Category Archives: Case Summary

Sansar Chand v State of Rajasthan, 2010 (10) SCC 604

January 23, 2022 Team Attorneylex Leave a comment

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This Case Summary is written by Shrasti Singh, a student of Shri Ramswaroop Memorial University, Lucknow

Introduction

India is well known for its diverse flora and fauna. But over the decades, due to illegal trade, hunting, poaching and export of the animals led to rapid decline of India’s wild animals and bird and some of them are extinct, which is cause of main concern. In order to maintain the ecological balance in the environment and sustaining the ecological chain, we have to preserve and protect the wildlife as they are interlinked in nature.

The Constitution of India 1950 also provide the provision related to wildlife protection-

Under the directive principle of state policy, the state have obligation to protect and improve the environment and to safeguard the forests and wildlife of the country. (Article 48A)

Every citizen of India have the fundamental duty to protect and improve the natural environment including the wildlife provided under Article 51A (g) of Constitution.

The parliament, in order to fulfill the constitutional purpose, had passed a wildlife (Protection) Act, 1972 with an aim to protect the country’s wild animals, birds, and plant species, in order to ensure environmental and ecological security. It prohibit hunting of wild animal and also prohibit the trade or commerce in wild animals, animals’ articles and trophies. The violation of this act is treated as a criminal offence and the punishment is given under section 51 and the property which is derived from illegal hunting and trade is liable to forfeiture.

Further, India is signatory to the UN Convention on International Trade In Endangered Species and UN convention against Transnational organized Crime which protect the endangered species and punish the wrongdoer who are involved in illegal trading and poaching etc. According to latest all India survey by the Wildlife Institute of India, there were about 1411 tigers left in India in 2008.

The above case is a landmark case of wildlife protection act 1972. This case is a criminal Appeal. It is judged by two bench at the supreme court of India by the Honorable Mr. Justice Markandey Katju and Mr. Justice T.S. Thakur.

Fact of the Case

In 2010, the Mascot of Commonwealth Game was SHERA, a tiger which is rare to found in today’s times as a result of organized crimes of human like poaching that have pushed wildlife to the stage of extinction and such issue is highlighted in this case.

The appellant (Sansar Chand) had a long history regarding his wildlife crime. He had started the wildlife crime from the age of 16 in 1974. He was arrested for having 680 skins of different wild animals. He also arrested for involving in the activities of poaching, illegal trade of tiger, leopard and skins of other animals and further the appellant along with his gang started a smuggling network in which they send the tiger and leopard’s part and skins outside the Indian Border, especially China. He along with his gang had been booked for 57 wildlife case from year 1964-2005.

In this case, a Balwan was arrested by police in train for having a carton containing leopard’s skin on January 5, 2003. Balwan made disclosure statement to SHO, Bhilwara that the two leopard skins were for the appellant Sanskar Chand. The appellant was arrested and during trial, he was convicted by the Additional Chief Judicial Magistrate (Railways), Ajmer, Rajasthan on April 29, 2004.

The appellant then filed an appeal against the decree to the Special Judge, SC/ST (Prevention of Atrocities) Cases, who upheld the conviction of the appellant and dismiss the appeal on 19.8.2006. Thereafter, the petitioner filed the Revision Petition in the Rajasthan High Court who also dismissed the petition. Thus, all the above courts found the appellant guilty of the offences charged. Thus the present appeal was filed before the Supreme Court.

The appellant’s contention in the present case was that the above judgement was solely based on the extra-judicial confession made by co-accused Balwan. And the evidence of extra-judicial confession is a weak piece of evidence. Thus no conviction should be solely based on it.

Issues Raised in appeal

Whether the conviction of the appellant under the wildlife (Protection) Act is justified or not?
Whether the conviction is solely based on the extra judicial confession or not?

Judgement

The Supreme Court have granted the leave to hear the appeal. The court examined the evidence of prosecution, oral as well documentary given in the three above court and gave his judgement.

The prosecution’s contention was that the extra judicial confession of accused Balwan was written by Arvind who have neither any friendship nor enmity with the accused Balwan. Arvind had also made disposition in the court that he had written the fact in confession as dictated by accused in custody and accused Balwan agreed on it by putting thumb impression on each pages.

Accused Balwan made this extra judicial confession when he was remanded to judicial custody. Thus, confession can be held to be not made under undue influence, fear or inducement of the Police. In confession, he told address of the accused, he confessed about the money Rs 5000/- and Rs 10,000/- paid by the appellant. And gave information about appellant properties purchased in Delhi in name of him and his wife’s name with the money he made out of his illegal activities stated above.

During investigation, Investigation officer on the basis of the information given by Balwan under Sections 27 Evidence Act had recovered the Knife, capped gun, iron funda, nails of Panthers Paw’s and bones of killed Panthers from the accused house and properties have been found in the name of Sansar Chand. Thus, this extra-judicial confession of the co-accused has been corroborated from the recoveries made in pursuance of the same, the previous conviction of the petitioner by this Hon’ble Court and the number of pending cases showed him as a habitual wild life trader.

The court also refer the precedent given below for extra-judicial confession-

Thimma vs. the State of Mysore, in this court held that there is no absolute rule that an extra judicial confession can be basis of a conviction, although ordinarily an extra judicial confession should be corroborated by some other evidence.
Piara Singh vs. State of Punjab, it has been held that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated.
Shiva Karam Payaswami Tewar vs State of Maharashtra (In The extra judicial confession, the court has to satisfy itself that the confession was voluntary and without any coercion and undue influence.)

