0

Schizophrenia A Ground For Divorce: In The High Court Of Judicature At Bombay Nagpur Bench, Nagpur.

The Appellant filed for divorce against his wife because she was diagnosed with an incurable schizophrenic disease. The learned judge G. A. SANAP, J, dismissed the appeal due to lack of substance from the Appellant’s side. The learned judge passed the judgment on 14.01.2022 in the Family Court Appeal No. 95 OF 2014 in DANESH MADHUKARRAO PAHADE V. SMITA DANESH PAHADE.

Facts of the case – On the 4th of February, 1991, the Appellant and the respondent married. The respondent moved in with the Appellant after his marriage. On the 06th of August 1992, the couple had their first child, Swaroopa. The Appellant claims that the respondent has never acted or behaved normally from the commencement of their relationship. The respondent had severe signs of mental illness, which manifested itself in unsettling acts of violence. The respondent and the Appellant’s family used to be always at differences. The respondent’s behavior disrupted the Appellant’s home’s tranquil atmosphere. According to the Appellant, the respondent progressively admitted that she had a mental illness. Mr. Kishor Gojalwar, their family doctor, initially treated her. Dr. Sudhir Bhave, a psychiatrist, was recommended to her by her family doctor. According to Dr. Sudhir Bhave, the responder was depressed. He wrote the prescriptions. The responder took medications for a while but declined to see Dr. Bhave and ceased taking medications.

In 1995, the responder traveled to her parent’s house and stayed there. The Appellant’s daughter was living with him. According to the Appellant, the respondent oppressed him and his family members. According to the Appellant, the respondent abandoned him for more than two years without explaining before filing the petition. The responder has an incurable mental disorder. The Appellant contends that he will be unable to maintain his marriage to the respondent in the future. He petitioned for divorce on the grounds stated above. The claim was disputed by the respondent, who provided a written statement. The respondent rejected the substance of the Appellant’s complaints. According to the respondent, the Appellant and his family members allegedly tormented and abused the respondent in her marital residence. The Appellant and his family drove the respondent out of the home in 1994. She was staying with her parents. The responder has been performing community service. The respondent claims that the Appellant took unfair advantage of the situation to custody the girl. The respondent was forced to retain her daughter in possession of her mother-in-law because she was working.

She had filed the petition after being refused permission to meet her daughter. The petition was denied. She has expressed her willingness to live with and cohabit with the Appellant. After 1994, the Appellant and respondent agreed that they would live apart but that the respondent would not be denied access to the little daughter. The Appellant and respondent settled their minor disagreements in February 2005 and began cohabiting. They decided to share a home for two years. The respondent has expressly disputed that they had cohabited for two years before filing the petition.

Mrs. Padma Chandekar, the learned Advocate for the Appellant, stated that the Appellant’s oral and documentary evidence is coherent, credible, and adequate to accept his case. The learned Advocate has relied on the rulings in Uttara Praveen Thool v. Praveen Bhanudas Thool and Smt. Santana Banerjee v. Sachindra Nath Banerjee to substantiate this position. In these cases, it is concluded that there must be forgiveness and restoration to establish condonation under Section 23 (1) (b) of the Hindu Marriage Act, 1955 and that the stated act must be a bilateral act of both spouses rather than a unilateral act of one of the parties. It is believed that occasional cohabitation to heal a relationship does not constitute a condonation of cruelty. The learned Advocate went on to say that the medical evidence was adequate to show that the respondent was suffering from an incurable Schizophrenia disorder. The three grounds asserted in the divorce case have been proven, according to the learned Advocate for the Appellant, and hence the appeal ought to be accepted.

Shri U. M. Aurangabadkar, the learned Advocate for the respondent, contended that the grounds cited by the Appellant for obtaining a divorce order had not been shown in this instance. The learned Advocate said that the basis of desertion could not be recognized because the petition was filed by the Appellant and respondent in 2005, within two years after establishing the cohabitation. According to the learned Advocate, the parties lived together. They cohabited for two years in 2005 as part of a negotiated settlement, and so the abovementioned act would represent the condonation of the grounds of cruelty and desertion. According to the learned Advocate, in this matter, the Appellant has failed to substantiate the grounds of cruelty, abandonment, and mental instability related to schizophrenia. The learned Advocate has relied on judgments in the cases of Ram Narain Gupta v. Smt. Rameshwari Gupta, Naveen Kohli v. Neelu Kohli, and Kollam Chandra Sekhar v. Kollam Padma Latha establish this contention.

