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FROM SILENCE TO STRENGTH: ILLUMINATING THE VEIL OF DOMESTIC VIOLENCE LAWS AND SHAPING JUSTICE THROUGH KEY RULINGS BY THE BOMBAY HIGH COURT

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INTRODUCTION

The High Court of Bombay passed a judgement on 18 April 2023. In the case of AHSANULLAH @ JAVEED KHAN S/O CHAND KHAN Vs SHAHANA PARVIN @ BRIJIS W/O AHSANULLAH @ JAVEED KHAN IN CRIMINAL REVISION APPLICATION NO. 131 OF 2022 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE G. A. SANAP, the court dealt with a case of domestic violence and maintenance under the Protection of Women from Domestic Violence Act, 2005 (DV Act). The judgment, dated 17th November 2021, was passed by the learned Sessions Judge of Akola, Maharashtra. The court dismissed the appeal filed by the husband (non-applicant) and allowed the appeal filed by the wife (applicant), thereby enhancing the amount of maintenance awarded to the wife..

FACTS

The case involved a married couple from Akola, Maharashtra. The wife alleged that she was subjected to domestic violence by her husband and his relatives. The wife claimed that the husband’s relatives instigated him to ill-treat and torture her in order to force her to compromise a criminal case against them. The wife further alleged that she was physically and mentally tortured, leading her to seek shelter with her parents on multiple occasions. The husband denied the allegations and stated that the wife left him of her own accord and refused to resume cohabitation.

PROCEEDINGS AND FINDINGS

The matter was initially brought before the learned Magistrate, who held that the wife had been subjected to domestic violence and awarded her maintenance, compensation, and other reliefs under the DV Act. Both parties appealed this decision. The learned Sessions Judge dismissed the husband’s appeal and allowed the wife’s appeal, increasing the maintenance amount.

The husband’s arguments in the revision application before the higher court were three-fold. First, he contended that there was no domestic relationship between the parties at the time of filing the application under the DV Act. Second, he claimed that as a divorced Muslim woman, the wife was not entitled to maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986. Third, he challenged the quantum of maintenance awarded by the Sessions Judge.

The wife, on the other hand, argued that she had proven the domestic violence she experienced and that she qualified as an aggrieved person under the DV Act. She also contended that even as a divorced Muslim woman, she was entitled to maintenance after the initial period if she did not remarry.

ANALYSIS

The court carefully examined the evidence and concurrent findings of the lower courts. It noted that both the Magistrate and the Sessions Judge had thoroughly considered the evidence and found in favour of the wife. In the exercise of revisional jurisdiction, the higher court would only interfere with the lower court’s decision if it was perverse, arbitrary, or unreasonable. However, after reviewing the record, the court found no grounds for such interference.

The court emphasized that the definitions of “aggrieved person” and “domestic relationship” under the DV Act did not require the parties to be residing together at the time of filing the application. Section 2(a) of the DV Act defines an “aggrieved person” as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. The court cited the Supreme Court case of Lalita Kumari v. Government of U.P., (2013) 4 SCC 1, which supported this interpretation.

Moreover, the court held that even if the husband had given the wife a Talaq (divorce), she could still seek relief under Section 12 of the DV Act for past domestic violence. Section 12 of the DV Act provides for the right to obtain an order for protection, residence, monetary relief, or compensation. The court referred to the Supreme Court case of Shabana Bano v. Imran Khan, (2010) 1 SCC 666, which recognized the rights of Muslim women to seek maintenance beyond the initial period.

The court also addressed the issue of maintenance and observed that the amount awarded by the Sessions Judge was justified considering the wife’s financial needs and the husband’s income and obligations. The court referred to the Supreme Court case of Rajnesh v. Neha, (2020) 14 SCC 209, which highlighted the need to ensure reasonable and fair maintenance to victims of domestic violence.

CONCLUSION

In conclusion, the judgment highlights the importance of the DV Act in addressing domestic violence and protecting the rights of women. It clarifies that a woman can seek relief under the DV Act even if she is not residing with the respondent at the time of filing the application. Additionally, the judgment reaffirms the application of the DV Act to all women, irrespective of their religion or marital status.