In the present case, there are concurrent findings of facts of three courts that the extra-judicial confession made by co-accused Balwan to Arvind Kumar (a fellow prisoner) was voluntary, reliable and trustworthy under Section 24 of the Evidence Act. Therefore, the conviction of the petitioner can be based on the extra-judicial confession of Balwan and the other corroborative evidence on record.

Verdict of the Court

After examining the evidence, The Supreme Court dismissed an appeal and upheld the decision of the High Court who have affirmed the decision of the learned Magistrate and the Special Judge regarding the conviction of the appellant. Further the court also requested to the Central and State Government and their agencies to make all effort to preserve and protect the wild life of the country and take strict action against those who are violating the provision of the wildlife (Protection) Act, 1972.

Conclusion

The Supreme Court in this case had realized the importance or need for the protection of wildlife as this is very necessary for maintaining the ecological balance in the country. And required to punished the person who violates any section of wildlife (Protection) Act, 1972.

Critical Analysis

This case is a historic judgment in the Wildlife (Protection) Act, 1972 in which poaching, illegal hunting and illegal trading of wild animal is prohibited and person is severely punished for such offences. In this case, Sansar Chand was convicted for above wildlife crime. In my view, the judgement written by Supreme Court judge Markandey Katju is in the favor of the justice as he affirmed the conviction of appellant who involved in wildlife crime from early age of 16 from the year 1974 to 2005. This case set an example to punish a people who get involved directly or indirectly in such activities, under Wildlife Protection Act, 1972.

http://leagalworld.in/2022/09/15/sansar-chand-v-state-of-rajasthan-2010-10-scc-604/

Ragunath Prasad vs Sarju Prasad (1923) 51 I.A. 101.

January 22, 2022 Team Attorneylex Leave a comment

This Case Summary is written by Shrasti Singh, a student of Shri Ramswaroop Memorial University, Lucknow

Introduction

This case is a landmark judgement in Indian Contract Act, 1872 for free consent and undue influence. For valid contract, one of the main essential element is free consent. The Consent of the parties means that they understand the same thing in the same sense or meeting of the minds. In English law, this is called ‘consensus-ad-idem. Under section 13 of Indian Contract act has define the word consent means as two or more person agrees upon the same thing in the same sense. For contract to be valid it is not enough that parties have given their consent. The consent should also be free .it means it has been given by free will of the parties involving no pressure and use of force.

Section 14 of Indian Contract Act 1872, provide the concept of free consent. The contract is said to be free when it is not caused by- coercion, undue influence fraud, misrepresentation and mistake. When the contract is not free, it is treated as voidable contract at the option of the party whose consent is not free.

This case deals with the undue influence which is defined under section 16 of Indian Contract Act 1872, it means as when one party is in position to dominate the will of others and actually misuses the power, and then it is case of undue influence. To prove undue influence, the party has to establish a relation between the parties in which the other person in the power to dominate a will of other by reason of:

A real or apparent authority for eg a factory owner exercise undue influence to employees to make a certain agreement with him, because he has power to remove the employee from job.
Fiduciary relationship for eg Doctor and Patient Relationship.
Mental capacity which is influenced due to reason of age, illness, mental or bodily distress. It can be either permanently or temporarily.

This case is judged by four judge bench of: Shaw, Carson, J Edge, A Ali, L Jenkin.

Fact of the Case

This case is second appeal from a decree of first appeal lie in the High Court of Judicature at Patna on November9, 1920, which change the decree passed by the Subordinate Judge of Arrah on September 25, 1917. In this case, the suit is filed for recovery of the amount of mortgage principle and interest due by Sarju Prasad Sahu to Ragunath (here petitioner). The subordinate judge passed decree in the mortgage suit but allow only simple interest but in appeal high court allowed compound interest.

The petitioner Ragunath Prasad was a member of joint undivided family along with a respondent Sarju Prasad (his son). But some difference arose and they fought over the properties. The petitioner had sued a criminal proceeding against his own son in the court of law.

In order to defend himself defendant borrowed money from the plaintiff by mortgaging his properties on May 27, 1910 and acquire ten thousand rupees at a compound interest of 24%. In the mortgage deed, it was written that the respondent will pay the interest by the 30th of the month and in case of non-payment, the interest would add on to principal and the interest would be then charged on the new principal. Due to this in Eleven year, the amount payable is magnified more the elven fold that is RS. 1,12,885.

The respondent’s contention was that the lender has taken unconscionable benefit of his mental distress by demanding him high rates of interest and therefore exercised the undue influence which make a contract voidable at option of the party whose consent is not free.

Issued raised

Whether the petitioner, in the circumstances proved in the case, has used undue influence or not within the provision of section 16 of Indian contract ACT 1872?

Judgement

The lordship laid down clear views upon Sub-section 3 of Section 16 of the Indian Contract Act as amended. In order to determine that the person falls within the under sub-section 3 of Section 16, the lordship laid down three step process.

In the first place, the relations between the parties to each other must be such that one is in a position to dominate the will of the other.
Once that position is confirmed, the second stage has been reached, viz., the issue whether the contract has been induced by undue influence.
Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appear as unconscionable then burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.

The lordship view that this order followed in sequence otherwise error will arise. For eg: The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of the other?

After taking Evidence in the case, the lordship held that the borrower failed to prove that lender was in a position to dominate his will under Section 16 of Indian Contract Act, 1872 which is first requirement to be proved. And the only relation between the parties was of lender and borrower. Hence the borrower got no relief.

The lordship have used these precedents given below:

1. Lord Davey in Dhanipal Das v. Raja Maneshar Bakhsh Singh.

2. Maneshar Bakhsh Singh v. Shadi Lal.

(While using this precedent, the court view that in present case the borrower have the full power of bargaining and he lay under no disability. The only relation between parties in this case was proved that they were lender and borrower. No prove was found to have the relation to dominate the will of other.)

