List of Current Affairs

Source: Supreme Court

Why in News?

Recently, the Supreme Court (SC) in the matter of Munna Pandey v. State of Bihar, held that Section 162 of Criminal Procedure Code, 1973 (CrPC) does not affect the power of the Court to look into documents or put questions to witnesses suo motu to contradict them.

Background

• In this case, the accused/appellant had come to the house of the victim who was a 10-year-old girl on the morning of 31st May 2015 and lured her to come to his house to watch TV and thereafter raped and murdered her.
• The SC noted that the case of all the witnesses before the police was that it was some other person (not the present accused/appellant) who had come to the house of the victim on the fateful day.
• Whereas in deposition before the Trial Court, the witnesses stated that it was the accused/appellant who was last seen with the victim.
• The accused/appellant was convicted and sentenced to death for the offences punishable under Section 376 and Section 302 of Indian Penal Code, 1860 (IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) by the Trial Court.
• The accused/appellant filed an appeal in the High Court of Patna which was dismissed by the HC.
• Thereafter an appeal was filed before the SC.
• The order of the HC was set aside, and the matter was remitted back for reconsideration of the Death reference.

Court’s Observations

• The bench of Justices B R Gavai, J B Pardiwala and Prashant Kumar Mishra observed that nothing in Section 162 of the CrPC prevents a Trial Judge from looking into the papers of the chargesheet suo motu and using the statement of a person examined by the police recorded therein for the purpose of contradicting such person when he gives evidence in favor of the State as a prosecution witness. The Judge may do this, or he may make over the recorded statement to the lawyer for the accused so that he may use it for this purpose.
• The Court further held that in many sessions cases when an advocate is appointed by the Court appears and particularly when a junior advocate, who has not much experience of the procedure of the Court, has been appointed to conduct the defence of an accused person, it is the duty of the Presiding Judge to draw his attention to the statutory provisions of Section 145 of the Evidence Act.

Legal Provisions

Section 162, CrPC

• This Section contains provisions relating to the statements to police not to be signed and the use of statements in evidence. It states that -

1. No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
   Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination.
2. Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, or to affect the provisions of section 27 of that Act.
   Explanation—An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

• This Section provides for the limited use of statements and prohibits the court from using them to support statements made in court.

Case Laws

• In the Tahsildar Singh v. State of U.P. (1959) case, the SC held that a statement to the police could be used under Section 162 of CrPC only for the purpose of contradiction.
• In the Baleshwar Rai v. State of Bihar (1962) case, it was held that Section 162 of the CrPC only prohibits the proof of statements made during the course of the investigation. It does not prevent any statement from being authenticated during the course of an investigation.

Source: Times of India

Why in News?

The Delhi High Court has commented regarding the Hindu Marriage Act of 1955, highlighting that it does not acknowledge the concept of incompatibility as a legitimate reason for divorce in the case of M v. PK.

Background

• The present case pertains to the fact that the parties to the suit got married in 2006 and a child was born out of wedlock in 2007.
• The wife left the matrimonial home in 2008 and it was contended by the husband that she left the house after quarrelling and also that she was aggressive, quarrelsome and violent in nature towards him and his family members.
• The wife's argument was that she endured harassment due to dowry demands, suffered severe physical abuse, and was forcibly thrown out of the marital residence.
• The family court allowed the husband’s petition seeking divorce on the ground of “cruelty” under Section 13(1) (ia) of the Hindu Marriage Act, 1955 (HMA).
• The wife therefore appealed to the Delhi HC.

Court’s Observations

• The HC, while dismissing the petition of the wife observed that the couple had been residing separately since December 2008, and the wife had withdrawn a divorce petition in 2011 due to an agreement between them, which neither of them had honored.
• Further bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna while observing that no incident of cruelty towards the wife by the husband was proved and that prolonged differences made the husband’s life bereft of peace and conjugal relationship, stated that “We conclude that in the present case the parties are living separately for 15 years now; there is no chance of reconciliation between the parties and such long separation peppered which false allegations, police reports and criminal trial has become a source of mental cruelty and any insistence either to continue this relationship or modifying the Family Court’s order would only be inflicting further cruelty upon both the parties.”
• The HC also observed that “Irretrievable Breakdown of Marriage” has not been introduced as a ground for divorce, Courts hands are tied, and they cannot grant divorce decree unless the fault of the other spouse is shown.

