Uncategorized Archives - Page 21 of 74

26 Oct

The Kerala High Court stated that judicial separation cannot be given as an alternative when divorce grounds under Section 13 of the Hindu Marriage Act are unproven.

Prime Legal

Uncategorized # Writ Petition, #dismissed, #divorce, #Jurisdiction, #keralahighcourt

Title: S v. D & connected matter

Decided on: 18, September 2023

Writ C No. – 148/2014

CORAM: The Honorable Mr. Justice Anil. K. Narendran and The Honorable Mrs. Justice Sophy Thomas.

INTRODUCTION

The Kerala High Court is hearing a case involving a marital dispute. According to Section 13(1)(ia) of the Hindu Marriage Act, 1955, the husband filed an Original Petition (OP) alleging matrimonial cruelties and an illicit relationship between his wife and her brother in order to obtain a divorce from her. The divorce petition was denied by the Family Court, but a judicial separation decree was approved. Furthermore, the husband was recognized by the Family Court as the child’s biological father and given compensation, all without the need for any special pleadings or prayers. Both parties then filed appeals in the case—the wife against the judgment of judicial separation and the husband against the dismissal of his divorce petition.

FACTS OF THE CASE

In this case, a husband requested a divorce, claiming that his wife had an extramarital affair with her brother and conceived despite the fact that their union had not yet been consummated. In order to establish that he wasn’t the child’s biological father, he also asked for a DNA test. The wife wished to keep the marriage intact and refuted these accusations. The husband was named the child’s father by the Family Court, which also granted judicial separation and awarded the child compensation, even though the divorce was denied. The ruling was appealed by both parties.

COURTS ANALYSIS AND DECISION

The Kerala High Court rejected a husband’s request because there was insufficient proof to back up the husband’s allegations of his wife’s supposed adultery, the Kerala High Court denied the husband’s request for a divorce under the Hindu Marriage Act. The court further decided that judicial separation was not an acceptable substitute remedy. It stressed that a long-term absence alone does not prove an irreversible marital breakdown and chastised the Family Court for overstepping its bounds of authority. The husband’s appeal for divorce was denied, the wife’s appeal was upheld, and the judicial separation decree was annulled. The wife’s costs were also mandated to be covered by the husband.

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Written by- Kusuma R

Kerala Hc 1

25 Oct

Restraining Order Stopping Anyone From Using Similar Mark As Tobacco Company AFZAL: Delhi High Court

Prime Legal

Uncategorized #copyright, #Restraining Order, #Tobacco, #trademark

Title: Sopariwala Exports & Ors. Versus Ashraf V

Citation: CS(COMM) 259/2021

Decided on: 09.10.2023

Coram: Hon’ble Mr. Justice C. Hari Shankar

Introduction:

The current matter in hand is regarding the use of trademark AFZAL, Sopariwala Exports has the right to iuse the trademark as well as through trademark agreement license to use the trademark was given to other 3 others. Defendant on the other hand is using the mark AFSAL in kerala without obtaining the trademark registration.

Facts:

The plaint alleges that the defendant has infringed the plaintiffs’ registered trademarks as well as its copyright registration and is also, by using a deceptively similar trademark and a deceptively trade dress, seeking to pass off its product as the product of the plaintiffs. As the product is chewing tobacco, it is submitted that additional vigilance is required to be exercised in order to ensure that such attempts at infringement do not go unchecked.

The defendant is using the mark AFSALs and it is are phonetically nearly identical to the mark of the plaintiff, that is AFZAL. And it is added that It has to be remembered that the aspect of confusing or deceptive similarity has to be viewed from the perception of the consumer of average intelligence and imperfect recollection.

The visual similarity between the rival marks in the present case, coupled with the phonetic similarity between “Afzal” and “Afsals”, especially when viewed from the perspective of a consumer of chewing tobacco, clearly discloses the intent of the defendant to adopt the mark which is, phonetically as well as visually, as alike to the plaintiffs’ mark as possible.

Court’s Judgment and Analysis:

Court passed a decree of permanent injunction restraining defendant as well as all others acting on its behalf from using the trademark “AFSALs” or any marke similar to plantiff’s. The defendant shall also be restrained from adopting any trade dress which is deceptively similar and which would, therefore, infringe the copyright held by the plaintiffs in the aforesaid trade dress.

Written by: Sushant Kumar Sharma

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25 Oct

Essential Elements Has To Be Met To Attract The Offence Under Section 306 Of IPC: High Court Of Chhattisgarh

Prime Legal

Uncategorized #abetmentofsuicide, #IPC, #Section306, Suicide

Title: Shaila Singh vs. State of Chhattisgarh

Citation: CRMP No. 1441 of 2017

Decided on: 20 Oct 2023

Coram: Chief Justice Hon’ble Shri Ramesh Sinha

Introduction:

This petition under Section 482 of the Code of Criminal Procedure for quashing of the charge-sheet and FIR registered for the offence punishable under Section 306 of the Indian Penal Code in Crime No.126/2016, and quashing of the charge dated 18.09.2017

Facts:

Husband of the deceased, namely, Naresh Yadav who is a government teacher had introduced a government scheme relating to Prime Minister. The scheme introduced is Vikas Kaushal Scheme and the benefits under the aforesaid scheme, any institution works, then they will be able to get Rs. 10,000 per student on the condition that the student will firstly have to deposit Rs. 12,000.

petitioner provided about Rs. 10 Lakhs to the husband of the deceased for the aforesaid Kaushal Vikas Yojna with the help of Leela’s Foundation. , Naresh Yadav had dishonestly not returned the share of the money to the concerned institution including the institution of the petitioner, who has already spent about Rs. 10 Lakhs for the benefit of aforesaid scheme.

husband of the deceased in whose account the Leela’s Foundation has deposited the huge money of the institutions but Naresh Yadav stated that he had not taken back the amount from the Leela’s Foundation even he has not returned the money to the investor including the present petitioner.