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JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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THE IMPUGNED EXTERNMENT ORDER SUFFERS FROM THE VICE OF IMPOSING UNREASONABLE RESTRICTIONS WITHOUT RECORDING ANY REASONS OR SUBJECTIVE SATISFACTION AND, THEREFORE, IT IS LIABLE TO BE SET ASIDE: BOMBAY HIGH COURT

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INTRODUCTION

The High Court of Bombay passed a judgement on 05 June 2023. In the case of SMT. AJAY RAM THORAT Vs STATE OF MAHARASHTRA AND ORS. IN CRIMINAL WRIT PETITION NO. 1490 OF 2023 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE S. V. KOTWAL, the court examined a petition challenging an externment order issued by the Deputy Commissioner of Police, Zone-1, Pimpri Chinchwad. The petitioner was externed from the limits of the Pimpri Chinchwad police Commissionerate, Pune City Police Commissionerate, and Pune Rural for a period of two years. The court carefully analysed the arguments presented by both parties and ultimately decided in favour of the petitioner. The judgment emphasized the importance of recording subjective satisfaction while passing an externment order and highlighted the potential violation of fundamental rights if such satisfaction is not adequately established.

BACKGROUND

The petitioner received a show-cause notice under Section 59 of the Maharashtra Police Act, which cited several registered offenses from 2009 to 2021. One of the mentioned cases resulted in the petitioner’s acquittal. Subsequently, an externment order was issued by the Deputy Commissioner of Police based on the material presented during the inquiry. The petitioner appealed against this order under Section 60 of the Maharashtra Police Act, but the appeal was dismissed.

THE PETITIONER’S ARGUMENTS

The petitioner’s counsel contended that the externing authority had considered offenses from 2009 and 2015, which were relatively old and irrelevant. Moreover, the petitioner had been acquitted in the 2015 case mentioned in the notice. The counsel argued that there was a significant delay between the issuance of the first notice and the passing of the externment order, suggesting that the order itself was unnecessary. Additionally, reliance was placed on the judgment of the Hon’ble Supreme Court in the case of Deepak Versus State of Maharashtra and others (2019) 5 SCC 344, emphasizing the requirement for recording subjective satisfaction regarding the necessity of passing an externment order for the maximum period of two years.

THE STATE’S ARGUMENTS

The learned Assistant Public Prosecutor (APP) representing the state relied on the reasons mentioned in the externment order. It was argued that the petitioner’s acts had caused alarm in the public, posing harm and danger to society. Based on these grounds, the externing authority was satisfied that externing the petitioner was necessary for a maximum period of two years.

LEGAL ANALYSIS

In order to understand the court’s decision, it is important to consider the relevant laws and judicial precedents involved in externment orders. The Maharashtra Police Act, under which the externment order was issued, provides the framework for maintaining public order and safety in the state. Section 59 of the Act empowers the authorities to issue show-cause notices to individuals to explain why they should not be externed from a particular area. Section 60 allows the aggrieved party to appeal against the externment order.

The court, in this case, referred to the judgment of the Hon’ble Supreme Court in the case of Deepak Versus State of Maharashtra and others (2019) 5 SCC 344. The Supreme Court had observed that when passing an order of externment for the maximum period of two years, the competent authority must demonstrate an application of mind and record subjective satisfaction regarding the necessity of such an order. Failure to do so may result in the imposition of unreasonable restrictions on the fundamental rights guaranteed under clause (d) of Article 19(1) of the Constitution of India.

COURT’S ANALYSIS AND DECISION

The court carefully considered the arguments presented by both sides and focused on the issue of subjective satisfaction. Referring to the Supreme Court judgment in Deepak’s case, the court observed that an externment order must disclose an application of mind by the competent authority and record its subjective satisfaction regarding the necessity of passing the order for the maximum period of two years, based on the material on record.

Upon examining the externment order in question, the court found no indication of subjective satisfaction or reasons provided by the externing authority for externing the petitioner for the maximum period of two years. Consequently, the court concluded that the order suffered from the vice of imposing unreasonable restrictions without adequate justification. Accordingly, the court allowed the petition, quashed, and set aside the externment order, and disposed of the writ petition.