3. Sundar Koer v. Sham Krishen

4. Abdul Majeed v. Khirode Chandra Pal (The Lordships dissented from the principles laid down by the Appellate Civil Court in this case while declaring the judgement).

The court upheld the decree of the High Court but varied the amount of mortgage money. The court allowed the compound interest on the principal at the rate of two per cent, from the date of the execution of the bond until September 25, 1917, and thereafter simple interest at the rate of six per cent, per annum up to the date of realization. And held that the appellant will pay the costs of the appeal.

Conclusion

The court in Ragunath Prasad vs Sarju Prasad case laid down three step process which will further help to determine the case fall under section16(3) of Indian Contract Act. Through this case the confusion regarding the relation between the parties to dominate the will other, undue influence and burden of proof was cleared.

Critical Analysis

The court in this case give a clear view regarding the section 16(3) of Indian Contract Act, 1872. The court laid down three-step process which should be followed in the order not otherwise which may result in error.

Even the case has unconsicousable advantage, if the petitioner does not prove the relation between him and the respondent in which one will dominate the will. The question of undue influence and unconsicousable advantage cannot be raised under section 16(3).

Case Summary

M.C. Mehta v. Union of India, AIR 1988 SC

January 7, 2022 Team Attorneylex Leave a comment

This Case Summary is written by Sreeya Chowdary Kesanapalli, a student of Gitam School of Law, Visakhapatnam

Introduction

The petitioner was a concerned citizen who wanted to preserve the lives of those who used the Ganga’s water, and so his right to file the case could not be questioned. The contamination of the Ganga constituted a public nuisance with a wide-ranging and indiscriminate impact, and it would be unreasonable to expect any one person to take action to halt it apart from the community as a whole.

The petition was therefore entertained as a Public Interest Litigation.

Facts

1985, In The Pilgrimage city of Haridwar along the Ganga river matchstick tossed by a smoker resulted in river catching fire for more than 30 hours due to the presence of a toxic layer of chemicals produced by a pharmaceutical firm.

In response to this incident MC Mehta and environmental lawyer and social activist filed a public interest litigation in the Supreme Court of India against the 89 respondents wherein respondents (1,7,8,9 were Union of India in 1985. Mehta filed a petition charging that despite the advances created within the code government authorities had not taken effective steps to stop environmental pollution of Ganga river.

Arguments of the petitioner

The petitioner had read that neither of the authorities nor the individuals whose lives were connected with the stream of the Ganga river and directed laid low with it, perceived to concerning with the levels of pollution of Ganga and necessary steps needed to stop and equivalent.

Arguments of the respondents

None of the tanneries controversial the very fact that effluent discharge from the tanneries grossly pollutes Ganga. It was expected that the discharge the trade effluents into the Sewerage that ends up in Municipal sewerage plants before discharge into the stream.

Questions Of Law

Whether the authorities had paid attention to the worsening condition of the the sacred water course and had initiated probation into the matter?
Whether any steps have been taken by the state?

Conclusion

The entire case was based on the discharge of ‘trade effluents’ into the Ganga River. Trade effluents includes any liquid, volatized or solid substance that is discharged from any premises used for carrying on any trade or business, apart from domestic waste material. The State Board is additionally entrusted with the work of birth down standards of treatment of waste material and trade effluents to be discharged into any specific stream taking under consideration the minimum fair-weather dilution obtainable therein stream and also the tolerance limits of pollution permissible within the water of the stream , once the discharge of such effluents.

Held

Certainly, the petitioner before the Court was not a riparian owner. He was an individual who cared about the lives of those who used the Ganga’s water, and his right to file the petition could not be contested.

The nuisance caused by the pollution was a public nuisance, wide-spread in range and indiscriminate in its effect, and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petition was entertained as a Public Interest Litigation.

The court declared the importance of Water( prevention and management of pollution) Act,1974(the Water Act).This act was passed to forestall and management pollution and maintaining water quality. This Act established central and declared boards and bestowed them with power and functions about the management and interference of pollution.

Section 24 of the act prohibits the employment of the employment of any ‘stream’ for disposal of polluting matter. A ‘stream’ under section 2(j) of the act includes watercourse.

Case Summary

Gloucester Grammar School’s Case (1410) YB 11 Hen IV, fo. pl. 201, 23

January 2, 2022 Team Attorneylex Leave a comment

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This Case Summary is written by Sreeya Chowdary Kesanapalli, a student of Gitam School of Law, Visakhapatnam

Introduction

‘DAMNUM SINE INJURIA’ a legal maxim which means damage without injury. The concept is dealt under Law of Torts. Torts provides damages to the people who have suffered legal injury, the cardinal point is that people have suffered legal injury. There are 3 conditions to claim that someone would be liable under tort law:

Act or omission on the part of the defendant
Due to such act or omission the legal right of plaintiff was affected.
Such act or omission lead to claiming legal remedy

Facts

The defendant was a teacher at the plaintiff’s school, Gloucester Grammar School. Due to a disagreement, the defendant quit the plaintiff’s school and established a competing school adjacent to it. Boys from the plaintiff’s school departed to attend the defendant’s school because the defendant’s teaching was well-known among pupils. The plaintiff sought monetary damages from the defendant. After this the employees of Gloucester Grammar School sued the master for trespassing their franchise and demanded monetary loss casued due to him by opening school in that area.

Questions Of Law

Does the defendant are going to be responsible for the loss suffered by the plaintiff by fixing a rival school and have damaged the right of the plaintiff ?
Does this case not cover the essentials of ‘Damnum Sine Injuria’?

