List of Current Affairs

Source: Delhi High Court

Why in News?

Recently, the Delhi High Court in the case of Ravi Bhushan Upadhyay v. The State held that Courts cannot be used as matrimonial facilitators for pressurizing the accused to get married to the victim or be denied bail in sexual assault cases.

Background

• On 30^th June 2023, the Complainant had got the First Information Report (FIR) registered under Section 376 of Indian Penal Code, 1860 (IPC) and gave a statement against the accused that sexual relations were made on false pretext of marriage, which was also reiterated in her statement recorded before the Magistrate.
• On 28^th August 2023, the complainant appeared before the Court of Additional Sessions Judge and stated that she wanted the accused to be released on bail, as both of them wanted to get married but the bail was denied.
• Thereafter, the accused approached the Delhi High Court with a similar plea and the complainant appeared before this Court and has stated that now she no longer wishes to oppose the bail application and stated that the accused be granted bail.
• The High Court denied the bail application.

Court’s Observations

• Justice Swarna Kanta Sharma observed that courts cannot be used as matrimonial facilitators for pressurizing the accused to get married to the victim or be denied bail in sexual assault cases. It was also observed that courts cannot be used by the accused for obtaining bail by asking the complainant to appear before the Court and state that he was ready to get married to her.
• The Court further observed that it was nothing short of taking the judicial system and the investigating agency for a ride by both the parties through their conduct and the judicial system cannot be used to settle scores between the parties or to pressurize any party to act in a particular manner to reach one’s goal.

Legal Provisions

Section 376, IPC

• Section 376 deals with the punishment for rape.
  • Section 375 of IPC defines rape, and it includes all forms of sexual assault involving non-consensual intercourse with a woman.
  • This provision, however, lays down two exceptions as well. Apart from decriminalizing marital rape, it mentions that medical procedures or interventions shall not constitute rape.
• The punishment for committing rape is rigorous imprisonment for ten years which may extend to life Imprisonment and a fine.
• The offence under section 376 IPC is non-bailable and cognizable.
• By virtue of Criminal Amendment Act, 2013, the following amendments were made in Section 376 of IPC.
  • Section 376A was inserted which states that if a person has committed the offence of rape, which resulted in her death, or being in a vegetative state or injured, then he shall be punished with imprisonment of 20 years, which may extend to Life imprisonment.
  • Section 376B was inserted and as per this section if a husband is guilty of raping his wife after their separation, he will be imprisoned for 2 to 7 years and a fine.
  • Section 376C was inserted which states that if a person in any authority commits rape, then the person will be punished with imprisonment of a minimum of five years, which may extend to 10 years and a fine.
  • Section 376D was inserted which provides for punishment for gang rape is 20 years which may extend to life Imprisonment.
  • Insertion of Section 376E states that second convictions for rape will lead to Life Imprisonment.
• The following amendments were made in Section 376 by virtue of the Criminal Amendment Act, 2018.
  • The minimum punishment for rape of a woman was increased from 7 years to 10 years.
  • Rape of a girl below the age of 16 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment.
  • Section 376AB was inserted, which states that rape of a girl below the age of 12 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment or death penalty.
  • Section 376DA was inserted, which states that in case of gang rape of a girl under the age of 16 years, the punishment will be of a life sentence.
  • Section 376 DB states that in case of gang rape of a girl below the age of 12 years, the punishment will be life sentence or death.

Case Laws

• In Vijay Jadhav v. State of Maharashtra and Anr. (The shakti mills Rape Case) (2013), the Bombay High Court declared Section 376E of the IPC, as constitutionally valid.
• In Mukesh & Anr. v. State for NCT of Delhi & Ors. (The Nirbhaya Case) (2017), the Supreme Court upheld the death penalty awarded to the accused and stated that the case fell under the “rarest of rare” category. This incident brought the 2013 criminal law amendment.

Source: Supreme Court

Why in News?

The Supreme Court (SC) in the matter of Revanasiddappa v. Mallikarjun has affirmed that a child born out of a void or voidable marriage has the right to claim a share in their parents' share of Hindu Undivided Family (HUF) property under the Mitakshara law. However, it was emphasized that such a child cannot automatically be considered a coparcener in the HUF by birth.

Background

• The present case arises out of a reference made to a three-judge bench of the SC.
• The law on present matter is majorly provided by Section 16 of Hindu Marriage Act 1955 (HMA) as follows:
  • A child born to parents whose marriage is null and void under Section 11 of the HMA is declared to “be legitimate” by Section 16 (1) of the said Act.
  • Similarly, where a decree of nullity has been granted under Section 12 of HMA in respect of a voidable marriage, a child “begotten or conceived before the decree is made” is “deemed to be their legitimate child” by virtue of Section 16(2).
  • Section 16(3) provides that a child of a marriage that is null or void or which is annulled by a decree of nullity shall not have “any rights in or to the property of any person, other than the parents”.
• SC has on prior occasions considered the nature of the rights conferred on children of parents whose marriage is either void under Section 11 or in respect of which a decree of nullity has been passed under Section 12.
• In Jinia Keotin v. Kumar Sitaram Manjhi (2003), a two-judge Bench of SC held that “Merely because the children born out of a void and illegal marriage have been specifically safeguarded under Section 16, they ought not to be treated on par with children born from a lawful marriage for the purpose of inheritance of the ancestral property of the parents”.
  • The court further observed that there is an express mandate of the legislature under Section 16(3) of HMA that a child born from a void marriage or a voidable marriage in respect of which a decree of nullity has been passed would have no right to inheritance in respect of ancestral or coparcenary property.
  • The verdict as described above was further followed in two other cases, namely Neelamma v. Sarojamma (2006) and Bharatha Matha v. R Vijaya Renganathan (2010).
• A Civil Appeal was filed in the present matter in 2011 under which the SC doubted the correctness of earlier verdicts and hence referred the case to a larger bench (3-Judges) with the primary issue being:
  • Whether a child who is conferred with legislative legitimacy under Section 16(1) or 16(2) is, by reason of Section 16(3), entitled to the ancestral/coparcenary property of the parents or is the child merely entitled to the self-earned/separate property of the parents?

