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Prisoner May Seek For “Specific Purpose,” Such As Infertility Treatment, But Has No Fundamental Right To A Conjugal Relationship As A Course: Madras High Court

In a pertinent judgment, the Madras High Court has examined the scope of treating conjugal rights of a convict/ prisoner as a fundamental right, and in case there is such a right, whether it would be unconditional or subject to other restrictions. The matter was between Meharaj v. The State Rep By Its Secretary & Ors. (H.C.P. (MD) No.365 of 2018) and was presided over by Hon’ble Acting Chief Justice Munishwar Nath Bhandari, Justice P.D. Audikesavalu and Justice Pushpa Sathyanarayana.

FACTS OF THE CASE:

The petitioner wife and the detenue husband, who is serving a life sentence, did not have any children out of their marriage. A second writ petition was filed by the wife seeking a grant of six weeks’ leave for engaging in conjugal relations while receiving infertility treatment, even though the former was given ordinary leave of two weeks by the Division Bench for availing of infertility treatment.

ISSUES TAKEN:

  1. i) whether the denial of conjugal rights to a convicted prisoner would be violative of Article 21 and, 
  2. ii) whether the state can be directed to consider the request made by the convict for emergency leave or ordinary leave for the said purpose.

JUDGMENT:

The larger bench of Madras High Court observed that infertility treatment fits inside the concept of “exceptional reasons” as envisioned in the Act, and that detainees and convicts may claim this privilege on the basis of a “extraordinary reason” According to the bench, the petitioner’s request for infertility treatment while the offender and his or her spouse are childless constitutes a “exceptional cause” under Rule 20 (vii) of the 1982 Rules. The court did clarify, however, that the couple’s request for a leave of absence for infertility treatment would not have qualified as a “exceptional cause” if they already had a child together. The court further stated that the same “exceptional cause” cannot be used again by a criminal or prisoner to request leave.

The Hon’ble court on matter pertaining to violation of Fundamental Right under Article 21 observed that 

“The denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India.”

The court noted that in the instant matter, the petitioner’s first petition was allowed with grant of leave for two weeks for undergoing infertility treatment and immediately after availing it, the second petition was filed in continuity.

The whole bench ruled that in the absence of regulations or legislation, neither the government nor any other authority has the authority to give parole. 

The court concluded after reviewing the Yesu verdict that the conclusions in that case did not directly address the authority of authorities to grant a convict leave under the 1982 Rules by suspending their sentence for the leave time. The registrar was instructed by the bench to bring the case before the roster bench for decision after responding to both queries in the manner described above.

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JUDGMENT REVIEWED BY ADITI PRIYADARSHI

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Writ Petition Against Show Cause Notice Issued U/S 148A(b) Of Income Tax Act Not Maintainable: Madhya Pradesh High Court

The Madhya Pradesh High Court observed that a writ petition filed against a show cause notice issued by the authorities under Section 148A(b) of the Income Tax Act is not maintainable, this was observed in the case of HARINDER SINGH BEDI VERSUS UNION OF INDIA [WRIT PETITION No. 22734 of 2022], the case was presided over by Chief Justice Ravi Malimath and Justice Vishal Mishra

 

FACTS OF THE CASE

The Petitioner/Assessee had filed a writ petition challenging the notice issued to him under the unamended and omitted Section 148 of the Act, the order was passed under Section 148A(d) and the consequential notice passed under Section 148 of the Act against him.
A preliminary objection has been raised by the respondent No.1 with respect to maintainability of the writ petition against a show cause notice as a writ petition under Article 226 of the Constitution of India is not maintainable against a show cause notice.

The Petition has been filed assailing notice passed Section 148(A)(d) of Income Tax Act, 1961 and notice dated 19.07.2022 (Annexure P/12) issued under Section 148 of the Income Tax Act, 1961 passed by the respondents/authorities on the ground that the same are in violation of the judgment dated 04.05.2022 passed by Hon’ble Supreme Court in the case of Union of India and others vs. Ashish Agarwal.