Held

The court decided that no suit could lie and that the defendant was not liable. Despite the fact that a monetary loss has occurred, compensation is not a legal basis for action if no right has been infringed. The defendant who built a competing school would not be held liable for any damages to the Gloucester Grammer School, according to the court. Despite the fact that the plaintiff has experienced damages as a result of the defendant, the plaintiff will not be compensated for such losses.

The defendant had legitimately founded his school and had done so without infringing on the plaintiff’s legal rights.

Conclusion

This case also includes the essentials of the maxim DAMNUM SINE INJURIA, which states that when there is damage but no breach of legal rights, the maxim DAMNUM SINE INJURIA applies. Although losses were inflicted to Gloucester Grammar School as a result of the defendant’s actions, the defendant did not violate any of the plaintiff’s legal rights. As everyone has right to choose its profession and just on moral basis of one the other cannot be denied his legal right.

Critical Analysis

In the case of Gloucester Grammar School, the decision not to hold the defendant accountable for establishing a competing school next to the plaintiff’s was based on Tort Law. Tort refers to a civil wrong.

Tort law is defined as “an instrument to compel people to behave in a fair manner and to respect one another’s rights and interests.” This is accomplished by safeguarding interests and allowing situations in which a person whose protected interest is violated can seek compensation for the loss he has suffered from the person who has violated it, also known as ‘Injuria Sine Damno’ in Latin, which translates to ‘injury suffered without actual loss.’

The issue we’re discussing is about “An act that inflicted damage but did not infringe or violate any legal rights,” also known as “Damnum Sine Injuria” in Latin, which means “damage incurred without legal injury.” The plaintiff had suffered significant losses, but there is no cause of action based on genuine competition.

This maxim acts as the savior for many people, otherwise people would run in punishing others just for the acts which they cannot justify morally.

Case Summary

Felthouse V. Bindley (1862) 11 CB 869

November 18, 2021 Team Attorneylex Leave a comment

This Case Summary is written by Shivanshi Aggarwal, a student at Maharaja Agrasen Institute of Management Studies, GGSIPU

Introduction

To make a contract valid and legally bound, offer, acceptance of that offer and consideration are considered to be essential elements. The Indian Contract Act, 1872 defines offer and acceptance as “When one person signifies to another his willingness to do a particular act is said to be maid offer” and “when the other person to whom the offer is made signifies his assent is said to accept that offer”. A contract is made to be complete when an offer is made and that offer is accepted. But to make a certain offer and to accept that offer certain conditions are required. These conditions generally lead to misunderstandings and later disputes. In this case as well there was misunderstanding between the appellant and the party whose property was being subjected regarding whether the offer made was accepted or not. This case provided a slight clear vision towards the correct form of acceptance and how a mere communication does not amount to contract of sale.

Facts

Paul Felthouse, a builder residing in London was the complainant. He had communication with his nephew John Felthouse, showing the interest to buy his horse. They both had two letters exchanged as there was some misunderstanding regarding the prices of the horse. Paul sent the final letter to his nephew saying, “If I hear no more about him, I consider the horse to be mine at 30 pounds and 15 cents”. He was ready to pay more to cover up for the misunderstanding. John being busy with his farm’s auction replied nothing but instructed auctioneer Mr. Bindley that the horse should not be auctioned and should be reserved. But the auctioneer forgot this communication and sold the horse to some other party gaining more profit. When John got to know about this he sent a letter to his uncle apologizing for the same. Finally Paul sued Bindley in the tort of conversion which is using someone else’s property inconsistently with their rights.

Legal Issues Raised

Some of the issues raised in front of the court were-

Whether silence or no reply amount to acceptance
Whether failure to reject amount to acceptance
Does principle of acceptance put burden on the offeree to communicate the acceptance or the refusal

Arguments Raised

Defendant Side

Paul argued that since no letter was received from his nephew’s side the horse will considered being his and then Bindley had no right to sell or to take any advantage from the sale of the horse. He walked beyond his rights by selling the property which did not belonged to him.

Accused Side

Bindley put up his point saying that since John never communicated his acceptance, there was no actual contract of sale or any bounding contract between them. He never officially communicated the horse to be his and thus Paul had no right over the horse.

Judgement

This judgement was given by three judge bench consisting of Willes J, Byles J and Keating J unanimously. Willes J gave the leading judgement stating that there was no formal bargain for that horse and hence there was no space for contract of sale. Being silent or giving no response will not amount to acceptance. Though John showed his interest in selling the horse to Paul and also instructed Bindley not to sell the horse in auction but still showing interest will not legally bound him or Bindley to sell the horse to Paul. The date of sale of horse was 25^th of February and by that date no letter of acceptance was being sent. The apology letter was sent on 27^th of February which will be considered as the first official letter by the nephew to his uncle but that was after the sale of the horse. Thus at the time of the sale there was no legal contract between any party and Paul did not have the ownership of the horse. Since he had no legal right over the horse he cannot claim anything from Bindley and actions for conversion cannot be taken. The other two judges were of the same opinion and did not consider silence or failure to reject as an acceptance. They further signified that one cannot impose an obligation on another to reject one’s offer.

Conclusion

Offer and acceptance being the major component of binding contract cannot be left as any loophole. There must be clear communication regarding making the offer and simultaneously accepting the offer made. In this case offer has been clearly made by Paul but John did not communicate any clear acceptance. Thus principles of acceptance of offer have been cleared here which clearly shows that silence cannot be considered as an acceptance. The court also considered the case of Dobell v. Hutchinson which tells that acceptance need not to be in written it can be oral as well. But regardless in this case acceptance was not made in any form and only the intention of selling the horse was shown which does not give ownership rights to any person concerned. This case was considered landmark as an important judgement was delivered regarding principles of acceptance.

