List of Current Affairs

Source:  Meghalaya High Court 

Why in News? 

The Meghalaya High Court has ruled that an Executive Magistrate cannot issue an attachment order under Section 146 of the Criminal Procedure Code (CrPC) solely based on an inability to determine land possession.  

• In the case of Shri Minondro Arengh v. Talika T. Sangma, Justice B. Bhattacharjee emphasized that such orders require evidence of a likely breach of peace, as stipulated in Section 145 CrPC.  
• This ruling underscore the importance of adhering to procedural requirements in land dispute cases to protect parties' rights and maintain public order. 

What was the Background of Shri Minondro Arengh v. Talika T. Sangma? 

• The respondent (Talika T. Sangma) filed an FIR on 05th February 2021 at Ampati Police Station, alleging that the petitioner (Shri Minondro Arengh) was attempting to forcibly occupy her land in Ichakuri, Ampati, Southwest Garo Hills District. 
• The police forwarded a report to the Executive Magistrate, under Section 145 of CrPC and the Executive Magistrate initiated proceedings. 
• On 20th April 2022, the Executive Magistrate passed an order: 
  • Directing the attachment of the disputed land under Section 146(1) CrPC. 
  • Prohibiting both parties from engaging in any economic activities on the land. 
  • This prohibition was to remain in effect during the attachment period or until the Garo Hills Autonomous District Council (GHADC) completed the process and demarcation. 
• The petitioner challenged this order, on the ground that: 
  • The Executive Magistrate did not follow the provisions of Sections 145 and 146(1) CrPC. 
  • The order was passed without recording the likelihood of a breach of peace between the parties over the land's possession. 
•  The respondent argued that: 
  • The proceedings were initiated based on a police report indicating an apprehension of breach of peace. 
  • The attachment order was necessary due to the existing situation and a previous order dated 21st February 2020 concerning a boundary dispute between the parties. 

What were the Court’s Observations? 

• The Court held that the order of attachment under Section 146(1) CrPC was unjustified due to: 
  • The absence of a recorded likelihood of breach of peace. 
  • The principle that the inability to determine possession alone is insufficient grounds for attachment. 
• Justice B. Bhattacharjee stated that the learned Executive Magistrate erred in failing to record any finding based on the existing factual situation to ascertain which party was in possession of the disputed land at the relevant point in time. 
• The Court held that a prerequisite for a valid order of attachment under Section 146(1) CrPC is the existence of a situation as contemplated under Section 145(1) CrPC, specifically, a likelihood of breach of peace between the parties over possession of the disputed land. 
• The Court emphasized that Section 145(4) CrPC mandates that the question of possession must be decided without reference to the merits or claims of any party to a right to possess the subject of dispute. 
• In proceedings under Section 145 CrPC, disputes regarding possession must be adjudicated based on statements submitted, evidence recorded, and hearings of the parties, rather than on documentary proof of ownership. 

What is Section 164 of BNSS? 

• About: 
  • Section 164 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with Procedure where dispute concerning land or water is likely to cause breach of peace. 
  • Earlier it was dealt with Section 145 of CrPC. 
  • Section 164(1) of BNSS states that whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by an advocate on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. 
  • Section 164(4) of BNSS states that the Magistrate shall, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute. 
    • It provides that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). 
• Condition for Section 164 of BNSS  
  • Conflict between parties. 
  • This conflict has the potential to breach peace (disturb public order). 
  • The subject of the dispute involves:  
    • Structures 
    • Commercial areas 
    • Fishing grounds 
    • Agricultural produce 
    • Property boundaries 
    • Rental income 
    • Financial gains from the property 
  • The claimed possession took place within a 60-day period prior to the Magistrate's initial directive. 
  • The matter falls under the Magistrate's legal authority to decide. 
• Case Law 
  • Mohd Shakir v. State of Uttar Pradesh (2022): Supreme Court had observed that while dropping the proceedings under Section 145 CrPC because of the pendency of civil litigations, a Magistrate cannot make any observations or return any findings as regards rights of the parties qua the property in question. 

