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Criminal Law
Physical Presence Not Mandatory in Proceedings under DV Act
24-Feb-2025
Source: Supreme Court
Why in News?
A bench of Justice Pankaj Mithal and Justice Sandeep Mehta held that physical presence is not important in the case of domestic violence act proceedings.
- Recently, the Supreme Court held in the matter of Vishal Shah V. Monalisha Gupta & Ors (2025).
What was the Background of the Vishal Shah v. Monalisha Gupta & Ors Case?
- Vishal Shah (appellant) and Monalisha Gupta (defendant) got married on 19th February 2018, following Hindu customs and ceremonies.
- In March 2018, the couple moved to the United States, where the appellant had been working as a Software Engineer since 2014.
- The marriage faced problems almost immediately. On 23rd March 2018, appellant reported an incident of domestic abuse to local US police, showing visible injuries on his face. He requested only a warning be given to his wife.
- On 2nd April 2018, another incident occurred where Monalisha allegedly scratched appellant’s face, causing significant injuries. This led to her being charged with second-degree assault in the US.
- After only 80 days of marriage, the couple returned to India due to their differences. When it was time to return to the US, the defendant refused to go back with the appellant.
- The appellant returned alone to the USA. The couple has had no children.
- Between 2018 and 2020, the defendant lived in the same house as appellant's mother, Gayatri Shah.
- On 14th September 2020, Gayatri Shah left her own house to live with her daughter, claiming she was forced to leave due to physical and mental torture by the defendant.
- Appellant's passport was impounded by Indian authorities on 3rd October 2018, due to various cases filed against him.
- Currently, the defendant works as a Research Specialist at PwC in Kolkata, earning ₹50,000 per month. While Vishal was earning ₹8 lakhs per month in 2018, he claims to be currently unemployed.
- Multiple cases have been filed by both parties against each other and their family members across different courts in Muzaffarpur (Bihar), Howrah (West Bengal), and the United States.
- Trial Court (Judicial Magistrate, Howrah):
- The court noted that the appellant’s passport had been impounded on October 3, 2018, by the Government of India.
- When appellant challenged the impounding of his passport through a Writ Petition it was dismissed by the High Court.
- Despite knowing about the impounded passport, the trial court ordered initiation of extradition proceedings against the appellant for his non-appearance in the suit filed under Section 26 of the Protection of Women & Domestic Violence Act, 2005 (DV Act).
- High Court of Calcutta
- The Calcutta High Court dismissed the appellant’s Criminal Revision through a non-speaking order.
- The High Court simply stated that no grounds for interference were made out, without examining the merits or providing detailed reasoning.
- Aggrieved by the same the present appeal has been filed before the Supreme Court.
What were the Court’s Observations?
- The Supreme Court observed that:
- On Trial Court's Order:
- The trial court grossly erred in requiring the appellant’s personal presence as DV Act proceedings are quasi-criminal in nature such proceedings have no penal consequences except when there is a breach of a protection order, under Section 31 of the DV Act.
- The extradition order was untenable since the appellant’s non-appearance was due to his impounded passport.
- The trial court failed to consider circumstances beyond the appellant's control.
- On High Court's Order:
- The High Court should have examined the case record more thoroughly.
- A reasoned decision addressing the merits was expected rather than a non-speaking order.
- On Marriage Breakdown:
- The marriage never really took off, with only 80 days of cohabitation.
- Multiple litigations filed by both parties showed their vindictive attitudes.
- No meaningful marital relationship developed between the parties.
- The long separation and failed reconciliation attempts proved an irretrievable breakdown.
- On Passport Impounding:
- The Court called it "ex-facie illegal" as it violated principles of natural justice.
- Further, the Court held that no opportunity was given to the appellant to be heard before impounding.
- Additionally, it was held that mere filing of cases is not sufficient ground for impounding a passport.
- On Permanent Alimony other factors to be considered as:
- Standard of living during marriage.
- Period of separation.
- Financial status of both parties.
- Determined ₹25 lakhs as fair and reasonable settlement.
- On Trial Court's Order:
- The Supreme Court ultimately found this to be a classic case of irretrievable breakdown of marriage warranting the exercise of powers under Article 142(1) of the Constitution of India.
