upon death of a coparcener, the property would devolve by survivorship i.e. amongst the surviving coparceners.

Changes in the law: The Hindu Succession Act brought about major changes in the law. A pressing need for reform had been felt as especially the females in the family had only a right of maintenance. The old section 6(which has now been replaced in 2005) made a provision that upon the death of a coparcener, if he had left behind a female relative (say his wife), the share of the coparcener would devolve upon his female relative and not by survivorship. A deeming provision was introduced stating that the deceased coparceners share would be the notional share that would have been allotted to him as if a partition had taken place just before his death. This was done in order to find out and calculate his share which would then be available for his female relatives.

It is important to mention here that a wife cannot ask for a partition when her husband, is alive. But the voluntary and discretionary right is available to the wife of a deceased coparcener, upon his death. A very important aspect of Mitakshara coparcenary as regards a partition is that it is always voluntary and not statutorily compulsory. Once a coparcener dies, his widow can either choose to continue within the family or chose to seek a partition, claim her share and sever herself from the family.

Interpreting the old unamended section 6 the Supreme Court had very succinctly summarised and analysed the position in State of Maharashtra v Narayan Rao (AIR 1985 SC 716) and held that “ There is no doubt that the right of a female heir to the interest inherited by her in the family property, gets fixed on the date of the death of a male member under section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in t h e c o nt e mp l at i o n o f Parlia¬ment when it enacted that provision”.

The court therefore clearly recognised the fact that partition was a voluntary act and that the deeming fiction was only for finding out the share of the widow. The section nowhere stated in clear terms that an actual partition would take place upon the death of any one coparcener. That would lead to something that the legislature had never contemplated. The reason being that had the legislature stated that upon the death of any coparcener, the coparcenery would come to an end, it would have said so in the section itself.

 In a subsequent decision in Uttam v. Saubhag Singh (AIR 2016 SC 1169) and a few other decisions that follow it, the Supreme Court has however held that the above situation upon death of a coparcener would lead to the following consequences, two of which are mentioned here as being important. The court said that-

“In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is affected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property.”

“On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.”

 The court therefore held that upon the death of a coparcener, a partition would be affected and that the property would be distributed and the family would cease to be a joint family.

 I have commented extensively in Mulla’s Hindu Law as to why I am in respectful disagreement with the above view. Space constraints limit me from making a full comment in this article. Suffice it to say that, as stated earlier, if the legislature wanted that a partition would take place immediately upon the death of a coparcener, it would have stated so clearly and it would not have introduced the concept of only a deeming fiction, which, as I have stated in Mulla’s Hindu Law, was only limited to fixing the share of the female relative and would not lead to a full partition, as is also held in State of Maharashtra v Narayan Rao. As I have stated earlier, partition is a voluntary act. It is not statutorily compulsory. Further, the female relative may chose not to seek her share in the property ,at her option, and may chose to continue with the family , the only difference being that her share would be fixed and locked as on the date of death of her husband. Nothing further. And as stated, the legislature had not stated that a partition would result or it would have said so clearly in the unamended section itself without limiting itself only to the deeming fiction.

 Change brought about by amended Section 6: In 2005, a change was brought about in the Hindu Succession Act. The major and welcome change being that the daughters born in a Mitakshara coparcenary were treated as coparceners along with the sons. I resist the temptation of quoting the full provision here. Suffice it to say that daughters and sons in a Mitakshara coparcenary are now treated equally, whenever they are born. The priviso being that if a partition or alienation had taken place before 20th December, 2004, the female would not be entitled to a share. Therefore the section stipulates that the property must not have been partitioned or alienated before that date.

Interpretation of the new provision: The section, since it came into force has been the subject of interpretation by all courts including the Supreme Court. I, however limit myself in this column to two decisions of considerable importance as to the interpretation. In Prakash v Phulawati, (2015(11) SCALE 643), the Supreme Court held that “the rights under the amendment are applicable to living daughters of living coparceners as on 9 September 2005 irrespective of when such daughters are born”.

It is with great respect opined that the above view does not appear to be altogether correct. It must be remembered that the section was amended by including females born into the coparcenary and conferring upon them, equal rights as the sons. If, therefore, stress is laid upon the words used in the section that ‘ daughters of a coparcener’ are conferred the same rights, it cannot mean that the coparcener (father) has to be alive for such conferment, when the section itself stipulates that the rights amongst the sons and daughters are the same. An artificial barrier cannot be created by interpreting the words ‘ daughter of a coparcener’ must mean that the coparcener must be alive for the daughter to claim her rights as a coparcener , and as the amendment itself is a result of the application of Article 14 of the Constitution which speaks of equality.

The above section had come up before another bench of the Supreme Court in Danamma v. Amar (2018) 3 Supreme Court Cases 343, where the court, quoting extensively from Mulla on Hindu Law, observed that the law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son….. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected…. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener become coparceners from birth’. The court held that it was by virtue of birth that the daughters were entitled to the same rights.

 In another matter, Vineeta Sharma v. Rakesh Sharma, the, the Supreme Court having noticed the divergence of views in the above two cases, the issue is pending hearing before a larger bench.

