Uncategorized Archives - Page 22 of 74

21 Oct

A Provision to Safeguard turned into a Weapon: Section 498A of IPC

Uncategorized #Dowry, #Legal_terror, #Men, #Misuse_of_law, #women

Abstract:

This paper talks about the misuse of gender-biased laws in India which is a major issue of this era. The research paper is made with the motive to understand how a provision of law made to protect women has turned into a weapon against men. The article includes statistics and court judgment supporting the argument that Section 498A of IPC has been misused on a vast level.

Misuse of Gender biased law an issue in India

India is not the safest country for women for sure, India is ranked 148 out of 170 countries in the “Women, Peace and Security Index 2021”. A study shows that the southern states of India are way better for women. The worst performing states in the matter of women security are in the region from Rajasthan to Assam. India is also bottom bottom-ranked country when it comes to son bias which shows that there exists a deep-rooted bias in India against females. Son Bias means a preference for a boy child over a girl child. So according to statistics, the women of our country are in danger, and they must be protected by the law. So, the constitution of India has provided women of India with some legal safeguards to empower them. [1]

There is no issue in providing safeguards to a woman, but the issue arises when the men of the society are considered to be the offender and the women are considered victims by the nature of the law itself. Let’s look into the detail of it:

1. Section 375 of the Indian Penal Code:

A man is said to commit “rape” who had sexual intercourse with a woman under the following circumstances:

If the intercourse was against the will of the woman.
If the intercourse was without the consent of the woman.
If the intercourse with the consent of woman, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Against her will.
If the intercourse was With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
If the intercourse was with her consent but at the time of giving consent the woman was of unsound mind.If the intercourse was with a women of age under 16.

One important area to be focused here is that in the Criminal Law (Amendment) Ordinance, 2013, rape and sexual harassment were gender neutral laws and even the term ‘Rape’ got removed completely and it was changed with the word sexual assault. But this change of making rape a gender neutral crime faced a lot of objections by the group of women.[2]The arguments given by the feminists for rape not being a gender neutral law were that men are not equally vulnerable as women are, men always want sex, it is incapable for a women to rape a men, the after effect on women and men are different after rape. Because of This objection from the women of the society the law ended up becoming a gender biased law.

I would like to put light on few arguments raised for making rape laws gender biased in India, Firstly it was doubted if a woman can rape a man or not; The reasoning behind this argument is that if a woman forcefully tries to have sex with a man it will be physically impossible for her to rape a man as he won’t have an erection. But In a case study conducted by Sarell and Masters in 1982, 11 men were studied who had been sexually assaulted by women. The men faced humility, fear, anxiety and fear but the most important thing to see here is rather all the circumstances the men responded sexually. They had erections; and several ejaculated too. It was also concluded that anxiety might increase the sexual arousal.

In a recent study, it was discovered that 16.1% of the 222 Indian men polled have been pressured into having sex. Despite the fact that male rape is not as well studied as female rape, there are various facts that imply men are raped and that the prevalence of male rape is higher than often assumed. For example, for the past three months, a 16-year-old boy stated that his best friend’s mother had been sexually harassing him (2015). Male rape occurs, but it is rarely documented. Countries with gender-neutral rape legislation, without a doubt, have the lowest rape rates in the world.

2.And Section 498a of IPC (Cruelty Against Women):

one of the legal protection provided to women, it deals with the issue of ‘Matrimonial Cruelty’ to a woman. Matrimonial Cruelty according to Indian Penal Code is a cognizable, non bailable and non-compoundable offence. The objective of section 498-A of I.P.C is to safeguard women who are being harassed by relatives of their husband or by their husband themself , but unfortunately now it’s known as the most abused law in the history of Indian jurisprudence. Out of the 24-lakh people arrested under this law barely 15% is found actually guilty. [3]

3.Domestic Violence Act (2005) –

Another arbitrary law allows a wife or female live-in partner to exert centralized control over the household. This legislation’s definition of violence is so broad that it only takes a woman being insulted for her husband to end up on the wrong side of the law. The laws addressing abuse of women do not recognise the harm that men endure, demonstrating a judicial system that is unequal.

In India, the rate of false claims following the breakdown of a marriage, when the woman feels humiliated, is steadily rising. Men are not protected by the law from these humiliating charges, which leads to extreme measures such as suicide.

