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The Rajasthan High Court reiterates that DNA paternity tests cannot be performed on a regular basis and must only be done under special circumstances.

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TITLE: X versus Y

Decided on 26/05/2023

2023/RJJD/016587

Coram: HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Facts of the case:

The parties got married in 2010 and the child was born in 2018. The wife had left her husband’s house in 2019. Now, the husband has filed an application under Section 13 of the Hindu Marriage Act, 1955 for divorce on the grounds of cruelty. After the release of the Deoxyribonucleic Acid (‘DNA’) Paternity Test Report which revealed that the husband is not the father of the child, he wanted to amend the application, claiming it to be the development in the case before the Family Court. But it was rejected by the Family Court. Thus, the husband filed the present petition.

During the pendency of the divorce application, the petitioner (husband) preferred an application therein, under Order 6 Rule 17 read with Section 151 Code of Civil Procedure, 1908 (in short, ‘CPC’) seeking to add para nos. 12A and 12B as well as ground A1 in the pleading of the application under Section 13 of the Act of 1955, on the basis of the Deoxyribonucleic Acid (DNA) Paternity Test Report dated 11.09.2019 (as annexed with the said application), of the child (son), while claiming the same to be a subsequent development in the case before the learned Family Court.

Judgement:

This Court has to keep into paramount consideration the mental and physical health of a child and the aspects adversely affecting it.

This case has to be seen through the prism of the child and not through the prism of the cantankerously fighting parents. This Court is of the firm opinion that the child cannot be used as a pawn in a divorce litigation, where either of the parents want to get rid of the spouse, while sacrificing the crucial rights of the child to a dignified parenthood, which shall not only cause an unfathomable misery upon the rights of the child, but also create a permanent dent in his existence/Psyche.

This Court also finds that the DNA Test is invading upon the rights of a child, which may range from affecting his property rights, right to lead a dignified life, right to privacy and right to have the confidence and happiness of being showered with love and affection by both parents.

Thus, in light of the above observations and looking into the factual matrix of the present case, this Court does not find it a fit case to grant any relief to the petitioner in the present petition. Consequently, the present petition is dismissed. All pending applications stand disposed of.

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Written by: Mahima Saini

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The POCSO case against man dismissed by Rajasthan High Court because victim claims she was not abducted forcibly

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TITLE: Ankit Jatav v. State Of Rajasthan & Anr.

Decided on: 31/05/2023

CRLMP-3075/2023

Coram: HON’BLE MR. JUSTICE BIRENDRA KUMAR

Facts of the case:

Prayer is for quashing of FIR No.129/2021 registered with Police Station Maangrol, Baran for offence under Section 363 of IPC, however cognizance has been taken under Sections 366, 376, 376(2)(n) and Section 5(1)(j)(ii) and Section 6 of The POCSO Act. According to FIR, the minor girl of the informant left house on 11.04.2021 along with her friend, thereafter she did not return. It was suspected that she was induced to go. On 09.03.2022 the statement of the victim was recorded under Section 164 of Cr.P.C. She stated that she was in love with the petitioner and she left the house along with the petitioner to marry. Thereafter, they married in a temple and thereafter with her consent physical relation between the two was established.

Argument from the Petitioner side:

Learned counsel for the petitioner submits that the petitioner and the victim were blessed with a child also. In identical facts and circumstances of the case, to protect the matrimonial life, a bench of this Court quashed the FIR to prevent abuse of the process of law.

Judgement

Considering, the fact that the victim had never alleged that she was forcefully kidnapped. No physical relation was with the petitioner when she was a minor. The two have already married and are having a child. In the circumstance, continuance of criminal proceedings would be an abuse of the process of law. Hence, aforesaid FIR and the entire criminal proceedings arising out of the said FIR stands hereby quashed and the instant petition is accordingly allowed. Pending application, if any, stands disposed of.

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Written by: Mahima Saini

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The Punjab and Haryana High Court awards compensation based on an overall view of the rules and regulations governing a vehicle driven on the road.

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The Punjab and Haryana High Court awards compensation based on an overall view of the rules and regulations governing a vehicle driven on the road.

