List of Current Affairs

Source: Supreme Court

Why in News?

A bench of B.V. Nagarathna and Ujjal Bhuyan explained the existing stance of second appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC).

• The Supreme Court (SC) gave the observation in the matter of Bhagyashree Anant Gaonkar v. Narendra@ Nagesh Bharma Holkar & Anr.

Background

• The matter which was tabled before the court is that the Karnataka High Court disposed of the regular second appeal as a regular first appeal.
  • The HC gone into details of the evidence.
• No substantial questions of law, which ought to have been framed and answered in the regular second appeal, were even raised in the judgment by the HC.

Court’s Observation

The SC reiterated the observation given in the case of Roop Singh v. Ram Singh, (2000) by stating that Section 100 of the CPC does not confer any jurisdiction on the HC to interfere with pure questions of fact while exercising its jurisdiction under the aforementioned section.

Second Appeal

• The SC explained the concept of Second Appeal in the following words:
  • The First Appellate Court is the final court on questions of facts.
  • The exclusive jurisdiction of the HC to deal with a regular second appeal is stipulated in Section 100 of the CPC, which grants power to the HC to consider a regular Second Appeal only on a substantial question of law.
    • Such substantial question(s) of law ought to be answered.
  • It is the practice and a mandatory requirement that at the time of admitting the regular second appeal, substantial question(s) of law must be framed, on the basis of which the arguments must be advanced and a decision given thereon.
  • It is also permitted that once the arguments have been advanced, the court is at liberty to re-frame or frame fresh substantial questions of law and answer the same on hearing.
    • However, SC in the case of Raghavendra Swamy Mutt v. Utaradi Mutt (2016) stated that HC is obliged to formulate the substantial question of law if it cannot find it during the admission process of a Second Appeal.

Substantial Question of Law

• The SC in the case of Hero Vinoth v. Seshammal (2006) explained the concept in the following words:
  • It must be tested whether the question is of general public importance or whether it directly and substantially affects the rights of the parties.
  • Or whether it is not finally decided, or not free from difficulty or calls for discussion of alternative views.
  • If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

Legal Provision

Section 100 of CPC: Second Appeal

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex-parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

Source: Allahabad High Court

Why in News?

• Allahabad High Court has held that a person has a constitutional right to change his/her gender via Sex Reassignment Surgery (SRS) in the matter of Neha Singh v. State of U.P. And 2 Others.

Background

• The matter pertains to a writ plea filed by an unmarried Woman (working as a constable in Uttar Pradesh Police) who claimed to be suffering from Gender Dysphoria and wished to undergo SRS.
• It was submitted by the petitioner that she had applied for necessary sanction for the SRS on March 11, 2023, from the Director General of Police, U.P. Lucknow but no decision was taken in this regard, hence instant plea was moved.
• Reliance was placed upon the Supreme Court's judgement given in the case of National Legal Services Authority v. Union of India and Others (2014) (Commonly known as NALSA case) to contend that the respondents were not justified in withholding the application of the petitioner.
  • The court in the above-mentioned case declared transgender people as the 'third gender' while giving them the right to self-identification of their gender as male, female or third gender.
  • Also, with respect to Constitutional provisions, the Court held that gender identity was integral to life and would be protected under Articles 19 and 21 of the Constitution of India, 1950 (COI), as a function of freedom of expression, privacy and dignity.
• Section 15 of the Transgender Persons (Protection of Rights) Act, 2019 was also relied upon by the petitioner which deals with health care facilities including SRS and hormonal therapy.

Court’s Observations

• Justice Ajit Kumar has observed that if in modern society, we do not acknowledge this vested right in a person, to change one's identity, we would be "only encouraging gender identity disorder syndrome".
• The Court also inquired from the State Government whether any appropriate affidavit is filed with respect to enactment of any such Act in compliance with directions issued by the SC in the NALSA case and if that is so, the same may also be brought on record.