Section 498A of IPC a tool of Legal Terrorism:

Several individuals, jurists, and even men’s rights activists have expressed concern over the misuses of gender biased laws, highlighting misapplication of the law as a major reason. The for the misapplication of Section 498A, the dowry statute. According to some campaigners, up to 85% of dowry accusations are bogus, and India is unable of dealing with another failed catastrophic law that amounts to “legal terrorism.” Many men’s rights organizations are afraid that criminalising marital rape will be exploited far more than the anti-dowry legislation.

A men’s right activist Deepika Narayan wrote in her article in 2020 citing the misuse of 498A. I will quote what she said:

“A total of 111,549 cases were registered under 498A in 2020. Of these, 5,520 were closed by Police citing as false and overall 16151 cases were closed by police either because they were false or there was a mistake of fact or law or it was a civil dispute etc. That is 14.4% of cases were closed by police for not finding merit in the case. 96,497 men, 23,809 women were arrested under 498A last year making total arrests under this section 120,306.

18,967 cases were tried in courts of which 14,340 led to acquittal and 3,425 led to a conviction. 498A cases pending trial at the end of 2020 are 651,404 with a pendency percentage of 96.2%.”

Calcutta High Court also stated: Misuse of Section 498A of IPC by women unleashes “Legal Terrorism”[4]

Conclusion:

The section 498A of IPC was introduced as a protective shield for women against the cruelty they faced for dowry, but with time the act has been misused on such an extent that now it has overridden the positive intent of the provision. When the provision for safety is used to attack the opposite gender it does injustice not only to the people of opposite gender but to people of the protected gender too.

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Written By : Sushant Kumar Sharma

[1] Nirandhi Gowthaman, India Ranks 133 out of 167 countries in women,peace and security index, YOURSTORY

[2] Harsh Kumar, Gender Biased Laws In India, LEGAL SERVICE INDIA

[3] Supra

[4] Srinjoy Das, _Misuse Of S.498A IPC By Women Unleashes “Legal Terrorism”: Calcutta High Court Quashes Domestic Violence Case Against Husband & In-Laws_(August 21,2023), LIVELAW

20 Oct

Liking A Post Doesn’t Constitute to Publishing Provocative Material: Allahabad High Court

Prime Legal

Uncategorized #allahabadhc, #Liking, #Peace, #Provocation, #Social Media

Title: Mohd Imran Kazi v State of U.P. and Another

Citation: Application U/S 482 No. – 31091 of 2023

Decided On: 18/10/2023

Coram: Hon’ble Arun Kumar Singh Deshwal,J.

Introduction:

The present application has been filed to quash the impugned charge sheet , cognizance order as well as non-bailable warrant passed in Case of State vs. Sami and others. The applicant had been accused of posting certain provocative messages on social media.

Facts of the case:

The applicant was alleged to post a certain provocative message on the social media resulting in assembly of 600-700 persons of Muslim community leading to serious threat to breach of peace. But, contrary to the allegation there doesn’t exist any material against the applicant according to Cyber Crime Cell of Agra.

The applicant had only liked a post of Chaudri Farhan Usman, in which t was mentioned that they would assemble before the collectorate to hand over the memorandum to Hon’ble the President of India.

Court’s Analysis and Judgement:

From perusal of Section 67 of the I.T. Act, it is clear that it is punishable only when any person publishes or transmits or causes to be published or transmitted in the electronic form any material which tends to deprave and corrupt persons who read, see or hear aforesaid material. Just Liking a post doesn’t constitute to publishing.

Even otherwise Section 67 of the I.T. Act is for the obscene material and not for provocative material. The court did not find any material proving the applicant guilty. Hence the application was allowed.

Written By: Sushant Kumar Sharma

Click here to view judgment

19 Oct

The Calcutta High Court: – Ruled that it is “sexist” to distinguish between a married and unmarried daughter in compassionate employment.

Prime Legal

Uncategorized #Calcutta, #Equality, #Jobs, #Sexist

Title: – Dipali Mitra & Ors. V Coal India Limited & Ors.

Case No.: – WPA 14349/2018

Decided on: 17/10/2023.

