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Witness can be called ‘interested’ only when he/she derives some benefit seeing an accused person punished

April 26, 2019

“A witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim.”

The witness may be called “interested” only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished, the Supreme Court observed while rejecting a defence contention in a criminal appeal.

Defense had raised an argument that the testimonies of interested witnesses who are relatives of the deceased should not have been relied upon by the Trial Court. Sadyappan was convicted by the Trial Court (which was later upheld by the High Court) for the murder of his neighbour Selvam @ Thangaraj.

In the appeal filed by the accused, the court that their testimonies has stood the rigour of cross-examination and though they may be related but they could not be labelled as interested witnesses. It said: “Criminal law jurisprudence makes a clear distinction between a related and interested witness. A witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. The witness may be called “interested” only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished.

Referring to their testimonies, which corroborated the prosecution version, the bench, dismissed the appeal and observed: “Though they are related to each other and to the deceased as well, their evidence cannot be discarded by simply labelling them as “interested” witnesses. After thoroughly scrutinizing their evidence, we do not find any direct or indirect interest of these witnesses to get the accused punished by falsely implicating him so as to meet out any vested interest.”

Some witnesses in this case had stated that, as the deceased did not turn up after leaving home at 11 pm on the previous night, they went in search of him and found his dead body in ‘Vaalaithope’. One of them, who is a nephew of the deceased also deposed in his statement that when he went to Sirumugai Police Station he saw the accused persons there and witnessed their confessional statements recorded by the police.The wife of the deceased had stated that the deceased was last seen together with the accused.

SC of INDIA

Sec 498A & 306 IPC: Incidents which happened much before wife’s death can’t be treated as conduct which drove her to suicide

Apr 26, 2019

The Supreme Court has observed that the incidents which had taken place between husband and wife much before latter’s death by suicide could not be treated as the conduct which drove her to commit suicide.

Jagdishraj Khatta, was convicted by the Himachal Pradesh High Court under Sections 498A and 306 of the Indian Penal Code, by overturning the acquittal recorded by the Trial Court. Khatta was convicted by the High Court relying on (1) the testimonies of the relatives of the deceased that the accused husband acted in a cruel manner against the deceased in front of her relatives, and (2) the letter allegedly written by the deceased around the time of her death to her parents.

The court observed that the incidents narrated by the relatives had taken place much before the deceased’s death. It said: “As the High Court itself indicated somewhat contradictorily, reliance on the instances testified to by the witnesses would not be appropriate as the said incidents had taken place much before the deceased’s death and could not be treated as conduct which drove the deceased to commit suicide.”

The High Court had also observed that all those incidents had taken place much before the commission of the suicide by the deceased and, therefore, they cannot be treated as the immediate cause of provocation for the deceased to take the extreme step.

As regards the reliance placed on letter, the bench agreed with the accused contention that the letter has not been proved to have been written by the deceased and is surrounded by suspicious circumstances. The fact that the deceased had never written any other letter to her family after her marriage but had rather been in touch with her relatives through the telephone further strengthens the case of the appellant, the bench added.

Setting aside the High Court judgment, the bench restored the Trial Court order of acquittal.

SC of INDIA

HC suggests to exclude consensual sex with girl aged above 16 from rigours of POCSO Act

Apr 26, 2019

Redefine “child”, exclude consensual sex after the age of 16 from POCSO, Madras HC “More liberal provision can be introduced in the Act itself in order to distinguish the cases of teenage relationship after 16 years, from the cases of sexual assault on children below 16 years.”

The Madras High Court has suggested to redefine the definition of ‘Child’ under Section 2(d) of the POCSO Act as a person below 16 years of age instead of 18 years so that any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act.

