Woman’s character can’t be decided by certificate given by people having an ostrich mindset: Chhattisgarh High Court - The Daily Guardian
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Woman’s character can’t be decided by certificate given by people having an ostrich mindset: Chhattisgarh High Court

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In a significant observation, the Chhattisgarh High Court has in a refreshing, remarkable, robust, rational and recent judgment titled Deepa Nayak v. Pitamber Nai in FAM No. 35 of 2016 delivered on March 28, 2022 has ruled that if a wife doesn’t squeeze into the mold as per the desire of husband, it would not be a decisive factor to lose the custody of the child. We thus see that in this leading case, the Court set aside an order of the Family Court, Mahasamund wherein the custody of a 14-year-old child was granted in favour of the respondent/father and ordered that the child’s custody be handed over to his mother (appellant). The Chhattisgarh High Court thus held that, “Wife not molding herself as per husband’s desire not a decisive factor to deprive mother of child’s custody”. Most commendably, the Bench of Justice Goutam Bhaduri and Justice Sanjay S Agrawal further remarked that the character certificate given by a few of the society members, who might have an ostrich mindset, can’t be the basis to decide the character of a woman.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Goutam Bhaduri for a Bench of Apex Court comprising of himself and Justice Sanjay S Agarwal sets the ball rolling by first and foremost putting forth in para 1 that, “The instant appeal is preferred by the mother against the impugned judgment dated 28.01.2016 passed in Civil M.J.C. No.09/2014 by the learned Family Court, Mahasamund whereby the custody of the child is given to the respondent/father.”

While dwelling on the facts of the case, the Bench then envisages in para 2 that, “The brief facts of the case are that an application was filed under Section 25 of the Guardians and Wards Act, 1890 by the respondent/father seeking custody of the child namely Dheeraj Kumar, who was born on 12.12.2007. The background of the facts are that the appellant and respondent were married on 05.04.2007. They could not go along eventually a divorce by mutual consent was passed on 04.03.2013 and during such divorce proceedings it was agreed that the child would be in the custody of the mother/appellant herein. Subsequently, the instant application for custody of the child was filed after the child crossed 5 years on the ground that the mother is in company of different male and she used to travel along with other male member and the attire of the lady was not befitting to which would reflect that she had lost her chastity. So if the child is kept in her custody, there would be an ill effect to the mind of child as such the child be given in custody of father. It was also alleged that she was in illicit relation with one Vivek Sharma, therefore, for the welfare of the child, the application for custody was filed.”

Simply put, the Bench then states in para 3 that, “The respondent Pitamber Nai examined himself as AW-1, one Ravi Prakash Pradhan was examined as AW-2, Smt. Saraswati Sharma was examined as AW-3 and Deepak Kumar Sahu was examined as AW-4. While on behalf of appellant/mother, the appellant was examined as NAW-1, one Gaurhari Kewat was examined as NAW-2 and Kamal Kishore Nayak was examined as NAW-3. Learned Family Court, Mahasamud after evaluating the evidence directed the custody of the child to be handed over to the father. Therefore, this appeal.”

To put things in perspective, the Bench then after hearing learned counsel for the parties and perusing the documents then discloses in para 7 that, “Perusal of the record would show that an agreement named and styled as Talaqnama (EX. P/2) was executed in between the parties on 05.07.2009, wherein the husband and wife agreed to stay separate with an agreement that after the age of 5 years the child who was born out of the wedlock would be in the company of the father. The document filed as Ex. P/5 is a decree of divorce under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act, 1955’) which was passed on 04.03.2013 that is much after the document of the agreement dated 05.07.2009. By such decree of divorce, the marriage which was solemnized between appellant and respondent on 05.04.2007 was dissolved. The order of divorce reflects that the parties admitted the fact that the child namely Dheeraj Kumar, who was aged about 5 years would continue to stay with the appellant/mother namely Deepa Nayak and the father will have the visiting right. The parties though agreed by way of an initial document captioned as Talaqnama that the child would be in the custody of the mother up till 5 years and thereafter with the father and subsequently at the time of divorce under Section 13B of the Act, 1955 it was agreed by the parties that the child would be in the company of the mother. In matter of custody of child such type of inter se agreement between the parties will not decide the fate of the child and his custody. The child cannot be treated like a commodity and by product of an agreement which can be executed shelving to look into the fact of welfare of the child. The predominant factor which would govern in respect of custody of the child is the welfare.”

While citing the relevant case law, the Bench then stipulates in para 8 that, “The Supreme Court in Mousami Moitra Ganguli v. Jayanti Ganguli AIR 2008 7 SCC 673 at para 14 expressed the view that while deciding the issue as to which parent the care and control of a child should be committed, the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.”

While citing yet more relevant case laws, the Bench then states in para 9 that, “The Supreme Court further in Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42 held that the Court while deciding the custody cases of the child, it is not bound by the mere legal right of the parents or guardians. It held that though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme Consideration in cases concerning the custody of minor child. Therefore, the paramount consideration should be the interest and welfare of the child. The Supreme Court in the aforesaid judgment reiterated the view taken in Nil Ratan Kundu Vs. Abhijit Kundu reported in (2008) 9 SCC 413 and emphasized that paramount consideration should be the welfare of the child and due weight should be given to the child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings.”

While underscoring the utility of human touch in deciding cases of minor custody, the Bench then postulates in para 10 that, “With respect to the oral and documentary evidence so created by the parties in custody matters, the Supreme Court in M.K. Hari Govindan Vs. A.R. Rajaram reported in 36 2003 OnLine Mad 48: AIR 2003 Mad 315 held that the custody cases of child cannot be decided on documents, oral evidence or precedents without reference to “human touch”. It held that human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.”

While dwelling on the nitty gritty of the case, the Bench then divulges in para 12 that, “The father Pitamber Nai (AW-1) and the witness Ravi Prakash Pradhan (AW-2) had stated that the lady used to consume liquor along with others. She also used to consume Gutkha and used to smoke cigarette. The husband stated that he has seen the wife consuming liquor at some place named Sankra in company of one Vivek Sharma. He further stated that he has seen his wife consuming liquor in the house of Vivek Sharma and she used to move along with him, who is the electrical contractor. The witness further stated that the wife used to work along with Vivek Sharma and used to travel for her job along with him at different places. Likewise, the statement of Ravi Prakash Pradhan (AW-2), it would show that he has stated that the mother used to work under Vivek Sharma, who is an electrical contractor used to travel along with him. He further stated that she is addicted to cigarette, liquor and Gutka and she has lost her character and she used to move along with other male members of the society, which is against the moral. He further has stated that she do not follow the rituals and describe her as a female don. It is further stated that the husband Pitamber Nai has not married and he is the only son but because of the arrogance of the wife the entire family is deprived of the love & affection towards the child. This witness has further stated that the day when the child will come to know about the character of the mother, he would be demoralized and would become pervert. Likewise the statement of one Smt. Saraswati Sharma (AW-3), who is the wife of Vivek Sharma, she has deposed because of the fact that the appellant is being kept as wife, the relation in between her and Vivek Sharma has become estranged and as such certain litigations are pending against the husband.”

Delving deeper, the Bench then reveals in para 13 that, “The evidence of the aforesaid witnesses would show that the efforts have been made to show that the character of the wife is not good. The reason which is been assigned that she used to consume liquor and is also addicted to cigarette and Gutka, moves along with other male members of the society in the car. As against this witnesses of the mother Deepa Nayak (NAW-1) she stated that she is presently doing a job of Rs.15000/- under a contractor. She further stated as there is no other female employee works, therefore, in order to carry out the job in the field she has to travel to the field. She further stated that she used to travel different sites in the field on the motorcycle and also at times in the car with the contractor. She further stated that at that time other supervisors also travels with her. She further stated that wherever she goes to field she wears capri and T-shirt. She denied the suggestion that she is being looked after by the contractor with whom she works as against this she performs duty from morning to evening.”

Furthermore, the Bench then observes in para 14 that, “Further coming to the statement further the mother/appellant has referred that while she goes out for job the boy is being looked after by her mother, who is aged about 58 years. The document produced also would show that the boy is admitted to the School, wherein he is studying. As against this, the statement of AW-1 would show that in the cross-examination he admits that till date he has not sent any money order or any financial help to the child. It was admitted that once he had written a letter to purchase some books and clothes but it was not accepted. There is no evidence on record to show the gesture that at any point of time he wanted to extend support by way of financial help. The father further stated that he goes for a duty of 12 hours and if the child is given to him he would call his sister to look after the child. The statement of the father, therefore, except the oral future promise nothing can be inferred that actual help or support was ever extended. Whereas the statement of Kamal Kishore Nayak (NAW-3) he stated that the child is being looked after by the mother and the likewise statement of Gaurhari Kewat (NAW-2) also supported the fact that the appellant/mother is looking after the child very well. This witness also appears to be Secretary of the society of the appellant and the respondent and reiterated the fact that the child is being looked after by the mother very well.”

Most commendably, the Bench then holds in para 15 that, “There being total conflict between the witnesses on one side and those on other. Therefore, the evidences both pro and contra whether has a bearing upon the issue are to be examined. The evidence on behalf of father it appears that the witnesses have stated according to their own opinion and thought. If the lady is required to do a job that too in the field for her livelihood, naturally she would be required to move from one place to other and only because of the fact that she is required to rub her shoulder with public at large or male i.e. to accompany them in the car, there cannot be an inference that she has lost her chastity. Only bald oral statement is made that she is addicted to consume liquor and smoke etc. It is important to set a red line when the attack is made to assassinate character of lady. The statement of witnesses of plaintiff would show that they are largely influenced by attire of women as she wears jeans and T-shirt along with the fact that she is marching along with male members of society. We are afraid that if such ill conceived exercise is given a spot light, then to protect the right & freedom of women would be a long arduous battle. If the wife do not squeeze into the mold as per desire of husband, it would not be a decisive factor to lose the custody of the child by her.”

Most significantly and also most decisively, the Bench then minces no words to hold in para 16 that, “By attacking the character of wife to impress upon that it would have an adverse impact on the mind of the child, the degree of nature of evidence should have been much more & severe to hold that continuous a kind of behaviour of wife would be detrimental to the interest of child. The character certificate by few of the society members, who might have ostrich mind set, should not be allowed to decide the character of a woman and to draw an inference while deciding the custody of the child that because of the behaviour of mother it would have an adverse impact on the mind of the child. Therefore, considering the entire evidence on record we are of the view that the welfare of the child would hold the sway if the child is kept in the custody of the mother. Accordingly, the direction of the Court below to handover the custody of the child to the father is set aside.”