Legal Provisions

The Transgender Persons (Protection of Rights) Bill, 2019

• Definition of a Transgender Person: Section 2(k) - "transgender person" means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
• Prohibition Against Discrimination: Section 3 of the Act prohibits discrimination on the grounds
  • Education;
  • Employment;
  • Healthcare;
  • Access to, or enjoyment of goods, facilities, opportunities available to the public;
  • Right to movement;
  • Right to reside, rent, or otherwise occupy property;
  • Opportunity to hold public or private office; and
  • Access to a government or private establishment in whose care or custody a transgender person is.
• Employment: No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.
• Health Care: Section 15 of the Act talks about healthcare facilities.
• Section 15 - The appropriate Government shall take the following measures in relation to transgender persons, namely: —
  • (a) to set up separate human immunodeficiency virus Sero-surveillance Centres to conduct sero-surveillance for such persons in accordance with the guidelines issued by the National AIDS Control Organisation in this behalf;
  • (b) to provide for medical care facility including sex reassignment surgery and hormonal therapy;
  • (c) before and after sex reassignment surgery and hormonal therapy counselling;
  • (d) bring out a Health Manual related to sex reassignment surgery in accordance with the World Profession Association for Transgender Health guidelines;
  • (e) review of medical curriculum and research for doctors to address their specific health issues;
  • (f) to facilitate access to transgender persons in hospitals and other healthcare institutions and centres;
  • (g) provision for coverage of medical expenses by a comprehensive insurance scheme for Sex Reassignment Surgery, hormonal therapy, laser therapy or any other health issues of transgender persons.
• Certificate of Identity for a Transgender Person: Section 5 and 6 of the Act talk about Application for certificate of identity and Issue of certificate of identity respectively.
• National Council for Transgender Persons (NCT) - Section 2(g) defines National Council as the National Council for Transgender Persons established under Section 16.
• Section 16(2) mentions about the constitution of NCT as:
  • The Union Minister in-charge of the Ministry of Social Justice and Empowerment, Chairperson, ex officio;
  • The Minister of State, in-charge of the Ministry of Social Justice and Empowerment in the Government, Vice-Chairperson, ex officio;
  • Secretary to the Government of India in-charge of the Ministry of Social Justice and Empowerment, Member, ex officio;
  • One representative each from the Ministries of Health and Family Welfare, Home Affairs, Housing and Urban Affairs, Minority Affairs, Human Resources Development, Rural Development, Labour and Employment and Departments of Legal Affairs, Pensions and Pensioners Welfare and National Institute for Transforming India Aayog, not below the rank of Joint Secretaries to the Government of India, Members, ex officio;
  • One representative each from the National Human Rights Commission and National Commission for Women, not below the rank of Joint Secretaries to the Government of India, Members, ex officio;
  • Representatives of the State Governments and Union territories by rotation, one each from the North, South, East, West and North-East regions, to be nominated by the Central Government, Members, ex officio;
  • Five representatives of transgender community, by rotation, from the State Governments and Union territories, one each from the North, South, East, West and North-East regions, to be nominated by the Central Government, Members;
  • Five experts, to represent non-governmental organisations or associations, working for the welfare of transgender persons, to be nominated by the Central Government, Members; and
  • Joint Secretary to the Government of India in the Ministry of Social Justice and Empowerment dealing with the welfare of the transgender persons, Member Secretary, ex officio.
• Offences and Penalties – They are provided under Section 18 of the Act.

Constitutional Aspect

• Gender Justice is majorly provided under Articles 15, 16 although term sex has been used instead of gender.
  • According to World Health Organization (WHO) - Gender refers to the characteristics of women, men, girls and boys that are socially constructed. This includes norms, behaviour and roles associated with being a woman, man, girl or boy, as well as relationships with each other and sex refers to the different biological and physiological characteristics of females, males and intersex persons, such as chromosomes, hormones and reproductive organs.
  • Article 15 prohibits discrimination based on Religion, Race, Caste, Sex, Place of Birth.
  • Article 16 prohibits discrimination based on Religion, Race, Caste, Sex, Place of Birth, Descent and Residence.
• In NALSA case the Apex Court opined that gender identity is provided by COI under Articles 19 & Article 21.
  • Subject to reasonable restrictions Article 19 mentions protection of certain rights regarding freedom of speech, etc.—
    • (1) All citizens shall have the right—
      • (a) to freedom of speech and expression;
      • (b) to assemble peaceably and without arms;
      • (c) to form associations or unions or co-operative societies;
      • (d) to move freely throughout the territory of India;
      • (e) to reside and settle in any part of the territory of India;
      • (g) to practice any profession, or to carry on any occupation, trade or business.
• Article 21 - Protection of life and personal liberty. — No person shall be deprived of his life or personal liberty except according to procedure established by law.