The Judge took note of a report that majority of cases involving minor girls are due to relationship between adolescent boys and girls. Though under Section 2(d) of the Act, ‘Child’ is defined as a person below the age of 18 years and in case of any love affair between a girl and a boy, where the girl happened to be 16 or 17 years old, either in the school final or entering the college, the relationship invariably assumes the penal character by subjecting the boy to the rigours of POCSO Act, the court said. The judge further observed: “When the girl below 18 years is involved in a relationship with the teen age boy or little over the teen age, it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction. Such relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes. But in such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of POCSO Act, catching up with the so called offender of sexual assault, warranting a severe imprisonment of 7/10 years.”

The court said that more liberal provision can be introduced in the Act itself in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years.

“The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence.”

The Judge further said that more than treating such growing incidence of sexual assault on women and children as a legal issue dealing with the offenders of sexual assault by resorting to most deterrent provisions of Penal laws, the cause for such perverse and wicked behaviour among some men, who were otherwise normal in their disposition, need to be examined and studied.

“The Society must collectively introspect what is it that drives some men to unleash their libidinous rage on hapless children and women of all age. The cause for such abominable deviant conduct on the part of the perpetrators of sexual crime on children and women is perhaps became of access to uncensored pornographic and erotic materials that are available on the internet 24 X 7. Access to such provocative and lewd sites lead to criminal sensuality that drives the perpetrators to commit such appalling crimes on children and women, in complete depravity. When minds are filled with lust, smouldering all the time by watching pornographic site of all kinds on the handset or otherwise, such crimes are the natural result of the depraved minds”

The judge also suggested constituting a high level committee comprising persons of eminence from various walks of life, like Social auditor, psychologists, Social Scientist etc., to investigate and study the malady afflicting the Society.

HC of MADRAS

Divorced wife cannot file application under Domestic Violence Act; application filed under Ss. 12 and 18 rejected in absence of “domestic relationship”

Apr 18, 2019

The High Court refused to interfere with an order of the Judicial Magistrate as confirmed by the Sessions Judge, whereby the application filed by the applicant under Section 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was dismissed.

The applicant married to the respondent in 1999, However, a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 had been passed by the family court in 2008 at the instance of the husband. The application under the DV Act was filed by the applicant in 2009, i.e., subsequent to the grant of divorce. The respondent resisted the application on the ground that there was no “domestic relationship” between them and therefore any application under DV Act was not maintainable. The application was rejected by the Judicial Magistrate as well as the Sessions Judge. Aggrieved thereby, the applicant filed the present revision application.

After perusing a conspectus of decisions of the Supreme Court as well as High Courts, the Court came to the conclusion that no relief could be granted to the applicant. It was observed: “In the present case, divorce was granted by the family Court vide order dated 30-06- 2008. Application under the DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge, Nagpur in Criminal Appeal No. 235 of 2015 are perfectly legal and correct.” In such view of the matter, the revision application was dismissed.

HC of Maharastra

Transwoman a ‘Bride’ under Hindu Marriage Act

Apr 22, 2019

The marriage between a cisgender man and a transgender woman on Monday received the blessing of the Madras High Court, in a manner of speaking. Sitting at the Madurai Bench, Justice GR Swaminathan observed, “A marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same.

By holding so, this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.”

The Court had been moved by Arunkumar and Srija after the state authorities refused to register their October 2018 marriage. In this case, Srija was a transgender woman. While she had been born intersex, she had identified herself as a woman, which was also reflected in her state Ids.

The government authorities took the stance that the marriage between Arunkumar and Srija could not be recognised as Srija is a transgender person. This was interpreted by the authorities to mean the Srija is not a woman.

Justice Swaminathan, however, disagreed emphatically, particularly in view of the Supreme Court’s 2014 NALSA judgment which had recognised the self-identification rights of transgender persons. He states in his judgment,

“I am unable to agree with the stand of the learned Government Advocate … As rightly pointed out by the learned counsel appearing for the writ petitioner, the issue on hand is no longer res integra. In the decision reported in (2014) 5 SCC 438 (National Legal Services Authority vs. Union of India), the Hon’ble Supreme Court upheld the transgender persons’ right to decide their self identified gender. The central and State governments were directed to grant legal recognition of their gender identity such as male, female or third gender… …When the right of the transgender persons to marry has been upheld by the Hon’ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act. One can have a civil marriage. One can also have a sacramental marriage…”

Sex and Gender are not the same

Recalling the principles affirmed in the NALSA judgment, Justice Swaminathan proceeded to observe, “Sex and gender are not one and the same. A person’s sex is biologically determined at the time of birth. Not so in the case of gender…the Hon’ble Supreme Court held that Article 14 of the Constitution of India which affirms that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India would apply to transgenders also.