It is respectfully opined that, If daughters (as per the amendment in 2005) have been conferred the same rights as the sons, an artificial condition as held in Prakash v. Phulavati, cannot be read into the section by holding that the words ‘daughter of a coparcener’ mean that the coparcener must be alive when the amendment came into force for the daughter to claim her rights as a coparcener. The only cut off point in the section is 20th December, 2004, as the daughter cannot claim any right if there has been a partition or alienation of coparcenary property before that date. If the section were to be interpreted as conferring upon a daughter, the same rights as the sons only upon the condition that the father must be alive on the date that the amendment came into force, actually does away, in the opinion of the author, the ethos and purpose of the ameliorative amendment. The existence of the father cannot, as interpreted, be a precondition, when the legislature itself has not so stipulated. The words ‘ daughter of a coparcener’ are only descriptive in nature. There can obviously not be two different yardsticks for conferment of equal rights a s b e t we e n s o n s a n d daughters, who are situated similarly and equally. The date 9th September 2005 is only of relevance that the amendment came into effect on that date. It cannot be linked to the fact that the father must be alive on that date. The only requirement is that the daughter must be alive when the provision came into force. The only further caveat being that the property must not have been subject matter of a partition before the above date or an alienation (sale etc.). The view therefore, taken in the decision of Danamma v. Amar appears to be eminently correct.

Daughter as Karta: In a Mitakshara coparcenary, normally the eldest male member would be the Karta or manager. Since before 2005, daughters were not considered as coparceners, the daughter could not have become a Karta. The Hindu Succession Act, 1956, has been amended by the Hindu Succession (Amendment) Act, 2005. As a result of the amendment, daughters have been conferred equal status as that of the sons in a Mitakshara coparcenary. With the inclusion of daughters of a coparcener with equal rights as those of sons, the ascension of a daughter as Karta or Manager can no longer be ruled out. This has been my firm belief immediately upon the amendment coming into force, and as I have commented in Mulla’s Hindu Law. The amended section therefore, leaves no manner of doubt that the position of Karta also cannot any longer, be the exclusive domain of only a male coparcener.

This would however be dependent upon various factors, such as the presence of other males in the family, and the seniority of the daughter qua such male coparceners. In the humble opinion of the author, if therefore, there is a male coparcener capable of acting as Karta, he would become the Karta. If however, the daughter is senior to such male coparcener, the daughter could become the Karta. The Delhi High Court in the case of Sujata Sharma v. Manu Gupta has held, quoting Mulla’s Hindu Law that the daughter can become a Karta.

The amendments to the Hindu Succession Act are progressive and fulfil the requirement of equality as enshrined in Article 14 of the constitution. which, in fact, was the touchstone based upon which the changes were brought about.

 Senior Advocate Satyajeet A. Desai practises at the Gujarat High Court. He is Revising Author, Mulla’s Hindu Law & ST Desai on The Law of Partnership in India.

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Legally Speaking

POSSESSION/OWNERSHIP OF PROPERTY RELEVANT CONSIDERATION FOR PROCEEDINGS AGAINST ELECTRICITY THEFT, OBSERVES GUJARAT HIGH COURT

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The Gujarat High Court in its recent order in the case State of Gujarat Versus Balvantsinh Amarsinh Raj observed while upholding the acquittal of a man under Section 135 of the Electricity Act for alleged unlicensed connection has made it clear that possession/ownership of the property in question has to be factored into consideration.

The bench comprising of Justice Ashokkumar Joshi observed and rejected the State’s appeal on several grounds, which includes the fact that the Police did not call for any certificate or documents to show the ownership or possession of accused for the so-called place of occurrence.

The Court held that the order of the trial court has meticulously considered all the depositions of the witnesses and the state has failed to prove the case against the Accused-Respondent and the trial court’s order did not warrant any interference.

It was observed that while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at by any reasonable person would not be arrived at.

The Deputy Engineer of the South Gujarat Vij Company Ltd lodged a complaint accusing the Respondent of theft of electricity. Alleging, the Applicant did not have a regular connection and he had obtained illegal direct connection from low transmission line. The allegations were made that an average bill of Rs. 2 lacs were prepared and issued to the Accused which was not paid by him and thus an instant complaint was filed.

The Trial’s court order is opposed by the APP by relying on the deposition of several witnesses who were said to be ‘reliable and trustworthy’ and other documentary evidence.

It was argued by the respondent that it was not proved by the Prosecution that the ownership of the premises belonged to the Accused. However, there was no need to interfere with the judgement order.

It was noticed by the bench of Justice Joshi that the lineman at the respective time was cross-examined and had admitted that he had no knowledge of the number of persons who were residing at the place. In the market, the captioned wire which was confiscated was easily available and did not contain any piece of marking paper. Further there was no PVC/Wire wiring at the residential place of the Accused person. It was also admitted by the Panch Witness that theft was not possible through the captioned wires. Another Panch Witness had turned hostile.

It was also admitted by the In-Charge PSO at the Police Station that he merely registered the offence and had done ‘nothing’ except for this. Consequently, there was also no evidence for the possession or ownership of the place of occurrence by the Accused.

Accordingly, the bench dismissed the State’s appeal.

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Legally Speaking

Verbal cruelty in marriage

Pinky Anand

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Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.

WHAT IS MATRIMONIAL CRUELTY?

Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

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Legally Speaking

‘FAILURE TO PROVIDE EVIDENCE OF DECEASED’S INCOME DOES NOT JUSTIFY ADOPTION OF LOWEST TIER OF MINIMUM WAGE IN MOTOR ACCIDENT’

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.

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The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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Legally Speaking

VIOLATION OF RETRENCHMENT PROCEDURE U/S 25F & 25G OF INDUSTRIAL DISPUTES ACT WARRANTS REINSTATEMENT, NOT MERE COMPENSATION: GUJARAT HIGH COURT

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The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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Legally Speaking

CENTRE NOTIFIES APPOINTMENT OF ELEVEN ADDITIONAL JUDGES IN PUNJAB & HARYANA HC

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On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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Legally Speaking

KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS

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The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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