Suggestions

There is a concept of acceptance by conduct which means that doing ac act in accordance with what was required which shows the approval or acceptance. Since Paul put the letter stating, “If I do not hear”, and got no response there was a chance of acceptance by conduct. John might do not replied because he agreed to the conditions and prices. This case was also later reconsidered delivering that fact that there were chances of acceptance by conduct. Though the judges were right in saying that clear communication should be made for a contract of sale to become valid and legally bound but in my opinion this case should have been come under acceptance by conduct. The conduct of John, not replying or not giving any response will create a picture in someone’s mind that he accepted the offer and now horse belongs to him. Also the auctioneer was also instructed not to sell the horse and he also failed to work in accordance to what was required by his client. His negligence harmed Paul and Paul should be given the ownership of the horse. As can be seen in the case of Rust v. Abbey Life Asurance Co. Ltd., failure to reject was considered as acceptance.

Case Summary

Lalman Shukla v. Gauri Dutt (1913) XL ALJR 489 (AII.)

November 17, 2021 Team Attorneylex Leave a comment

This Case Summary is written by Shivanshi Aggarwal, a student at Maharaja Agrasen Institute of Management Studies, GGSIPU

Introduction

For a valid and binding contract, there must be an offer and acceptance of that offer. If any one of the element is missing then it will not be considered as the valid contract. Further offer can be classified in various other ways one such is general offer. General offer can be defined as an offer which is made to general public or an offer which is made at large. Then whoever sees that offer and act in accordance with its policies is said to be accepted that offer, in this case there is no need to present acceptance to particular party concerned. In the case mentioned there was misunderstanding regarding whether the offer made by defendant was a general offer or a specific offer and whether plaintiff accepted that offer or his conduct was acceptance to that offer.

Facts

Gauri Dutt, the defendant sent her several servants to different places to find out her missing nephew who was absconded from the house. Lalman Shukla, the plaintiff was the munim in the firm. He was sent to Haridwar to trace the boy. He was given the expenses of the train fare and was paid for other expenses as well. He found the nephew in Rishikesh and brought him back to Kanpur. When he was gone for the search, the defendant issued handbills saying that whoever will bring back the nephew will be rewarded with 501 rupees. Plaintiff was unaware of this announcement. When he returned he was awarded 20 rupees and two sovereigns. He accepted that and continued to work. After six months when he was being fired from the job due to some dispute he got to know about the offer. Later he filed the case in Kanpur court to claim rest of the reward money. Kanpur courts dismissed his appeal, then he filed the reconsideration appeal in high court.

Issues Raised

Some of the issues raised in front of the court were:

Whether the offer was accepted
Whether the lower court was correct in dismissing his appeal
Whether he was entitled to receive the remaining reward money
Whether the offer made was specific offer or general offer
Whether the principles of offer made were fulfilled

Arguments Raised

Plaintiff Side

The plaintiff argued that the conditions of the offer were to find the missing boy and to bring him back home. He fulfilled those and thus as per Section 8 of Indian Contract Act, 1872 which says “performance of the conditions of the proposal is an acceptance of the proposal”, he should be given the remaining amount. He further presented the case of Gibbons v. Proctor which shows that if persons performs the conditions of the offer even if completely unaware of the reward is entitled to receive the amount of the reward also in the case of Williams v. Carwadine it was shown that the valid contract exists if the acceptance is done by performing the essential conditions of the contract.

Defendant Side

Defendant claimed that since plaintiff was unaware of the offer made and never accepted that offer, should not be entitled to receive any reward as per Section 2(b), and Section 2(h) of Indian Contract Act, 1872 which says that “when the person to whom the offer is made signifies his assent thereto, the proposal is said to be accepted” and “an agreement enforceable by law is a contract”, respectively. She further presented the case of Fitch v. Snedker which shows that failure to accept the offer made the contract void and hence no claim can be pleaded.

Judgement

On filing the reconsideration appeal, in Allahabad High Court, Justice Banerji also dismissed the plaintiff’s appeal stating that since at the time of declaration of reward defendant was not present and did not had the knowledge of the handbills, it cannot be considered as the acceptance of any offer made. Also the acceptance of general offer can be done when any person after knowing the offer, then act in accordance with the offer made with the motive to receive the reward but since here he did not had any previous knowledge he cannot claim any compensation. He was just performing his duties in accordance with his obligations as the servant and not in accordance with any contract or offer made. Thus the contract is not enforceable by law and cannot be treated as any agreement and leading no option with plaintiff to receive any sum of money from defendant as the conduct of finding the missing boy.

Conclusion

This case was considered very important as a landmark judgement regarding essentials of contract, how contract turns into agreement and elements of general offer were justified here. This case shows how general offer and specific offer is differentiated. Also this case shows the presence of knowledge at the time of conduct or acceptance is very necessary. This case also clarifies how the given facts are different from any other lost and found or missing advertisements of the market and thus why in this case the plaintiff will not receive any remuneration which people usually receive in general times. Also various provisions of Indian Contract Act, 1872 were being highlighted and discussed which extensively tells how to rely upon certain circumstances and how certain facts change the entire concept of general offer. As per this judgement the contract needed acceptance to turn into valid agreement but the absence of that made it void and unenforceable. Lalman Shukla, no doubt performed his duties what was mentioned by Gauri Dutt in the handbills issued but it was not in accordance or not with the motive to fulfill that offer. It was his mere sincerity towards his job. He simply did not have any motive to claim the reward when he left to find the boy from Kanpur to Haridwar. Thus the absence of both knowledge and motive made this case to be dismissed.