Coram: The Hon’ble Justice Shekhar B. Saraf

Introduction: –

The Calcutta High Court has determined that the National Coal Wages Agreement-VI’s Clause 9.3.3, which distinguishes between “married” and “unmarried” daughters for the purposes of compassionate appointment, is extra vires and violates Articles 14 and 15 of the Constitution. A single bench of Justice Shekhar B. Saraf held that the primary requirement for consideration of an application seeking compassionate appointment is to show dependency upon the deceased employee and financial exigency. The bench dismissed the petitioners’ plea for compassionate appointment, noting that the petitioners’ primary reasons for seeking the same was dependency on the deceased employee and financial exigency. It was assumed that a daughter’s marriage status made her less dependent on her mother or father and more on her husband, which is “misogynist”.

The Government was asked by the Court to investigate “archaic laws/policies” that uphold the sexist “natural” order of things and revise them in conformity with Article 14 of the Constitution’s equal gender principles.

Brief Facts: –

The current writ petition was filed by the petitioners, who were related to the late Shibdas Mitra, an employee of Eastern Coalfields Limited, Kolkate (ECL), requesting a compassionate appointment in favor of a son-in-law or married daughter under Clause 9.3.3 of the National Coul Wages Agreement-VI (NCWA-VI).

Petitioner no. 1’s wife had requested a compassionate appointment for her son-in-law, petitioner no. 2, a.k.a. a “indirect dependant,” on the grounds that the family’s only source of income was the dead employee and that their son, a direct dependant, was living in Sweden. ECL denied the son-in-law’s request for a compassionate appointment, citing the existence of the dead employee’s son as a direct descendant. However, the married daughter of the deceased employee was not taken into consideration.

Petitioner No. 1 then submitted her own application for compassionate appointment, but it was denied because the 45-year-old age requirement for hiring a female dependent had been exceeded. Petitioner no. 1 then requested a compassionate appointment on behalf of her daughter, who is married.

Outraged by this, the petitioners went to the High Court, which was resolved by ordering the respondents to issue a reasoned order supporting or opposing the petitioners. This was done by issuing an order that denied the married daughter of the deceased compassionate employment.

Petitioners filed an appeal against the contested order with the ECL; however, they received no answer. Consequently, they filed an application under Article 226 with the High Court.

Judgement: –

The Court addressed the Petitioner no. 2’s argument that the compassionate appointment was an exception “carved out against the general rule of merit-based recruitment,” not a vested or inherited entitlement. Regarding the question of whether the NCWA’s distinction between married and unmarried daughters is beyond the scope of Articles 14 and 15 of the Constitution, the Court determined that there was no applicable reasonable classification.

In the end, the Court decided that the petitioner’s writ petition should be denied because they had not come before the Court in a clean manner and because the married daughter was living with her husband and had never shown that she was dependent on the deceased employee, even though the son-in-law was earning a living and supporting himself. The petitioners’ submission of incorrect ages and fake affidavits, together with their request for a compassionate appointment for their married daughter just four years after the deceased’s death, were discovered by the court. The Bench also expressed its opinion and provided greater insight into the “arbitrary distinction” between married and single daughters in an afterword.

Written By: Sushant Kumar Sharma.

Click Here to View Judgement

19 Oct

Changes in Officeholders Will Not Affect the Company’s Obligation to Repay Cheque Amount: Karnataka High Court

Prime Legal

Uncategorized #Karnataka High Court, #StateBankofIndia

Title: Rajiv & Others And State Bank of India C.C.No.3095 of 2021

Date of Decision: October 6, 2023

CORAM: The Hon’ble Mr. Justice M. Nagaprasanna

Introduction

This judgment review pertains to a case where two criminal petitions were filed under Section 482 of the Criminal Procedure Code (Cr.P.C.) to quash the proceedings initiated against the petitioners for offenses punishable under Section 138 of the Negotiable Instruments Act, 1881. The case revolves around the issuance of a cheque as security for a credit facility, which became the subject of dispute after the death of the individual who had signed the cheque.

Facts of the Case

The case involves two separate criminal petitions filed by the accused parties. In the first criminal petition (No.6481 of 2022), accused numbers 3, 4, and 6 filed the petition, while in the second criminal petition (No.7203 of 2022), accused numbers 1, 2, and 5 were the petitioners. The accused parties in both petitions challenged the proceedings initiated against them in Criminal Case No.3095 of 2021.

The dispute centers around M/s. Jamkhandi Sugars Limited, which had sought credit facility from the State Bank of India (the Bank) for its operations related to harvesting and transportation of sugarcane. The credit facility was granted, and a cheque was issued by the Chairman of the company as security for the facility. However, the Chairman passed away, and subsequently, the accused parties took over as office bearers of the company.