TITLE – Tata AIG General Insurance Company Limited v.

Sarabjit Kaur and Others 

Decided On- March 7, 2022

(2022) 4 RCR (Civil) 543

CORAM:  RAJBHR SHERAWAT

INTRODUCTION – The Punjab and Haryana High Court, granted by Justice Rajbhir Sherawat, has provided distinctive compensation to the claimants and insurance company by the following rules and regulations.

  FACTS OF THE CASE

  In an Innova car with the license plate DL-10-CE-2458, Jitender Singh, Amarjeet Singh, Narender Pal Singh, Raminder Singh, Kuldeep Singh, and Harbhajan Singh were traveling from Delhi to Amritsar. While Amarjeet Singh was driving the car, Kuldeep Singh and Harbhajan Singh were seated in the back seat. The truck/tanker bearing registration number MP-09-HG-9347, which was traveling in front of the Innova car as they approached the area between Pipli and Shahbad on the national highway, abruptly applied brakes. The accident happened as a result. The Innova vehicle’s occupants suffered critical injuries as a result of the collision. Amarjeet Singh passed away at the LNJP Hospital in Kurukshetra, but Jitender Singh, Raminder Singh, and Narinder Pal Singh died as a result of their wounds on the scene. Harbhajan Singh lived but was hurt. At Police Station Sadar, Thanesar, a criminal case with FIR No. 46 dated 6.2.2014 was also filed due to the accident. A complaint had been made in the aforementioned case against respondent No. 1, the alleged negligent tanker driver. The legal representatives of the deceased filed four claim petitions in the aforementioned set of circumstances, and the injured party himself filed a fifth for injuries he sustained in the accident.

COURT ANALYSIS AND DECISION

 The court has heard the arguments of both parties and in view of all the respective regulations. the assertions made by the claimants, which have been duly supported by their evidence, have gone totally un-rebutted on the part of the respondents. Even the respondent Insurance company has not led any evidence of any kind to rebut the assertions of the claimants that the accident had taken place due to the negligence of the driver of the offending tanker. Once; being a respondent, they had taken a plea of negligence of the driver of the Innova car, then it was incumbent upon them to substantiate such assertion by leading positive evidence. However, the respondents-Insurance company have failed in proving those assertions made in their written statements the Counsel for the respondent has relied upon Regulation No. 23 of the Regulations of 1989,  this was not a  substantive ground for the claimant to not receive compensation as well as the appellant was not absolved to pay compensation to the insurance company. Therefore, the Hon’ble court has held The respondent Insurance company is held liable for 70% of the liability, leaving the appellant Insurance company with 30% of the liability to reimburse the claimants.        

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Written by-  Steffi Desousa

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The Delhi High Court Dismissed the petition of an Employee on claim to quash the show cause notice issued by the employer.

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Title: Dr. Geeta Oberoi vs National Judicial Academy

Decided on: 30th June, 2023

+ W.P.(C) 8487/2023, CM APPL. 32341/2023, CM APPL. 32343/2023 CM APPL. 32342/2023

CORAM: HON’BLE MR. JUSTICE JASMEET SINGH

Introduction

The Delhi High Court dismissed the petition of an ex-employee for setting aside the order of National Judicial Academy dated 22.05.23 and quashing of the show cause notice issued by the employer and renew the contract of service with release of all increments withheld and other consequential benefits that have been conferred on other similarly placed employees as the Petitioner.

Facts of the case

Dr. Oberoi was employed at National Judicial Academy, Bhopal since 2014 at the post of professor against a sanctioned post pursuant to an advertisement. The advertisement was issued on 11.06.2012 by the Respondent, inviting applications for filling up several vacancies on deputation or contract basis including the post of professor. The petitioner was appointed after following the open selection-cum-merit procedure. letter dated 10.04.2014, the petitioner was appointed as a professor for an initial period of 3 years. A contract of service was executed on 17.08.2014. Since there was no director officiating with the respondent, the petitioner vide letter dated 03.11.2014 was also given the responsibility of performing the duties of the Director of the National Judicial Academy till a new director was appointed.