Case Summary

Aruna Ramchandra Shanbaug V. Union Of India (2011) 4 SCC 454

September 6, 2021 Team Attorneylex Leave a comment

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This Case Summary is written by Arfa Aslam Khan, a student at School of law, University of Kashmir

SYNOPSIS

The case of Aruna Ramchandra Shanbaug is one of the most famous and intriguing cases in the Indian judicial history which legalized passive euthanasia and recognized that an individual has a ‘right to die with dignity’ and this right comes within the ambit of ‘right to life ‘ guaranteed under Article 21 of the Constitution of India.

Passive euthanasia refers to the withdrawal of medical treatment with the deliberate intention to hasten the death of a terminally ill patient and thereby relieving him of the pain and agony of living live that is meaningless.

BACKGROUND

The case strengthened the demand fro a sensible law on passive euthanasia and assisted suicide. Till that time the courts in India had on various occasions tried to dodge the issue. This case posed a series of uncomfortable questions to the people as a society which had till thet time been perceived just as medico legal issues. As of now only four European countries (Switzerland, Belgium, Netherlands, & Luxembourg) allow fro assisted suicide, where patients are given lethal doses of killer drugs to end their lives. In the present case the Supreme Court upheld the validity of passive euthanasia but denied assisted suicide by the administration of fatal injections. The case was a reminder that India can no longer afford to put the issue off the back burner.

FACTS OF THE CASE

The case reached the Supreme Court by a petition filed by Ms Pinki Virani claiming to be the next friend of the petitioner Aruna Shanbaug. Aruna was a nurse working at King Edward Memorial (KEM) Hospital, Mumbai. She was sexually assaulted on the night of 27th November, 1973 by a sweeper of the same hospital namely Sohanlal who attacked her with an intention to rape her. During the attack, Shanbaug was strangled with a dog chain while she was being sodomized. To immobilize her during the brutal act, he twisted the chain around her neck which led to the deprivation of the oxygen supply to her brain. On the following day she was found lying in a pool of blood by the cleaner of the hospital. She was treated at KEM Hospital following the incident where she remained in a permanent vegetative state (PVS) until her death of pneumonia in 2015. During the course of these years she was force-fed by a feeding tube to keep her alive.

ISSUES BEFORE THE COURT

The following were the issues before the Supreme Court:

Whether the withdrawal of life support for a person who is in permanent vegetative state (PVS) is lawful/ permissible?
Should a living will of patient be respected in such situations?
Does the family or next of the kin of a person have a right to make a request to withdraw life supporting system in case a person himself has not made such a request previously?

CONTENTIONS OF THE PETITIONER

The journalist-activist Pinki Virani on behalf of the petitioner asked for the legalization of euthanasia so that Aruna’s continued sufferings could be brought to an end by withdrawal of medical support. Her contention was that Aruna had no chance of recovery as she had been in the permanent vegetative state (PVS) for decades & thus she should be relieved of her pain and agony.

CONTENTIONS OF THE RESPONDENT

Responding to the petition filed by Pinki Virani, the respondent aprties i.e. KEM Hospital & Bombay Municipal Corporation filed a counter petition opposing euthanasia for Aruna Shanbaug. Aruna had a long association with the nurses of KEM Hospital. They had been taking good care of her & were happy to do so for the remaining days of her life. They believed that allowing euthanasia for Aruna would put all their efforts into drain.

FINDINGS OF THE COURT

The Supreme Court in order to have a better understanding of the whole situation constituted a team of 3 eminent doctors to report on the physical and mental condition of Aruna Shanbaug. After examining her, the appointed doctors’ team concluded that Aruna was neither brain dead nor in coma. She could respond to external stimuli, had feelings and was able to breathe without the support machine. Her condition was quite stable. She was in a permanent vegetative state (PVS)-a condition of unawareness of self and surroundings. She survived on mashed food poured directly into her stomach through a nasal pipe and the hospital authorities were taking good care of her and therefore there was no need to end her life.

The Supreme Court was put in a very difficult situation to decide the constitutionality of passive euthanasia. The court allowed passive euthanasia in certain conditions, subject to the approval of the High Court. It was held that whenever an application is filed in the High Court for passive euthanasia the Chief Justice of the High Court would constitute a 2 judge bench to decide the matter whether or not such termination should be granted. The2 judge bench had to seek the opinion of a committee of three reputed doctors nominated by it after consultation of the medical authorities and practitioners required for the purpose..

The court however keeping all the facts in mind denied Aruna Shanbaug euthanasia. The court however left it open for the hospital staff at any time to approach the HC under the prescribed rules in case they felt a need for the same.

Further the court found that in the present case the next of the kin of the patient would be the KEM hospital that has been taking care of her since the incident and not Pinki Virani and therefore any right to take any decision on her behalf was vested in the hospital.

REASONING OF THE COURT

The Court while delivering the judgment distinguished between active and passive euthanasia. It observed that causing the death of a person who is in ‘persistent vegetative state’ with no chance of recovery, by withdrawing artificial life support is not a” positive act of killing” which couldn’t be allowed considering the facts of each case. The withdrawal of life support by doctors is considered as an omission & not a positive step to terminate life.

The Supreme Court had to deal with another issue & that was the constitutionality of Section 309 I.P.C. Section 309of Indian Penal Code is a penal provision that provides punishment for an attempt to commit suicide. In the Bombay High Court struck down Section 309 of I.P.C and held that it was ultra-vires of Article 19 & 21. The court further opined that “right to life includes the right to live as well as right to end one’s life if one so desires.”