It is argued by learned counsel appearing for the respondent No.1 that earlier assessment notice issued under Section 148 of the Income Tax Act, 1961 was subjected to challenge before the Hon’ble Supreme Court on the ground that the same is bad in law in view of the amendment made in the Finance Act, 2021, which has amended the Income Tax Act by introducing new provisions i.e. Sections 147 to 151 of the Income Tax Act, 1961, It is argued that the Hon’ble Supreme Court has allowed the appeals in part modifying the impugned orders to the extent that the notice issued under Section 148 of the Income Tax Act, 1961 may be deemed to have been issued under Section 148A of the Income Tax Act, 1961 as substituted by the Finance Act, 2021 and construed or treated to be a show cause notice in terms of Section 148 A(b) of the Income Tax Act, 1961 and granted 30 days’ time to the Assessing Officer to provide the respective assessees information and material relied upon by the revenue so that the assessees can reply to the show cause notices within two weeks thereafter. It is contended that in view of the modified directions issued by Hon’ble Supreme Court in the aforesaid case, the authorities have again issued the impugned notices of assessment asking a response within 30 days from the petitioner. As far as contention of the petitioner that impugned orders/notices are 4 without jurisdiction as the same is hit by limitation, a remedy of challenging the same, even the question of limitation is available to the petitioner in terms of Section 246 of the Income Tax Act, 1961, wherein a provision of appeal is provided.

With respect to the argument on limitation raised by the Petitioner, the Respondent authorities submitted that the same could be raised by him by preferring an appeal before them under Section 246 of the Act.

JUDGEMENT OF THE CASE

The Court refrained to interfere in the impugned orders/notices passed by the authorities as the same is issued in pursuance to judgments passed by the Hon’ble Supreme Court. The present petition is held to be not maintainable in view of the law laid down by the Hon’ble Supreme Court in the case of Kunishetty Satyanarayan (supra) and in view of availability of alternative efficacious remedy to the petitioner. 10. Accordingly, the petition is dismissed.

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JUDGEMENT REVIEWED BY VYSHNAVI KRISHNAN.

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If the allotment laws are violated, the TN Housing Board is authorised to begin an eviction: Madras High Court

The Madras High Court has dismissed a writ petition filed by Anna Nagar Club to quash the letter of Tamil Nadu Housing Board (TNHB) demanding rental arrears from it. The matter was between Anna Nagar Club v. The Executive Engineer and Administrative Officer, TNHB (Anna Nagar Division) [WP.No.40742/201] and was presided over by Hon’ble Mr.  Justice S.M. Subramaniam.

FACTS OF THE CASE:
In terms of rental arrears, the club owes a sum equal to Rs. 52,25,960 as of June 2016. For the Club, which comprises seven fields of property in a great position in Anna Nagar, the rent was set at Rs. 20,000 per month. 

The Anna Nagar Club describes itself as a social and cultural organisation established under the Societies Registration Act, has previously requested the TN Housing Board Chairman’s approval to open a permit room or bar on the petitioner-Club premises.
The petitioner claimed that they’ve already paid a rental sum of 20 Lakhs in arrears and the respondent are still asking for rents thereby this writ petition to call for records relating to the matter pertaining and quash the same.

JUDGMENT:

According to Justice S.M. Subramaniam, the Tamil Nadu government owns the Housing Board, hence any loss to the Board would result in a loss of state income. The court ruled that the petitioner club must pay the outstanding rent arrears and that the Housing Board must conduct a study to determine how to adjust rent so that it is in line with the area’s true market rental value.

Additionally, the delinquent petitioner club has been given four weeks to pay up the outstanding rental arrears. If the arrears are not resolved, the Board will have the right to take legal action against the club to recover dues, penalties, and to expel it.

The petition was disposed off. 

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JUDGMENT REVIEWED BY ADITI PRIYADARSHI

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MOTHERLESS MINOR’s CUSTODY GIVEN TO FATHER OVER MATERNAL GRANDPARENTS- MADHYA PRADESH HIGH COURT

The Madhya Pradesh High Court granted custody of minor son to father instead of maternal grandparents, further the HC dismissed an appeal preferred by the maternal grandparents against the family court’s order. This was seen in the case of Anand Kumar and anr. v. Lakhan Jatav [FIRST APPEAL No. 2526 of 2018]. The case was presided over by Chief Justice Ravi Malimath and Justice Anand Pathak.