What is Section 165 of BNSS? 

• Section 165 of BNSS deals with the power to attach the subject of dispute and to appoint the receiver. 
  • Earlier it was dealt with in Section 146 of CrPC. 
• It states that if the Magistrate at any time after making the order under sub-section (1) of section 164 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 164, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof 
  • It provides that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. 
• Once the Civil Court seized the matter, the proceedings under Section 165/164 of BNSS cannot proceed and must end.  
  • The interse rights of the parties regarding title or possession are eventually to be determined by the Civil Court. 

Source: Bombay High Court 

Why in News? 

A bench of Justice Rajesh S. Patil and Justice A.S. Chandurkar dismissed the writ petition filed by nine students against the dress code requiring them to follow a dress code which precluded them from donning a hijab or a Nakab.  

• The Bombay High Court dismissed the writ petition in the case of Zainab Abdul Qayyum Choudhary & Ors v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors.  

What is the Background of Zainab Abdul Qayyum Choudhary & Ors v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors. Case? 

• Nine Students pursuing their second and third year education for undergraduate courses at the College run by the first respondent – Chembur Trombay Education Society have raised a challenge to the Instructions issued to students requiring them to follow the prescribed dress code. 
• In addition, a notice-cum-whatsapp message dated 1st May 2024 issuing instructions in the matter of following the dress code is also under challenge. 
• The petitioners allege that the prescription of dress code as a result of which they are restrained from donning a Hijab or Nakab is arbitrary and discriminatory and is violative of Article 19(1)(a) and Article 25 of the Constitution of India, 1950 (COI). 

What were the Court’s Observations? 

• The Court observed that a similar matter was presented before the Full Bench of Karnataka High Court (Resham v. State of Karnataka) where the Court held that the dress code prescribed was intended to treat the students as one homogeneous class to serve constitutional secularism. 
  • The Bombay High Court agreed with the above view taken by the full bench of Karnataka High Court. 
• The Bombay High Court observed that the regulation of dress code is an exercise towards maintaining discipline in the institution and this right flows from Article 19(1)(g) and Article 26 of the COI.  
• Further, the Court observed that the object behind the prescription of the dress code is that the student’s religion is not revealed. 
• It was observed that the administration and management of the college had the fundamental right to administer educational institution under Article 19(1)(g) and in exercise of that right and with the objective that education can be seriously pursued the instruction has been issued. 
• Regarding the issue of hijab being a part of essential religious practice, the Court held that except for stating that the same constitutes an essential religious practice on the basis of the English translation of Kanz-ul-Iman and Suman Abu Dawud, there is no material placed to uphold the petitioners’ contention that donning of Hijab and Nakab is an essential religious practice.    

What is Freedom of Religion? 

• The right to freedom of religion is covered under Article 25-Article 28 of COI. 
• Article 25(1) provides that subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. 
  • Article 25(2) provides that nothing in this article shall affect the operation of any existing law or prevent the State from making any law— 
    • regulating or restricting any economic, financial, political or other secular activity which maybe associated with religious practice; 
    • providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. 
    • Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. 
    • Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. 
• Article 26 provides that Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— 
  • to establish and maintain institutions for religious and charitable purposes; 
  • to manage its own affairs in matters of religion; 
  • to own and acquire movable and immovable property; and 
  • to administer such property in accordance with law. 
• Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. 
• Article 28 provides for freedom as to attendance at religious instruction or religious worship in certain educational institutions. 
  • No religious instruction shall be provided in any educational institution wholly maintained out of State funds. 
  • Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. 
  • No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. 

What is the Concept of Essential Religious Practice? 