Moving on, the Bench then observes in para 17 that, “Now coming to the visitation rights of the father in respect of the child is ordered to be kept in custody of the mother there is no specific visitation right has been conferred. The Apex Court in Yashita Sahu Vs. State of Rajasthan (2020) 3 SCC 67 held that even after the custody was given to one parent, the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. The evidence in this case does not show any extreme circumstances whereby one parent for all practical purposes can be denied to meet the child. The evidence has come on record that even though the mother and father are living separately and the children are staying with the mother, yet the father often uses to meet the children.”

Quite forthrightly, the Bench then pointed out in para 18 that, “The Supreme Court in Yashita Sahu (Supra) further observed that the concept of “visitation rights” is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. It held that the child has a human right to have the love and affection of both the parents and Courts must pass orders ensuring that the children are not totally deprived of the love, affection and company of one of their parents.”

Most forthrightly, the Bench then conceded in para 19 that, “In addition to “visitation rights” the court observed that the“contract rights” is also important for the development of the child specially in cases were both the parents live in different places the concept of contact rights in the modern age would be contact by telephone, e-mail or in fact we feel the best system of contact, if available, between the parties should be video calling. It observed that with the increasing availability of internet, and the Courts dealing with the issue of custody of child must ensure the parent who is denied the custody of the children should be able to talk to his/her child as often as possible. It held that the communication will help in maintaining and improving the bond between the children and the parent who is denied the custody. If that bond is maintained, the children will have no difficult in moving from one home to another during vacation or holidays. The purpose was held that the court cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each.”

Most remarkably, while citing a recent and relevant case law, the Bench then enunciated in para 20 that, “In a recent decision rendered in Ritika Sharan Vs . Sujoy Ghosh , 2020 SCC OnLine SC 878 the Supreme Court held that a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are best served by ensuring that both the parents have a presence in his/her upbringing. Therefore, following the principles laid down in Yashita Sahu Vs. State of Rajasthan (supra) and Ritika Sharan Vs. Sujoy Ghosh (supra), we hereby order to facilitate the grant of visitation and contact rights to the father. The following arrangements shall be made by both the appellant and respondent as father and mother :

(i) The respondent/father would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday and Sunday and 5 – 10 minutes on other days.

(ii) Both the respondent/father and the appellant/mother in order to facilitate the video conferencing between them shall procure smart phones which would facilitate the inter-se video calling.

(iii) During long holidays/vacation covering more than 2 weeks the child will be allowed to be in the company of the father for a period of 7 days. The period shall be fixed by the father after due intimation to the mother and she will permit the child to go with the father for the aforesaid period and the mother, if so desires, may also accompany him.

(iv) Every month preferably on Saturday or Sunday the mother shall allow the child to visit his father or father may take the child in his company and leave him back in the evening of such day.

(v) During festivals the father may join the company of the child at the place of the mother and spend the festival days with the child along with the mother.”

Finally, the Bench then concludes by holding in para 21 that, “With the aforesaid observations/direction, the appeal is disposed of.”

In essence, the Chhattisgarh High Court has ruled most decisively in favour of woman in this notable case. The Bench comprising of Justice Goutam Bhaduri and Justice Sanjay S Agrawal has made it indubitably clear that the woman’s character can’t be decided by certificate given by people having an ostrich mindset. It also very rightly made it crystal clear that if a wife doesn’t squeeze into the mold as per the desire of husband, it would not be a decisive factor to lose the custody of the child.

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Policy & Politics

S. 389 CRPC: ‘Application for suspension of sentence should be considered liberally if punishment is less than 10 years’

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It is really most heartening to see that in an extremely commendable, cogent, concise composed and courageous judgment titled Ghulam Mustafa & Anr V/s UT of J&K&L in Crl A(S) No. 48/2019 CrlM Nos. 2432 & 1080/2021 CrlM Nos. 391 & 445/2022 that was reserved on May 17 and then finally pronounced on May 19, 2022, the Jammu and Kashmir and Ladakh High Court has most rightly, robustly and rationally reiterated that as per the provision under Section 389 of CrPC, if the convict is punished with imprisonment for a term less than ten years, no notice is required to the Public Prosecutor/State regarding the application filed by the accused for suspension of his sentence and release on bail. This clearly implies that the Court wants that the application for suspension of sentence should be considered liberally if punishment is less than 10 years. The Court was hearing a criminal appeal under Section 374 of CrPC which was directed against the judgment of conviction and order of sentence where the appellant were found guilty of offence under Section 307, 451, 34 of the Ranbir Penal Code and sentenced to go for rigorous imprisonment for ten years with a fine of Rs 10,000.

CRLM NOS. 391 & 445 OF 2022

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench comprising of Hon’ble Mr Justice Mohan Lal of Jammu and Kashmir and Ladakh High Court sets the pitch in motion by first and foremost putting forth in para 1 that, “Instant criminal appeal under Section 374 Cr.P.C is directed against judgment of conviction dated 30.10.2019 and order of sentence dated 30.10.2019 rendered by the Court of learned 2nd Additional Sessions Judge, Jammu in file No. 33/Sessions titled “State v/s Ghulam Mustafa & Anr.” where under appellants/convicts have been found guilty of commission of offences u/s 307, 451, 34 RPC and sentenced to undergo rigorous imprisonment for (10) years and also fine in the sum of Rs.10,000/.”

Needless to say, the Bench then aptly mentions in para 2 that, “Feeling aggrieved of the impugned judgment of conviction, appellants/convicts have assailed it’s correctness, propriety and legality on the grounds, that as a result of miss-appreciation of facts and misapplication of law so far as the finding of the trial court relating to holding appellants guilty of having committing of offences under Sections 307, 451, 34 RPC and convicting them of the same is bad in the eyes of law, therefore, prayed that the present appeal be allowed the judgment of learned 2nd Additional Sessions Judge, Jammu be set aside.”

To put things in perspective, the Bench then enunciates in para 3 that, “Alongwith the appeal, appellants/convicts have filed applications for suspension of conviction and sentence pending the hearing of appeal, with further prayer for ordering them release on bail primarily on the ground that there is no likelihood of the appeal being heard in the near future, and in view of the law laid down by the Supreme Court wherein it has been held that when a convicted person is sentenced to a fixed period of sentence, on filing of appeal, suspension of sentence should be considered liberally unless there are exceptional circumstances; that the bail applications of both the appellants/convicts filed earlier were rejected vide order dated 02.07.2020 of this Court and to obviate the apprehension of the appellants of there being no likelihood of hearing of the appeal in near future and this Court directed the matter to be listed for hearing on 18.08.2020, thereafter the matter was listed more than 10 times but the arguments in the appeal could not be considered which further constrained the appellant/convict No.2 to file another application for grant of bail bearing CrlM No. 1612/2020, which was further rejected by this Court vide order dated 03.09.2021 on the ground that the appellant No.2 has not even undergone a substantial period of sentence and therefore, it was not a stage for showing indulgence of this Court; that the appellant/convict No.2 is suffering from kidney related ailments and is having only one kidney and the other one stands removed even before the conviction.”

As it turned out, the Bench then observes in para 4 that, “Respondent has filed objections wherein it has been stated that both the appellants/convicts are the main accused in case FIR No. 14/2005 for commission of offences U/S 307, 326, 451, 34 RPC registered at Police Station Gharota, Jammu; that it has been established by the court below that appellants/accused persons have been convicted after full trial and the entire testimonies of the witnesses would narrate as how brutally and with scant regard and fear of the convicts has chopped the arm of the victim; that the appellants deserve no lenience and there are cogent reasons and chances that they would escape the clutches of law as they have come to know that they cannot be absolved of the crime, thus there is every eventuality of the fleeing away justice; that no case of suspension of sentence is made out as the offences for which the accused persons/appellants are charged is of heinous nature and these offences definitely constitute a class apart and need to be viewed with a different approach in the matter of bail; that the case of the appellants are also not covered under the Supreme Court judgments as they have not been in the prison for half of their sentence, therefore, the application be dismissed.”

Most significantly, the Bench after hearing the learned counsels from all sides then while citing relevant provisions and relevant case laws expounds in para 7 that, “Heard & considered. Section 389 of Code of Criminal Procedure deals with the provisions of suspension of sentence pending the appeal. For the sake of convenience Sec. 389 Cr.PC is reproduced hereunder:-

389. Suspension of sentence pending the appeal; release of appellant on bail.—(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:

[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.]

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of Appellate Court under Sub-Section(1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

Cursory glance of Section 389 Cr.PC makes the legal proposition abundantly clear, that pending an appeal preferred by a convicted person notice shall only be issued to the Public Prosecutor/State in case the convict is punished for offences punishable with death or imprisonment for life or imprisonment for a term not less than ten (10) years, which clearly connote that if the convict is punished with imprisonment for a term less than 10 years no notice is required to be given to the Public Prosecutor/State in regard to the application filed by the convict/accused for suspension of his sentence and his release on bail.

In the case of BHAGWAN RAMA SHINDE GOSAI AND OTHERS Versus STATE OF GUJARAT [(1999) 4 Supreme Court Cases 421], Hon’ble Supreme Court while discussing the power and scope of section 389 Cr.PC regarding suspension of sentence pending the appeal filed by the convict, and while holding that the prayer for suspension of sentence should be considered liberally unless there is any statutory restriction, and while suspending the sentence and directing appellant/accused/convict to be released on bail found guilty for commission of offences u/ss 392 r/w 397 IPC for rigorous imprisonment of 10 years by the trail court, in paras 3&4 of the judgment held as under:-

3. When a convicted person is sentenced to fixed period of sentence and when he files appeals under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.

4. In this case as the High Court was not inclined to hear the appeal expeditiously we are of the view that the sentence passed on appellants can be suspended on some stringent conditions. We, therefore, suspend the sentence and direct the appellants to be released on bail on each of them executing a bond to the satisfaction of Additional Sessions Judge, Nadiad. We direct the appellants to report to Kapadwang Police Station on all Mondays and Thursdays between 4.00p.m. and 6.00 p.m. until disposal of the appeal pending before the High Court.

Ratio of the judgment (Supra) makes it manifest, that Section 389 Cr.PC does not contain any “statutory restriction” in suspension of sentence and granting of bail to the accused/convict and the prayer should be considered liberally and the Appellate Court may impose restrictions considering the gravity of offence.

