#legalnews Archives - Page 8 of 11

18 Dec

Introduction:

A recent study found that one in five girls and nearly one in six boys are married below the legal age of marriage. The study also found that there has been a significant drop in the statistics of child marriages in India from 1993 to 2023. In 1993, the number of girls being involved in child marriages was 49.4% which is now 22.3% and the boys from 7.1% in 2006 and 2.2% in 2021^[1].

In India, the current legislation providing for child marriage is The Prohibition of Child Marriages Act, 2006 which states that the legal age for marriage is 18 for women and 21 for men.

The Prohibition of Child Marriages Act, 2006:

The PCMA was an amendment to the Child Marriage Restraint Act, of 1929. In the Act of 1929, the legal age of marriage was 15 for girls and 18 for men. The Act was amended in 1978 to change the legal age for marriage to 18 and 21 to women and men respectively.

The major problem with the 1978 Act was its enforcement. Although it was punitive, it did not create any space for people to complain or capture child marriages on time. A child marriage after solemnised was considered valid and not void or voidable. The only preventive measure that was created was to order a court injunction to stop child marriage before solemnisation^[2].

The current legislation provides that:

Child marriages are voidable as per Section 3 of the Act at the option of either party. They provided that the man or woman before filing the petition should not have attained 20 years of age.
Female children in child marriages are entitled to maintenance by authorizing the district court to pass an order for maintenance or residence. The maintenance should be either paid by the guardian of the groom or himself if he attains the age of 18. The maintenance should be paid during the decree of annulment of marriage, as per Section 4 of the Act.
If child marriage is conducted out of immoral practices such as selling the bride or enticing to keep the child away from legal guardians, or marriage through coercion would be considered void as per Section 12 of the Act.
The solemnization, promotion and permitting of child marriage is a penal offence unless there’s reasonable proof that the marriage was not child marriage. However, no woman shall be punished. Section 9 provides that if a man above the age of 18 marries someone underage, he would face rigorous imprisonment of 2 years or a fine. The nature of the punishments is non-bailable and cognizable.

Enforcement:

In the matters of child marriages, the question arises of whether the customary law supersedes the Act. The absence of a uniform civil code allows differential treatment of children resulting in discrimination. Some victims of child marriage are thus entitled to better legal protection under the national law while others may remain out of this protective net^[3].

The Hindu Marriage Act, of 1955 stipulates that both parties must be of legal age to consent. A marriage in which consent is acquired by coercion is void and subject to nullity decrees. Both the bride and the groom must provide their verbal and written agreement to the marriage by Islamic law. According to the Indian Christian Marriage Act of 1872, parental consent is required before marriage if one of the parties to the marriage is a minor. If the father is still alive, the consent of the guardian of the minor, or the mother’s consent in the absence of a guardian, is required^[4].

The problem that arises in implementation is that only the parties in the marriage can declare the child marriage voidable, which rarely happens. It should be such that all child marriages are void ab initio. The result of such is that the deterrence purpose of the Act is not justified and becomes purposeless. The officers that are appointed through the provisions of the Act are usually the District magistrates, who on the other hand have so many other responsibilities on their own.

Case laws:

On the protection of the dignity of women, the Supreme Court in the case of Independent Thought v Union of India^[5], a landmark judgement, held that any act of sexual intercourse during child marriage would be considered rape under Section 375 of IPC.

The court in furtherance, held that the Prohibition of Child Marriage Act applies to all and the act will prevail over the Hindu Marriage Act and the Muslim Marriages and Divorce Act.

The apex court in the case of Hardev Singh v Harpreet Kaur^[6] held that if at the time of marriage if the bride is above the majority, then no punishment would apply to men marrying if he is 18-21 years old.

The court stated that “male adult above eighteen years of age, contracts a child marriage” to mean “male adult above eighteen years of age marries a child”. Further, it held that there is no requirement for consent if both parties are above the legal age.

In the conflicting case of Shalini @ Janvi V State of Uttar Pradesh^[7], the bride’s father was trying to sell her and her grandmother had threatened to kill her. At that time, she was 16 years old and she married a man of her own will. She testified to the court that she married the man wilfully.