• The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) 
  • The Supreme Court in this case held that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. 
  • If the tenets of any religious sect of the Hindus prescribe 
    • that offerings of food should be given to the idol at particular hours of the day 
    • that periodical ceremonies should be performed in a certain way at certain periods of the year 
    • that there should be daily recital of sacred texts or oblations to the sacred fire 
    • All these would be regarded as parts of religion 
• Commissioner of Police and others v. Acharya J. Avadhuta (2004) 
  • In this case the Court laid down the test as to what would constitute an essential religious practise.  
  • The Court held “Essential part of religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief.  
    • It is upon the cornerstone of essential parts or practices that the superstructure of religion is built. Without which, a religion will be no religion.  
    • Test to determine whether a part or practice is essential to the religion is to find out whether the nature of religion will be changed without that part or practice.  
    • If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.  
    • There cannot be additions or subtractions to such part. 
    • Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the Constitution.”  

Source: Kerala High Court 

Why in News? 

Recently, the Kerala High Court in the matter of Jayasree v. Indrapalan and Another has held that a woman sharing a household before or after divorce cannot be evicted from the household except in accordance with the procedure established by law. 

What was the Background of the Jayasree v Indrapalan and Another Case? 

• In this case, the petitioner was the wife of the respondent, having a minor child. 
  • The respondent filed for divorce on the grounds of desertion on 31st December 2022. 
• An appeal was filed by the petitioner in the Kerela High Court against the divorce order which was later dismissed by the court. 
• During the pendency of the appeal petitioner filed a petition in Magistrate court under Protection of Women & Domestic Violence Act, 2005 (DV) to prevent her eviction from the shared household. 
• The respondent contented to the petitioner that there was no shared household between them at any point of time. 
• Considering the contentions the magistrate ordered the eviction of the petitioner and ordered her to vacate the household within 1 month. 
• The petitioner then challenged the order in the Kerala High court referring to the landmark judgement of the Supreme Court Prabha Tyagi v. Kamlesh Devi (2022). 

What were the Court’s Observations? 

• The court observed that there should be existence of a domestic relationship before or during the pendency of the case resulting in domestic violence to fall under the purview of DV Act. 
• The court also clearly defined the meaning and scope of the terms ‘domestic relationship’ and ‘shared household’. 
• The Kerala High Court also defined the scope of ‘right to reside in a shared household’ where it was stated that right to reside can be claimed even when there was no actual residence thus, any women in a domestic relationship has the right to reside in a shared household. 
• It was observed by the court after referring to various judgements and definition of domestic relation that divorced woman do not subsist any domestic relation after divorce and cannot claim residence right based on previous domestic relationship. 

What Are the Important Provisions of the DV Act? 

Aggrieved Person 

• Section 2(a): Any woman who has been living in a domestic relationship and alleges to be victim of domestic violence. 

Domestic Relationship 

• Section2(f): It states that any relation of shared household with a woman through marriage, blood relation, invalid marriage, adopted child, are covered under shared household. 

Shared Household 

• Section 2(s): The place where an aggrieved person resides either with the husband or alone or the place from where she has been thrown out, is a shared household. 

Right to Reside 

• Section 17: This section states that every aggrieved woman has the right to reside in a shared household having domestic relationship except as procedure established by law. 

What are the Landmark Judgements Based on DV Act? 

• Prabha Tyagi v. Kamlesh Devi (2022): In this Supreme Court ruling it was held that to claim right to reside actual residence is not required if an aggrieved woman is in a domestic relationship with the person against whom the complaint has been filed is sufficient to claim this right. 
• Indra Sarma v. V.K.V. Sarma (2013): In this case domestic relationship interpreted in a broader way where it was held that mere characteristics of marriage would be sufficient to be called a domestic relationship. 
• Vandhana v. T. Shrikanth (2007): In this case the purview of the term shared household was increased by stating that the duration of living should not be considered while determine the right to live in a shared household even if a woman shared a household for one day she can claim under this right if she is in a domestic relationship.