Similarly, in the case of Vajida Bano and Ors V/s State Through Advocate General, this Court while relying upon the judgment of BHAGWAN RAMA SHINDE GOSAI’S (Supra) suspended the sentence of appellant/convicts, convicted and sentenced in FIR 09/2014 for commission of offences u/ss 363/317/ 302/ 120-B & 201 RPC of P/S Kargil.

In the case of State of Haryana Vs Hasmat (decided by Hon’ble Supreme Court of India on 26th July 2004 in Appeal Crl. 715-717 of 2004), relied by Ld. Counsel for respondent/victim, Hon’ble Supreme Court set aside the order of Punjab & Haryana High Court regarding the suspension of sentence and enlargement of accused/convict on bail convicted for commission of offences u/ss 148/302/307/324 r/w Sec. 149 of IPC r/w 25/27 Arms Act on the ground of seriousness of offence wherein the relevant facts like the “nature of acquisition” the manner in which crime was committed, “the gravity of offence” and the desirability of releasing the accused on bail after they were convicted for committing serious offence of murder, and the said aspects were not considered by the High Court which passing the impugned order of suspension/bail.

In the case of Bholu Vs State of U.P. (Crl. Misc. Application No. 124973 of 2017) decided by Allahabad High Court on 04-05-2018 relied by Ld. Counsel for respondent/victim, Hon’ble Allahabad High Court rejected the 1st and 2nd bail applications of accused/appellant/convict even though he was in jail for 9 years on the ground that the appellant/convict was convicted for heinous offence of 2 murders.

In another case relied by Ld. Counsel for respondent titled Mahesh Pahade Versus State of Madhya Pradesh) [Criminal Appeal No. 933/2014 decided on 18th July 2018] the Division Bench of Madhya Pradesh High Court relaying upon the plethora of decisions of Hon’ble Supreme Court viz; 1. (2018) 3 SCC 187 (Lachhman Dass vs. Resham Chand Kaler and Another); 2. (2016) 6 SCC 699 (Amanullah and Another vs. State of Bihar and others); 3. (2009) 6 SCC 767 (National Human Rights Commission vs. State of Gujarat and others); 4. (2006) 3 SCC 374 (Zahira Habibullah Sheikh and another vs. State of Gujarat and others); 5. (2001) 6 SCC 338 (Puran etc. vs. Rambilas and another etc.); 6. (2000) 2 SCC 391 (R. Rathinam vs. State by DSP); 7. (1980) 3 SCC 141 (P.S.R. Sadhanantham vs. Arunachalam and another); 8. (1979) 4 SCC 719 (Rattan Singh vs. State of Punjab), held, that the victims of heinous crime cannot be denied the right to address their grievances before the court of law. In the decision (Supra) Hon’ble 8 CrlM Nos. 391 & 44 Madhya Pradesh High Court held, that Section 372 of Code of Criminal Procedure gives right to victim to file an appeal against order of conviction which clearly gives right to the prosecutrix a victim of heinous crime on her person to approach the court for cancellation of bail. The case laws relied upon by Ld. Counsel for respondent/victim only lay down an invariable principle of law that in cases punished with imprisonment of less than ten (10) years even no notice is required to be given to the State/Public Prosecutor, however, in heinous offences like that of murders u/s 302 IPC, the court has the power/jurisdiction to grant or refuse the suspension of sentence and bail. In the case in hand, appellants/convicts have been found guilty by the trial court of 2nd Additional Sessions Judge Jammu for commission of offence u/s 307, 451, 34 RPC and sentenced to undergo rigorous imprisonment for (10) years and also fine in the sum of Rs.10,000. Vide ratio of the judgment of Bhagwan Ram Shinde Gosai’s and others case (1999) 4 Supreme Court Cases 421 (Supra), relied by Ld. Counsels for appellants/convicts, there is no statutory restriction/prohibition in not considering the application for suspension and releasing of appellants/convicts on bail. Appellant/convict No.1 is resident of Sagar Nallah Graint Ranjan, Tehsil Jammu while appellant/convict No.2 is resident of Bye Dhara Gursai, Tehsil Mendhar and both them have deep roots in the society and do not possess the golden wings to flee from justice, as nothing substantial has been brought before the notice of this court that appellants/convicts have absconded during trial. The seriousness or gravity of offence is to be seen in cases where accused/convict is punished with death penalty, life imprisonment or imprisonment of 10 years and above, wherein, while considering the application for suspension and bail the judicial description lies in the wisdom of the court. Right to life and liberty of an individual is precious under Article 21 of the Constitution of India and is also a very valuable right of accused/convict which also continues during the appeal period as appeal is the continuation of the trial.”

While batting for suspension of sentence, the Bench then hastened to add in para 8 that, “Keeping in view the facts that the applicants/appellants are in custody for the last more than two and half years of the total sentence imposed and applicant/appellant No.2 is suffering from kidney related ailment and there is no immediate prospect of the main appeal being heard in near future, a fit and proper case for suspension of sentence is made out.”

As a corollary, the Bench then stipulates and directs in para 9 that, “As a sequel to the aforesaid discussion, I am of the considered opinion that applicants/appellants have made out a strong case for suspension of sentence and grant of bail in their favour. I, therefore, suspend the sentence inflicted upon the applicants/appellants and direct them to be released on bail by executing surety bonds in the sum of Rs.50000/- each to the satisfaction of Registrar Judicial of this court with the direction to furnish personal recognizance of like amount before Superintendent Central Jail Kot Bhalwal Jammu where the applicants/appellants are presently serving the sentence term in judicial lockup. It is further ordered, that the applicants/appellants shall appear before this court on each and every date of hearing except for the reasons beyond his control and unless exempted.”

What’s more, the Bench then observes in para 10 that, “Applications are disposed of.”

Finally, the Bench then concludes by holding in para 11 that, “List the main appeal for final hearing on 29.07.2022.”

All told, the sum and substance of this extremely learned, laudable and landmark judgment by Jammu and Kashmir and Ladakh High Court is that application for suspension of sentence should be considered liberally if the punishment awarded is less than 10 years and the case is genuine and needy as we see in this leading case also! Of course, all courts must definitely abide by what has been laid by the J&K&L High Court in this learned judgment and consider similar such cases compassionately! There can certainly be just no denying or disputing it whatsoever!

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Policy & Politics

Just One Psychiatrist For All Prisoners With Mental Illness In State Not Sustainable: Orissa HC Expresses Concern On Prison Conditions

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It cannot be easily glossed over that none other than the Orissa High Court itself in an extremely laudable, learned, landmark and latest judgment titled Krushna Prasad Sahoo v. State of Orissa & Ors. in W.P.(C) No. 6610 of 2006 pronounced as recently as on May 21, 2022 has expressed deep concerns on the issue of the mental health of prisoners. On learning that there existed only one psychiatrist to attend all prisoners in the state with mental illness, a Division Bench of Chief Justice S Muralidhar and Justice RK Pattanaik noted with concern that, “This situation is unsustainable considering that it is physically impossible for just one psychiatrist to attend all prisoners in the state with mental illness.” It merits mentioning that the development comes in an ongoing case in which the Orissa High Court had previously directed the Director-General, Prisons, to ensure food, hygiene, and health facilities in all the jails/sub-jails of the State.

ATHAMALIK SUB-JAIL MATTER

To start with, this brief, brilliant, bold and balanced judgment authored by a Bench of Orissa High Court comprising of Chief Justice Dr S Muralidhar and Justice RK Pattanaik sets the pitch in motion by first and foremost putting forth in para 1 that, “Pursuant to the directions issued by this Court on 5th May 2022, the District and Sessions Judge, Angul has submitted a report dated 18th May, 2022 enclosing original statements of 12 inmates and 2 staff of the Athamalik Sub-Jail. The sealed cover containing the report was opened and the report has been perused by the Court. Copies of the report be made available to Mr. Debakanata Mohanty, learned Additional Government Advocate (AGA) and Mr. Gautam Misra, learned Amicus Curiae (AC).”

In the fitness of things, the Bench then points out in para 2 that, “Mr. Manoj Chhabra, DG, Prisons, Odisha, who is present in virtual mode, states that he will immediately act on the said report by taking an appropriate action against the person involved in the incident of the assault on a convict as mentioned in that report. After copies of the report have been provided to them, the said report will again be placed in the sealed cover and kept with Registrar (Judicial) of this Court.”

To be sure, the Bench then discloses in para 3 that, “Affidavits dated 20th May, 2022 have been filed by the Deputy Inspector General of Prisons and the Member Secretary, Odisha State Legal Services Authority (OSLSA) regarding status of compliance with the earlier directions issued by this Court. The learned AC has also prepared a detailed convenience note for consideration of this Court.”

OVERCROWDING

While according top priority to overcrowding of prisons, the Bench then mentions in para 4 that, “At today’s hearing, the Court first considered the issue of overcrowding of prisons. The note of the AC, refers to two SubJails, viz., the Balliguda Sub-Jail and the Jajpur Sub-Jail, where even now the prison population is more than 100% of the carrying capacity of the said Sub-Jails. Mr. Chhabra, the DG, Prisons is conscious of this position and has offered a temporary solution of shifting the prisoners to neighbouring jails. He has also undertaken to re-examine the earlier suggestion whether pending the actual increase in the additional capacity of the jails and sub-jails, there can be a temporary solution found for accommodating prisoners in other state-owned buildings.”

To put things in perspective, the Bench then envisages in para 5 that, “In the course of the discussion, a concern was raised about the resistance faced when applications are filed before the concerned Courts for shifting of an inmate from one Jail to another. Considering that the problem of overcrowding of jails in Odisha is a real and serious one, and it is going to take some time before the additional capacity in jails can be constructed, if a request is made for shifting of an inmate from a jail to a jail in a neighbouring district at the nearest possible location then such request should be considered in its proper perspective keeping in view the serious problems faced by inmates in an overcrowded Jail. It is emphasized that this is only a temporary solution pending the creation of the additional capacity in the Jails.”

Quite revealingly, the Bench then notes in para 6 that, “Apart from the above two sub-jails, there are four jails viz., the Phulbani District Jail, Bhadrak Special Sub-Jail, Kamakhyanagar Sub-Jail and the Malkanagiri Sub-Jail, where the prison population between 50 to 100% in excess of the carrying capacity of those jails even as of today. That apart, fifteen District Jails, Special Jails and Sub-Jails face the situation of prison population being in excess to the extent of 20 to 50%. Mr. Chhabra assures the Court that each of these situations is receiving the highest attention of the prison authorities and wherever possible, applications will be filed before the concerned Courts for shifting of the excess population to the nearest possible jails to tide over the critical situation.”