In the case of the Supreme Court held Section 309 I.P.C to be violative of Article 21 of the Constitution. The court held that this provision needs to be effaced from the statute book as “it is a cruel & irrational provision & may result in punishing a person doubly who has suffered agony & would be undergoing ignominy because of his failed attempt to end his life.” The court also remarked that life under Article 21 includes the right to live with human dignity and not mere material existence in person.

However in the five-judge Constitution Bench of the Apex Court held Section 306 &309 of IPC to be constitutionally valid and observed that right to life doesn’t include right to die. it was in this case that the court held that the right to life guaranteed under Article 21 doesn’t include right to die.

Aruna Shanbaug was denied euthanasia because the court held that ‘right to die with dignity at the end of life is not to be equated with the right to die an unnatural death by curtailing the natural span of life’. The Supreme Court, however, affirmed that in a case of a dying person or a person who is terminally ill or in PVS he may be permitted to terminate it by a premature extinction of his life in these circumstances and is not a crime keeping in view the Gian kaur’s case

DISPOSITION AND THE POSITION AHEAD

The judgment was passed by the Hon’ble Division Bench of the Supreme Court of India consisting of Justice Markandey Katju and Justice Gyan Sudha Mishra. Interestingly articulated by Justice Markandey Katju was a couplet of Mirza Ghalib

“Marte hain aarzoo main marne ki

Maut aati hai phr bhi nahi aati”

In 2014, Aruna Shanbaug’s judgment was termed inconsistent by a three judge bench of the Supreme Court & the issue of euthanasia was referred to its five-judge Constitution Bench.

In the case of the Constitution Bench led by the then Chief Justice of India Dipak Misra upheld that the fundamental right to life and dignity includes “right to refuse treatment and die with dignity.” The court further observed that the key to meaningful existence vested in the individual’s freedom to choose to die with dignity

The concept of living wills was also solidified in this judgment. The Court held that advance medical directives (living wills) would be quite fruitful to facilitate the fructification of the sacrosanct right to live with dignity. The Constitution Bench viewed that the said directive would dispel any doubt at the relevant time of need during the course of treatment of the patient. The Supreme Court in this judgment aid down a detailed procedure for the execution of living wills which is quite cumbersome, tedious and not easy to adhere to. However this judgment was a good beginning to address a new concept which was not touched in the past.

CRITICAL ANALYSIS

At the outset, the judgment fails to address many serious issues. The first being that it altogether ignores that in Aruna Shanbaug’s case the “right to live” was a privilege. She was a privileged nurse to be receiving this treatment while others facing a disease far worse than her would have long ago died. The Court chose to remain silent on an issue which was likely to become extremely vexatious in the times to come.

A serious question is raised that ‘Can one person be allowed to block a bed for 37 odd years & thus deprive other patients of medical treatment which could save their lives, in country like India which lacks the basic medical infrastructure & a proper medicare?”

It is but evident that had Aruna not been a nurse of KEM Hospital she would not have been looked after and cared for like this.

Ordinarily it is a general convention worldwide that beds are reserved fro patients whose ailments can be addressed and cured, whether totally or partially. Hospitals are in no case residence of the patients. Judiciary ought to have put its emotional reactions aside because it taints the judicial process. Also providing treatment to patients in an incurable condition just because they are they are privileged is dangerous as well as discriminatory and also drains the state of ist resources.

Second, the judgment gave a legal sanction to passive euthanasia although it was always practiced behind closed doors and thus the facade of laying down a legal procedure hardly serves any purpose.

Generally when a patient is terminally ill it is recommended by the family doctors that the patient be kept at home at given treatment there so that he can die in the least painful manner and this approach is very much sensible and humanitarian.

Also the Court expects that in each application for euthanasia the petitioners should approach the respective High Court. However no sane family would approach Courts and wait for years to get Court’s ratification. This has thus rendered this judgment unfructuous.

Third, on one hand the Court recognizes attempt to suicide under Section 309 I.P.C as punitive but on the other hand that a patient has a right to refuse treatment even if this results in cutting short his life span. This is so bizarre.

Fourth, even in cases where a person dies of starvation, it is invariably stated in the death certificate that the person died of natural cause.

It is the responsibility of the State to provide and fulfill the Right to life. Thus when a State fails to perform its responsibility, shouldn’t the officer and govt. officers be held accountable under Section 306 I.P.C (abetment to suicide) for allowing the person to die?

CONCLUSION

Although the Supreme Court embarked upon the cumbersome journey to minimize the chances of misuse of euthanasia, however, there is a highly dangerous aspect that its abuse may be easily made undetectable. Although euthanasia appears to be morally justifiable, but its fool-proof applicability is close to impossible. India needs the maturity top handle the issue & to understand its pros and cons thoroughly. There is a need to take the recommendations laid down by the Law Commission into consideration and frame a law to prevent malpractices and its misuse.

Case Summary

THE SECRETARY, MINISTRY OF DEFENCE v. BABITA PUNIYA & Ors (2020 SCC ONLINE 200)

July 28, 2021 Team Attorneylex 2 Comments

This Case Summary is written by Ritika Srivastava, a student at The ICFAI University, Dehradun

SYNOPSIS

The Constitution of India enumerates various provisions for women for their upliftment and to bring gender equality in the society. But it is still a question whether women are treated equally on par with men after 74 years of Independence. The answer is NO. India being one the largest democracy but Gender stereotypes always creates obstacles in the path of women. There is several of gender discrimination from which women are fighting since birth till the date of their death, they are bound in such stereotype but one of the battles ended in the favour of them in the Supreme Court’s landmark judgment namely “The Secretary, Ministry of Defence v. Babita Puniya & Ors. The honourable court ordered to grant Permanent Commission (PC) in 10 non-combat services at three month and further stated that women are now eligible to hold command posts by tire the existing ceiling. This judgment gives women an equal opportunity in the Indian Army by providing them a long-term job security.