The learned judge declared that the Appellant’s evidence was insufficient to sustain the desertion claim. It is crucial to note at this point that the Appellant and respondent reconciled their differences in 2005 and began living together. As a result, the legal need for separation is not met in this situation. The second critical factor is animus deserendi. There must be clear evidence to prove that the marriage is irreparably destroyed and that the parties have no desire to live together or cohabit. The respondent, in this case, is prepared to live with the Appellant. There is solely Appellant’s testimony on the issue of desertion. He may have investigated his family members to substantiate his findings on the material elements. There is no conceivable rationale for not questioning a family member as a witness in this scenario. It is worth noting that, now that the daughter has reached the age of majority, she would have vouched for both the Appellant’s and the respondent’s actions.

As a result, in the opinion of the learned judges, the basis of desertion cannot be recognized, first, since there is no cause of action, and second, because there is no definite and persuasive proof.

Click here to view the Judgement

Reviewed by Rangasree. 

0

Writ petition against SEBI dismissed for being  premature  and considered beyond the writ jurisdiction – Madras high court

Writ petition against SEBI dismissed for being  premature  and considered beyond the writ jurisdiction – Madras high court

A petition for issuance of a writ of Mandamus was filed under article 226 of the constitution of India to direct SEBI to exercise its powers for necessary action against the promoter was heard by a two-judge bench of THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM AND THE HONOURABLE MRS.JUSTICE S.ANANTHI in the case of T.Palpandi versus The Securities and Exchange Board of India and Ors W.P.(MD) No.9667 of 2019 and WMP(MD). No.11129 of 2019

The petitioner has filed to direct the SEBI to use its powers and take necessary actions on the personnel of Commodity Broking Companies, which have been declared ‘Not fit and Proper’ and to declare other companies regulated under SEBI as ‘Not fit and Proper Person’ in the interest of the market participants. this was the second petition in the same matter the earlier writ petition WP(MD)No.4947 of 2018 was disposed of. In this petition, the petitioner has named certain persons who according to the petitioner are errant brokers and alleges that SEBI has been selective in acting and therefore, seeks for appropriate direction to consider the representation. The SEBI has filed a counter-affidavit and mentioned various levels of investigation.

The court decides that SEBI is a Regulatory Authority and is functioning under the provisions of the Securities and Exchange Board of India Act, 1992  the powers of authority is clearly defined hence this court cannot issue any direction or any order which is investigated by the authority and appellants are under the appellate board.

Therefore the main question is whether a Writ of Mandamus can be issued to SEBI to take action against the five individuals in the matter.   The court is of the view that these areas are well beyond the scope of writ jurisdiction of this Court. So, the petitioner has to necessarily wait for the decision of the Appellate Board before whom the investigation is going on. this court decides the writ petition as premature and the petition stands closed.

Click here to read the judgment

judgment reviewed by Naveen Sharma

0

Judgment without discussing the oral evidence or the evidence by way of affidavit is extremely cryptic: High Court of Delhi

The Trial Court ought to discuss the evidence on record in order to arrive at the conclusion as. Judgment passed by the Trial Court would extremely cryptic if there is no analysis of the evidence adduced by the parties at all. These were stated by High Court of Delhi, consisting Justice Prathiba M. Singh in the case of Ram Kishan vs. Satya Vir Singh [C.R.P. 51/2020] on 12.01.2022.

The facts of the case are that the Petitioner and Respondent No.2 are brothers and sons of Late Shri Maithali Ram and Late Smt. Devki Rani. The case of the Petitioner is that the Respondent No.1 – Late Shri Satyavir Singh was the tenant in the half portion of the property (hereinafter “suit property”), which is a residential property. Initially, vide order dated 23rd March, 2012, the Trial Court granted leave to defend to the tenant. Thereafter, the matter proceeded before the Trial Court. A detailed evidence was led on behalf of both the parties. Vide the final judgment, the Trial Court dismissed the petition on two primary grounds. First, the suit property identified by the Petitioner was located in Shakarpur, whereas Shakarpur and Mandawali Fazalpur are two different localities. Hence, the Petitioner has failed to prove the ownership of the suit property. Secondly, the Trial Court held that there is no landlord-tenant relationship between the parties.