Court’s Observations

• The SC’s 3 judge bench comprising of CJI Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra explained the situation while giving following illustration observed that such a child has right in parent’s property but is not a coparcener in HUF.
• Illustration provided by CJI - Assuming there are four brothers C1, C2, C3 and C4, C2 dies. C2 is survived by a widow (W), a daughter (D) from a valid marriage and a son (S) from an invalid marriage. In such case, it is considered that a Notional Partition takes place immediately before his death.
  • If a notional partition is to take place, C2 will be getting 1/4 of the coparcenary property.
  • That share of C2 is now 1/4 and this would be distributed among C2, W and D, therefore they will get 1/12 share each.
  • C2’s final share under notional partition would be 1/12th.
  • Now to calculate S’s share we further need to divide C2’s share among W, D and S. This would come out to be one-third of C2’s share each of notional partition.
  • Hence, now each person’s share comes out to be:
    • W’s Share - 1/12th share plus 1/3rd share in C2’s share of notional partition.
    • D’s Share - 1/12th share plus 1/3rd share in C2’s share of notional partition.
    • S’s Share – 1/3rd share in C2’s share of notional partition.
  • Had S been C2’s son born out of a valid marriage then W, D, and S would each get 1/12th share.

Hindu Undivided Family

• A joint family structure includes all members of a Hindu family living together, sharing common ancestral property, and following the principles of Hindu law for managing and partition of family assets.
• Prior to legislative enactments pertaining to Hindus, HUF was governed by two major schools:
  • Mitakshara School
    • It has ancient roots and is believed to have been formulated by the Indian sage Vijnanesvara, who wrote the Mitakshara commentary on the Yajnavalkya Smriti, an important text in Hindu law.
    • One of the central tenets of the Mitakshara school is the concept of coparcenary and joint family property.
  • Dayabhaga School
    • The Dayabhaga school is believed to have been developed by Jimutavahana, a medieval Indian jurist. He wrote "Dayabhaga," commentary on the Yajnavalkya Smriti.
    • Unlike the Mitakshara school, which emphasizes coparcenary and joint family property, the Dayabhaga school does not recognize the concept of coparcenary.

Source: Delhi High Court

Why in News?

Recently, the High Court of Delhi in the matter of Mohd. Irshad & Anr. v. Nadeem, held that mere second marriage of the father, after his first wife’s death, doesn’t disqualify him from being the natural guardian of his child.

Background

• The appellant’s daughter and respondent got married in 2007 and the child was born in 2008.
• As per the appellants (maternal grandparents), their daughter was killed by the respondent on account of dowry demand and harassment within 7 years of marriage that is on 22nd January 2010.
• The First Information Report (FIR) under Section 304B of the Indian Penal Code, 1860 (IPC) was registered against the respondent and his parents.
• The respondent and his parents were sent to jail.
• The Child was handed over to the appellants on 30^th September 2010 and since then, the child has been in their continuous custody.
• The respondent and his parents were acquitted in the criminal case on 7th November 2012.
• The respondent filed an application seeking interim custody of the child from the appellants on the premise that he and his family members have been acquitted in a criminal case which was later dismissed.
• The appellants filed a petition in the Family court to appoint them as the guardian of the child as the father got remarried, the petition was later dismissed.
• Thereafter an appeal was filed before the Delhi High Court by the appellants.
• Dismissing the plea for appointment of the minor’s guardian, the High Court said that apart from a criminal trial, there was no other factor on record for disqualification of the husband.

Court’s Observations

• A division bench of Justices Suresh Kumar Kait and Neena Bansal Krishna observed that the mere second marriage of the father, when he lost his first wife, cannot be held as a disqualification from his continuing to be a natural guardian of his child. Even the disparity in financial status cannot be a relevant factor for denying the custody of a child to the natural parent.
• The bench further observed that there can be no substitute for the affection of a natural parent. It added that while the maternal grandparents may have immense love and affection towards the child, it cannot substitute the love and affection of a natural parent.
• The bench considered it appropriate to initially grant limited visitation rights to the father which may be re-visited after one year on his application, if the circumstances so justifies.

Legal Provisions

Hindu Minority and Guardianship Act, 1956 (HMA)

• This Act was enacted in the year 1956 for the purpose of amending and codifying the law relating to minority and guardianship among Hindus.

Section 6, HMA

• Section 6 of this Act deals with the provisions of the Natural guardian of a Hindu Minor. It states that -
  • The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—
  • (a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
  • (b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;
  • (c) in the case of a married girl—the husband:
  • Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—
  • (a) if he has ceased to be a Hindu, or
  • (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (sanyasi).
  • Explanation —In this section, the expressions father and mother do not include a stepfather and a stepmother.
• In Jajabhai v. Pathankhan (1971), the Supreme Court held that the mother could be considered as the natural guardian of a minor girl as she was under the care and protection of her mother.

Section 304, IPC

This Section deals with dowry death. It states that -

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation. —For the purposes of this sub-section, dowry shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life.