PRISONERS WITH MENTAL ILLNESS

No doubt, the Bench then specifies in para 7 that, “The issue of prisoners with mental illness was highlighted during today’s hearing. As per the figures collated by the Secretary, Odisha State Legal Services Authority (OSLSA), from the reports of visit undertaken by the District Magistrates (DMs) there are at least 286 prisoners with mental illnesses in the various jails and sub-jails. Mr. Chhabra anticipates that this number may be even higher and would be in the range of around 500 prisoners.”

Alarmingly, the Bench then notes in para 8 that, “The statistics provided to this Court show that there are as many as 42 prisoners in Circle Jail, Koraput, 33 in Circle Jail, Sambalpur, 29 in District Jail, Keonjhar, 22 in District Jail, Bhawanipatna, 19 in Special Sub-Jail, Bonaigarh, 14 in District Jail, Angul, 14 in Sub-Jail, Nayagada and 15 in Special Jail, Rourkela, who have been diagnosed with mental illnesses that require urgent attention. It is a matter of deep concern, and a concern that is shared by Mr. Chhabra, that there is just one psychiatrist in Choudwar Circle Jail, who is expected to cater to the needs of all prisoners with mental illnesses throughout the State. This situation is clearly unsustainable considering that it is physically impossible for just one psychiatrist to attend to all prisoners with mental illnesses.”

Commendably, the Bench then lays bare in para 9 that, “A suggestion that has come forth from the learned AC and which the Court is willing to accept is to have the OSLSA to step in to arrange for visits by psychiatrists to each of the jails where there are prisoners with mental illnesses to have an assessment done of their present condition and what urgent measures need to be taken to alleviate their distress. The Member Secretary, OSLSA, who is present in virtual mode, has undertaken to arrange for such visit by specialist psychiatrist not just from Public Health Facilities but even from Private Health Facilities, the expenses for which will be defrayed by OSLSA. The OSLSA will then follow up on such reports of individual assessment by filing appropriate applications before the concerned Courts on behalf of the prisoners enclosing such assessments and praying for appropriate orders from the Court concerned, particularly for interim or regular bail. Each such prisoner with mental illness will be assigned with an individual lawyer from the panel of the OSLSA.”

PRISONERS’ PANCHAYAT COUNCIL

Essentially, the Bench then stipulates in para 10 that, “The Court’s attention was drawn to Rule 802 of the Odisha Model Jail Manual, 2020 (2020 Manual), which provides for constitution of Prisoners’ Panchayat Council (PPC). Mr. Chhabra has undertaken to examine the position of the constitution of such PPC in the jails since that would address a large number of problems faced by inmates within jails, which can be then brought to the notice of the jail administration for remedial action. The Court emphasises that since this is a statutory requirement, it has to be complied both in letter and spirit and on the next date of hearing, the Court will be informed of the constitution of such PPCs in every circle jail, district jail, special jail, special sub-jail or sub-jail as mandated under Rule 802 of 2020 Manual.”

PRISON DEVELOPMENT BOARD

As we see, the Bench then lays down in para 11 that, “As regards the Prison Development Board (PDB), Mr. Chhabra informs the Court that in view of the draft agenda proposed by his predecessor having to be revised, a meeting has not yet been held. However, he expects it will happen very soon and definitely before the end of June, 2022. The Court expects the PDB to take up in its agenda the issue of the budgetary allocations per prisoner, which requires revision among the other issues including infrastructure, overcrowding, medical facilities, skill development of the prison inmates and the like. The deliberations of the meeting of the PDB be placed before the Court on the next date.”

INFORMATION ABOUT PRISONERS’ CASES

As things stand, the Bench then maintains in para 12 that, “On the issue of information being provided to prisoners about their cases, Mr. Chhabra states that during his visit to the Circle Jail, Choudwar and District Jails in Angul and Puri, he did notice such e-kiosk and his information is that there are around 20 jails in Odisha that have such e-kiosks. He states that he will be visiting the jails in other States to ascertain the best practice in this area and ensure that those are made available in the jails in Odisha. Basically, a prisoner must have easy and ready access to latest updated information regarding his own case as well as orders of the concerned Court in his case.”

VACANT POSTS OF MEDICAL STAFF

On key issue of vacant posts of medical staff, the Bench then directs in para 13 that, “On the issue of vacant post of Medical Staff, the position of 3 psychiatrists is still lying vacant and 31 sanctioned posts of Medical Officers are also still vacant. It is stated that since the D.G. of Prisons has made a request to the State Government in this regard, a direction is issued to the Home Department as well as the Health and Family Welfare Department, Government of Odisha to immediately act upon the above requests of the D.G., Prisons and expedite the process of filling up of the vacant posts of Medical Officers and Psychiatrists.”

Adding more to it, the Bench then also directs in para 14 that, “Mr. Chhabra states that although directions have been issued by the Health Department and Home Department for increasing the frequency of the visits by the Medical personnel to the jails, that is not happening as was directed. This aspect must be immediately examined by both the Health and Family Welfare Department and the Home Department to ensure that the instructions are strictly carried out. The responsibility should be fixed on the concerned Chief District Medical Officer (CDMO) in each of the districts in this regard. A further circular/order be issued to that effect forthwith.”

Segregation of UTPs from convicted inmates, Segregation of Young Offenders from Adults and Separate Enclosures for Women Prisoners

Quite worryingly, the Bench then enunciates in para 15 that, “A concern has been expressed that at least in six sub-jails in Champua, Kamakshyanagar, Banki, Jajpur, Dharamagarh and Jeypore, under trials were not segregated from convicted inmates. Further, young offenders in the age group of 18 to 21 are not separated from adults in jails of several districts including Bargarh, Malkanagiri, Keonjhar, Bhadrak, Cuttack, Jajpur, Kalahandi, Koraput and Nuapada. A third aspect here is that the reports collated by the Member Secretary, OSLSA reveal that there are no separate enclosures for women prisoners in the District Jail in Bhawanipatna and even the report from the visit of the DLSA to Jharsuguda reveals that the women’s ward is in a pathetic condition. As regards the jail in Jharsuguda is concerned, Mr. Chhabra states that the Additional I.G. has visited the said jail and corrective measures have already been taken. As regards the issue regarding segregation in the jail in Bhawanipatna, he states that steps will immediately be taken to rectify the situation and that he will be issuing instructions in that regard.”

BIJU PATNAIK OPEN AIR PRISON

Be it noted, the Bench then states in para 16 that, “This Court had in its order dated 23rd December 2021, pointed out that the Biju Patnaik Open Air Prison, which has a capacity of 125, has remained largely underutilized. The position as of 30th April, 2022 is that the said prison has only 33 prisoners. Mr. Chhabra stated that once the COVID-19 situation totally eases and convicts return to the jails, the prison population in the open-air prison would increase. The Court urges that this issue receive the highest and most urgent attention of the prison department and on the next date, the Court must be informed of a substantial increase in the prisoner population in the open air prison.”

DUTY LAWYERS

It is worth noting that the Bench then recalls and puts forth in para 17 that, “This Court had issued detailed directions regarding the duty lawyers being to be attached to every Police Station and of the directions issued by the Supreme Court in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, having to be followed in letter and spirit. The Court is informed by Mr. Biswajit Mohanty, Secretary, OSLSA that in 418 Police Stations in Odisha, the Duty-Lawyer system has already been implemented. The names and the mobile numbers of the Duty-Lawyers are stated to be displayed on boards in a prominent place in each of these Police Stations. He expects the Duty-Lawyer system to be implemented in all the remaining Police Stations by the 10th June, 2022. The Duty-Lawyers will be given an orientation through the DLSAs, emphasizing the need to ensure compliance with the directions issued by the Supreme Court in Arnesh Kumar (supra). The orientation will also be for effective interaction with the persons brought into Police Stations and proper advice as to their options.”

Needless to say, the Bench then mentions in para 18 that, “Mr. Chhabra states that the efforts would be made to earmark some space in every jail and sub-jail for library books and reading materials to be kept for prisoners.”

Of course, the Bench then reiterated in para 19 that, “The learned AC points out that despite the directions issued by this Court in its order dated 23rd December, 2021 in Para-48 about the Police authorities having to strictly comply with the directions issued by the Supreme Court in Joginder Kumar v. State of U.P. AIR 1994 SC 1349 and the subsequent amendments by which Sections 41-A to 41-D were introduced in the Cr.P.C., those provisions are not yet being strictly implemented. The direction to the Police to publish every month on its website the relevant information of persons arrested is reiterated.”

Quite remarkably, the Bench then mandates in para 20 that, “In modification of the direction issued by this Court in Para-7 of its Order dated 23rd December 2021, it is directed that the Member Secretary, OSLSA will facilitate the release of prisoners, who were unable to be released on bail despite being granted bail on account of their inability to furnish bail bonds, by filing applications before the Court of Sessions or the High Court under Section 440 (2) of the Cr.P.C. for modifying the conditions and the terms of both the Judgments of the Supreme Court as well as the guidelines issued by the NALSA in this regard.”

Most commendably, the Bench then notes in para 21 that, “A suggestion has been received from the D.G. Prisons to the DLSAs, who organize the visits by Panel Counsel or themselves visit the prisons should compile a list of Under Trial Prisoners (UTPs), who may be informed sick or aged or in need of urgent medical attention including pregnant women and on that basis, advise moving the Court for bail on medical grounds. This suggestion will also be acted upon by the Secretary, OSLSA, who will instruct the DLSAs accordingly.”

What’s more, the Bench then adds in para 22 that, “The Court also notes its satisfaction on the various measures that have been taken in the jails in Odisha pursuant to the orders passed by this Court, which has resulted in a considerable improvement in the conditions in he prisons in Odisha, as is reflected in the reports submitted to the Court by the District Magistrates, the DLSAs and even the District Judges, who have undertaken visits, all of which has been collated and presented in this Court at today’s hearing. Nevertheless, much more needs to be done. Hopefully, the further directions issued by this Court today should help in that direction.”

Finally, the Bench then concludes by holding in para 23 that, “List on 28th July, 2022 at 2 pm.”