The court held that the marriage is not void under PCMA as she wilfully married the guy and she was neither abducted or kidnapped. It stated that :

“She hails from a disturbed and broken family. It is under such circumstances; she got married to Anil and wants to live with him as his wife. She has neither been kidnapped nor abducted. In such circumstances, it would be against the interests of substantial justice to rule that petitioner No.1 had been kidnapped or abducted by accused Anil/petitioner No.2”

The primary issue of most cases is whether the consent of a minor child is significant. The court in the case of “Ranjeet Singh vs State of Punjab and Ors” analysed the facts as the bride ran away from home and married a man of her own volition. The high court held that the consent of a minor in a case of child marriage is insignificant. However, she refused to go back to her parent’s house. Therefore the court directed to stay at her husband’s house but if she wishes to go back to her parent’s house, such should be allowed until she attains a majority.

The pattern of prosecuting men for child marriages solely rely on the testimonies given by the brides. It will be challenging to take back the allegation and then try to reach a compromise if she is accused of sexual assault. As a result, the girl’s evidence and oral declarations are crucial in situations when her parents can pressure her to make up a case against her husband. Consent should be taken into account as a mitigating element in situations involving allegations of statutory rape, and the judiciary should have more opportunities to clear young men who have eloped with adolescents who are near to reaching adulthood on their own free will.

The Prohibition Of Child Marriage (Amendment) Bill, 2021 :

The bill was passed in the Lok Sabha in December 2021. The key highlights are:

The bill amends the Act in the provisions of legal age. The minimum age of marriage for both men and women is said to be 21.
The bill also ensures that upon enforcement, it will override any other law, custom and practice.
For annulment of marriages, the parties are entitled to file an application for 5 years (23 years) of attaining majority as opposed to 2 years^[8].

The conflict that comes to light is the fundamental right to marry after attaining majority. The Indian Majority Act stipulates that a person attaining the age of 18 is a major. There is no clear rule on which of the two Acts should be followed in the instances of marriage. The Supreme Court has held that the right to marry is a fundamental right under Article 21 of the Constitution^[9]. In another case, it was held that when two adults consensually choose each other as life partners, it is a manifestation of their choice, which is recognised under Articles 19 and 21 of the Constitution^[10]. If this Bill were passed, it would be legal to have sexual relations but illegal to marry for those between the ages of 18 and 21 years as consensual intercourse is not prohibited by law.

Conclusion:

There is a slow decrease in the number of child marriages day to day but the evil still exists. The conflict of the age of majority should be addressed by the lawmakers. If for example, marriage under muslim law is a contract and the legal age to enter into a contract is 18. But if the Act stipulates 21 as the age of marriage, the provisions of law contradict each other.

The implementation of the PCMA is still something that should be worked upon. Most people do not recognize child marriage as an offence and aren’t aware enough to oppose it. Unless the contracting parties contend it, the marriage is valid as per the Act. It is highly important to understand the health and overall implications child marriage has on the young population. Child marriages should be prohibited irrespective of customary practices.

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Written by- Sanjana Ravichandran

^[1] Anuradha Mascarenhas, One in 5 girls in India still married below legal age, finds new study, INDIANEXPRESS (Dec 17,2023) https://indianexpress.com/article/cities/pune/one-5-girls-india-married-legal-age-find-new-study-9070841/ .

^[2] Sangeeta Banerjee and Gayatri Sharma, The Status of Child Marriage in India: A Guide for NGOs and CSOs on Using the Law to End Child Marriages in India, GIRLSNOTBRIDES (June,2022) https://www.girlsnotbrides.org/documents/1783/Child_marriage_in_India_law_guide_and_directory.pdf

^[3] Sangeeta Banerjee and Gayatri Sharma, The Status of Child Marriage in India: A Guide for NGOs and CSOs on Using the Law to End Child Marriages in India, GIRLSNOTBRIDES (June,2022) https://www.girlsnotbrides.org/documents/1783/Child_marriage_in_India_law_guide_and_directory.pdf

^[4] Enakshi Ganguly Thukral and Bharti Ali, Child Marriage in India: Achievements, Gaps and Challenges, OHCHR, https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WRGS/ForcedMarriage/NGO/HAQCentreForChildRights1.pdf

^[5] 2017 SCC 10 800

^[6] AIR 2020 SC 37

^[7] 2019 SCC ONLINE ALL 4310

^[8] The Prohibition of Child Marriage (Amendment) Bill, 2021, PRSINDIA (https://prsindia.org/billtrack/the-prohibition-of-child-marriage-amendment-bill-2021)