On the date of incident petitioner came to know that the wife of Naresh Yadav along with her three children had consumed some poisonous substance i.e. Harpic and written a suicide note. children survived while the wife of Naresh Yadav expired, hence the prosecutors has filed charge sheet against the petitioner for an offence under section 306 of the IPC.

The learned trial Court, vide order dated 18.09.2017, without there being any ingredients against the present petitioner, has framed charges under Section 306 of the IPC read with Section 107 of the IPC against the petitioner. petitioner has also filed an application under Section 138 of the Negotiable Instrument Act against the husband of the deceased which indicates that the husband of the deceased, namely, Naresh Yadav had taken money from the petitioner.

Court’s Analysis and Judgment:

The petitioner submits that neither in the dying declaration nor in the F.I.R. there is any material indicating that the petitioner has committed the crime of abetment. It is further submitted that there is no mens rea on the part of the petitioner to commit the offence.

Its argued that suicide was not the last option left, The present petitioner, who allegedly made a demand from the husband of the deceased to repay the loan amount, the deceased never made any complaint to the police authorities nor moved before any higher officials of the Police Department. From the respondent’s side it is submitted that petitioner has harassed and abbeted the wife, which led to the her committing the suicide.

Hon’ble court decided that he necessary ingredients to atteact the offcnce under section 306 are not met in the present case, hence the court held that the charges made by trail court on petitioner are not sustainable.

Written By: Sushant Kumar Sharma

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24 Oct

When the primary agreement expressly refers to another agreement, that has an arbitration clause, it doesn’t matter if the main agreement doesn’t either: The Calcutta High Court.

Prime Legal

Uncategorized

Title: M/S. Power Mech Projects Limited vs M/S. Bharat Heavy Electricals.

Decided on: 17 October, 2023

Writ C No. – AP 444 of 2023 And AP 449 of 2023.

CORAM: Hon’ble Justice Moushumi Bhattacharya.

INTRODUCTION

Two arbitration petitions filed by M/s. Power Mech Projects Limited against M/s. Bharat Heavy Electricals Limited (BHEL) are at the centre of this Calcutta High Court case. The two parties’ disagreement over a contract is the basis for these petitions. The appointment of an arbitrator and the inclusion of an arbitration clause in the main contract agreement are the main points of contention in this case.

FACTS OF THE CASE

In this case, two arbitration applications were submitted to the Calcutta High Court in this particular matter. These are contract-related disagreements between M/s. Power Mech Projects Limited and M/s. Bharat Heavy Electricals Limited (BHEL). Mr. S. Muralidhar was named Sole Arbitrator by the court. The key concern was the primary Contract Agreement’s integration of an arbitration clause from ancillary agreements.

COURTS ANALYSIS AND DECISION

Two arbitration petitions involving M/s. Power Mech Projects Limited and M/s. Bharat Heavy Electricals Limited (BHEL) were settled by the Calcutta High Court. It concluded that the arbitration clause was essentially incorporated by reference into the Contract Agreement and named Mr. S. Muralidhar as the Sole Arbitrator.

Written by- Kusuma R

Calcutta Hc

24 Oct

Allahabad High Court Took The Initiative Too Safeguard The Future Of Kids In Child Care Institutions

Prime Legal

Uncategorized #Child care, #education, #Fundamental Rights, #Public Policy

Title: In Re: (Suo Moto) v/s State of Uttar Pradesh

Citation: PIL No. 2495 of 2023

Decided on: 19.10.2023

Coram: Hon’ble Chief Justice Pritinker Diwaker, Hon’ble Justice Ajay Bhanot

Introduction:

Inspection of various child care institutions throughout the State of U.P. was conducted by Hon’ble Justice Ajay Bhanot, revealed various shortcomings and deficiencies in the running of the institution which directly implicate the fundamental rights of children of the said homes under Article 21 of the Constitution of India.

Facts:

The shortcomings and deficiencies in running of the institution affects the Fundamental Right of children, the fundamental right to live with liberty under article 21 of the constitution is being violated due to shortcomings in the running of these child care institutions. Some of the shortcomings noticed are as follow:

The children are living in cramped conditions with little or no access to sunlight, fresh air, playgrounds or open spaces. The living conditions will impede a holistic growth of the children.
The staff in such homes is the most critical part of the functioning. In many cases the homes are not being headed by duly appointed supervisors and other staff members are not adequately trained
The budget allocation for the food items/diet, and other necessities of live has not been revised in many years
The educational facilities also need to be upgraded and diligently monitored.
Emotional development and physical activities of the children in these homes need special attention since they live in circumstances very different from other children.
The girl child has to be taken special care of and lady counsellors should appointed

Judgement and Analysis:

The living condition in these child care institutes are worst than prison cells, Various directions have been issued by the Juvenile Justice And POCSO Committee of this Court requesting the State Government to forthwith initiate measures to shift the homes where children live in overcrowded conditions to more spacious places with adequate facilities.

The State Government was directed to undertake an exercise for admission of the children in schools of repute in the vicinity of the homes. children of the homes shall be given the benefit of reservation in schools of repute in the Right to Education Act. Court also added State Government may consider waiving the requirement of income certificate of families for the purpose of grant of such benefit.

The Principal Secretary was directed to disclose the number of observation homes of different categories whether run by the Government or private agencies in the State of U.P. and with the aid of the Government on the next date and the number of children of different age groups residing in such institution.

Written By: Sushant Kumar Sharma

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