The Bank declared the credit facility as a non-performing asset, and when the cheque was presented for realization, it was dishonored due to insufficient funds. A legal notice was sent by the Bank to the accused parties, which led to the filing of a private complaint and the issuance of summons.

Court’s Analysis and Decision

The crux of the case revolved around whether the issuance of the cheque as security, following the death of the Chairman who signed it, was legally valid. The petitioners argued that the presentation of the cheque after the Chairman’s death rendered it invalid, and therefore, the proceedings against them were null and void.

On the other hand, the Bank contended that the accused parties, who were office bearers of the company, were not absolved from liability as they had played a role in the renewal of loan documents, were aware of the cheque issued by the former Chairman, and the company was still in existence.

After considering the arguments from both sides, the Court had to decide whether the proceedings should be quashed. The Court held that the mere death of the Chairman of the company did not automatically absolve the other office bearers from liability. They were responsible for the company’s debts and had actively participated in the transactions.

The Court rejected the petitioners’ arguments and ruled in favor of the Bank, stating that the proceedings would not be quashed. The Court found that the petitioners had a role in the affairs of the company and could not evade liability under Section 138 of the Negotiable Instruments Act.

In conclusion, the Court’s decision upheld the continuation of proceedings against the accused parties, emphasizing that they had a significant role to play in the company’s financial transactions, despite the death of the Chairman.

Written by- Tarishi Verma

Click here to view Judgement

18 Oct

Telangana High Court: Setting Cut-Off Date for Receiving Enhanced retirement pension Benefits is Illegal & unconstitutional

Prime Legal

Uncategorized #highcourtofandhrapradesh

TITLE – T. Hemanth Kumar Yadav and others vs Telangana State Co-operative Apex Bank Ltd and others.

Decided On – 11.09.2023

24441 of 2020

CORAM: Hon’ble Justice Surepalli Nadia

INTRODUCTION-

This writ petition is brought forward to issue an appropriate writ, order, or direction, more specifically one in the nature of a writ of mandamus to declare Clause 2 of item 49 of the resolution passed in the 49th meeting of the Board of management of the first respondent Bank held on September 15, 2020, as illegal, arbitrary, and in violation of Articles 14, 16, and 21 of the Constitution of India, in addition to the fact that the same is against the established law of the land

FACTS OF THE CASE

The petitioners, who initially worked for Andhra Pradesh State Co-operative Bank Ltd. before becoming employees of the first respondent on April 1, 2015, retired from service on various dates beginning in the year 2015 in a variety of positions at the respondent bank.

Since all of the petitioners in this case retired after reaching the retirement age and were fully eligible, they received pensions according to the schedule based on their post or designation. However, the first respondent Bank arbitrarily exercised its power by extending the benefits to the cadre of employees on the rolls as of 04.11.2011 while simultaneously negating them by setting a date to say that employees who are on the rolls as of 01.04.2020 are covered under the existing pension scheme. As a result, the petitioners who retired before April 1, 2020, are denied the benefit of Additional pension benefit, which is against Article 21 of the Indian Constitution. Hence this petition lies

COURT ANALYSIS AND DECISION

The Petitioners were unfairly denied the enhanced/additional benefits of the aforementioned pension scheme because they had already retired before the aforementioned date, i.e., 01.04.2020. As beneficiaries of the original scheme, the Petitioners specifically argue that since the Employees Performance Incentive-cumContributory Superannuation Benefit Scheme is a continuation of the original scheme, the Petitioners are entitled to the enhanced benefit under the new scheme. The petitioners allege discrimination and a violation of Article 14, and they came forward to the court and filed the current writ petition because they felt they had been wronged. The averments in the counter affidavit submitted by the respondents, that the resolution’s intent is for this new scheme to only apply to those employees who are on the rolls as of that date and covered by the current TSCAB EPICSBS; a reference to that date was therefore required. In the counter-affidavit, a specific position is taken in addition. The first respondent is further instructed to grant the petitioners the benefit of an additional pension in accordance with item 49 of the resolution adopted at the 49th meeting of the bank’s board of management within four weeks of receiving a copy of the order.

There will, however, be no cost-related order.

Written by- Steffi Desousa

Click here to view judgment

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