Source – Delhi High Court

Why in News?

Recently, the Delhi High Court in the case of Sunil Juneja v. Sonia has held that a wife's insistence to live separately from husband’s family members without any justifiable reason constitutes an act of cruelty.

Background

• The parties got married in the year 2000 according to the Hindu Rites and Ceremonies.
• Two children were born from the said wedlock.
• The wife left the matrimonial home in 2003 and later came back but left again in July 2007.
• A petition was filed by the husband for divorce before the Family Court under Section 13(1) (i-b) of the Hindu Marriage Act, 1955 (HMA) which was later dismissed.
• Thereafter, an appeal was moved before the Delhi HC by the husband challenging an order passed by the Family Court.
• The HC dissolved the marriage of a couple on the grounds of cruelty and desertion under Section 13(1) (i-a) & (i-b) of the HMA.

Court’s Observations

• A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna held that wife's insistence to live separately from other family members of the husband without any justifiable reason can be termed as an act of cruelty.
• The bench further added that an acrimonious atmosphere at home cannot be a conducive environment for the parties to forge a cordial conjugal relationship. Such a prevailing atmosphere in the home on account of lack of coordination and illusive conduct of the wife over a period of time is bound to be a source of mental cruelty.

Legal Provisions

Divorce under HMA, 1955

• Section 13 of this Act deals with the provisions of divorce.
• According to Section 13(1) of the Act, any marriage, whether solemnized before or after the commencement of this Act, may be dissolved by a decree of divorce upon presentation of a petition by either the husband or the wife on the following grounds:
  • Adultery
  • Cruelty
  • Desertion
  • Conversion
  • Mental disorder
  • Venereal Disease
  • Virulent and incurable leprosy
  • Renunciation of the world
  • Presumption of death

Cruelty as a Ground for Divorce [Section 13(1) (i-a) of the HMA]

• Prior to the 1976 amendment in the HMA, cruelty was not a ground for claiming divorce under the Hindu Marriage Act.
• It was only a ground for claiming judicial separation under Section 10 of the Act.
• By the 1976 Amendment, the Cruelty was made ground for divorce.
• The word cruelty has not been defined in the HMA.
• Generally, cruelty is any behavior which causes physical or mental pain. There are two types of cruelty.
  • Physical Cruelty: Violent conduct causing pain to the spouse.
  • Mental Cruelty: Infliction with any kind of mental stress or mental agony.
• In Shobha Rani v. Madhukar Reddi (1988), the Supreme Court said that cruelty can have no fixed definition.
• In Mayadevi v. Jagdish Prasad (2007), the SC held that any kind of mental cruelty faced by either of the spouses not just the woman, but men as well can apply for a divorce on grounds of cruelty.

Desertion as a Ground for Divorce [Section 13(1) (i-b) of the HMA]

• By the amendment of 1976, desertion was included as a ground for divorce under Section 13 (1) (i-b) of HMA.
• Before 1976, desertion was only the ground for judicial separation but now it is a ground for both divorce and judicial separation.
• Section 13(1) (i-b) of HMA deals with desertion as a ground for divorce and states that a marriage 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 has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
• The expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
• For establishing desertion as a ground for divorce, the following essential requirements must be met:
  • Desertion must be voluntary.
  • Desertion must be without reasonable cause.
  • It must be continuous and unjustified.
  • Desertion must be deliberate and willful.
• Desertion can be terminated in two ways - by mutual consent or by resumption of cohabitation.