CONCLUSION

The recent judgment serves as a reminder of the importance of upholding fundamental rights, even in cases involving externment orders. It emphasizes the necessity for the competent authority to demonstrate an application of mind and record subjective satisfaction when passing an order that restricts an individual’s rights. By scrutinizing the externment order and finding it lacking in justifying the maximum period of two years, the court ensures that unreasonable restrictions are not imposed without proper consideration. This judgment contributes to the ongoing efforts to strike a balance between public safety concerns and the protection of individual liberties, as outlined in the relevant provisions of the Maharashtra Police Act and judicial precedents.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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COMPENSATION GRANTED IN RAILWAY CLAIMS TRIBUNAL CASE: BOMBAY HIGH COURT

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INTRODUCTION:

 The High Court of Bombay passed a judgement on 07 June 2023. In the case of SMT. KAMLABAI WD/O MAHADEORAO RAUT Vs UNION OF INDIA, THROUGH ITS GENERAL MANAGER, CENTRAL RAILWAY, MUMBAI CST IN FIRST APPEAL NO. 1009 OF 2019 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE MUKULIKA SHRIKANT JAWALKAR, the Appellate Court reviewed and overturned the decision of the Railway Claims Tribunal, Nagpur Bench, in a claim application related to an untoward incident on a passenger train. The case involved the tragic death of an individual who fell from a running train, and the appellant, the mother of the deceased, sought compensation for the loss. This blog post provides an overview of the case, highlights the key arguments and findings that led to the successful appeal, and explores the relevant laws governing railway accident compensation.

FACTS:

On January 28, 2015, the deceased individual was traveling on Amravati-Nagpur Passenger Train No. 51261 from Badnera to Dhamangaon. Due to overcrowding, the deceased fell from the running train near the Pulgaon Railway line, resulting in his untimely death. The appellant, the mother of the deceased, filed a claim before the Railway Claims Tribunal, seeking compensation of Rs. 4,00,000/- for her son’s demise.

TRIBUNAL’S DECISION:

The Railway Claims Tribunal dismissed the claim, stating that the mere finding of the deceased’s body near the track and the recovery of a ticket were insufficient to establish that the deceased was a bona fide passenger. The tribunal held that there was a lack of eyewitness testimony and did not consider the circumstantial evidence presented.

APPELLANT’S ARGUMENTS:

The appellant contended that the tribunal erred in dismissing the claim based on the absence of an eyewitness. She asserted that the deceased was a bona fide passenger, as evidenced by the journey ticket found with the body. Furthermore, she argued that the police documents, the nature of the injuries sustained, and the probable cause of death supported her claim.

APPELLATE COURT’S FINDINGS:

After carefully considering the submissions and reviewing the evidence, the Appellate Court reached several significant conclusions. The court noted that a valid journey ticket from Badnera to Dhamangaon was recovered from the deceased, establishing that he had purchased the ticket shortly before the train’s departure from Badnera. The court also highlighted discrepancies in the station manager’s mention of the time when the body was found, concluding that it was highly improbable for the deceased to have reached Pulgaon before the train’s arrival.

The court emphasized that the possession of a valid ticket implied that the deceased was a bona fide passenger and had fallen from the train at Pulgaon. It criticized the tribunal’s failure to appreciate these facts and ruled that the order passed by the tribunal was erroneous and perverse.

Laws Involved: The compensation awarded in railway accident cases is governed by the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. These rules provide a framework for determining the compensation amount based on the nature of the incident and the resulting injuries or loss of life.

JUDGMENT AND COMPENSATION AWARD:

In light of the schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, the court awarded compensation of Rs. 8,00,000/- (Eight Lakhs) to the appellant, acknowledging the death of her son, Mahadeorao Raut. The Union of India was directed to deposit the awarded amount into the claimant’s account within three months.

CONCLUSION:

This appellate judgment highlights the importance of carefully evaluating the evidence presented in railway claims cases and considering the relevant laws governing compensation. It emphasizes that circumstantial evidence, such as possession of a valid ticket, can be crucial in establishing the status of the deceased as a bona fide passenger. By overturning the initial decision, the Appellate Court ensured that the appellant received the compensation she deserved for the untimely loss of her son, in accordance with the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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 JUDGMENT ANALYSIS: CUSTODY OF SEIZED ANIMALS IN VIOLATION OF ANIMAL WELFARE LAWS

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INTRODUCTION

The High Court of Bombay: Nagpur Bench passed a judgement on 06 June 2023. In the case of ANSAR AHMAD S/O SHEIKH SATTAR AND 2 OTHERS Vs STATE OF MHA. THR. PSO GITTIKHADAN NAGPUR AND ANOTHER IN CRIMINAL WRIT PETITION NO. 708 OF 20 22 with CRIMINAL WRIT PETITION NO. 715 OF 2022 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE G. A. SANAP, the court addressed two writ petitions filed under Article 227 of the Indian Constitution. The petitions challenged the order of the learned Additional Sessions Judge-16, Nagpur, which dismissed the revision applications filed by the petitioners against the order of the Judicial Magistrate, First Class, Nagpur. The petitions involved the custody of seized animals in two separate cases involving the illegal transportation of animals in violation of the Prevention of Cruelty to Animals Act, 1960, and the Motor Vehicles Act, 1988.

