List of Current Affairs

Source: Bombay High Court

Introduction

A bench of Justice AS Gadkari and Justice Shyam C Chandak observed that the duration of house arrest should be considered when determining the overall period of an accused person's custody.

• The Bombay High Court gave this observation in the case of Mohammed Farooq Mohamemed Hanif Shaikh @ Farooqe Shaikh v. The Deputy Director & Anr.

What is the Background of Mohammed Farooq Mohamemed Hanif Shaikh @ Farooqe Shaikh v. The Deputy Director & Anr. Case?

• The petitioner was in custody for more than five years and eight months for money laundering as defined under Section 3 which is punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (PMLA).
• The trial Court has not yet framed charge in the case.
• The petitioner was in custody/house arrest for last more than five years and eight months for an offence wherein the maximum punishment prescribed is seven years.

What were the Court’s Observations?

• The Bombay HC held that “Learned counsel for the Respondent No. 1 that is Enforcement Directorate” submitted that, the period of house arrest cannot be taken into consideration for computing the total period of custody of the Petitioner and it needs to be excluded.
• The court said it is not in agreement with the learned counsel, as according to the court house arrest is ultimately arrest of person, whereby his liberty to be a free person is ultimately curtailed by operation of law.
  • Hence, it can be counted in overall custody period.

What is House Arrest?

• House arrest in India is a legal measure that allows authorities to confine a person to their residence as an alternative to imprisonment.
• This practice is typically used when a person is awaiting trial or as part of a sentence for certain offenses.
• The legal framework for house arrest in India is not explicitly defined in a standalone law, but rather it is applied under specific circumstances and conditions outlined in various statutes.

What are the Legal Provisions Dealing with House Arrest?

• Code of Criminal Procedure, 1973 (CrPC): Section 167 of the CrPC provides for the process of detention and the conditions under which an individual can be detained during the course of an investigation. It allows a magistrate to authorize the detention of an accused person in custody or house arrest.
• Bail provisions: House arrest may be granted as a condition for bail. Bail is governed by Sections 437 and 439 of the CrPC, and courts may impose house arrest as a measure to ensure that the accused does not flee during the trial.
• National Security Act, 1980: Section 5 of the Act provides the state with an authority to detain a person “in such place and under such conditions as the appropriate government may, by general or special order, specify”.

Source: Allahabad High Court

Why in News?

Justice Ram Manohar Narayan Mishra has observed that ‘protection of a person from marital rape continues in cases where his wife is of 18 years of age or more than that’.

What is the Background of the case?

• The prosecutrix, the wife of the accused as well as the informant, filed a First Information Report (FIR) against her husband invoking Sections 498-A, 323, 504, 377 of the Indian Penal Code,1860 (IPC), and Sections 3 & 4 of the Dowry Prohibition Act, 1961 and asserted that the accused demanded a Fortuner car and Rs. 40 lakhs in cash, pressuring her to obtain a dowry from her parents.
• The accused, filing the instant revision plea against his conviction, submitted before the Allahabad High Court that the FIR in question is fraught with baseless accusations and the same was filed at the instigation of the prosecutrix and her family members.
• The trial court convicted him under the aforesaid sections and in appeal, the appellate court also upheld the finding that engaging in unnatural sexual acts such as sodomy and oral sex with one's spouse constituted marital misconduct and represented an act of cruelty perpetrated by the husband against the wife.
• Consequently, his conviction under Sections 323, 498-A, and 377 of the IPC was upheld.
• The accused moved to the HC with the instant revision plea.
• The HC observed that evidence on record and the judgement of the Madhya Pradesh High Court, the court concluded that the revisionist was liable to be acquitted of the charge under Section 377 IPC.
• The conviction and sentence for the charge under Section 498-A, 323 IPC as recorded by the courts below was affirmed and the instant revision was partly allowed.

What was the Court’s Observation?

• While acquitting a husband of the charges under Section 377 IPC for allegedly committing an ‘unnatural offence’ against his wife, the Allahabad HC has observed that protection of a person from marital rape continues in cases where his wife is of 18 years of age or more than that.

What are the Legal Provisions Involved?