Theories for Under the Hindu Law for Dissolution of Marriage

Fault Theory

• Under the Fault theory alternatively known as the offence theory or the guilt theory, marriage can be dissolved only when either party to the marriage has committed a matrimonial offence.
• The HMA allows divorce on the fault theory, and the same is enshrined under Sections 13(1), 13(1-A) and 13(2). Section 13(2) of HMA allows the wife alone to seek divorce on additional grounds. The given sections are explained under the part of Legal Provisions later in this article for better clarity.

Mutual Consent Theory

• The underlying rationale behind this theory is that when two people have the freedom to marry by their free will, they should also be allowed to move out of the relationship of their own free will.
• This theory is however criticized on the ground that use of this theory may lead to immorality as parties may tend to dissolve their marriage even if there were slight incompatibility of temperament which would be in contradiction to the institution of Hindu Marriage which is considered a sacrament.
• Section 13B of HMA deals with the concept of Divorce by Mutual Consent.

Irretrievable Breakdown Theory

• The irretrievable breakdown of marriage is defined as “such failure in the matrimonial relationships or such circumstances adverse to that relationship that no reasonable probability remains for the spouses to live together as husband & wife.”
• There is no legislative provision relating to this theory of divorce.
• Such a marriage should be dissolved with maximum fairness & as soon as possible to pave for a better future for both the spouses.
• The Supreme Court has time and again evolved the grounds on which divorce can be granted, some of which are as following for dissolving the marriage that has broken down irretrievably:
  • The time for which parties stayed together.
  • The time, the parties last cohabited.
  • Allegations made by parties against each other.
  • Order, if any, passed in a legal proceeding between the parties.
  • Attempts made to settle the dispute by the family.
  • The separation period should be more than 6 years.

Case Law

• Naveen Kohli v. Neelu Kohli (2006): A landmark case on divorce on the ground of cruelty, the SC also iterated that when a marriage has broken down irretrievably and there is no possibility of reconciliation, it can be a valid ground for divorce. The court recognized that forcing the parties to live together would only lead to greater misery.
• Kanchan Devi v. Promod Kumar Mittal (2010): In the present case, the Delhi High Court reiterated the principle that if a marriage has broken down irretrievably and there is no chance of the spouses coming together, it is a valid ground for divorce.
• Rajib Kumar Roy v. Sushmita Saha (2023): In this recent pronouncement SC held that keeping the parties together despite irretrievable breakdown of marriage amounts to cruelty on both sides.

Legal Provisions

Divorce

• The concept of Divorce has been introduced by The Hindu Marriage Act, 1955 (HMA). Prior to the act, Hindu Marriage was considered an indissoluble union.
• S 13, S13(1-A), S.13 (2) of the Hindu Marriage Act 1955 provide for the dissolution of marriage.
• S. 19 of The Hindu Marriage Act 1955 deals with Jurisdiction with respect to presentation of petition.

Hindu Marriage Act, 1955 – 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-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.—In this clause,— (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub—normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation.— In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent 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.

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground —

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground —

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 or under the corresponding section 488 of the Code of Criminal Procedure, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iv) that her marriage whether consummated or not was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation —This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, 1976.

Section 13B - Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Source: Supreme Court

Why in News?

The Supreme Court (SC) while expressing its concern over the increasing prevalence in Telangana of issuing preventive detention orders without due regard for the constitutional rights of individual liberty and freedom, has established a set of principles that should be adhered to by the courts when evaluating the legality of such detention orders in the matter of Ameena Begum v. The State of Telangana & Ors.

Background

• The present case arises from an order of the Commissioner of Police, Hyderabad City (Commissioner) passed against the Detenu under the provisions of Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986 (Telangana Act of 1986).
• The present detention order reveals that the Detenu was ordered detention in March, 2021 under the category of White-Collar Offender and was released in August 2021 pursuant to a writ filed by his father in the Telangana High Court (HC).
• The Detenu thereafter did not mend his habitual nature of committing crimes of the nature such as outraging modesty of women, cheating, extortion, obstructing the public servants from discharging their legitimate duties etc. during 2022 and 2023, in quick succession.
• The Commissioner, with a view to prevent the Detenu from acting in a manner prejudicial to maintenance of public order ordered detention with reason that unless he is detained under the detention laws, his unlawful activities cannot be curbed.
• The detenue’s wife hence made the representation before the Advisory Board constituted under Section 9 of the Telangana Act of 1986 in March 2023 under the grounds mentioned in Section 10 of the same Act seeking revocation of the Detention Order.
  • She was informed by the Government that in absence of any valid grounds/reasons to set aside/revoke the Detention Order, her representation was being rejected.
• She then invoked the writ jurisdiction of the HC whereupon the parties were heard, and the judgment was delivered dismissing the writ petition.
• Hence, the appellant made the present appeal stating that the order of detention was illegal.

