Navpreet Kaur and Anr Vs State of Punjab and Ors
Punjab and Haryana HC
Married couple cannot be deprived from seeking protection merely because marriage is void or invalid
CWP No. 29048 of 2019 (O&M)
The Punjab and Haryana High Court has observed that married couple, even if it is case of invalid or void marriage or absence of any marriage, cannot be deprived of the fundamental right of seeking protection of life and liberty.
A ‘runaway’ couple, claiming to have got married, had approached the High Court seeking police protection. It was alleged that the parents of the girl threatened them that they will not allow them to live as husband and wife and on finding an occasion they will kill both of them.
While considering the case, the court noticed that the boy is not of marriageable age. The mere fact that the boy is not of marriageable age would not deprive the couple of their fundamental right as envisaged in Constitution of India, being citizens of India.
The court noticed that one of the essential conditions of Hindu Marriage Act is that the bridegroom must be above 21 years and the bride above 18 years. However, at the same time, Section 11 of the Hindu Marriage Act which declares certain marriages, which are in contravention of Section 5 (supra), to be void, but precludes a marriage solemnized in contravention of Sub Section (iii) of Section 5, ibid from the purview of being regarded as void or invalid, the court said.
In the order directing the police to look into the threat perception and to provide necessary protection qua their life and liberty, if deemed fit, the court observed:
The issue in hand, however, is not marriage of the petitioners, but the deprivation of fundamental right of seeking protection of life and liberty. I have no hesitation to hold that Constitutional Fundamental Right under Article 21 of Constitution of India stands on a much higher pedestal. Being sacrosanct under the Constitutional Scheme it must be protected, regardless of the solemnization of an invalid or void marriage or even the absence of any marriage between the parties…
… It is the bounden duty of the State as per the Constitutional obligations casted upon it to protect the life and liberty of every citizen. Right to human life is to be treated on much higher pedestal, regardless of a citizen being minor or a major.
Sameer Garg and Anr Vs State and Anr
Allegations in matrimonial disputes are false – the concerned complainant should be prosecuted to the full extent of law
Delhi High Court has observed in a matrimonial dispute that if allegations are found to be patently false, the trial court shall take necessary steps to prosecute the concerned complainant to the full extent of law.
The petitioners have filed the present petition, inter alia, praying that FIR No.270/2019 under Sections 506/ 354(B)/ 509/ 452/ 34 IPC registered with PS Ashok Vihar and all other consequential proceedings arising therefrom, be quashed.
High Court observed “Plainly, the relief as sought for by the petitioners cannot be granted, since certain offences are alleged against the petitioners”.
Then the High Court noted “However, it does appear that there are matrimonial disputes that appear to have taken an ugly turn. This Court expects the investigation agencies to conduct a fair investigation and submit a status report before the trial court”.
High Court also observed “It is also necessary to observe that if any of the allegations are found to be patently false, the trial court shall take necessary steps to prosecute the concerned complainant to the full extent of law”.
Jisal Rasak Vs State of Kerala
Accused is entitled u/s 207 CrPC to get digital copy of the digital evidence relied on by the prosecution
Crl.MC.No.4148 OF 2019(G)
The High Court of Kerala has held that CCTV footage of a crime is not a ‘material object’ and therefore the accused is entitled to receive a copy of it as per Section 207 of the Code of Criminal Procedure.
“CCTV footage in the instant case is “data” as defined under S.2(o) of the Information Technology Act, 2000 and it is an electronic record as defined under S.2(t) of the I.T. Act. If that be the case, the electronic record produced for the inspection of the Court has to be regarded as documentary evidence. In that view of the matter, I am unable to accept the logic of the prosecution in producing the CCTV footage as a material object and in refusing to supply a copy of the same to the accused”, held the court.
As an adversarial system is followed in our country, the accused is entitled to a copy of the records so that he can bring to the notice of the courts exculpatory material or such other aspects in the prosecution case, which may be to his advantage, said the Court.
The Court was dealing with a revision petition filed by Jisal Razaq, an accused in the Abhimanyu murder case, challenging the order of Magistrate that rejected his application for copies of the CCTV footage.
The accused, contended that the footage would show that the accused was not present at the time of crime. The Special Public Prosecutor took the stand that the footage was ‘material evidence’ and that there is no requirement under law to supply a copy of material object to the accused.
To decide the issue, the Court took the assistance of Advocate D Prem Kamath as amicus curiae. The amicus submitted that a combined reading of the “document” and “evidence” together with the provisions of the Information Technology Act unambiguously would lead to the conclusion that CCTV footage is definitely “data”, which is an “electronic record” that comes within the definition of “document” .
