List of Current Affairs

Source: Supreme Court 

Why in News?

A bench of Justice PK Mishra, Justice BR Gavai and Justice KV Viswanathan held that the right provided to a person under Article 22 (5) of the Constitution is to afford the detenue the earliest opportunity of making the representation against the order of detention.          

• The Supreme Court held this in the case of Jasleela Shaji v. The Union of India & Ors. 

What is the Background of Jasleela Shaji v. The Union of India & Ors.  Case? 

• The detention order was passed by the Detaining Authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) on 31st August 2023. 
• The detention was done to prevent him from acting in any manner prejudicial to the augmentation of foreign exchange in the future. 
• The detenue was put in prison and the grounds of detention and the relied upon documents were served on him. 
• The detenue was further informed about his right to make representation to the Detaining Authority as well as other authorities.  
• The detenue accordingly made representations to the concerned authorities i.e. the Detaining Authority, the Central Government and the Advisory Board. 
• The Jail Authorities sent the same through ordinary post and neither the Detaining Authority nor the Central Government received the said representations. 
• The Advisory Board opined that there was sufficient cause for detention of detenue and further directed that the detenue be detained for a period of one year from the date of his detention. 
• Aggrieved by the order of detention, the detenue approached the Kerela High Court by way of writ of Habeas Corpus. 
• The said writ came to be rejected and hence the appellant approached the Supreme Court. 

What were the Court’s Observations? 

• The Supreme Court framed two issues to be answered in this case: 
  • Issue 1: Whether non-supply of statements of Ms. Preetha Pradeep (one of the material relied on to detain the appellant) has affected the right of the detenue to make an effective representation under Article 22 (5) of the Constitution of India (COI)? 
  • Issue 2: Whether non-receipt of the representation and the delay in deciding the representation by the Detaining Authority and the Central Government would also affect the right of the detenue under Article 22 (5) of COI?    
• With Respect to Issue 1: The Supreme Court held that it is a settled position that though it may not be necessary to furnish each and every document to which a casual and passing reference has been made, it is imperative that every document relied upon by the Detaining Authority which affects the right of the detenue to make an effective representation under Article 22 (5) of COI must be supplied to the detenue. 
• Thus, the Court decided with respect to issue 1 that non supply of statements of Preetha Pradeep has affected the right of the detenue. 
• With Respect to Issue 2: The Supreme Court held that it has been held in a catena judgments that it is the duty of the transmitting authority to transmit the representation of the detenue promptly. 
• It was finally held by the Court that merely because there has been a casual and callous and in fact negligent approach on the part of the Jail Authorities in ensuring that the representation of the detenu is communicated at the earliest, the valuable right available to the detenu to have his representation decided expeditiously cannot be denied. 
• The Court held that the Competent Authority should decide such representation with utmost expedition so that the valuable right under Article 22 (5) of COI is not denied. 

What is Preventive Detention?

• Preventive Detention means the detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.  
• The key laws relating to preventive detention are: 
  • Maintenance of Internal Security Act, 1971 (MISA) 
  • Foreign Exchange Conservation and Prevention of Smuggling Activities, 1974 (COFEPOSA) 
  • Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) 
  • Prevention of Terrorist Activities Act, 2002 (POTA) 
  • Unlawful Activities (Prevention) Act, 2008 (UAPA) 

What is Article 22 of COI? 

• Article 22 of the COI provides for protection against arrest and detention in certain cases. 
• Article 22 of COI has two parts-  
  • The first part deals with ordinary law (Article 22 (1) and (2)) 
  • The second part deals with cases of preventive detention 

What are the Case Laws on Preventive Detention? 

• Tara Chand v. State of Rajasthan (1981) 
  • In case of preventive detention of a citizen Article 22 (5) of the Constitution enjoins obligation on the appropriate Government to afford earliest opportunity to the detenue to make representation. 
  • The mere fact that the meeting of the Advisory Board had been held earlier was not a valid excuse for the detaining authority in not considering the representation of the detenue at all. 
  • An inordinate delay on the part of the Central Government in consideration of the representation of detenue would be in violation of Article 22 (5) of the Constitution. 
• Rattan Singh v. State of Punjab and others (1981) 
  • The laws of preventive detention afford only a modicum of safeguards to persons detained and if freedom and liberty are to have any meaning in our democratic set up it is essential that at least those safeguards are not denied to the detenues. 
  • The failure on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government.