What is Breach of Protection Order?
- Section 31 of the DV Act states that a breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act.
- Shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
- The offence under sub-section (1) of Section 31 shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.
- While framing charges under sub-section (1), the Magistrates may also frame charges under section 498A of the Indian Penal Code, 1860 or any other provision of that Code or the Dowry Prohibition Act, 1961, as the case may be, if the facts disclose the commission of an offence under those provisions.
Civil Law
Difference Between Legal Mortgage and Equitable Mortgage
24-Feb-2025
Source: Supreme Court
Why in News?
A bench of Justice JB Pardiwala and Justice R Mahadevan held that that the mortgage created by deposit of unregistered agreement to sell will not prevail over the mortgage created by deposit of title deeds.
- The Supreme Court held this in the case of The Cosmos Co-operative Bank Ltd v. Central Bank of India (2025).
What was the Background of The Cosmos Co-operative Bank Ltd v. Central Bank of India Case?
- In the present facts there were two banks (mortgages) which granted loans to borrowers for flat purchases.
- The Central Bank of India (Respondent No. 1) granted a loan based on an unregistered agreement of sale, deposited as security (equitable mortgage).
- Cosmos Co-operative Bank (Appellant) also granted a loan with share certificates (title deeds) as security (legal mortgage).
- The High Court in this case gave priority to the equitable mortgage over the legal mortgage.
- The Appellant challenged the decision on the following grounds:
- An equitable mortgage should not be prioritized over a legal mortgage, as legal mortgages hold superior rights.
- An unregistered agreement of sale does not create a valid mortgage because it does not transfer title, making the mortgage invalid.
- The Supreme Court thus, had to consider whether the High Court erred in prioritizing the equitable mortgage only based on its earlier creation.
What were the Court’s Observations?
- The Supreme Court made the following observations:
- Legal Mortgage Prevails Over Equitable Mortgage: The Supreme Court ruled that a mortgage created by the deposit of an unregistered agreement to sell (equitable mortgage) is subservient to a mortgage created by the deposit of title deeds (legal mortgage).
- No Interest Created by Agreement to Sell: Citing Section 54 of the Transfer of Property Act, 1882 (TPA), the Supreme Court emphasized that an agreement to sell does not create any interest or charge on a property.
- Equitable Mortgage is Only a Right in Personam: The Court held that an equitable mortgage binds only the parties involved and does not create an enforceable right against third parties or subsequent mortgagees.
- Application of Section 78 of the TPA: The Respondent bank (Central Bank of India) failed to issue public notice or create a document for the equitable mortgage, leading to its postponement in priority.
- Legal Mortgage Creates a Direct Charge: Unlike an equitable mortgage, a legal mortgage creates a direct charge on the property and transfers a proprietary interest to the lender, making it enforceable in rem.
- Deposit of Part-Deeds Insufficient for Mortgage: Unlike English law, under Indian law (Section 58(e) of TPA, 1882), an equitable mortgage requires full title deeds unless unavailable despite best efforts.
- Final Ruling: The legal mortgage created by Cosmos Co-operative Bank (Appellant) via deposit of share certificates took priority, and the High Court’s decision favoring the equitable mortgage was set aside. The appeal was allowed in favor of the Appellant.
What is the Difference Between Legal Mortgage and Equitable Mortgage?
- Equitable Mortgage:
- It is created when there is an intention to mortgage but no legal charge is created on the property.
- It is formed by the deposit of incomplete title deeds or documents like an agreement to sell.
- It operates in personam, meaning it only binds the parties involved and not third parties.
- No actual transfer of title or ownership, only documents are retained by the lender.
- Priority rule: Earlier equitable mortgages may have priority over later ones but not over a legal mortgage.
- Legal Mortgage:
- It is created by a formal mortgage deed or deposit of title deeds under Section 58(f) of the Transfer of Property Act, 1882.
- It creates a charge directly on the property, giving the lender an enforceable right in rem (against the property itself).
- Even if possession or ownership remains with the borrower, the lender retains rights to possession, foreclosure, or sale in case of default.
- It is stronger than an equitable mortgage as it conveys an enforceable proprietary interest.