In sum, we thus see that the Orissa High Court has taken great pains to ensure that prisoners are properly looked after in prisons. The Court minced no words to express its serious concern on the deplorable condition of prisoners in jail. It also made it indisputably clear that just one psychiatrist for all prisoners with mental illnesses in State is not sustainable. No denying it!

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Policy & Politics

My brush with the PMO: Part 2

Anil Swarup

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As I mention in my book, “Not Just A Civil Servant”, the real coal story wasn’t about the successful coal block auctions. It was about the record increase in coal production. In 2014, there were on an average more than 25 power plants that were declared critical daily for want of coal. This changed dramatically in subsequent years as the coal production rose by 33 million tonnes (which was more than the cumulative increase during the past 4 years) during 2014-15 and further by 44 million tonnes during 2015-16. By 2016, there was not a single power plat critical on account of shortage of coal. We were even toying with the idea of exporting coal to Bangladesh. This increase in production created another set of problems.

There were a select few “privileged” power producers who now wanted to make a “fast buck”. These generating companies had bid for tariff and they were supposed to make arrangement for coal themselves. Coal India Limited (CIL) was obliged to supply coal at the notified price (a price below the market price as this was adjusted in the tariff. The benefit of lower price was not retained by the generation company but passed on to the state-owned distribution companies) only to such power generating companies with whom they had prior agreement. There was no obligation to supply coal at notified price to these “privileged” few. These “privileged” power producers had succeeded in getting a special dispensation for themselves during the UPA regime when there was acute shortage of coal. Ironically the Comptroller and Accountant General who had gone to town with the irregularities relating to coal block auctions chose to remain silent on an equally scandalous dispensation being given to sect set of industrialists.

By 2016 coal production had increased substantially. In almost every meeting convened by the PMO whether relating to coal or otherwise, I was asked why was I not giving linkages to these “privileged” industrialists. Ultimately, I sent a note to the Principal Secretary raising following issues:

Should CIL coal be supplied at notified price to such entities?

Would not the benefits of concessionally priced domestic coal lead to undue gains for them as the Power Purchase Agreements were not signed on the basis of assurance/commitment of notified price coal?

Wouldn’t allotment of linkages to these tantamount to grant of undue favour or preferential treatment when there is no legal or contractual obligation to supply notified price coal to these plants?

Would this not amount to favour to the successful bidders (in PPA bidding) as bid conditions would be changed after the bidding process?

Would not assignment of linkages to such entities that did not bid in coal block auctions or did not win a coal block after bidding amount to gross disfavour to those that participated and won coal blocks in auction?

In subsequent meeting at the PMO when the issue came up for discussion yet again and I referred to the note that I had sent, I was given a dressing down that the PMO doesn’t take decisions. How true it was! Yes, we were told very clearly that PMO should not be mentioned in any decision that is taken by the Ministry/Department. Lessons were learnt from the mistakes of the previous government.

However, I stuck to my guns. And, I was moved from dark dungeons of coal mines to the bright lights of school education. Or, so I thought.

$$$$$$$$$$$$$$$$

My visits to the PMO became few and far between as it was evident that school education was not high on the priority of the Government. The budgetary allocation for school education had kept coming down since 2014-15. It was Rs 55,115 crore for that year and as a percentage of GDP it was 0.52. For the year 2016-17, it came down to Rs 43,554 crore (0.36% of GDP). In one of the rare school education meetings at the PMO when I brought this to the notice of the participants, normally unflappable Mr P K Mishra got very annoyed. He appeared to be convinced that I was not providing the correct figures. There were indeed many occasions when those at the PMO were not prepared to face facts. I wondered how would they then convey facts to the PM.

$$$$$$$$$$$$$$

It happened just three months before superannuation. There were a couple of paper leaks in the examination being conducted by the Central Board od Secondary Education (CBSE). The media was baying for Anita Karwal’s blood. She was Chairperson, CBSE. As she had chosen to set things in order in CBSE, a set of mafias were after her. (The entire story is narrated in “Not Just a Civil Servant”). After ascertaining the details, I was convinced that neither she nor the CBSE was to be faulted. It took some effort to convince the Minister who initially wanted to shift Anita to “diffuse” the crisis. Despite being convinced subsequently, he still wanted to take the PMO into confidence (A culture that had evolved over a period of time). Mr Nripendra Mishra was always available for guidance and this day was no different. Despite the short notice, he gave us time. A meeting was held at the PMO on 30th March. Mr Mishra backed my stand and asked me to go ahead to brief the media later in the afternoon but only after I had received the PM’s clearance through the PMO. I also suggested announcement of the future course of action with regard to the two papers that had leaked. This too was agreed upon. We now had something concrete to tell the media. The economics exam of class 12 was to be re-conducted and the decision on Mathematics paper for class 10 was to be taken subsequently on the basis of an enquiry into the extent and impact of leakage. The logic was simple. The class 10 exam was like an internal exam with virtually no implication on future admissions. Class 12 had much greater implications. (Subsequently, post enquiry, it was discovered that the class 10 paper leak was neither widespread nor did it have any impact on the outcome. Hence, no re-examination was done in this case and around 16 lakh children were saved from the trouble of having to appear again).

The press conference was originally scheduled at 5 pm on 30th March. The entire media was waiting for me but I was eagerly awaiting the clearance from the PMO. With every passing second, the suspense grew as everyone waited with bated breath. The clearance finally came at around 6 pm. This press conference was unarguably the toughest I ever had. Later I noted in my diary, ’The Conference took place in the afternoon in a packed hall. The aggressive posture of the media reflected angst. Fortunately, in the hour-long interaction I kept my cool and handled the questions reasonably well. One could clarify the approach of the government and the purpose seemed to have been served”. It was perhaps much more than that. It was the severest of all tests in my career.

Excerpted from “No More a Civil Servant”

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

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Policy & Politics

More than Chintan, it’s time to worry

A strong Opposition is necessary to protect democracy; will Congress be able to stand this test?

Vijay Darda

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The day Congress’ three-day Nav Sankalp Chintan Shivir concluded in Udaipur, the BJP’s two-day Chintan Shivir began in Ahmedabad. A discussion over these two camps is quite natural. Every person who believes in democracy wants a strong Opposition. On one hand, BJP has a dedicated team with Narendra Modi and Amit Shah active round the clock and working tirelessly every day of the week and chalking out strategy every moment, and on the other, what is the condition of Congress? The question before everyone is what is the message that came out of the three-day Nav Sankalp Chintan Shivir of Congress in Udaipur? Did it invigorate the party workers spread across the country? How is Congress preparing for the coming Assembly elections or for the 2024 Lok Sabha elections? And of course, when will Congress get a full-time president? Many such questions are awaiting answers.

After the Chintan Shivir, the Congress gave the slogan ‘Bharat Jodo’! When this slogan was coined, a veteran Congress leader who dedicated his whole life to the party, told me that the party should first put its own house in order! India will automatically connect with the Congress! “When your party itself is not connected, what is the point of talking about the country?” When G-23 leaders talk about reforms in the party organisation, they are considered rebels. But the most important thing is that for a strong democracy, a strong Opposition is necessary and it is the moral responsibility of the Congress to give one. It has been the country’s oldest party and has been leading the nation for a long time. The real discussion in the Chintan Shivir should have been on the issue of why Congress is not able to understand the mood of the people. Why is the voter not able to believe in it? What is the reason that the party got cut off from the people at the grassroots level? Rahul Gandhi himself is saying this. The leaders at the Chintan Shivir should have expressed concern over this and come out with a roadmap to connect with the people but nothing of the sort happened. How will you understand the sentiments of the people and how will you explain your point of view to them?

If Rahul Gandhi arrived by train to attend the Udaipur camp, the objective was clear that he wanted to connect with the masses. He was being welcomed at every station till as late as 5 am and he was reciprocating by meeting the workers too. This is good but what about the local Congress leaders from Udaipur who sought to know why the party high command did not meet them? Just imagine how disappointed the Congress leaders and activists from Udaipur must have been? Such a disappointment kills enthusiasm. One more question remains unanswered as to why the Congress did not invite its ministers and MPs to such an important Chintan Shivir? Congress is in power only in Rajasthan and Chhattisgarh and it is a ruling partner in Maharashtra. It has only 53 MPs, yet not all had been invited.

Even the ministers of Rajasthan were not invited! 450 leaders were called for the camp out of which 430 attended. More than half of them were youths who are supporters of Rahul Gandhi. The rest were those leaders who have been occupying various posts in Congress for a long time. Ask them what steps they have taken to strengthen the party in recent years and they will have no answers. Instead of strengthening the party, these leaders spend their energy settling scores with each other. A young Congress leader asked me how many of the top leaders have a mass base? Can they win elections on their own? This question is valid. As long as the party does not send such black sheeps to political exile, revitalisation of the party will remain a mere dream!

Congress has decided to launch ‘Bharat Jodo’ campaign from Kanyakumari on October 2. A Congress observer asked me why is the Congress’ campaign not being launched from Kashmir when usually such campaigns begin from Kashmir to Kanyakumari? He himself gave the answer that if the campaign started from Kashmir, Ghulam Nabi Azad would have to be taken along. Azad saheb has expressed his opinion many times to reform the party organisation, so how could he be taken along? He has been a part of the G-23.

To take him along would have meant bowing down to the critics! Hearing all this, I remembered the couplet of the great personality of the 15th century Sant Kabir who says, ‘Nindak niyare raakhiye…’ This means you should have critics close to you, for only then you will know your weaknesses. You will be able to improve, and you will be able to walk on a better path. The army of sycophants has always been responsible for the sinking of the ship.

The Congress leaders who have spoken bitterly to make the party better are not foes of the party. They are not agents of the BJP. They should be heard. Does the party think why the youth leaders are moving away from it? The party had great expectations when it brought Hardik Patel into its fold. Why did he leave then? While parting ways, he said his condition was as if the new groom had been sterilised! Why did Sunil Jakhar leave the party? The bitter things Jakhar spoke about should have been the subject of Chintan Shivir. The BJP is welcoming leaders of all parties to its fold and yet Congress is not bothered.

This may sound bitter but it is true that the party does not have any roadmap at this juncture. Sonia ji has held the post of interim president for almost three years. Surely she is trying her best but who will deny that without a full-time president, how will the confidence of the workers be boosted? Rahul Gandhi says that he will not become the president and his caucus wants to see him in the president’s chair so that he remains the power centre.

Congress leaders attribute the precarious state of the party to the uncertainty over Rahul Gandhi. Moreover, the party seems to be confused about its policies of secularism. Now Congress leaders are doing exactly what BJP is doing!

