List of Current Affairs

Source – Delhi High Court

Why in News?

Recently, the Delhi High Court in the case of Rakesh v. State of NCT of Delhi & Anr., has observed that the Protection of Children from Sexual Offences Act, 2012 (POCSO) is a gender-neutral legislation and that it is insensitive to argue that the law is being misused.

Background

• The court was hearing the accused’s plea challenging a trial court order dismissing his application to recall the minor victim, who was aged seven years at the time of the incident and her mother.
• The accused had allegedly committed rape upon the prosecutrix, following which, an First Information Report (FIR) was registered under Section 6 of the POCSO Act in October 2016.
• The examination-in-chief and cross-examination of the prosecutrix and of the complainant i.e., mother of the prosecutrix was concluded in October 2018.
• The accused had moved an application under Section 311 of the Criminal Procedure Code, 1973 (CrPC) seeking directions to re-call the prosecutrix and her mother on the grounds that the cross-examination was not conducted properly.
• The High Court dismissed the plea and held that mere incompetence of a previous counsel cannot be the ground to re-call a witness for cross-examination and the cross examination was conducted at length.

Court’s Observations

• The Court observed that though the accused has to be granted and ensured a fair trial, it cannot mean being afforded unjustified repeated opportunities of cross-examination in every case to indicate fair trial.
• Further, Justice Swarana Kanta Sharma said that POCSO Act is not gender based and is neutral as far as victim children are concerned.
• The Court further added that any law, whether gender based or not, has the potential of being misused, the court added that the legislature cannot stop enacting laws nor judiciary stop applying them only because they can be misused.

Legal Provisions

POCSO Act, 2012

• This Act was passed in 2012 under the Ministry of Women and Child Development.
• It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is gender neutral act and considers welfare of the child as a matter of paramount importance.
• It provides for the establishment of Special Courts for trial of such offences and related matters and incidents.
• Death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault was introduced in this act by the POCSO amendment bill, 2019.
  • Section 4 of this Act prescribes punishment for penetrative sexual assault.
• Under Section 2(1) (d) of the POCSO Act, a child is defined as any person below the age of 18 years.
• Section 6 of the POCSO Act deals with the punishment for aggravated penetrative sexual assault.
• It states that, whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.

Section 311, CrPC

• Section 311 of CrPC deals with the power of the Court to summon material witnesses or examine person present.
• It states that any Court may, at any stage of any inquiry, trial or other proceeding, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined.

Cross-Examination

• An examination is simply the process of asking relevant questions relating to the fact in issue to a witness.
• Section 137 of Indian Evidence Act, 1872 (IEA) deals with the ways in which a witness can be examined. It states the following three ways.
  • Examination-in-Chief - The examination of witness by the party who calls him shall be called his examination-in-chief.
  • Cross-Examination – The examination of a witness by the adverse party shall be called his cross-examination.
  • Re-Examination - The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
• Section 138 of IEA deals with the order of examinations.
  • It states that witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
  • The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
• IEA has laid down the following set of guidelines for cross-examination.
  • As per Section 139, a person summoned to produce a document cannot be cross-examined unless and until he is called as a witness.
  • As per Section 140, witnesses to character may be cross-examined and re-examined.
  • According to Section 143, leading questions may be asked in cross-examination.
  • As per Section 145, a witness may be cross-examined as to previous statements made by him in writing or reduced into writing.
  • Section 146 talks about questions lawful in cross-examination. It states that when a witness is cross-examined, he may be asked any questions which tend –
    • to test his veracity
    • to discover who he is and what is his position in life
    • to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or expose him to a penalty or forfeiture.

Source: Karnataka High Court

Why in News?

A wife calling her husband dark-skinned amounts to cruelty, ruled the Karnataka High Court.

Background

• Present Matter pertains to a plea by the husband contesting the decision of a family court in Bengaluru that dismissed his plea for the dissolution of his marriage under Section 13(i)(a) of the Hindu Marriage Act, 1955.
• The divorce was filed by the husband in 2012 on the ground that he was consistently demeaned by his wife for his skin color.
• It was further alleged by the husband that in 2011, his wife lodged a "false" complaint against him and his family members, on cruelty under Section 498A of the Indian Penal Code, 1860(IPC).
• The wife rebutted the allegations on the ground that he was in an extramarital affair and that she was subjected to physical abuse by him.
• The Court found the allegations levelled by wife as reckless, and baseless as no acceptable evidence was found on record and remarked that the family court failed to take into account the impact of such groundless and careless accusations.
• The Family Court had dismissed the petition of the husband on the ground that the husband has not made out a case for dissolution of marriage on the ground of cruelty.

Court’s Observations

• A bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde while allowing the husband's plea for divorce held that wife's decision to distance herself from the company of her husband and to level false allegations against him of having illicit relationships to cover up things also amounts to cruelty.

Cruelty

• Cruelty in matrimonial relations - It means a matrimonial act that causes pain and distress of any kind such as physical, mental, or economical to others.
• What constitutes cruelty cannot be determined by a strait jacket formula; rather it depends on time, place, person, facts and circumstances of the case.

