It cannot be just glossed over that the Chhattisgarh High Court has just recently on February 10, 2021 in a latest, learned, laudable and landmark judgment titled Teras Dongare v. Avinash Dongare in CRR No. 346 of 2019 has minced no words to hold briefly, boldly and brilliantly that a man, who marries a woman knowing fully well that her earlier marriage has not ended in a valid divorce, is stopped from raising plea of invalidity of marriage in maintenance proceedings under Section 125 of CrPC. This significant observation was made by a Single Judge Bench of Justice Rajendra Chandra Singh Samant while presiding over a revision filed against the order passed by a Family Court, denying maintenance to the Applicant-wife on the ground that she has not obtained a valid divorce from her first husband and hence, she is not a legally wedded wife of the Respondent (second husband). Very rightly so!
To start with, the ball is set rolling in para 1 of this cogent, composed and commendable judgment authored by a single Judge Bench of Justice Rajendra Chandra Singh Samant of Chhattisgarh High Court wherein it is put forth that, “This petition has been brought against the order dated 11-01-2019 passed in MJC (Misc. Criminal Case) No. 255/2017 by the Family Court Bilaspur, Chhattisgarh dismissing the application of this applicant filed under Section 125 of the Cr.P.C. praying for grant of maintenance.”
On the one hand, while elaborating on the applicant’s version, the Bench then elucidates in para 2 stating that, “It is submitted by learned counsel for the applicant that learned family court has held in impugned order, that the marriage of the applicant with the respondent was performed on 18-11-2015, even then it has been erroneously held that the applicant is not legally wedded wife of the respondent/applicant. The applicant does not deny about her previous marriage with Rajendra S/o Ratan, R/o Village Selar, on the contrary she has made a clear statement that she had obtained divorce from her previous husband in customary manner. The statement of her is remained unchallenged in cross-examination, therefore, the applicant had status of legally wedded wife of the respondent.
Reliance has been placed on the order passed by this High Court in the matter of Smt. Motim Bai Borkar Vs. Arjun Singh Borkar, 2017 (2) C.G.L.J. 330, in which it was contention of the petitioner wife that she had obtained divorce from her first husband by mutual consent as per custom. It was held that the petitioner and the respondent had been living for some time as husband and wife, therefore, such relationship has to be treated as valid for the purposes of Section 125 of the Cr.P.C.
Reliance has also been placed on the judgment of Delhi High Court in the case of H.S. Bedi Vs. National Highway Authority of India, 2016 (227) DLT 129.
Therefore, it is prayed that the impugned order be set aside and the relief be granted to the applicant.”
On the other hand, while elaborating on the respondent’s version, it is then stated in para 3 that, “Learned counsel for the respondent opposes the submission made by the applicant side and submits that no error has been committed by the learned family court in passing the impugned order. It was an admitted fact that the previous marriage of the applicant was existing and the same was not dissolved by any Court of law. For the purposes of Section 125 of the Cr.P.C. it is necessity that the applicant should be a legally wedded wife, hence, the applicant does not fulfill this criteria because of which she has no entitlement for grant of maintenance. Prayer has been made to dismiss the revision petition.”
Briefly stated, the Bench then observes in para 4 that, “Considered on the submissions. The only question to be determined in this revision petition is whether the applicant has status of being a legally wedded wife or not.”
It would be imperative to mention here that it is then stated in para 5 that, “Applicant Teras Dongare (AW-1) has stated in examination-in-chief that her first marriage was performed with Rajendra S/o Ratan, R/o Village Selar as this marriage could not go on, therefore, it was dissolved by mutual consent in presence of some village elders and as result of her previous husband Rajendra has performed another marriage. It was subsequent to this, this applicant performed marriage with the respondent. In cross-examination she has admitted that she has not obtained any divorce from court and mutual divorce in customary manner took place and that she has not named the person in presence of whom the customary divorce has taken place.”
To put things in perspective, the Bench then observes in this same para 5 that, “Chhedilal (AW-2) has made similar statement in his examination-in-chief. However, in cross-examination he has admitted the suggestion of the respondent side that no divorce has taken place of Terasbai from her previous husband Rajendra. Dujram (AW-3) made similar statement in his examination-in-chief, but in cross-examination he has again admitted the suggestion of the respondent side that he does not know if divorce of the applicant with her previous husband is legal or not.”
To be sure, it is then stated in para 6 that, “The respondent Avinash Dongare (NAW-1) made a statement in examination-in-chief that the applicant has not been divorced by her previous husband in any lawful manner.”