But the moot question is, does the writ of high command run large at the lowest level? In fact, when there is a delay in the decision at the upper level, it results in confusion, and the morale of the workers breaks down. Congress has taken a long time to put its house in order. Nevertheless, the Congress followers are still waiting for it in every village!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

Everyone is curious to know about the outcome of Congress’ Nav Sankalp Chintan Shivir. Has any roadmap been drawn which the Congress can firmly follow in the coming elections? Can it play the role of a strong Opposition necessary for democracy? A slogan of ‘Bharat Jodo’ has been given for sure, but the need of the hour is for Congress to put its own house in order and revitalise itself!

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Policy & Politics

Social perception of violence against women

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ABSTRACT

In our nation, violence against women is a serious communal issue. This problem goes mostly unnoticed. Violence and abuse against women have a variety of causes and explanations. Whenever a crime against a woman occurs, an inept law enforcement administration is blamed for the increase in the number of complaints filed.

Even the most stringent regulation has little influence on the rising crime rate. It’s awful that there’s a social stigma attached to accepting various forms of violence against women. Rising levels of violence against women have resulted in psychological and physical problems. This paper attempts to raise awareness urging for a change in the attitude towards the women who have been the victim of different kinds of violence. It also mentions the conditions of women and how they have been suffering. It gives insights into the laws pertaining to cope gender violence. This paper analyses the rise of violence against women in the times of them past as well as scenarios of current times. The paper recommends ways to tackle gender violence as a bell of caution is being sounded in today’s time.

Keywords: Violence, Gendered, Psychological, Abuse, Victim.

INTRODUCTION

Crime against women is a deep-rooted and fascinating dichotomy in that it is the most universal human rights violation while also being the least reported. Whether at home or in the wider world, women in our patriarchal society have been subjected to many forms of discrimination. Since ancient times, women have been viewed as a weaker gender, making it simpler to perpetrate violence against them. They are made to feel extremely vulnerable, which encourages them to suffer. Women are exposed to ferocity committed by people whether at home or in the outside world. Our law protects women and gives her justice and provides them with equality. Our constitution ensures that people are not being subjected to any kind of unbiased treatment towards anyone.

According to Article 15 of the Constitution of India, there is a prohibition on discrimination on basis of gender and it in the same manner directs and empowers the administration to endeavor strict methods for females. Our constitution also grants women various rights, such as equitable treatment for all, but when it comes to putting these rights into practise, the government consistently fails. The Crimes committed against women have been an obstacle to the enhancement of the society and the condition is not unknown to anyone in power. If we look into the current times there has been an increase in violent cases especially rape. A report states that a total of 717 cases of rape were enumerated from January to May 2020, which elevated to 787 in the time period of 2021. The information tells that there has been a hike of 9.76 percent in rape cases during this time span.

If we go forward to 2021, when we must stay at home due to a pandemic, it will be difficult for women to raise their voices since at this time, women are obliged to stay at home and endure and suffer as they neglect to report crimes against their family members. Working women had to juggle employment and domestic responsibilities. For roughcasting the effect and obstacle deriving from economic uncertainty, the ladies turn out to be their target. During the Covid-19 pandemic, violence against women has taken several forms. This stems from women’s struggle to strike a balance between their personal and professional lives.

WOMEN’S STATUS AND THE CAUSES OF VIOLENCE AGAINST WOMEN

The patriarchal laws and arrangements of societal practises, traditions, and norms allow for a clear identification of violence against women in both public and private life, raising a significant question regarding the lack of respect provided to women. Furthermore, it leads to a protracted and exhausting fight for justice. The economic, cultural, and religious structure of Indian society, which may be described as a bigot culture where women are harassed, beaten, and raped within homes, in the outer world, and even between the public, is really bad. The patriarchal beliefs even accept and elevate sex discrimination as well as violence against females irrespective of age. India has been a patriarchal-based society since time immemorial. Violence against women is ingrained inside the mindset of the families while degrading women as an object and treating women as an obstacle is just evidence of their mindset. The causes of violence against women are numerous. One of the grounds which steer to violence against women is the audacity of the criminal. Often, we see that the criminal’s mind reflects on himself to be exempted from the consequences of the violent acts that he has been unswerving. Some individuals are instinctive with the approach of controlling attitude which shall not be said to be dangerous as it arises under the realm of social conduct and ordinary disparity nature between individuals. There is a huge gender disparity in doing violence against women. Removing any kind of gender disparity means eliminating all types of inequality against women and eliminating obstructions that avoid women from being totally equal with all males and comprehending their Human Rights. One of the most extensive and universal obstacles is violence against women. These obstacles create havoc in the lives of the women and they come due to a lack of knowledge and awareness among individuals.

Women often feel obligated to be around harassing men because of unequal access to education across the country, and the severe lack of legal protection leaves them with no choice but to suffer at the hands of their maternal families in their homes. Women are frequently subjected to irrational behaviour, which weakens them as individuals and has negative consequences for their health. The important point to remember is that victims who have been harmed by criminals’ actions as a result of gender-based violence or any other form of based violence should not be found liable or blamed.

TYPES OF VIOLENCE

Women’s violence can be classified into several categories. These categories represent the various types of crimes that a woman may encounter throughout her life. Physical violence against women is not the only form of violence against women. It is a broad term that encompasses all forms of violence, including sexual, sensitive, psychological, and financial abuse. Any type of violence against women is not bearable and the criminals or offenders deserve punishments, imprisonments or even capital punishments should be provided to them if required. The effects of ferocity can be overwhelming to a woman’s generative fitness as well as to other features of her bodily and psychological well-being. In the accumulation of instigating injury, the violence upsurges women’s long-term danger, raising a lot of mental as well as physical health complications including chronic discomfort, disability and may put an end to her own life through depression. Mainly, violence ensues in three circumstances – at the household or to her own self, at the community level and the state and at each phase, the social establishments fulfil dangerous functions in upholding the violence .

Self-directed: Often we look at parents, lineages and even colleagues passing taunts and oppressing the females in their houses or while working with them. These taunts reflect how weak they are and sometimes even to women who were the victims of some kind of violence. These constant picking on the violence they went through leave a huge impact on their lives, sometimes making their life even more miserable and scarred forever. Emotional exploitation is causing injury to their self-respect and mentally harassing them verbally. Various women commit self-harm for a myriad of purposes, but when viewed in the context of their psychosocial and economic circumstances, it appears to be completely understandable behaviour that contributes to the women’s poor mental health.

Suicide is a major mental health concern, aside from self-abuse. It’s also crucial to remember that suicide is the consequence of a combination of factors in a person’s life, rather than a single incident or debate. They commit suicide because of the abuse they face, the harassment they go through, problems of marrying at an early age with shattered dreams, the fact that they are not allowed to marry outside family choices, not allowed to go outside late at night, body shaming and several other factors which make them feel insecure about themselves hurting their self-confidence. Apart from the pressure of society, there are also other heinous crimes like rape, acid attack, etc. which contribute to this.

Interpersonal violence: Any act of violence or aggression towards other women by known individuals or family members. Women are subjected to a variety of sorts of violence, and when it is perpetrated by someone they know, it tends to harm them significantly more and leave a lasting mark on their lives, whether it is physical abuse, sexual assault, sexual harassment, or even honour killing. The Advocate Netra Jaisingh in the film Thappad, for example, very accurately captured the same emotional exploitation where her husband disparages her in every situation and tries to affront her life and dishonour her for the accomplishment she gained. Very frequently we see that how women get slapped or beaten and sometimes even burned by their husband and family for dowry money or even for doing any work in a wrong manner or for not obeying them in any way .

Reports even come out to show that women are being asked to do sexual acts or forced to have sex and if they do not obey, then they even get threatened by their husbands. These are examples of Interpersonal violence that a woman goes through in her life. Apart from these examples in some rural as well as in urban areas, we find the concept of early marriages which are not yet declared null and void but declared as voidable which often is not the case when women are on the other side. At home, these types of irrational behavior are either ignored or not talked about and women often abstain from standing against these acts because it appears to them as a matter of a little issue and not a big act of physical violence. Physical violence is time after time getting increased in our country especially when we see it in the current challenging times.

In the current scenarios of COVID-19, there has been a steady upsurge in the numbers of domestic violence throughout the globe and this has been the case in the previous few months. Various worldwide associations or organizations took the perception of a worldwide increase in domestic violence cases as a result of physical violence. Many states have reported a 15-30% increase in the number of violent actions requests acknowledged from those women who were suffering in locked places because of domestic violence. These issues need to be addressed by the authorities in charge.

Community Violence: Despite the country’s desire to prevent violence against women, it continues to be widespread in certain sections of the country. Rape, abuse, sexual harassment, acid assaults, female genital mutilation, and other forms of physical, sexual, and mental violence are all common in the community. India is regarded as one of the most dishonest countries in the world when it comes to sexual abuse against women. Victims of rape are gradually reporting the sexual assaults, abuses, and rapes that criminals have perpetrated against them. Women are becoming more self-governing and prepared, to reduce their likelihood to account for the crime that they are facing. Rape comprises a total of about 12% of all crimes that happen against women in our country. Our country’s average rate of rape cases that are reported is about 6.3% per 100,000 of the population. The issue about rapes happening is that about 99% of the cases of sexual abuse go unreported which creates it challenging to find the true figure of rape cases. These stats create it terrible for a female to live in such an atmosphere where the woman cannot even live by herself alone. These are just a few statistics related to rape apart from the other crimes which a woman goes through in her life. In India, the practice of Female Genital Mutilation is quite common and there are different socio-educational causes for genital mutilation, which differ from place to place. There is a profound injustice against females. Although there are different unconventional reasons given for genital mutilation. People still follow it because it has been followed as a tradition. Genital Mutilation is a chronic expression that has inhospitable effects on the emotional well-being of the sufferers. The harshness of the disfigurement relates to the harm suffered. Since anesthesia is hardly ever made available to the victim during the system there is severe discomfort. There are other various acute effects for example bleeding, swelling, etc. risking the well-being of the females and in some cases, they even die . Even the concept of acid attack is a dreadful attack and has been increasing nowadays. Men have given themselves an option to destroy the appearance and the life of women. The aim behind this criminal act is very rudimentary that is negation to do matrimonial, sex and passion, refusal to love offers, etc. to prompt the mentioned. Apart from all of this, women also experience violence in the form of honour killings, human trafficking, or prostitution, and in certain cases, HIV infection has manifested itself in their bodies. As sex trafficking has grown in popularity, females have become more vulnerable to HIV infection due to a lack of knowledge about high-risk sexual behaviours. Similarly, HIV transmission spreads by worldwide and instinctive sex trafficking.

