List of Current Affairs

Source: Bombay High Court 

Why in News? 

Recently, the Bombay High Court has held that no person other than relative of the husband can be charged under Cruelty and girlfriend of the husband cannot be held as his relative. 

• The aforesaid observation was held in the case of Vaishali Gawande v. State of Maharashtra.

What was the Background of Vaishali Gawande v. State of Maharashtra Case? 

• In the present case, the respondent was the wife of Mr. Nilesh, and the petitioner was the one Mr. Nilesh was allegedly having an extra marital affair. 
• The respondent and Mr. Nilesh married in the year 2007 and had a daughter out of wedlock. 
• The respondent filed a complaint against Mr. Nilesh for torturing her stating that the reason for such behavior is his affair with the petitioner. 
• The respondent filed the First Information Report (FIR) against her husband and the statements were recorded during the investigation. 
• Due to investigation the cause of harassment was the affair of Mr. Nilesh with the petitioner and therefore the chargesheet was also filed against the petitioner. 
• The petitioner argued that she is not the relative of Mr. Nilesh and therefore cannot be booked under Section 498A of Indian Penal Code, 1860 (IPC). 
• The petitioner also argued that she is a married woman, and false allegations have been made against her. 
• The petitioner in this case applied for quashing charges against her under Section 498A for the case pending before the Trial Court. 

What were the Court’s Observations?

• The Bombay High Court observed the provision of Section 498A of IPC. 
• The Bombay High Court stated that to be booked under Section 498A of IPC a person should be a relative of the husband. 
• The Bombay High Court held that the petitioner is not a relative of Mr. Nilesh and merely based on the allegations of having extra marital affair with the petitioner she cannot be charged under Section 498A of IPC. 
• The Bombay High Court quashed the charges against the petitioner and held that girlfriend of the husband cannot be charged for the offences of Dowry or Cruelty by the husband against his wife. 

What is Cruelty? 

About: 

• Section 498A of IPC was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. 
• It states that if the husband or the relative of the husband of a woman, subjected such woman towards cruelty would be punished with imprisonment for a term which might extend to 3 years and may also be liable for fine. 
• The offence under this section is a cognizable and a non bailable offence. 
• The complaint under Section 498A may be filed by the women aggrieved by the offence or by any person related to her by blood, marriage or adoption. And if there is no such relative, then by any public servant as may be notified by the State Government on this behalf. 
• A complaint alleging commission of an offence under Section 498A can be filed within 3 years of the alleged incident. However, Section 473 Criminal Procedure Code, 1973 (CrPC) enables the Court to take cognizance of an offence after the period of limitation if it is satisfied that it is necessary to do so in the interest of justice. 

Meaning of Cruelty: 

• Cruelty Means as per Section 86 of BNS: 
  • Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or 
  • Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Essential Elements: 

• For commission of an offence under Section 498A of IPC, following necessary elements are required to be satisfied: 
  • The woman must be married; 
  • She must be subjected to cruelty or harassment; 
  • Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.

Position under BNS:

• Section 85: Husband or relative of husband of a woman subjecting her to cruelty 
  • Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 

Position Under Hindu Law: 

• By the 1976 Amendment to Hindu Marriage Act, 1955 (HMA) cruelty was made a ground for divorce under Section 13(1)(ia). 
  • Section 13 – Divorce —  
    • Clause (1) states that 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— 
      • has, after the solemnization of the marriage, treated the petitioner with cruelty; or 
• Prior to 1976 cruelty was merely a ground for claiming judicial separation under Section 10 of the HMA 
  • Section 10 - Judicial separation — 
    • Clause (1) states that either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. 
    • Clause (2) states that where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. 

Case Laws: 

• Arun Vyas v. Anita Vyas, (1999): the Supreme Court held that the essence of the offence in Section 498-A is cruelty. It is a continuing offence and on each occasion on which the woman was subjected to cruelty, she would have a new starting point of limitation. 
• Manju Ram Kalita v. State of Assam (2009): the Supreme Court held that for holding an accused guilty under Section 498A of IPC, it has to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time to the lodging of the complaint and petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A of IPC. 
• Sarah Mathew v. Institute of Cardio Vascular Diseases (2014): In this case, the Supreme Court held that for the computation of period of limitation under section 468 CrPC, the relevant date is the date of filing of the complaint or date of institution of prosecution and not the date on which the magistrate takes cognizance. 
• Japani Sahoo v. Chandra Sekhar Mohanty (2007): In this case, it was held that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by court.

Source: Delhi High Court

Why in News?

A bench of Justice C. Hari Prasad held that the court does possess the power to grant an anti-enforcement injunction where the foreign proceedings are violative of the exclusive jurisdiction clause in the contract.

• The Delhi High Court held this in the case of Hosana Consumer Limited v. RSM General Trading LLC.

What is the Background of Hosana Consumer Limited v. RSM General Trading LLC Case?