Most significantly and most remarkably, while citing the relevant case law, it is then pointed out in para 7 that, “In the case Smt. Motim Bai Borkar Vs. Arjun Singh Borkar (supra) the coordinate Bench of this Court held that the divorce was not strictly in accordance with law. Even so when the second husband married the petitioner knowing fully well that her earlier marriage had not ended in a valid divorce, then he is estopped from raising a plea under Section 125 Cr.P.C. that the second marriage is invalid. A person cannot approbate and reprobate at the same time. This appears to be a similar case in which looking to the evidence present of performing of marriage of the applicant with the respondent in the light of previous history of the applicant, the respondent could not have raised such plea regarding the invalidity of the marriage according to the view taken by this Court in the case of Smt. Motim Bai Borkar Vs. Arjun Singh Borkar (supra), hence, the conclusion drawn and the finding given by learned family court on this point appears to be erroneous.”
Quite significantly, the Bench then observes in this same para 7 ahead that, “After considering on other evidence that is present in the record of the proceedings and the finding in the impugned order that the applicant is unable to maintain herself. There appears to be no evidence on the point as to whether the respondent has means to pay maintenance to the applicant or not.
After looking to the evidence in the record of the proceeding and appreciating the same, it is found that there is no such evidence present to make out that the respondent has some employment and he has some fixed salary and income from any source, otherwise the respondent is an able bodied person who can earn livelihood and pay maintenance to the applicant. Hence, on this basis an amount of maintenance can be fixed to be paid to the applicant by the respondent.”
Finally, it is then held in the last para 8 that, “After considering on the submissions and on the evidence present in the record of the proceedings the revision petition is allowed. The impugned order is set aside. The application under Section 125 of the Cr.P.C. is allowed. The respondent is directed to make payment of Rs.2,500/- per month to the applicant as maintenance from the date the application under Section 125 of the Cr.P.C. was filed by the applicant.”
On a concluding note, it may well be said that a man, who marries a woman knowing fully well that her earlier marriage has not ended in a valid divorce, is very rightly stopped from raising the plea of invalidity of marriage in maintenance proceedings under Section 125 of CrPC as we see in this case also. We thus see that the respondent is directed to make payment of Rs.2,500/- per month to the applicant as maintenance from the date the application under Section 125 of the Cr.P.C. was filed by the applicant. It is also made amply clear that when the second husband married the petitioner knowing fully well that her earlier marriage had not ended in a valid divorce, then he is estopped from raising a plea under Section 125 Cr.P.C. that the second marriage is invalid. A person cannot approbate and reprobate at the same time. In other words, it vindicates the time tested old adage that, “You can’t have the cake and eat it too”.
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A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN
The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.
the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.
On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.
The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.
particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.
This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.
the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.
THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT
The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.
under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.
The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.
The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.
The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.
the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.
The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.
Nexus between accused’s negligence and victim’s death has to be established under Section 304A IPC: Supreme Court
The Supreme Court in the case Nanjundappa vs State of Karnataka observed that would not apply to a criminal case, the doctrine of res ipsa loquitur stricto sensu.
when there is no report of a technical expert to corroborate the prosecution story as The Appellants therefore are entitled to be given the benefit of doubt furthermore It is even more unbelievable that Appellant no. 2 came in contact with the same voltage and managed to get away with a few abrasions.
when such current passed through the Television set, it did not blast and melt the wiring of the entire house and the court further added that it sounds completely preposterous that a telephone wire carried 11KV current without melting on contact.
While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts as In case of circumstantial evidence, there is a risk of jumping to conclusions in haste However the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced, in the present case. The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.
The court noted that there is no eye witness to say conclusively that the Appellants were in fact executing the work at the place alleged and further the court notice that no report or even inspection was conducted by a technical expert to assess the veracity of the averments made by the complainants to suggest that it was due to the alleged acts of the Appellants that the incident took place. the allegations against the Appellants are highly technical in nature, notice by the court on perusing the evidence on record.
On 21th November 2003 at 1.00p.m. the deceased was watching TV in his house. Noticing a sudden sound in the TV, the deceased got up to separate the dish wire, the TV connection wire and the telephone wire, which were entwined together, he felt an electric shock and his right hand was burnt and as a result of this shock he succumbed to death at that point of time it was found that the said incident took place because of the negligent act on the part of the accused, the supervisor (an employee in the telephone department ) and daily wage worker employed by him, as it was found out in the investigation. under Section 304A read with Section 34 IPC was upheld by the Karnataka High Court, the appellant is convicted.
the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed under Section 304A of Indian Penal Code for causing death by negligence, while acquitting two persons that prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim, for bringing home the guilt of the accused.
The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.
AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT
The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.
The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.
The fourth proviso to subsection (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such cooperative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.
The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.
An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.
Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court
The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or premature release in terms of the policy which is applicable in the State.
While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or premature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.
the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.
he application for premature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for premature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.
The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.
Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes
The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.
the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:
It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.
The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.
appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.
the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.
the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.
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