GENDERED VIOLENCE OF WOMEN IN INDIAN LEGAL MECHANISM

The government recognises a variety of legislative frameworks aimed at ensuring women’s rights, instituting joint segregation on various forms of cruelty to women, and providing aid to working women who like to work late at night. The Protection of Women from Domestic Violence Act of 2005 was passed to safeguard women in our country from all forms of domestic violence. It also protects all the women who have been or were entangled with the offender and are exposed to different kinds of violence.

Indian Penal Code (1860) contains preparations to defend women from the expenditure of attack, violence and other different types of offenses and the Code of Criminal Procedure (1973) also protects women from such acts of violence done to her. The Hindu Marriage Act

(1955) offered betrothal and allowed it on specific prearranged grounds. It gives proper rights to women with regards to marriage and separation if the women are not safe at their home or feel unsafe in their matrimonial house. Shariat (Protection of Rights on Divorce) Act (1986) defends the Constitutional rights of Muslim women who have been alienated by or have attained beatings or violence in any form from their husbands.

The Dowry Prohibition Act (1961) prohibits the unkind or enchanting of dowry from her husband or even by her family members. Throughout the 1970s, many foreign nations have approved various legal procedures against Domestic Violence but in our nation, we contain a few legal procedures for the protection of the women from any kind of violence she has been subjected to. Further, during the period of the 1990s an attempt was put forth by the administration to permit the law for the safety of women from ferocity. But after bearing in mind the growing situations of crime against women in the country, the government finally passed the Domestic Violence Act in the year 2005. This law also included cruelty under Section 498A of IPC. This law was added to deal with crimes happening inside the home. But crimes were happening at workplaces as well and which is managed by the Act of Sexual Harassment.

The Act of Sexual Harassment of Women at the Workplace Act was passed in the year 2013. Further, the Supreme Court comprehended that we require such lawmaking after the case of Vishaka v. State of Rajasthan. This law was passed to give protection to women from any kind of sexual violence or harassment who were working. This legislation gives the provision of setting up of an internal committee at every organization for solving the problem of sexual violence on women at the workplace. The Act describes sexual abuse on women at her workplace through doing any physical or sexual violence. Apart from the law governing sexual harassment, the law also safeguards the women who are subjected to heinous crimes like rape.

According to Section 376 of the IPC, there are diverse types of enactments that will form as a constituent of rape. Section 375 provides details about a sexual offense of rape. There were a lot of insufficiencies in the enactment involving rape and it was suggested that some alterations are needed in law . Often, we see that women are hampered in terms of having proper admission to justice. There is a huge illiteracy rate among men or women and they also have social gaps which prevent them from going or taking any severe activities against the carnages faced by them. The Criminal Law Act was amended in 2013 which is also known as Nirbhaya Act and it was again amended in the Kathua rape case occasioned in the portrayal of the Criminal Law (Amendment) Act, 2018, which, for the first time, placed the death penalty as a possible sentence for the rape of a girl under the age of 12. Crimes like rape often take an angle of stalking which also in itself is a crime under the Information and Technology Act, 2000. which also safeguards women from stalkers and cybercriminals and protects their right to privacy and right to live with dignity. Cybercriminals are often seen to take obscene pictures of women, send them wrong and immoral comments and try to sexually abuse the women.

CONSTITUTIONAL PROVISIONS PROTECTING WOMEN FROM VIOLENCE

Our government has incorporated the vast majority of constitutional law acts into its domestic law, despite the fact that it still needs to be improved in order to comply with international norms. Our women deserve to be treated equally, and Article 21 of the Constitution guarantees that they will be treated equally. We witness how rude it is when a woman is subjected to unfairness and unjust treatment at home or at work. They are frequently victims of horrible crimes and exploited on the outside.

This Right against Exploitation is professed under Article 23 of the Constitution where it states “Prohibitions on Human Trafficking and Forced Labor.” Human Trafficking points out the deal and buying of humans mostly for the aim of sexual oppression, forced sex work or forced labor. Another form of slavery is Beggar. This is a practice of forced employment that states forcing an individual to work for no reimbursement.

Therefore, Article 23 is an overly broad concept which safeguards an individual from doing any illegal work involuntarily. It also prohibits compelling a woman or child into prostitution. Articles 21 and 23 equally strengthen the responsibility of the nation to distinguish, release and reinstate liberated protected workers. The Constitution allows the government to make any special law for the protection of women against any kind of violence.

Therefore, Article 23 is an overly broad concept which safeguards an individual from doing any illegal work involuntarily. It also prohibits compelling a woman or child into prostitution. Articles 21 and 23 equally strengthen the responsibility of the nation to distinguish, release and reinstate liberated protected workers. The Constitution allows the government to make any special law for the protection of women against any kind of violence.

Women did not have various rights when compared with men in earlier times. There is also a big taboo that women are substantially weaker than men and because of this authenticity, they have been mistreated. Due to this type of perpetual ill behavior, the financial welfare of women has straightaway turned out to be categorically dreadful. The Constitution gives women the right to live and liberty and this liberty is taken away from their family, friends and workplaces as well.

INADEQUACY OF LEGAL PROVISIONS AND FEW RECOMMENDATIONS

Gender imbalance should be prioritised because it is a critical component of reducing violence against women. Promoting, safeguarding, and realising women’s human rights should be the mission statement. There should be norms and agendas in place to encourage women and men to learn as a means of achieving gender equality in society. Different activities can be implemented to create awareness about the elimination of gender disparity and the rise in violence against women. Apart from that, it will shape people’s perceptions on how to treat women. Violence will be reduced if the judiciary receives backing from the legislature and the government. We look into different kinds of punishments given for various crimes that are not as appropriate as that of the nature of the crime especially when we talk about the concept of rape and sexual assault on women. The punishment of these heinous crimes should be tremendous making some kind of statement for the offenders. The laws should be well enforced and the administration should ensure that women are not just safe at their home but even when they go for their work because we see a plethora of sexual harassment cases time after time by the people of the management of the organization. Unless there is adequate stress on growing sensitization at the workplaces as well, no legal improvement could be achieved.

From the case of Vishaka v. State of Rajasthan case, we can also see that the formation of the Sexual harassment committee will be able to help the agonize from any such incidents inside the workplace.

All the organizations which do the community work, associations of government, and NGOs should also advance and should spread their efforts in making awareness about reducing sexual harassment at workplaces.

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Policy & Politics

Cannot ask daughter-in-law to pay mother-in-law’s maintenance under Senior Citizens Act: Bombay High Court

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Bombay High Court

In a significant development with far reaching consequences, we saw how just recently on May 6, 2022, the Bombay High Court in a remarkable, rational, refreshing, and robust judgment titled Sheetal Devang Shah vs Presiding Officer in Writ Petition No. 3323 of 2019 observed without mincing any words that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law, especially in the absence of any proof of the woman’s income. The Court observed that, “We have reservations about such direction to SS (daughter-in-law) to pay maintenance amount to the mother-in-law…Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of SS (daughter-in-law).” It noted that Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 that defines ‘children’ includes son, daughter, grandson and grand-daughter, but does not refer to the daughter-in-law. While observing thus, the Bench of Justice SS Shinde and Justice Revati Mohite Dere of Bombay High Court set aside the Maintenance and Welfare of Parents and Senior Citizens Tribunal’s order to the limited extent.

To start with, this learned, laudable and landmark judgment sets the ball rolling by first and foremost putting forth in para 1 that, “This Bench has been specially constituted to hear the petitioner’s aforesaid petition and other petitions, by the Hon’ble Chief Justice. Both the members of this Bench preside over their respective Benches and have to disturb their regular boards, to assemble only for these matters.

1.1. On 27th April 2022, we heard the learned counsel for the parties from 4:30 p.m. to 7:00 p.m. and closed the matter for orders.

1.2. This Writ Petition under Article 226 of the Constitution of India is filed by the petitioner thereby taking an exception to the order dated 16.08.2019 passed by respondent No.1 – Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens’ Tribunal (for short ‘Tribunal’).

1.3. The only substantive prayer in the petition reads as under:-

ii. That this Hon’ble Court be pleased to call for the records and proceedings from the Respondent No.1 and after perusing the legality and propriety of the impugned order dated 16.08.2019 passed by the Respondent No.1, this Hon’ble Court be pleased to issue a Writ of Certiorari and/or any other appropriate Writ, order or direction under Article 226 of the Constitution of India and quash and set aside the impugned order dated 16.08.2019 passed by the Respondent No.1 at Exhibit-A;.”

In hindsight, the Bench then recalls in para 2 that, “During the pendency of this petition, the Division Bench of this Court (Coram: S. C. Dharmadhikari and G. S. Patel, JJ.), by order dated 18.09.2019, directed thus,

“5.(c) Since it is stated that the Petitioner may be dispossessed tomorrow and by using force, we direct that until further orders of this Court, the operative direction No.3 which directs the Petitioner to hand over vacant and peaceful possession of the premises to her in-laws be not acted upon or implemented.”

2.1. The aforesaid direction / interim order is in force till date.””

While elaborating on the background, the Bench then states in para 3 that, “Background facts leading to the filing of this petition are as under:-

3.1. Respondent No.1 / non-applicant has passed the order (impugned in the present petition) in the proceedings instituted by Smt. Nalini Mahendra Shah – respondent No.2 herein and her husband – Mahendra Shah. Since during the pendency of the present writ petition, husband of respondent No.2 died, with the permission of the Court, his name has been deleted from the array of the respondents. Respondent No.4 – Mr. Devang Shah is the husband of the petitioner as also the son of respondent No.2. Present petitioner – Ms. Sheetal Shah is the daughter-in-law of respondent No.2 and respondent No.3 (deleted).”

As an aside, the Bench then mentions in para 4 that, “For the sake of convenience, parties shall be referred to by their names and not by their status before the Tribunal or this Court.”