The Counsel for the Petitioner submitted that the identity of the property was never in question in these proceedings. Reliance was placed upon a reply given by the Respondent No.1 to the legal notice issued by the Petitioner, wherein the Respondent No.1 clearly claimed ownership in the property located in Shakarpur, Shahdara, Delhi. It was further submitted that Respondent No.1 never challenged the identity of the property in the said reply. Thus, the Court could not have held that these are two separate properties, and that the ownership thereof has not been proved by the Petitioner. He further submits that the Trial Court has clearly gone beyond the mandate of Section 14(1)(e) of the DRC Act itself.

The Counsel for the Respondents submitted that the documents which have been placed on record including the General Power of Attorney (GPA), describes the seller Smt. Maya Devi from whom the Petitioner’s parents purchased the suit property as a resident of property. However, he submitted that the sale is of the property in Mandawali Fazalpur, Delhi. It was therefore, submitted that even the sale deed shows that the property which was being sold is at Mandawali Fazalpur, and not Shakarpur.

The High Court of Delhi held that the impugned judgment passed by the Trial Court is extremely cryptic as there is no analysis of the evidence adduced by the parties at all. This Court is of the opinion that if there was a dispute as to the identity of the suit property, the Trial Court ought to have discussed the evidence on record in order to arrive at the conclusion as to whether the two properties are the same, or not. Secondly, the Trial Court also arrived at the finding that there is no document to prove the existence of landlord-tenant relationship between the parties. This finding, as well, has been recorded in merely five lines of the impugned judgment without discussing the oral evidence or the evidence by way of affidavit filed by the parties. The property mentioned above can be easily described as B-7, Aruna Park, Shakarpur. It cannot, therefore, be conclusively stated that the identity of these two properties i.e., the suit property and the property sold as per the sale deed are different. The Court stated that, it has to be kept in mind that prior to urbanization of colonies in Delhi, no proper plot numbers were allotted. Thus, the identity of the property does not appear to have been in issue in the eviction petition. These documents ought to be examined in detail by the Trial Court, in order to arrive at a finding as to whether the Respondent No.1 has any right to retain the said property as also whether there is in fact any dispute as to the identity of the property at all. If there is no such dispute relating to the identity of the suit property, the Trial Court shall proceed in the matter, in accordance with law, under Section 14(1)(e) of the DRC Act. The impugned order was accordingly set aside. The Court direct the Trial Court to hear the final arguments once again on the basis of the pleadings and the evidence on record, and decide the matter, within six months.

Judgment reviewed by Shristi Suman. Read Judgment

0

Only High Courts have the power to take cognizance in respect of contempt of subordinate courts under Contempt of Courts Act, 1971: High Court of Delhi

According to Sections 10 and 15 of the Contempt of Courts Act, 1971, only High Courts have the power to take cognizance in respect of contempt of courts subordinate to it. Subordinate courts cannot assume jurisdiction and issue show cause notice as to why contempt proceedings has not been initiated. A subordinate court can only make a reference to the High Court for initiating contempt proceedings. These were stated by High Court of Delhi, consisting Justice Amit Bansal in the case of ICICI Bank Limited vs. Rashmi Sharma [CM(M) 36/2022] on 12.01.2022.

The facts of the case are that the defendant approached the plaintiff for grant of a car loan cum hypothecation scheme of Rs.5,01,000 for the purchase of a vehicle. The loan documents were executed and the loan was duly sanctioned to the defendant. The defendant defaulted in payments of monthly instalments towards repayment of the loan and consequently. The plaintiff filed a commercial suit for recovery against the defendant. The summons were issued in the commercial suit. In terms of the aforesaid order passed by the Commercial Court, the plaintiff took steps for affecting service on the defendant through ordinary process as well as speed post by filing process fee and sealed covers containing the summons and paper book respectively. In addition to the service through the above modes, the plaintiff also sent the photograph of the summons issued by the Commercial Court to the defendant by means of WhatsApp since the plaintiff had the phone number of the defendant provided in the loan documents. When the matter came up before the Commercial Court it was noted that the defendant had received a private notice of appearance through WhatsApp and had not received any notice/summons from the Court. On the basis of the above, the Commercial Court passed the order that the act of plaintiff amounts to overreaching the judicial system or running a parallel system with the judicial system.

The Counsel for the plaintiff submitted that the plaintiff had taken steps for the ordinary service as well as service through speed post upon the defendant. The process fee was duly filed in terms of which the summons were prepared for ordinary service by the process server and summons in respect of service through speed post were handed over to the plaintiff to be sent through speed post. It was submitted that even though steps were not taken by the plaintiff for service through email, but the photograph of the summons were duly sent to the defendant through WhatsApp and photocopy of the summons were sent through WhatsApp only to ensure presence of defendants before the Commercial Court on the next date of hearing. It was lastly contended, that even if the photograph of the summons were sent to the defendant through WhatsApp, no case of contempt has been made out.