Source: Allahabad High Court  

Why in News?

The Allahabad High Court recently ruled that a 21-year separation, compounded by criminal prosecution and harsh words, demonstrates an irretrievable breakdown of marriage. The court observed that the lack of effort to reconcile and the pursuit of criminal charges only after divorce proceedings indicate that the marriage cannot be retrieved. 

• Justices Saumitra Dayal Singh and Justice Donadi Ramesh were held in Smt. Arti Tiwari v. Sanjay Kumar Tiwari. 

What was the Background of Smt. Arti Tiwari v. Sanjay Kumar Tiwari? 

• The marriage between Sanjay Kumar Tiwari (Respondent) and Smt. Arti Tiwari (Appellant) was solemnized on 2nd March 2000. 
• At the time of marriage, Respondent was employed as a Class-III employee at the Rajkiya Bachat Karyalaya in Bareilly. 
• Respondent 's family, including his father and siblings, resided in Unnao, while his family originally belonged to Kanpur Nagar. 
• After some time of the marriage, Appellant expressed concerns about feeling unsafe in the marital home due to the presence of only male family members. 
• In response to his wife's concerns, Respondent relocated with her to Bareilly, where he was working at the time. 
• The appellant did not stay in Bareilly for long, citing her desire to practice law in Kanpur Nagar. 
• Respondent subsequently applied for and obtained a transfer to Kannauj to be closer to his wife. 
• Respondent then rented accommodation in Kanpur Nagar to facilitate cohabitation with his wife. 
• Despite these efforts, the Appellant allegedly preferred to stay at her parental home in Kanpur Nagar, only intermittently staying with her husband. 
• The couple had a daughter born on 5th September, 2002. 
• Respondent claims that Appellant finally left the marital home in January 2003. 
• Appellant filed proceedings under Section 125 of the Criminal Procedure Code, resulting in a monthly maintenance award of Rs. 6,000. 
• Respondent filed for divorce on 1st August 2006. 
• On 14th November 2006, approximately three months after the divorce petition was filed, Appellant lodged a criminal case (No. 687 of 2006) against Respondent and his family members, alleging dowry demands and cruelty. 
• The criminal case initially resulted in an acquittal, but Appellant appealed the decision and secured a conviction against Respondent and his brother-in-law. 
• Due to the conviction, Respondent was imprisoned for over a month and suspended from his job for two years. 
• Respondent and his brother-in-law were subsequently granted bail by the High Court in a Criminal Revision proceeding. 
• The parties have lived separately for about 21 years as of the court proceedings. 

What were the Court’s Observations? 

• The court noted that the respondent (husband) had made significant efforts to prove desertion by the appellant (wife), which were not effectively controverted during cross-examination. 
• The court found no reason to doubt the trial court's decision to believe the respondent's testimony regarding the appellant's unwillingness to cohabit. 
• While the respondent's allegation of the appellant threatening to file false criminal cases was not proven, the court acknowledged that the appellant's rude conduct and threats towards the respondent were established. 
• The court observed that for six years of marriage, the appellant had not made any complaint regarding dowry demands or cruelty to any authority. 
• The criminal case filed by the appellant was noted to have been lodged three months after the institution of divorce proceedings by the respondent. 
• The court recognized that the respondent's stance on reconciliation had changed after suffering imprisonment and job suspension due to the criminal case pursued by the appellant. 
• Without making a definitive conclusion on the merits of the criminal case (as it was under revision), the court found that the critical element of cruelty was present in this case's circumstances. 
• The court observed that desertion over a long period in a young marriage, coupled with harsh words and a lack of effort to cohabit, constituted grounds for dissolution of marriage. 
• The filing of a criminal case alleging dowry demands after the institution of divorce proceedings, and its pursuit through appeal to secure a conviction, was seen by the court as indicative of an irretrievably broken marriage. 
• The court held that the long separation of 21 years, combined with the other circumstances of the case, did not warrant interference with the lower court's order of dissolution. 