^[9] Shafin Jahan vs Ashokan and Others, (2018) 16 SCC 368

^[10] Shakti Vahini vs Union of India and Others, (2018) 7 SCC 192

16 Dec

Sudden fight not murder under Section 302 IPC – Bombay HC

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TITLE : Digambar @ Digu Baburao Shirole V The State of Maharashtra

CITATION : Criminal Appeal No. 151 of 2018

CORAM : Hon’ble justice Smt. Vibha Kankanwadi And Hon’ble justice Abhay S. Waghwase

DATE: 15^th December, 2023

INTRODUCTION :

The appeal was filed by the appellant after Feeling aggrieved and dissatisfied by the judgment and order of conviction passed by the learned District Judge for offence under Section 302 of the IPC and thereby sentencing him to suffer imprisonment for life and to pay fine.

FACTS :

The deceased and the accused had gotten into a quarrel and it subsequently led to an attack on the deceased. The brother of the deceased filed a police complaint. The prosecution in the district court took evidence from 13 witnesses and documentary evidence like FIR, post mortem report, recovery panchanama which is now questioned by way of instant appeal.

COURT’S ANALYSIS

The court analysed the autopsy report which held that the cause of death due to liver injury and blunt trauma. The star witness of the trial claimed that on refusal to comply with the demand of extra saplings, quarrel erupted between accused and deceased and accused appellant had put to use very handle of a spade and beaten deceased. The court analysed Section 300 which talks about what leads to culpable homicide and not murder. In that, death arising out of sudden fight is not murder.

The court held that there was no motive, intention or premeditation. Incident has taken place all of a sudden only on refusal to comply with the demand of extra saplings. The sudden death is covered under exception 4 of Sec 300 therefore it wouldn’t attract murder under Sec 302.

Written by- Sanjana Ravichandran

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16 Dec

Bombay HC held appeal not maintainable because it did not fulfill the provisions of the Commercial Courts Act

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TITLE : Bank of India V Maruti Civil Works

CITATION : Appeal Form Order No. 362 of 2021

CORAM : Hon’ble chief justice Devendra Kumar Upadhyaya And Hon’ble justice Arif S, Doctor.

DATE: 15^th December, 2023

INTRODUCTION :

The appeal was filed under 13(1A) of the Commercial courts Act, 2015 to challenge the order passed by the District Judge. The current appeal is filed under Order VII Rule 10 and Rule 11(d) of the Code of Civil Procedure, 1908.

FACTS :

the plaintiff is a partnership firm engaged in the business of builders and contractors since 1987. It was alleged that the Defendants fraudulently invoked the measures under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to grab the property of the partner of the Plaintiff.

The question that was in consideration for the court is the maintainability of the appeal before the division bench keeping in view the proviso appended to Section 13(1) of the Act of 2015 which provides that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court which are enumerated specifically under Order XLIII of the CPC and Section 37 of the Arbitration and Conciliation Act, 1996.

COURT’S ANALYSIS

The court analysed between the amended and unamended Section 13 of the Act and held that earlier, an appeal was provided against a “decision” of a Commercial Court or Commercial Division of a High Court to the Commercial Division of that High Court, whereas, after the amendment the expression “decision” has been substituted by the expression “judgment or order”.

Sub Section 1A of Section 13 provides that a person aggrieved by a judgment or order can file an appeal. The court thus held that an appeal under Section 13(1A) of the Act of 2015 would lie only against the judgment and orders which are enumerated or enlisted under Order XLIII of the CPC. An order rejecting an Application moved under Order VII Rule 10 or Order VII Rule 11(d) of the CPC is not enumerated or enlisted in Order XLIII of the CPC is snot appealable.

Written by- Sanjana Ravichandran

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14 Dec

Wife entitled to maintenance under Section 125 of Cr.PC if a man simply performs marital obligations : Bombay HC

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TITLE : Alka Bhausaheb Bhad v Bhausaheb Ramrao Bhad and The state of Maharashtra

CITATION : WP No 15368 of 2023

CORAM : Hon’ble justice Rajesh S. Patil

DATE: 14^th December, 2023

INTRODUCTION :

A writ was filed under Article 226 of the Constitution to challenge the order and judgement given by the Additional Sessions Judge in the matter of paying maintenance under Section 125 Cr.PC.