Court’s Observations

• The division bench of Justice Surya Kant and Justice Dipankar Datta of SC referred to a catena of judgements on preventive detention some of which are:
  • In the A.K. Gopalan v. State of Madras (1950) case, the SC examined the Preventive Detention Act of 1950 and established that the right to personal liberty under Article 21 of the Indian Constitution is distinct from the right to life and personal liberty under Article 19. It was further laid down that preventive detention could be valid for reasons not covered by Article 19. (Although later in the Maneka Gandhi v. Union of India (1978) case, the SC significantly widened and interpreted the term “personal liberty” to its widest degree).
  • In the Kharak Singh v. State of Uttar Pradesh (1963) case, the SC examined the constitutionality of certain preventive detention provisions and upheld the principle that the state has the power to enact laws for preventive detention, but those laws must comply with constitutional safeguards.
  • In the Haradhan Saha v. State of West Bengal (1974) case, the SC held that preventive detention law is to prevent the greater evil of elements imperiling the security and safety of a State, and the welfare of the Nation. Preventive detention, though a draconian and dreaded measure, is permitted by the Constitution itself but subject to the safeguards that are part of the relevant article and those carved out by the Constitutional Courts through judicial decisions of high authority which have stood the test of time.
  • In the Shibban Lal Saksena v. State of Uttar Pradesh (1954) case, the SC ordered for quashing of an order of preventive detention under the Detention Act reasoning that if one of the two grounds for ordering detention was illegal, the order of detention could not survive on the other ground.
• The SC in the present case formulated guidelines for a Constitutional Court when called upon to test the legality of orders of preventive detention would be entitled to examine following:
  1. The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied.
  2. In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute.
  3. Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires.
  4. The detaining authority has acted independently or under the dictation of another body.
  5. The detaining authority, by reason of self-created rules of policy or in any other manner not authorized by the governing statute, has disabled itself from applying its mind to the facts of each individual case.
  6. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate.
  7. The satisfaction has arrived at bearing in mind the existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale.
  8. The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached.
  9. The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation.
  10. The timelines, as provided under the law, have been strictly adhered to.
• The SC under the present facts of the case found that the acts of the detenu did not qualify as those affecting maintenance of public order as required under the Act and thus quashed the impugned detention order and the judgment of the HC thereby allowing the appeal.

Preventive Detention

• It can be defined as imprisonment of a person without trial.
• In India, preventive detention is governed by various laws and regulations that empower the government to detain individuals for preventive reasons, primarily to maintain public order, national security, or the maintenance of essential supplies and services.
• Some of the key laws relating to preventive detention in India include:
  • Constitutional Provision: The Constitution of India, 1950 contains provisions related to preventive detention under Article 22 that outlines the safeguards for persons who are detained, including the right to be informed of the grounds for detention, the right to legal representation, and the right to have the detention reviewed by an advisory board.
  • The Preventive Detention Act, 1950 (Repealed): This was one of the earliest laws dealing specifically with preventive detention. It was repealed in 1969.
  • The Maintenance of Internal Security Act, 1971 (MISA): MISA was enacted during a state of emergency and granted the government broad powers to detain individuals to prevent subversion and the maintenance of public order.
  • The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA): COFEPOSA allows preventive detention to curb smuggling and foreign exchange violations.
  • The National Security Act, 1980 (NSA): It provides for preventive detention in cases affecting the security of the state, maintenance of public order, and certain other specified grounds. It allows for detention without trial for a specified period.
  • The Unlawful Activities (Prevention) Act, 1967 (UAPA): It primarily deals with actions related to unlawful activities and terrorism but also contains provisions for preventive detention of individuals involved in such activities.