FACTS

The first writ petition (No. 708/2022) involved three petitioners claiming ownership of cattle seized from trucks on 10th March 2022. The prosecution alleged that the animals were transported inhumanely and subjected to unnecessary pain and suffering. The second writ petition (No. 715/2022) involved a single petitioner claiming ownership of cattle seized from a truck on 1st March 2022.

The petitioners, not being accused in the crimes, sought custody of the seized animals, arguing that they possessed valid trade licenses for the purchase and sale of animals. They claimed that the animals were intended for sale in another market and included milching buffaloes, which affected their income. The state opposed the applications, contending that interim custody should be retained by the registered Gaushala (animal shelter) mentioned in Section 35 of the Act of 1960.

COURT PROCEEDINGS

The court heard arguments from the learned advocates for the parties and examined the record and proceedings. The petitioners’ advocate argued that there was no prima facie evidence of cruelty towards the animals and that the animals’ custody should be given to the owners during the trial. The additional public prosecutor representing the state maintained that the offense had been established, and hence, the petitioners were not entitled to custody.

The advocate for respondent no.2, Maa Foundation, highlighted that they were registered with the Charity Commissioner and had the necessary facilities to care for the animals. They argued that the transportation of the animals had violated relevant rules, such as the Transport of Animals Rules, 1978, and the Transport of Animals (Amendment) Rules, 2001. The advocate emphasized the Foundation’s commitment to the protection, care, and welfare of animals.

  1. Prevention of Cruelty to Animals Act, 1960: This law aims to prevent the infliction of unnecessary pain or suffering on animals and promotes their welfare. It sets standards for the treatment and transportation of animals and prohibits cruelty towards them.
  2. Motor Vehicles Act, 1988: This act governs the regulation of motor vehicles in India. While the specific provisions relevant to the case were not mentioned, it is likely that the act includes regulations regarding the transportation of animals in vehicles.
  3. Transport of Animals Rules, 1978: These rules, made under the Prevention of Cruelty to Animals Act, 1960, provide guidelines for the transportation of animals. They specify requirements for vehicles, including certification, provision of first-aid equipment, water, fodder, and limitations on the number of animals per vehicle.
  4. Transport of Animals (Amendment) Rules, 2001: These rules amend the Transport of Animals Rules, 1978, and introduce additional provisions to ensure the welfare of transported animals. They require a valid certificate from an authorized officer or Animal Welfare Organization for the transport of animals.
  5. Central Motor Vehicle Rules, 1989: These rules, made under the Motor Vehicles Act, 1988, regulate the construction, equipment, and use of motor vehicles. While the specific provision mentioned in the blog, Rule 125E, was not elaborated upon, it likely contains requirements for vehicles transporting livestock, such as the provision of permanent partitions and restrictions on carrying other goods.

VIOLATION OF ANIMAL WELFARE RULES:

To assess the claim that the animals were not subjected to cruelty, the court examined relevant rules. It found that the transport of the animals had violated several provisions. Rules 47 to 50 and 56 of the Transport of Animals Rules, 1978, specify requirements for the transportation of animals. The vehicles used had not obtained a valid certificate from a qualified veterinary surgeon, and there were no provisions for first-aid equipment, water, or fodder. Additionally, Rule 56(c) limits the number of cattle per goods vehicle to six, which was exceeded in this case.

The court also considered Rule 96 of the Transport of Animals (Amendment) Rules, 2001, which required a valid certificate issued by an authorized officer or Animal Welfare Organization. This certificate was not obtained, further establishing non-compliance with animal welfare laws. Furthermore, the amended Rule 125E of the Central Motor Vehicle Rules, 1989, stipulated specific requirements for vehicles transporting livestock, including the provision of permanent partitions and restrictions on carrying other goods.