FACTS :

The petitioner filed an application being Criminal Application under Section 125 of the Code of Criminal Procedure, 1973 for grant of maintenance before the J.M.F.C against the respondent.

The petitioner pleaded that she is the Second Wife of the respondent and her marriage took place in the year 1989. She was made to believe that the first wife was not cohabiting with him properly. The petitioner gave birth to a male child. The petitioner has given consent to let the first wife cohabit with him through sessions of mediation. The petitioner and the first wife after a while gave birth to a male child each. The husband shortly after that started harassing the wife and was acting violently towards her. The husband was paying maintenance till 2011 and after the instigation of the first wife, he stopped paying. The petitioner claimed 5000 per month as maintenance.

The JMFC in its ordered granted the petitioner Rs.2500 per month as maintenance after hearing both the parties. The respondent husband appealed the decision and the Sessions judge set aside the order. The same was being challenged in the current matter.

COURT’S ANALYSIS

The court held that the husband is to pay maintenance irrespective of whether or not he was married to the second wife. The fact remains that he was in cohabitation with the second wife and had two children with her. It is a well established fact that Under Section 125 of Cr.PC a man who is fulfilling his marriage duties irrespective of the act of marriage is to pay maintenance. The court upheld the decision of JMFC and stated that the petitioner can apply for a fresh application to increase the maintenance amount as it has been 9 years since the order of JMFC.

Written by- Sanjana Ravichandran

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14 Dec

Bonafide error in making GST return through GST forms should be allowed for rectification : Bombay HC

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TITLE : Star Engineers Pvt. Ltd v Union of India

CITATION : WP No 15368 of 2023

CORAM : Hon’ble justice G.S Kulkarni & Hon’ble justice Jitendra Jain

DATE: 14^th December, 2023

INTRODUCTION :

A writ was filed under Article 226 of the Constitution to challenge a communication issued by the Deputy Commissioner, State Tax whereby an application was filed by the petitioner for seeking approval to modify Form GSTR-1 for the financial year 2021-2022.

FACTS :

The petitioner is engaged in designing, developing, manufacturing and supplying wide range of electronic components for industrial purpose. The petitioner had carried out delivery of the goods to several third party vendors and simultaneously issued invoices. The petitioner is a regular supplier of Bajaj Auto Limited (BAL). There was an error made during filing the form GSTR -1. The petitioner contends that BAL was made aware of such error and the correction was shown in GSTIN-1 form. However, the invoices submitted in favour of BAL did not appear in BAL’s form. The petitioner approached the Deputy commissioner of State Tax and requested the petitioner to rectify Form GSTR-1 to resolve the issue. The petitioner’s request was rejected.

COURT’S ANALYSIS

The court relied on Section 37, 38 and 39 of the CGST/MGST, 2017. The sections talk about furnishing details of outward, inward supplies along with details of return goods.

Section 37 talks about the returns from outward supplies of goods. Section 37(3) of the act states that if there are any error or omission in the return. Such error or omission can be rectified in the manner prescribed. Section 38 provides for the returns from inward supplies. Section 38(3) provides that the rectification on inward supplies should be communicated to the supplier. The section also provides for rectification of error under section 37(3). Section 39 provides for furnishing of returns under which it is clearly provided that a return is required to be furnished electronically indicating the inward and outward supplies of goods and services or both, input tax credit availed, tax payable, tax paid or such other particulars in such form and manner, and within such time, as may be prescribed.

The court held that Section 37 cannot be interpreted in a manner that it would prevent the assessee from rectifying the mistakes.

The court held that “Any inadvertent error which had occurred in filing of the returns, once is permitted to be rectified, any technicality not making a window for such rectification, ought not to defeat the provisions of sub-section (3) of Section 37”

A bonafide, inadvertent error in furnishing details in GST return forms should be recognized and permitted to be corrected.

Written by- Sanjana Ravichandran

Click here to view judgement

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Best Lawyers in Bangalore

Child marriages in India: Developments in the view of the judiciary and legislations

Sudden fight not murder under Section 302 IPC – Bombay HC

Bombay HC held appeal not maintainable because it did not fulfill the provisions of the Commercial Courts Act

Wife entitled to maintenance under Section 125 of Cr.PC if a man simply performs marital obligations : Bombay HC

Bonafide error in making GST return through GST forms should be allowed for rectification : Bombay HC