The Court noted that with the advent of technology, the line between categorizing a thing as a ‘material thing’ or a document has become more or less obliterated.
“If a hard disk or a magnetic disk containing data is stolen and the same is seized and produced in court, it may sometimes be difficult to categorize it as ‘a thing’ produced for inspection of the court or a ‘document’. One way of distinguishing it is by asking a question as to whether the item is relevant in itself or whether the item is relevant because of the information that can be retrieved from it. In other words, if a material thing is produced in court to rely on the data that it contains, it is probably a document and it has to be regarded as such. On the other hand, if the material thing is brought to court in order to rely on it as it is, it is a thing and may be exhibited as a material object.”
Reference was made to the Supreme Court’s decision in Tarun Tyagi v CBI case, where the Court ordered the supply of cloned copies of hard disk to the accused under Section 207.
The Court however added that in cases where supply of copies of digital evidence is “impracticable or unjustifiable” – such as video footage containing visuals of sexual violence or footage of terrorism crimes raising concerns of national security – copies can be denied to the accused.
“I hold that cloned Digital copies of the footage relied on by the prosecution have to be made available to the accused, unless it is impracticable or unjustifiable. For instance, in a case of brutal sexual abuse, if the incident has been videotaped, in view of the element of privacy or to prevent misuse, copy may be refused. In a case in which the accused is being prosecuted for possessing pedophilic material, copies of the same can be refused. In such cases, the Court may grant permission to the counsel or the accused to have a private screening to have a proper defense. Same is the case in a terrorism prosecution, wherein national security interests demands non-disclosure of the digital evidence, which has been collected. These are merely illustrative and not exhaustive.”
The discussion in the judgment touched upon the meaning of the term ‘electronic evidence’. The Court observed that it is not confined to mere computer outputs such as scanned documents or printouts, which are ordinarily used in the course of business.
“It includes any data, information or other record stored in electronic medium irrespective of when, how or by whom such record was created. It may include sound recordings of intercepted communications or video footage of crimes. It may also comprise of voluminous data stored on cloud services wherein the device and storage infrastructure are indeterminable. It may also be stored in third party storage platforms, or in social media platforms like Facebook, Twitter, Whatsapp etc. or in e mails and Camera Footage or photographs. Thus the wide scope of obtaining digital evidence yields a commensurate potential for recoverable evidence”
Electronic records are created with every day actions of individuals and in criminal offences, it is extensively used to establish the guilt of the accused, said the Court.
The Supreme Court is at present considering the issue whether an accused is entitled to copy of a ‘memory card’ containing the visuals of an alleged sexual crime. This is in the appeal filed by actor Dileep against the Kerala High Court judgment which refused to supply copy on the reasoning that ‘memory card’ was a ‘material object’.
State Vs Sandeep
Failed promise to marry and sexual relations over significant period or jilting a lover is not a crime
The Delhi High Court has held that a continuous intimate relationship that involves sexual activity over a significant period of time cannot be said to be induced by a promise to marry merely on the assertion that the other party had expressed their intention to get married.
It is the false inducement given with the intention to exploit the other party that would constitute an offence of rape under the Indian Penal Code, the Court has added.
As per the prosecutrix, P, she had developed a friendship with the accused in 2013 which soon transformed into a love affair. She stated that the accused proposed marriage to her within two months of meeting her. Thereafter, in 2016, the accused invited P to his house where he allegedly raped her despite her resistance.
Later that year, the accused took her to a hotel and had allegedly raped her again. As per P, the accused then reneged on his promise and declined to marry her. Subsequently, P approached the police station alleging the commission of rape. Her statement was recorded by the police and she was medically examined. She, however, declined any internal medical examination.
After perusing the material on record, the Court observed that the fact that the accused had established a physical relationship with P could not be disputed. The only question that had to be answered was whether P had consented to the physical relationship under a false promise of marriage, it said.
The Court observed that it was an admitted position that the accused had evinced his intention to marry P more than two years before the first alleged incident of rape. Therefore, since the “inducement of marriage” was made more than two years and six months prior to the alleged rape, the Court stated that P’s testimony that she had objected to the accused touching her obscenely but had yielded on his promising marriage, was difficult to accept.
The Court noted that P had “unequivocally accepted” in her cross-examination that she and the accused were in love with each other and wanted to get married and it was P’s family which was opposed to their marriage. It was also observed that there was inherent inconsistency in the testimony of P’s father.
The Court further stated that P appeared to have used the allegation of inducement to not only justify her physical relationship with the accused in the past, but also her conduct after the FIR was filed.