On 01.02.2021, a show cause notice was issued to the petitioner with regard to the petitioner’s role in obstructing the academy’s security personnel or other employees from taking steps for evicting stray dogs from the premises of the academy. The Executive Committee decided that the Petitioner should continue in service till appropriate decision on show cause notice is issued (The Hon’ble chairperson observed “She may be continued till further orders”). On 22.05.2023, the petitioner’s services were terminated pursuant to a resolution of the Executive Committee dated 13.05.2023. Hence the present petition.

Court Analysis & Decision

The court noted that in the current case, it is true that the petitioner was covered by the service contract as of the day the show cause notice was given; hence, the respondents were required to abide by the contract’s terms and conditions. The respondent issued the show cause notice due to claims that stray dogs were being fed on academy property, which was causing a disturbance. Since the petitioner was a contractual employee of the respondent on that date and both parties were subject to the terms and conditions of the contract, the Executive Committee members believed that the petitioner’s services should be continued until an appropriate decision is made regarding the show cause notice. The petitioner is not entitled to rely on the terms and conditions of the aforementioned contract since it ceased to exist on July 8, 2021 and was not renewed.

The decision of the executive committee was taken on 13.05.2023 & there was no contract of service subsisting between the petitioner and the respondent. And in accordance with the advertisement, the respondent was only interested in hiring professors on a temporary basis, which is why the petitioner was chosen. The petitioner at best could have had legitimate expectation to be considered for regular appointment against a sanctioned post provided her performance was outstanding but that’s not correct to be held on the present case and unlike in the case of K. Ragupathi v. State of U.P., (2022) 6 SCC 346 (on which the petitioner relied on) where the petitioner therein had “outstanding” Annual Performance Assessment Report, there is nothing on record to show the performance of the petitioner as outstanding in this case. Hence the arguments of the petitioner that her appointment is akin to a regular appointment and her reliance on K. Ragupathi (supra) is faulty. Further the termination of the petitioner is on account of expiry of the period of the contract of service, the same is neither stigmatic nor vindictive.

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Written by – Shreyanshu Gupta

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The Writ Court can never adjudicate the issues on the basis of documents Says Madras High Court.

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Case Title:   Sulthan Beevi.                                               … Petitioner                                  
                                              Versus

The Director of Town and Country Planning and  Anrs        … Respondents

Date of Decision:  Pronounced On 27.06.2023

Coram: THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN.

Citation: W.P(MD)No.1770 of 2022 and W.M.P(MD)Nos.1557 & 1558 of 2022.

Introduction:

Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to call for the records of the second respondent pertaining to Na.Ka.No.2752/2020 TN2, dated 12.11.2021 granting technical approval vide Ko.O.Ma.Va/Na.Vuu.Vu.E (Tha.Maa) No.37/2021 to regularize the unapproved layout called “IBN BATTUTA CITY” formed by the respondents 5 and 6 and quash the same in so far as the lands comprised in SR.Nos.376/1B, 376/2 and 376/4B to an total extent of 50 cents in Soolamangalam 2- Sethi Revenue Village, Ayyampettai Town Panchayat, Thanjavur District.

Facts:

The petitioner had claimed that the property aforementioned belong to her grandfather Meeran Mydeen. During his life time, he had allotted the property to his 4 sons by executing four different registered settlement deeds. The petitioner’s father, Mohammed Ismail, stood benefited to the properties aforementioned measuring 50 cents in Survey Nos.376/1B,
376/2 and 376/4B in Soolamangalam 2 – Sethi Revenue Village, Ayyampetti Town Panchayat, by a settlement deed, dated 26.10.1997, registered as document No.1022 of 1977 in the office of the Sub Registrar, Ayyampetti.
The petitioner further stated that her father died intestate on 04.03.1992 leaving behind her mother and two other brothers of the petitioner. One of the brother died and the mother had also died. The petitioner claimed that she is in possession along with the other brother, but who however, is now abroad. The petition claimed that she is therefore, directly interested in the lands aforementioned and she came to know that the respondents 5 and 6 had formed a layout of a large area of the property, including the property aforementioned. Claiming that her property had been unlawfully included in the layout, the Writ Petition has been filed seeking interfernce with the order granting such approval of the lay out.