Transgender persons who are neither male/female fall within the expression ‘person’ and hence entitled to legal protection of laws in all spheres of State activity as enjoyed by any other citizen of this country.

Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India. Article 19(1)(a) and Article 21 were expansively interpreted so as to encompass one’s gender identity also.”

It was noted that the NALSA judgment was also cited with approval in the Right to Privacy case as well as Navtej Johar’s case concerning the decriminalisation of homosexuality in India.

Coming to the instant case, the Court pointed out that after Srija identified herself as a woman, the state does not have the power to deny her of that identity.

“In the case on hand, the second petitioner herein has chosen to express her gender identity as that of a woman. As held by the Hon’ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self determination.”

“Bride” under Hindu Marriage Act includes transwomen.

The Court went on to reject the State’s contention that a transgender woman could not be viewed as a “Bride” under the Hindu Marriage Act.

“The expression “bride” occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning. As noted in Justice G.P.Singh’s Principles of Statutory Interpretation, the court is free to apply the current meaning of a statute to present day conditions. A statute must be interpreted in the light of the legal system as it exists today… … Seen in the light of the march of law, the expression “bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person who identifies herself as a woman. The only consideration is how the person perceives herself.”

Transperson’s right to marry has been recognised by the Supreme Court

The Court further pointed out that the Supreme Court has specifically recognised the right of marriage for transgender persons in paragraph 119 of the NALSA judgment. Moreover, the right of persons to marry a person of choice has also been specifically endorsed in Hadiya’s case, the High Court judgment highlights.

The Court proceeded to remark, “For too long, the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream.“

In view of these observations, the Court allowed the writ petition and directed the state to register the marriage of the petitioners.

Further, the judge also pointed out that the marriage in the case was an inter-caste marriage. Therefore, the petitioners were also eligible for benefits provided by the state to encourage inter-caste marriages under the Dr.Ambedkar Scheme for Social Integration through Inter- Caste Marriages.

Issue GO against forced Sex Reassignment Surgery (SRS) on Intersex children

While dealing with the case, Justice Swaminathan also took note that the Supreme Court’s mandate against forced surgical procedures on intersex children was being observed more in breach than compliance. As observed in his judgment, ” [intersex children] must be given their time and space to find their true gender identity. But the parents make the infant undergo sex reassignment surgery (SRS)… …the Hon’ble Supreme Court in NALSA case categorically stated that no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. But, what is happening in reality is more in breach of this judgement given by the Hon’ble Supreme Court.“

He went on to observe that a particular gender cannot be forcibly thrust on non-binary persons.

“A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned.”

In view of the same, the Court has now directed the Tamil Nadu government to issue a Government Order to uphold the NALSA judgment and to “effectively ban sex reassignment surgeries on intersex infants and children.” The government is expected to submit a compliance report regarding this same within eight weeks.

The Court also noted that the state should undertake awareness programmes to de-stigmatise the birth of intersex children.

“The parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame. It lies in the hands of the Government to launch a sustained awareness campaign in this regard.“

In this backdrop, the Court also expressed its appreciation for recent Tamil films that involved transgender characters.

“Recent Tamil Films such as “Peranbu” where Mamooty marries a transgender and “Super Delux” where Vijay Sethupathi plays the role of a transgender and is also a parent to the child he has fathered are encouraging trends”, remarked Justice Swaminathan.

Before parting with the matter, Justice Swaminathan also expressed gratitude to intersex activist Gopi Shankar from Madurai, noting that his work has had been a humbling and enlightening experience for the Court.

Madras HC

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