“The prosecutrix had refused an internal medical examination. In her testimony, she had explained that she had done so because the accused had contacted her and again reiterated his promise to get married to her.”
The Court thus concluded that it could not be accepted that P’s consent was obtained by inducing her on the pretext of a promise to marry. The Court also sought to distinguish the act of “not marrying” with the alleged act of rape and stated,
“It is important to bear in mind that two consenting adults establishing a physical relationship, is not a crime. Jilting a lover, however, abhorrent that it may seem to some, is also not an offence punishable under the IPC.”
Explaining the jurisprudence on rape law, the Court added,
“In so far as consent to engage in a sexual act is concerned; the campaign ‘no means no’, that was initiated in the 1990’s, embodies a universally accepted rule: a verbal ‘no’ is a definite indication of not giving consent to engage in a sexual act. There is now wide acceptance to move ahead from the rule of ‘no means no’ to ‘yes means yes’. Thus, unless there is an affirmative, conscious and voluntary consent to engage in sex; the same would constitute an offence.”
The Court thus went on to remark that inducement to have a physical relationship by promising marriage could not be held as an inducement for engaging in sex over a protracted and indefinite period of time.
“…it is difficult to accept that continuing with an intimate relationship, which also involves engaging in sexual activity, over a significant period of time, is induced and involuntary, merely on the assertion that the other party has expressed its intention to get married.”
In view of the above, this Court concluded that there was no infirmity with the decision and dismissed the leave to appeal.
Anuj Chaturvedi Vs Jyoti
Child has right to the affection of both his parents
Special Leave to Appeal (C) No(s).6303/2017
A child has a right to the affection of both his parents, the Supreme Court remarked while considering a special leave petition filed by a father.
Though it refused to interfere with the family court order granting custody of the child to the mother, the court directed the Family Court to ensure that visitation rights are fixed in such a manner that the child gets to know and love his father.
In this case, the family court had, while granting custody of the child to mother, allowed the father to visit his son on two days in a month. While confirming this order, the Allahabad High Court noted that the child is aged about 4-5 years and at such tender age it is always in the interest of the child that he may remain in the custody of the mother.
While granting liberty to the father to approach the Family Court for enhancement of his visitation rights, the bench said:
A child has a right to the affection of both his parents and the Family Court shall ensure that visitation rights are granted in such a manner. The Family Court may also make suitable arrangements for visitation/interim custody during vacation periods. Obviously the Family Court has to keep the interest of the child at the foremost.
R Srinivas Kumar Vs R Shametha
Inherent powers under Article 142 can be invoked to dissolve marriage which has broken down irretrievably
CIVIL APPEAL NO. 4696 OF 2013
The Supreme Court observed that it can exercise its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where it finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted.
In this case [R. Srinivas Kumar vs. R. Shametha], the High Court had rejected the plea of a husband who sought a decree of divorce on the ground of irretrievable breakdown of marriage.
Assailing this judgment, Senior Advocate Guru Krishna Kumar, appearing for the husband, submitted before the Apex Court that, both the husband and the wife are residing separately since last 22 years and that it is impossible to save the marriage and that there is no chance of marriage surviving and it is broken beyond repair. Therefore, it was urged that, as there is irretrievable breakdown of marriage it is in the fitness of the things to dissolve the marriage even in exercise of the powers under Article 142 of the Constitution of India and to do substantial justice to the parties. On the other hand, this plea was opposed by Advocate Jayant Kumar Mehta, who appeared for the wife, contending that unless there is a consent by both the parties, even in exercise of powers under Article 142 of the Constitution of India the marriage cannot be dissolved on the ground of irretrievable breakdown of marriage is concerned.
While agreeing with the submissions made, the court observed that in various judgments, the Apex court had invoked Article 142 to dissolve the marriage. The bench observed:
Now so far as submission on behalf of the respondent-wife that unless there is a consent by both the parties, even in exercise of powers under Article 142 of the Constitution of India the marriage cannot be dissolved on the ground of irretrievable breakdown of marriage is concerned, the aforesaid has no substance. If both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do the substantial Justice between the parties, considering the facts and circumstances of the case. However, at the same time, the interest of the wife is also required to be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others.
While allowing the appeal, the bench further observed:
In the present case, admittedly, the appellant-husband and the respondent-wife have been living separately for more than 22 years and it will not be possible for the parties to live together. Therefore, we are of the opinion that while protecting the interest of the respondent-wife to compensate her by way of lump sum permanent alimony, this is a fit case to exercise the powers under Article 142 of the Constitution of India and to dissolve the marriage between the parties.