• The Petitioner and Respondent in this case entered into an Authorized Distributorship Agreement whereby the respondent were to distribute the products of petitioner in the Middle East and Africa.
• The contract specifically provided that any dispute arising would be resolved by arbitration governed by the Arbitration and Conciliation Act, 1996 (A&C Act) with an arbitral venue as New Delhi.
• The contract also specified that the Indian Law was both the governing and curial law (i.e. the contract should be interpreted in accordance with Indian Law).
• The Respondent, however, filed a suit in Dubai, Court of First Instance alleging breach by the petitioner.
• Therefore, Respondent holds a decree from the Court of First Instance, Dubai.
• The Petitioner has moved to the Delhi High Court under Section 9 of the A&C Act seeking injunction against the Respondent from enforcing decree of Dubai Court so that the petitioner can proceed to invoke the remedy of arbitration to resolve the disputes.
• Thus, the issue before the Court was whether Anti-enforcement injunction can be issued under Section 9 of A&C Act.

What were the Court’s Observations?

• The Court held that the scope of Section 9 of A&C Act is wide and compendious.
• The Court further observed that the powers under Section 9 are absolute and there are no restrictions either under the 1996 Act or elsewhere.
• The Court held that where proceedings in foreign Court threaten to prejudice or derail the arbitral process which may be competently instituted in India Section 9 is possessed of the power to injunct the party who has instituted the foreign proceedings.
• The Court further observed that the principle of comity of Courts will have no application in those cases where a foreign Court has manifestly acted in excess of jurisdiction.
• The Court held that as per Section 9, the Court does possess the power to grant an anti-enforcement injunction where the foreign proceedings are violative of the exclusive jurisdiction clause in the contract between the parties.

What is Section 9 of the A&C Act?

• Section 9 of the A&C Act provides for power to grant interim measures etc. by the Court.
• Interim measure can be granted by the Court on the application of the party in following circumstances:
  • Before Arbitral Proceedings
  • During Arbitral Proceedings
  • At any time after the making of the arbitral award but before it is enforced in accordance with Section 36
• Following interim measures can be passed:
  • Appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
  • For an interim measure of protection in respect of any of the following matters, namely:
    • The preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
    • Securing the amount in dispute in the arbitration;
    • The detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence
    • Interim injunction or the appointment of a receiver;
    • Such other interim measure of protection as may appear to the Court to be just and convenient,
  • The Court under this Section shall have same power for making orders as it has for the purpose of or in relation to any proceedings before it.
• Further, Section 9 (2) of A&C Act provides that where order for interim measure is passed before the commencement of arbitral proceedings the arbitral proceeding shall be commenced within 90 days from the date of such order or within such period as the Court may determine.
• Section 9 (3) provides that once the arbitral Tribunal is constituted the relief under sub-section (1) shall not be granted unless the Court finds that the remedy under Section 17 is not efficacious.

What is the Scope of Power under Section 9 of A&C Act?

• Essar House Pvt. Ltd v. Arcellor Mittal Nippon Steel India Ltd. (2022):
  • While granting relief under Section 9 the Court cannot ignore the basic principles of Civil Procedure Code, 1908 (CPC).
  • The power is however not curtailed by the rigors of every procedural provision in CPC.
  • Thus, the Court is not strictly bound by the provisions of CPC.
• Hindustan Cleanenergy Ltd v. MAIF Investments India Pte Ltd. (2022):
  • For the purpose of relief under Section 9 demonstration of irreparable harm should be done.
  • The relief under Section 9 may overlap with the final relief sought in arbitral proceedings.
  • The grant of interim relief would be subject to restrictions under Section 9 of Specific Relief Act, 1963 (SRA).

What is an Injunction?

• An injunction is a remedy which can be granted in a civil suit.
• There are two types of injunction:
  • Permanent Injunction:
    • This is granted under Section 38 of SRA.
    • A permanent injunction is a court order that restrains a party from engaging in certain conduct or compels them to perform specific acts.
    • It is considered a final and permanent remedy, distinct from preliminary injunctions, which are issued on a temporary basis during the pendency of a legal proceeding.
  • Temporary Injunction:
    • This is granted under Order 39 of CPC.
    • The primary purpose of a temporary injunction is to prevent irreparable harm or injustice during the course of litigation.
    • It serves as a balancing act between preserving the rights of the parties and ensuring that justice is done.

What are Principles Governing Anti Suit and Anti Enforcement Injunction?

• Modi Entertainment Network v. WSG Cricket Pte Ltd. (2003)
  • The principles governing grant of injunction are also applicable to the grant of anti suit injunction.
  • In exercising the grant of anti-suit injunction the Court must be satisfied of following aspects:
    • the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court;
    • if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and
    • the principle of comity - respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained - must be borne in mind.
• Interdigital Technology Corporation v. Xiaomi Corporation (2021)
  • The principles laid down in this case on the aspect of anti-enforcement or anti-suit injunction were as follows:
    • Comity considerations may potentially apply even in cases where anti-suit relief is sought for a breach of the arbitration or exclusive jurisdiction clause.
    • There must be respect given to the vast amount of time and expenses incurred by the foreign Court.
    • Also, there must be shown exceptional circumstances that warrant the exercise of Court’s jurisdiction.