To put things in perspective, the Bench then envisages in para 5 that, “Nalini Shah and her husband Mahendra Shah filed the application No.SDO/SCNo.SDO/JNVMP/Desk-6/SR-38 of 2018 before the Tribunal constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Briefly stated contentions of the applicants therein viz., Nalini Shah and Mahendra Shah, were as under:-

a. that, they are staying at Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai – 400 056 (hereinafter referred to as the ‘residential premises’).

b. Devang Shah is the only son of Nalini Shah and Mahendra Shah and Sheetal Shah is their daughter-in-law. They all are residing in the aforesaid residential premises.

c. Nalini Shah is the housewife and her husband Mahendra Shah (deceased) was employed in the renowned business of diamond and diamond jewellery at Opera House. Mahendra Shah retired from the said business in the year 2016 and he had no other residential premises, save and except the residential premises at Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai – 400 056.

d. Devang Shah is the employee of Supergems India Private Limited and Sheetal Shah is working as a fashion designer. Both of them are receiving handsome salary.

e. the aforesaid residential premises is in the name of Mahendra Shah and Nalini Shah.

f. It was alleged that Sheetal Shah and Devang Shah are unable to look after Nalini Shah and Mahendra Shah and from last one year, they are not looking after necessities of life of Nalini Shah and Mahendra Shah. From January – February 2017 till the filing of the application, they were harassed in the said residential premises though they are the owners of the said house. Sheetal Shah and Devang Shah, both, are torturing Nalini Shah and Mahendra Shah, physically as well as mentally.

g. Nalini Shah is suffering from asthma, vergio, back pain and leg pain.

5.1. In the aforesaid background, facts and circumstances, the said application was filed by Nalini Shah and her husband Mahendra Shah.”

To recapitulate, the Bench then recalls in para 25 that, “The Tribunal framed the following four issues of enquiry, which are as under:-

“1) Are the applicants capable of supporting themselves and meeting their basic needs ?

2) Is there any evidence that the respondent is not taking proper care of the applicant and is causing mental and physical harassment to the applicants?

3) Can the request made by the applicant be accepted?

4) What will be the orders?””

As it turned out, the Bench then observed in para 26 that, “The Tribunal, after adverting to the contentions raised by the parties and documents placed on record, observed that at the relevant time, applicant No.1 – Nalini Shah was 77 years old and applicant No.2 – Mahendra Shah was 79 years old. It is also observed that the said applicants are not in a position to work. The Tribunal observed that though it is contended by Sheetal Shah, that Nalini Shah is having share trading business and also Mahendra Shah has business of diamond and jewellery, Sheetal Shah has not submitted any evidence before the Tribunal to that effect. It is further observed, that even if the said contention of Sheetal Shah is accepted, in that case also, considering the age of Nalini Shah and Mahendra Shah, it cannot be said that they are capable of supporting themselves from their own earnings. It is also observed that the family members viz., Devang Shah and Sheetal Shah should treat Nalini Shah and Mahendra Shah with kindness, consideration and respect and that they should provide them basic necessities for a peaceful life. It is also observed that the kindness, consideration and respect cannot be bought with money. It is the responsibility of Devang Shah and Sheetal Shah being son and daughter-in-law of Nalini Shah and Mahendra Shah to pay attention to the daily needs of the applicants and to try their best to meet those needs. Nalini Shah and Mahendra Shah are dependent upon Devang Shah and Sheetal Shah for their daily necessities, mental support and care and accordingly, issue No.1 is answered in the affirmative.”

As we see, the Bench then mentions in para 27 that, “Upon perusal of the original record of the proceedings instituted by Nalini Shah, we are in respectful agreement with the said observations made by the Tribunal while answering issue No.1 except to the extent that, it holds Sheetal Shah, (daughter-in-law of Nalini Shah) alongwith Devang Shah, liable to pay maintenance.”

It cannot be glossed over that the Bench then notes in para 28 that, “We have carefully perused the observations made by the Tribunal while answering issue No.2 i.e., whether there is any evidence that Sheetal Shah is not taking proper care of Nalini Shah and Mahendra Shah and is causing mental and physical harassment to them. We have no doubt in our mind, that the observations made and the findings recorded by the Tribunal, that Sheetal Shah and Devang Shah are not taking proper care of the applicants and causing mental and physical harassment to Nalini Shah and Mahendra Shah, are in consonance with the documents on record. We have also carefully perused the various complaints filed by Nalini Shah and Sheetal Shah, and we find that there is no peace and harmony in the house. There is unrest and also there is a mental and physical harassment to the old aged parents of Devang Shah. While exercising writ jurisdiction, it is not desirable to undertake exercise of disputed questions of fact, and more particularly, when we find that the observations/findings recorded by the Tribunal, while answering issue No.2, that Sheetal Shah and Devang Shah in the said application are causing mental and physical harassment to Nalini Shah and Mahendra Shah, are made keeping in view the material placed on record.”

Furthermore, the Bench then enunciates in para 29 that, “The Tribunal, while discussing issue No.3 i.e., “Can the request made by the applicant be accepted?”, has made reference to various documents placed on record by the parties and in particular documents in relation to the said residential premises wherein, the parties are residing, and has reached a conclusion, that the residential premises is in the name of Mahendra Shah, who has inherited the same, from his parents. The Tribunal has also considered the effect of giving such property as a gift by Mahendra Shah to Devang Shah and after adverting to the provisions of Section 23 of the said Act, which provides for protection of life and property of senior citizens and as such, has correctly reached the conclusion, that the applicants’ (Nalini and Mahendra Shah) request for exclusion of Devang Shah from the suit property can be granted. It would be relevant to reproduce hereinbelow the provisions of Section 23(1) of the said Act, which reads as under:-

“23. Transfer of property to be void in certain circumstances.-

(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.””

It deserves mentioning that the Bench then mentions in para 30 that, “The Tribunal, ultimately concluded, that Sheetal Shah and Devang Shah are not taking proper care of Nalini Shah and Mahendra Shah, but are causing mental and physical harassment to them. As already observed, the age of Nalini Shah and her husband Mahendra Shah was 77 and 79 years respectively, at the relevant time, when they preferred the application. It is brought on record by the parties, that during the pendency of the petition, Mahendra Shah died. At present, Nalini Shah, wife of Mahendra Shah, is aged about 82 years. On couple of dates of hearing before us, she attended Court proceedings sitting on a wheel chair, that itself shows that she is certainly dependent upon Sheetal Shah and Devang Shah for physical and mental support.”

What’s more, the Bench then discloses in para 31 that, “After answering the issues framed, the Tribunal accepted the case of Nalini Shah and Mahendra Shah and directed Devang Shah and Sheetal Shah together to pay Rs.25,000/- (Rupees Twenty Five Thousand only) per month to Nalini Shah and Mahendra Shah for their maintenance, subsistence and medical expenses, by depositing the said amount, in the bank accounts of Nalini Shah and Mahendra Shah.”

Most crucially, the Bench then minces no words to hold in para 32 that, “We have reservations about such direction to Sheetal Shah to pay maintenance amount to Nalini Shah. As already observed, in Section 2(a), ‘children’ include son, daughter, grandson and grand-daughter and there is no reference to the daughter-in-law. Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of Sheetal Shah. In that view of the matter, the Impugned Order, to the extent that it directs Sheetal Shah to pay Rs.25,000/- alongwith her husband Devang Shah to Nalini Shah and Mahendra Shah, cannot be legally sustained. However, so far direction given to Devang Shah to pay the said maintenance amount to Nalini Shah, the same is legally sustainable.”

It cannot be lightly dismissed that the Bench then clearly states in para 33 that, “The Tribunal has directed Devang Shah and Sheetal Shah to handover the possession of entire residential premises i.e., Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai – 400 056 to Nalini Shah and Mahendra Shah (since deceased) in a peaceful manner. In our opinion, said direction given by the Tribunal is legally and factually sustainable, in as much as, when the application was decided by the Tribunal, the subject property stood in the name of husband of Nalini Shah, namely, Mahendra Shah. Relying upon the various documents placed on record including criminal complaints and other materials, the Tribunal has correctly reached a conclusion, that there is a continuous mental as well as physical harassment to Nalini Shah and Mahendra Shah (since deceased).”

Quite ostensibly, the Bench then holds in para 34 that, “In that view of the matter, we are of the opinion that the view taken by the Tribunal, after adverting to the material placed on record, is legally as well as factually sustainable. Therefore, we confirm the order passed by the Tribunal except the direction to Sheetal Shah to pay jointly with Devang Shah, maintenance of Rs.25,000/- to Nalini Shah and Mahendra Shah. Therefore, the direction to Sheetal Shah to that extent is quashed and set aside. However, as already observed, the son of Nalini Shah namely, Devang Shah is obliged to pay the said maintenance amount to Nalini Shah.”

Most remarkably, the Bench then holds in para 35 that, “The Tribunal in clause (3) of the operative order has observed that, within 15 days from the date of receipt of the order, Sheetal Shah and Devang Shah shall handover the entire possession of the residential premises in question, to Nalini Shah and Mahendra Shah (deceased) in a peaceful manner and at the same time, observed that Sheetal Shah and Devang Shah, should make separate arrangements for their own accommodation elsewhere. Keeping in view the said direction, we are of the opinion that Devang Shah, being the husband of Sheetal Shah is obliged to provide separate accommodation to Sheetal Shah and her sons elsewhere.”

In addition, the Bench then directs in para 36 that, “With the above observations, we dismiss the writ petition.”

Not stopping here, the Bench then holds in para 38 that, “Since the interim relief is operating till date, we deem it appropriate to grant further six weeks’ time to the petitioner, to act in compliance with the directions contained in clause (3) of the operative part of Tribunal’s order i.e. Sheetal Shah and Devang Shah should hand over the entire possession of the residential premises in question, to Nalini Shah in a peaceful manner. In the said clause (3), the Tribunal has also directed Sheetal Shah and Devang Shah to make separate arrangements for their own accommodation elsewhere. As already observed in para 35 hereinabove, Devang Shah (respondent No.4), being husband of Sheetal Shah and thus guardian of two sons is legally obliged to provide them accommodation befitting his status, income and assets.”

For sake of clarity, the Bench clarifies in para 39 that, “The observations made hereinabove, are restricted to adjudication of the present proceedings and will have no bearing on the proceedings pending between the parties and the orders passed therein, by the appropriate courts of competent jurisdiction or forum provided under the Statute.”

Finally, the Bench then concludes by holding in para 40 that, “All concerned parties to act upon ordinary copy of this order duly authenticate by court Sheristadar.”

In a nutshell, the Bombay High Court has made it unequivocally clear that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law under Senior Citizens Act. We have discussed the reasons in detail. All courts must abide by what the Bombay High Court has held. No denying it!

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