• The IPC, which was enacted in 1860, does not explicitly criminalize marital rape. One of the primary challenges in addressing marital rape in India has been the societal perception that the institution of marriage grants automatic consent for sexual relations.
• However, there have been significant developments in recent years that suggest a growing acknowledgment of the issue. One landmark case that brought attention to marital rape in India is the Independent Thought v. Union of India (2017) case, decided by the Supreme Court.
  • The court in this case ruled that any sexual intercourse between a man and his minor wife aged between 15 to 18 years would amount to rape.
• The court, in its decision, emphasized the importance of recognizing the autonomy and agency of married women, stating that even within the bounds of marriage, a woman has the right to her bodily integrity. The judgment underscored the idea that consent is a fundamental aspect of any sexual relationship, including within the institution of marriage.
• Section 375 of IPC covers the offence of ‘Rape’ however it does not recognize the concept of marital rape with wife above 18 years of age.
• A division bench of Delhi HC comprising of Justice Rajiv Shakdher and Justice C Hari Shankar gave split verdict on marital rape in the case of RIT Foundation v. Union of India and other connected matters (2022).
• Justice Rajiv Shakdher held that "Exception 2 of 375, 376B IPC in so far as they concern a husband having intercourse with his wife without consent are violative of Article 14 and are therefore unconstitutional."
• However, Justice C Hari Shankar did not support the contention of Justice Rajiv Shakdher to adjudge marital rape unconstitutional.

Source: Delhi High Court

Why in News?

Justice Manoj Kumar Ohri held that filing an application under Section 29(A) does not amount to an express waiver in writing of the right to challenge the arbitrator's ineligibility under Section 12(5) of Arbitration and Conciliation Act, 1996

• The Delhi High Court gave this judgment in the case of Umaxe Projects Pvt Ltd v. AIR Force Naval Housing Board.

What is the Background of Umaxe Projects Pvt Ltd v. AIR Force Naval Housing Board Case?

• The petitioner filed petitions under Section 34 of the Arbitration & Conciliation Act, to set aside two final arbitral awards delivered by the same Sole Arbitrator for different projects.
• The respondent contended that implicit waiver could occur through the petitioner's active steps, such as filing a Section 29(A) application for extension of the arbitrator's mandate and opposed the petitioner's reliance on certain judgments, argued that filing an application under Section 29(A) amounted to a waiver.
• The court concluded that the petitioner's objections were not waived, allowing the petitions and setting aside the awards.

What were the Court’s Observations?

• Filing an application under Section 29(A) does not amount to an express waiver in writing of the right to challenge the arbitrator's ineligibility under Section 12(5) of A&B act,1996.
• Mere participation in arbitral proceedings, without an overt act indicating awareness and conscious waiver of the right to object, does not suffice.

What are the legal provisions covered under Umaxe Projects Pvt Ltd v. AIR Force Naval Housing Board Case?

• Section 29(A): Time limit for arbitral award.

(1) The award in matters other than international commercial arbitration shall be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings under sub-section (4) of Section 23:

Provided that the award in the matter of international commercial arbitration may be made as expeditiously as possible and endeavor may be made to dispose of the matter within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23.

(2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree

(3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.

(4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the court has, either prior to or after the expiry of the period so specified, extended the period:
Provided that while extending the period under this sub-section, if the court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent. for each month of such delay.
Provided further that where an application under sub-section (5) is pending, the mandate of the arbitrator shall continue till the disposal of the said application:
Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced.

(5) The extension of the period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the court.

(6) While extending the period referred to in sub-section (4), it shall be open to the court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material.

(7) In the event of arbitrator(s) being appointed under this section, the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal.

(8) It shall be open to the court to impose actual or exemplary costs upon any of the parties under this section.

(9) An application filed under sub-section (5) shall be disposed of by the court as expeditiously as possible and endeavor shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.

• Section 12: Grounds for Challenge.

(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances,

(a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and

(b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months.
Explanation 1-The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator.

Explanation 2- The disclosure shall be made by such person in the form specified in the Sixth Schedule.

(3) An arbitrator may be challenged only if-

(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or

(b) he does not possess the qualifications agreed to by the parties.

(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

(5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator:

Provided that the parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing.

What is the Landmark Judgment Cited in the Case?

• Bharat Broadband Network Limited v. United Telecoms Ltd (2017):
  • The Delhi High Court held that filing of statement of defence by a party without objecting to the ineligibility of the arbitrator would amount to waiver under Section 12(5) is not helpful to the respondent’s cause. The waiver has to be expressed and in writing after becoming aware of the ineligibility.