None appeared on behalf of the respondent despite advance service.

The High Court of Delhi held that just because the photograph of the summons were sent by the plaintiff to the defendant through WhatsApp, it cannot amount to overreaching the judicial system or running a parallel system with the judicial system. The aforesaid observations were completely uncalled for. It was observed that the plaintiff had duly filed process fee and taken steps for issuance of regular summons to the defendant through the ordinary process as well as speed post. The photograph of the summons were sent through WhatsApp only as an additional measure so as to ensure the appearance of the defendant before the Commercial Court. There is nothing malafide in the same and it cannot be said that that was an attempt to overreach the judicial proceedings. Therefore, Commercial Court has completely gone overboard in issuing notice for initiating contempt proceedings. In view of Sections 10 and 15 of the Contempt of Courts Act, 1971, only High Courts have the power to take cognizance in respect of contempt of courts subordinate to it. Subordinate courts cannot assume jurisdiction and issue show cause notice as to why contempt proceedings have not been initiated. A subordinate court can only make a reference to the High Court for initiating contempt proceedings. Therefore, the impugned order is clearly in excess of the jurisdiction vested with the Commercial Court. Accordingly, the petition was allowed and the impugned order was set aside.

Judgment reviewed by Shristi Suman. Read Judgment

0

Without reasonable cause extension of leave shall not be granted and application for reinstatement maybe rejected: Delhi High Court

The issue was whether a retiring officer who has been taking casual leaves to take care of his mother without showing cause had exceeded his leave period, then the post of such officer be canceled or not. This was decided in the case of Rajesh Kumar Kushram v. Union of India, in W.P.(C) No. 14312/2021, on 15th December, 2021, by Hon’ble Mr. Justice Manmohan & Hon’ble Mr. Justice Navin Chawla.

The facts of the case are that this writ petition has been filed by the petitioner seeking to quash the order dated 4th March, 2021 passed by Deputy Inspector General, whereby the representation of the petitioner seeking to reinstate him in service was rejected. The petitioner also seeks a direction to the respondents to reinstate the petitioner in 26th Battalion as a Constable.

The counsel for the petitioner contends that the Petitioner sought casual leaves on account of illness of his ailing mother from 5th February, 2018 to 25th February, 2018 and his leaves were sanctioned with a direction to resume duty from 25th February, 2018. The mother of the petitioner was suffering from hypertension and hemiparesis and on 15th February, 2018, she fell seriously ill. the Petitioner was hopeful that the condition of his mother would improve and he would be able to return to the battalion within time. However, since the condition of the Petitioner’s mother became worse and she was advised complete bed rest by the doctors, the Petitioner could not return to his unit.

The Counsel for the respondent contends that the Petitioner’s unit sent multiple letters to the Petitioner dated 20th March 2018, 27th March 2018 and 05th April 2018, directing the Petitioner to report back and resume duty. on 25th April, 2018, a one-man Court of Inquiry was ordered wherein it was found that the Petitioner had overstayed his leave without sufficient cause and, therefore, the Respondent decided to take action against the Petitioner in accordance with BSF Act and Rules. He states that the Petitioner in response to the Show Cause Notice dated 16th July 2018, intimated that he could not resume his duties due to compelling domestic problems.

The Deputy Inspector General in the impugned order has given clear reasons for rejecting the representation of the petitioner:

“5. That the Application for reinstated in service has been submitted by the Applicant after a delay more than of 02 years 02 months. But the competent Officer has seriously and sympathetically considered the same. On examining all the aspects of the case, it has been found that the Battalion has taken the entire action of his dismissal, after granting full opportunity to him and as per Rules. In the Application submitted by the Applicant for his reinstatement, no concrete reason/cause has been found, which can justify the continuous absence of the Applicant from duty without any authority/ leave.”

The Court after contemplating the facts of the case has held that, since the petitioner had taken casual leaves in February, 2018 for the purpose of resigning from service. Subsequently, the petitioner had remained absent without authorization from 26th February, 2018 to 28th September, 2018 (215 days). He had not even sought extension of his leaves. Also, since the petitioner had failed to furnish replies to the Show Cause Notice as well as multiple letters sent to the petitioner by the respondents. The Court had decided that there are no merits in the case and had dismissed the petition.

Click here to view Judgement

Reviewed by Revanth

1 2 3 669
Open chat