What is Judicial Separation Under the Hindu Marriage Act, 1955? 

• About  
  • The husband or the wife can seek for the Judicial separation under Section 10 of the Hindu marriage Act 1955. 
  • The Separation can be claimed by filing the petition in the competent court for judicial separation. 
  • The grounds for judicial separation grounds are 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). 
  • These grounds are the same as those on which a petition for divorce might have been presented. 
  • Once the court passed the separation order, the spouses are no longer bound to have cohabitation, and both can live separately. 
• Eligibility to File for Judicial Separation: 
  • Either party to a marriage may file a petition for judicial separation.  
  • This right applies regardless of whether the marriage was solemnized before or after the commencement of the Hindu Marriage Act, 1955. 
• Legal Effect of Decree:  
  • Once a decree for judicial separation is passed, the petitioner is no longer obligated to cohabit with the respondent.  
  • The marriage remains legally intact, but the parties are permitted to live separately. 
• Rescission of Decree: 
  • Either party to the marriage may apply for rescission of the decree of judicial separation. 
  • The application for rescission must be made by petition to the court. 
• Court's Power to Rescind:  
  • The court has the discretion to rescind the decree of judicial separation. 
  • Before rescinding, the court must be satisfied of the truth of the statements made in the petition for rescission.  
  • The court may rescind the decree if it considers it just and reasonable to do so. 
• Implications of Rescission:  
  • If the decree is rescinded, the legal obligation to cohabit is reinstated.  
  • The parties return to the status of a married couple without legal separation. 
• Procedural Aspects:  
  • The petition for judicial separation must be presented to a competent court of jurisdiction.  
  • The petition for rescission must follow the prescribed format and procedures as per the Act and relevant rules. 
• Time Period:  
  • There is no specified timeframe within which a petition for rescission must be filed.  
  • Parties can seek rescission at any time after the decree of judicial separation has been passed. 
• Burden of Proof:  
  • The burden of proving the grounds for judicial separation lies with the petitioner.  
  • For rescission, the burden lies with the party seeking to rescind the decree to satisfy the court of the truth of their statements and the justness of their request. 

What is Divorce Under the Hindu Marriage Act, 1955? 

• Applicability:  
  • Any marriage solemnized before or after the commencement of this Act may be dissolved by divorce. 
• Petitioner:  
  • Either the husband or the wife may present a petition for divorce. 
• Common Grounds for Divorce (for both husband and wife):  
  • Adultery: Voluntary sexual intercourse with any person other than the spouse after marriage.  
  • Cruelty: Treating the petitioner with cruelty after marriage.  
  • Desertion: Deserting the petitioner for a continuous period of not less than two years immediately preceding the petition. 
  • Conversion: Ceasing to be a Hindu by converting to another religion.  
  • Mental Disorder: Incurable unsoundness of mind or continuous/intermittent mental disorder making it unreasonable to expect the petitioner to live with the respondent.  
  • Venereal Disease: Suffering from a communicable form of venereal disease. 
  • Renunciation: Renouncing the world by entering any religious order.  
  • Presumption of Death: Not being heard of as alive for seven years or more. 
• Additional Grounds Based on Previous Decrees:  
  • Non-resumption of cohabitation for one year or more after a decree of judicial separation. 
  • Non-restitution of conjugal rights for one year or more after a decree for restitution of conjugal rights. 

Additional Grounds for Wife:

• Husband's bigamy (for marriages before the Act's commencement).  
• Husband's guilt of rape, sodomy, or bestiality since the marriage.  
• Non-resumption of cohabitation for one year or more after a maintenance decree/order.  
• Repudiation of marriage solemnized before the wife turned 15, if repudiated between ages 15-18. 

Difference between Divorce and Judicial Separation