Issues:

  • If the grand father had settled excess lands, then what he was allotted in the partition deed, then the issue of title itself must be adjudicated?
  • Whether  the Writ Court can  adjudicate the issues on the basis of documents?

Legal Analysis:

The petitioner claims that the approval granted for the lay out bit “IBN BATTUTA CITY” in Soolamangalam 2 – Sethi Revenue Village, Ayyampetti Town Panchayat, Thanjavur District, by the respondents 1 and 2 should be interefered with, since she claimed title to
50 cents of lands in Survey Nos.376/1, 376/2 and 376/4. The flow of title for the said lands is not direct but rather had taken various turns and twist. The lands originally belonged to the
grand father of the petitioner and his brother Abdul Khader. They had entered into a parition deed. By the partition, the grand father was allotted portions of land in each one of the survey numbers. If he where to deal with the lands subsequently, by a further settlement deeds
infavour of his sons, then he could do so only with respect to the lands which had been allotted to him under the partition deed.
But a perusal of the record shows that he had dealt with excess land. Once this fact stares in the face of the petitioner, the petitioner should institute a suit seeking a relief to divide the lands, to demarcate the lands, to identify the lands and to partition the lands and to sub-divide the lands. Without a suit for declaration of title, as against her own paternal uncle since there has been a overlapping of lands in the four separate settlement deeds executed by the paternal grand father, the petitioner can never claim exclusive title for 50 cents of lands in the
aforementioned 3 survey numbers. She can claim joint title, but it is only with her brother who is surviving, and more importantly with the legal heirs of with her paternal uncles as there has been four separate settlement deeds executed by her grand father.

The records reveal that the paternal grand father of the petitioner had settled 24 cents of land in excess in survey No.376/1 in favour of his 4 sons. He had similarly, settled 21 cents of land in excess in Survey No.376/4. These facts may be right. These facts may be wrong, but the only forum to test these facts is the Civil Court where the settlement deeds will have to be put to test and marked as documents and will have to pass the test of admissibility, of proof and of being relevant. The partition deed will have to be examined. The schedule of the lands
in the partition deed between her grand father and his brother will have to be examined. Thereafter, the lands which was allotted to her grand father will have to be crystalized. Thereafter, the four settlement deeds executed by the grand father will have to be examined. The lands settled will have to be identified and finally the lands settled to the father of the
petitioner herein will have to be identified. If the grand father had settled excess lands, then what he was allotted in the partition deed, then the issue of title itself must be adjudicated. That would be a question to be adjudicated not between the petitioner and the respondents 5 and 6, but between the petitioner and her paternal uncles who were the beneficiaries of the settlement deeds executed by her grand father. Without there being a proper demarcation of lands, there can never be an adjudication in this Writ Petition on the basis of an affidavit.

Judgement:

It is thus seen that the petitioner will necessarily have to approach the Civil Court, seek necessary relief, to identify the lands and then, question the approval if the lands are identified and if they fall within the lands for which lay out was approved in favour of the
respondents 5 and 6. Without that preliminary examination of title, of possession and of demarcation of lands, this Court never can adjudicate on the issue raised by the petitioner. I cannot grant any relief to the petitioner herein. The petitioner should put the horse before the cart. She should first institute a suit, identify her lands and then question the approval order, if the lands fall within the approval granted for the lay out formed by the respondents 5 and 6. She cannot approch the Writ Court first and seek an order. The Writ Court can never adjudicate the issues on the basis of documents.

Conclusion:

The records reveal that the paternal grand father of the petitioner had settled 24 cents of land in excess in survey No.376/1 in favour of his 4 sons. He had similarly, settled 21 cents of land in excess in Survey No.376/4. These facts may be right. These facts may be wrong, but the only forum to test these facts is the Civil Court where the settlement deeds will have to be put to test and marked as documents and will have to pass the test of admissibility, of proof and of being relevant. The partition deed will have to be examined. So the court says The Writ Court can never adjudicate the issues on the basis of documents.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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