JUDGMENT AND CONCLUSION:

Based on the violations of animal welfare rules and the prima facie evidence of cruelty, the court concluded that the animals should not be handed over to the petitioners during the pendency of the trial. The court emphasized that the registered Gaushala, respondent no.2, was well-equipped to provide.

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JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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APPELLATE COURT RULING ON COMPENSATION CLAIM IN MOTORCYCLE ACCIDENT CASE

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INTRODUCTION

The High Court of Bombay: Nagpur Bench passed a judgement on 06 June 2023. In the case of ORIENTAL INSURANCE CO. LTD. THR. DIVSNL MANAGER, NAGPUR Vs SURESH S/O SIDDHESHWAR BADWAIK, GONDIA and 2 OTRS IN FIRST APPEAL NO.1491 OF 2008 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE URMILA SACHIN JOSHI- PHALKE award by the Motor Accident Claims Tribunal in Gondia has come under scrutiny in an appeal filed by an insurance company. The case involves a compensation claim filed by the parents of the deceased, who lost his life in a motorcycle accident. The insurance company contests the liability for compensation, arguing that the deceased was not a third party but rather stepped into the shoes of the motorcycle owner. This article provides an overview of the case and analyzes the arguments presented by both parties.

FACTS:

The accident occurred on July 13, 2006, when the deceased, Prashant Badwaik, was riding a motorcycle near Marar Toli Railway Gate. To avoid a bicycle rider, he applied sudden brakes, causing the motorcycle to skid and resulting in severe head injuries. Despite receiving immediate medical attention, the deceased passed away during treatment.

The claimants, who are the parents of the deceased, filed a compensation claim stating that their son was a skilled Electronic Mechanic earning Rs. 4,000 per month. They argued that since the accident occurred while riding a motorcycle owned by another individual and validly insured, they were entitled to compensation.

The insurance company, the first respondent in the case, contested the claim on the grounds that the accident was caused by the deceased’s own negligence. They argued that as the deceased had borrowed the vehicle, he should be considered the owner, and therefore, the claimants were not eligible for compensation.

The second respondent, the owner of the motorcycle, also denied liability and stated that the vehicle was adequately insured, shifting the responsibility to the insurance company.

LAW INVOLVED:

Section 147 of Motor Vehicle Act states that requirements of policies and limits of liability. —

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which—

(a) is issued by a person who is an authorised insurer; and

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—

(i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

TRIBUNAL JUDGMENT

After considering the arguments and evidence presented, the Motor Accident Claims Tribunal ruled in favour of the claimants and awarded them compensation. The tribunal held that the deceased died in a vehicular accident involving a motorcycle owned by the second respondent and insured by the first respondent. The compensation amount was set at Rs. 3,69,500, along with an interest rate of 7.5% per annum from the date of filing the claim petition until the complete realization of the amount.

APPEAL BY THE INSURANCE COMPANY

Aggrieved by the tribunal’s decision, the insurance company filed an appeal, challenging the judgment and award. Their main contention was that the deceased, as the borrower of the motorcycle, should not be considered a third party and therefore not entitled to compensation. The insurance company argued that Section 147 of the Motor Vehicles Act, 1988, does not include the deceased under the definition of any person but rather as a tortfeasor.

Furthermore, the insurance company cited various judgments, including New India Assurance Co. Vs. Sadanand Mukhi and others (2009)2 SCC 417, Oriental Insurance Co. Ltd. Vs. Rajni Devi and others (2008) 5 SCC 736, and Ramkhiladi and another Vs. The United India Insurance Co. and another (2020) 2 SCC 550, to support their claim that the liability of the insurance company is limited to the owner-driver and does not extend to other named individuals or borrowed vehicles.

COUNTER ARGUMENTS AND ANALYSIS

In response to the appeal, the claimants’ counsel argued that the compensation claim was since the accident involved the vehicle insured by the first respondent. They emphasized that the deceased was not the owner of the motorcycle but had borrowed it, making him eligible for compensation under Section 163A of the Motor Vehicles Act.

JUDGMENT AND CONCLUSION:

Upon reviewing the arguments and evidence presented, the court upheld the decision of the tribunal and dismissed the appeal filed by the insurance company. The court found that the deceased, who borrowed the motorcycle, could be considered a third party in relation to the insured vehicle. Therefore, the claimants were entitled to compensation under Section 163-A of the Motor Vehicles Act.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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