 

FACTS OF THE CASE

The Respondent had filed for the custody of his minor child, who was living with his maternal grandparents under Section 6 of the Guardian and Wards Act, 1890. He submitted that his wife had went to her parent’s place after their son’s birth, where she had committed suicide and since then the minor child had been living with his grandparents.

It was also claimed that since he is a Govt. Employee, a Constable in Indo-Tibetan Border Police (I.T.B.P.), therefore, he is in a better position to take care of his child and also, he is the natural guardian of the child, therefore, custody be provided to him.

According to the grandparents the Respondent has criminal proceedings pending under Sections 304-B, 498-A, 506 and 34 of IPC and he may be convicted therein. Respondent’s father consumes liquor and his mother is differently abled. Coupled with this fact, respondent is in transferable job, therefore, he cannot look after his child properly. So far as financial condition is concerned, appellant stated that he is a Contractor and have sufficient financial resources to bring him up.

 

JUGEMENT OF THE CASE

In the case the court observed that the respondent / father is working as Constable in I.T.B.P., a paramilitary force and earning regular salary. Regular source of income guarantees a continuous flow of money, modest though, but certainly sufficient to look after the interest of child. Secondly, being a member of Indian Paramilitary Force, he leads a disciplined life and therefore, discipline would inculcate into the family set up and would help the minor to grow in disciplined manner which if compared to the life likely to be led with maternal grandparents then the difference would appear clearly.

Regarding the pendency of the criminal case against the respondent, the Court noted that the prosecution could not prove the case beyond reasonable doubt and therefore, the acquittal was recorded in favour of the respondent. Consequently, the appeal was dismissed.

 

 

 

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JUDGEMENT REVIEWED BY VYSHNAVI KRISHNAN.

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Seeking for mutation/transfer of Municipal Assessment name of the Applicant shall be completed within the time frame. Andhra Pradesh High Court.  

Andhra Pradesh HC Decided on 29th July, 2022, to dispose of the application of the Applicant in accordance with law within a period of six weeks from the date of receipt of this order in the matter of N.S. Shaiksha Vali Versus State of Andhra Pradesh Writ Petition No. 23162 of 2022, decided by the Hon’ble Sri Justice R Raghunandan Rao.

FACTS OF THE CASE

In the High Court of Andhra Pradesh, It is submitted that the father of the petitioner was the owner of House No. 21/515-4, Arts College Road, Adoni, Kurnool District. The name of the father had been entered in the municipal records as the owner of this house in Municipal Assessment No. 1015020646. The petitioner states that the father of the petitioner had bequeathed this property on the petitioner by way of a registered Will dated 23.08.2018 registered as document No. 40/2018. The petitioner is said to have filed an application, on the basis of the past Will, vide application No. 09011-2021-FN dated 19.11.2021 to the 3rd respondent seeking for mutation/transfer of Municipal Assessment No. 1015020646 in the name of the petitioner.

The petitioner has approached this Court being aggrieved by the inaction of the 3rd respondent in considering his request and application, despite the fact that the petitioner had paid the necessary mutation fee of Rs. 13,564/- on 19.11.2021 itself and despite the fact that more than 1½ year have lapsed since such an application had been made.

Heard Sri. O. Uday Kumar, learned counsel for the petitioner and Sri. N. Ranga Reddy, learned Standing Counsel appearing for the 3rd respondent.

 JUDGEMENT

In view of the non-disposal of the application of the petitioner for more than 1 year, 8 months, it would be appropriate to dispose of this Writ Petition with a direction to the 3rd respondent to dispose of the application of the petitioner dated 19.11.2021 bearing No. 09011-2021-FN in accordance with law within a period of six weeks from the date of receipt of this order.

Accordingly, this Writ Petition is disposed of. There shall be no order as to costs. As a sequel, interlocutory applications pending, if any, shall stand closed.

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JUDGEMENT REVIEWED BY YAKSHU JINDAL.

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