Position under IPC

• Criminal Law rescues a women subjected to cruelty under Section 498A of IPC.
  • Section 498A - Husband or relative of husband of a woman subjecting her to cruelty. —
• Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation —For the purposes of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Position Under Hindu Law

• By the 1976 Amendment to HMA, cruelty was made a ground for divorce under Section 13(1)(ia).
  • Section 13 – Divorce — (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
    • (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
• Prior to 1976 cruelty was merely a ground for claiming judicial separation under Section 10 of the Act.
  • Section 10 - Judicial separation.—1 (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
  • (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Case Laws on Cruelty

• Dastane v. Dastane (1975)
  • The matter was decided prior to the legislative addition of clause of cruelty under HMA.
    • The Apex Court made following observations:
    • Any conduct of the respondent which would render harmful or injurious for the petitioner to live with the respondent or is of such a nature so as to create a reasonable apprehension to that effect would amount to cruelty.
    • It is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
    • The impact or the injurious physical effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
    • In matrimonial duties and responsibilities in particular, we find a sea of change. They are of varying degrees from house to house or person to person.
    • When a spouse makes a complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life.
• Naveen Kohli V. Neelu Kohli (2004)
  • Supreme Court in this case held that:
    • The word "cruelty" is used in Section 13(1)(ia) of the Act in the context of human conduct or behavior in relation to or in respect of matrimonial duties or obligations.
    • Physical violence is not essential to constitute cruelty, a consistent course of conduct inflicting immeasurable mental agony and torture may constitute cruelty as well.
    • Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

Source: Allahabad High Court

Why in News?

A bench of Justice Ashwini Kumar Mishra noted that the principles of impartiality or independence have to be respected in the matter of appointment of arbitrator, and a party’s autonomy cannot be exercised in complete disregard of these principles.

• The Allahabad High Court gave the observation in the matter of M/S Bansal Construction Office v. Yamuna Expressway Industrial Development Authority (YEIDA) And 2 Others.

Background

• The applicant and respondent entered a contract which resulted in dispute due to deductions in payment of bills.
• The applicant requested that the dispute be referred to an arbitrator.
• The request for reference of dispute to arbitration was declined on the grounds that the Chief Executive Officer of the Authority alone is competent to arbitrate in the matter as per Clause 33 of the agreement between them.
  • But he now became ineligible by virtue of Section 12(5) of Arbitration and Conciliation Act, 1996 (A&C Act), therefore, the arbitration clause itself would cease to exist.
  • As per Section 12 (5) of the A&C Act, the arbitrator cannot be a party interested in the dispute in regard to the Seventh Schedule of the A&C Act.
• The applicant contended that arbitration agreement could not be denied merely because the appointment of an arbitrator provided in the agreement was overridden by a statutory provision.
• The Court allowed the application by stating that the Court would not be justified in literally interpreting the clause in the agreement to keep the power of adjudication or the party autonomy with the employer at the cost of abandoning the arbitration itself.

Court’s Observations

The court gave the below mentioned observations in this matter:

• Clause 33 in the agreement clearly manifests the intent of employer i.e. YEIDA to retain the power of adjudication, which goes against the spirit of neutrality of arbitrator for which alone Section 12(5) of A&C Act is introduced.
• In any case, the intent of parties to refer their dispute to arbitration cannot be nullified in the anxiety to retain power of adjudication by the employer i.e. YEIDA.

Arbitration Agreement

• Arbitration is a form of Alternative Dispute Resolution Mechanism which refers to out of the court settlement.
• This method of settlement outside the court is governed by an Act called, “The Arbitration and Conciliation Act, 1966”.
• There are mainly two kinds of Arbitration, institutional arbitration and ad hoc arbitration.
  • Institutional arbitration refers to an agreement to be bound by the rules of the arbitration institutions whereas ad hoc means that the parties themselves agree to arrange an arbitrator.
• The A&C Act covers two types of Arbitration, Domestic Arbitration, and International Commercial Arbitration.
• A dispute that is referred to arbitration should arise out of an agreement for referring the same to arbitration.
• Section 7 of the A&C Act defines an arbitration agreement as an agreement by the parties to refer to arbitration all or some disputes which have arisen or will arise on a future date between them.
• The said dispute must arise out of a legal relationship.
  • The relationship may or may not be contractual.
• Section 34 of the A&C Act states that the award given by the arbitrator is final, enforceable and is binding upon the parties who have signed the contract.

Essentials of Arbitration Agreement

1. Form of Agreement: An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
2. Written Agreement: An arbitration agreement shall be in writing.
3. Intention: There must be an intention of the parties to refer a dispute to arbitration. It must not be vague.
4. Signature of the Parties: An agreement for referring the dispute to arbitration must contain the sign of the parties.
5. Valid Contract: It must be a valid contract under Section 10 of the Indian Contract Act, 1887.