BACKGROUND

Section 12 of the Army Act, 1950 defined the Ineligibility of females for enrolment or employment. It says that “No female shall be eligible for enrolment or employment in the regular Army, except in such cops, department, branches or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf:

Provided that nothing contained in this section shall affect the provision of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the regular Army or any branch thereof in which females are eligible for enrolment or employment”.

On 30th January 1992, a notice issued by the Union government in favour of female candidates that they are granted Short Service Commissions (SSC) for five year for the department such as Army Postal Service, Judge Advocate General’s Department, Army Education Corps, Army Ordinance Corps and Service Corps. And after few months in a same year on 31st December, five more department such as Mechanical, Signal and Electrical engineering, Engineers, Regiment of Artillery and Intelligence Corps.

FACTS OF THE CASE

In the year 2003, Babita Puniya, an advocate filed a writ petition in the nature of PIL before the Delhi High Court for granting Permanent Commission (PC) to military women who recruited as Short Service Commission (SSC) officers. And apart from this petition, many other petitions were filed by the women officers for the same and tagged their petition with Babita’s petition.

In the year 2005, the Minister of Defence declared that validity of the appointment scheme of the Indian Army regarding women officers being extended.

On 20th July 2006, a further notification issued which allows the SSC women officers to serve for maximum 14 years. In a same year on 16th October, Major Leena Gaurav again filed a writ petition challenging the terms and conditions issued by the Minister of Defence on 20th July for seeking to grant Permanent Commission (PC) for Women officers. In the next year (2007) Lt. Colonel Seema Singh also filed petition for the same issue of granting PC.

In the year 2008, the Union Government granted PC to SSC officers in some of the departments such as in JAG and Army Education Corps. Later, Major Sandhya Yadav and others challenged this notification that PC was granted to those who appointed after the date of implementation of this notification and only in two departments.

Delhi High Court flooded with the petition seeking to grant PC to the women officers. In 12th March 2010, Delhi High Court heard all the petition and held that PC should be granted to the women who were already recruited as SSC in all departments after five years of service. In July the Army appeared before the Supreme Court challenging this judgment but Supreme Court upheld the judgment of Delhi High Court.

On 2nd September 2011, again appeal was made in Supreme Court which held the given judgment to be continued. In 2018, the court was asked to review the order of granting PC to women in the Army.

At last on 15th February 2019, the Union Government issued a notification for PC to SSC women in the Army of eight combat support services and women officers were only serve on staff appointments.

ISSUES RAISED

Whether the order issue by the Centre on 15th February 2019 should be implemented?
Whether women in the Indian Army should be granted Permanent Commission (PC)?
What are the terms and conditions determine the Women officers in the Indian Army?

CONTENTIONS

The argument advanced by the Petitioner

It was argued that the judgment delivered by the Delhi High Court was unable to consider the relevant provisions under section 10 and section 12 of the Army Act, 1950.
It was argued that the centre has to consider the risk involved in the services of the Army officers especially to the women (child care issues, maternity issues and revolt areas or in any field). As stated in case Union of India v. PK Chaudhary.
It was argued that the border areas have less facilities and posting of women in such areas is not sensible because of hygiene.
It was argued in the Written Note by the Union of India by referring once again domestic obligations, motherhood, pregnancy and differences in the physical abilities as compare to all-male units.
It was argued about the considerable benefits of pension to the women in the army who served continued even after fourteen year notice issued on 15th February 2019.

The argument advanced by the Respondent

It was argued that there is nothing new about the concern regarding to privacy, women of all ages are still recruited on such post where risk factors is high, no sanitation in force headquarters, field areas, warfare areas and so on.
It was argued that the Centre promotes the discriminatory policy regarding granting of PC to SSC women officers and also lower their position to that of a jawan.
It was argued that the Centre claimed the presence of women establish a negative effect on the unit cohesion. Women should provided equal opportunity as men, added.
It was argued that women served the nation same as the male counterparts do then why they are left in the lurch without pension and promotion.
It was argued that it about 30% of the women officers is exposed to combative environment and aware about risk factor present in war zone.

RULES

Article 14 of the Indian Constitution (Equality before Law).
Article 15 (1) of the Indian Constitution (Principle of non-discrimination on the basis of sex.
Article 16 (1) of the Indian Constitution (Equality of opportunity for all the citizen of India in the matters of public employment).
Article 33 of the Indian Constitution (Power of the Parliament to modify the right conferred by this Part in their application).
Army Act, 1950.

FINDINGS

On the basis of the facts and arguments advanced by petitioner and respondent, the court held the following:

The option shall be given to all the women officers currently recruited as SSC officers.
All the women officers serving as SSC shall be considered for granting PCs regardless whether any of them crossed fourteen years or twenty years of service.
The considerable benefits shall be granted to the SSC women officers who are in service and even after as pensionable service.
The specialization choice shall be available to all the women officers during they are opting for the grant in PCs alike male counterparts.
The judgment delivered by the Delhi High Court is affirmed.
The term “in various staff appointments only” and “on staff appointment only” mentioned under para 5 and para 6 of the order issued on 15th February 2019 respectively shall not be enforced with respected to PC of women.

REASONING

The Supreme Court headed by Justice D.Y Chandrachud challenged the issue presented by the Union government and stated that they have ingrained in stereotypical assumptions that domestic works are the responsibilities of women only and added that such order against a specific gender clearly violates their fundamental right guaranteed under Article 14 of the Indian Constitution. And not granting PC to the women officers clearly violated their Fundamental Rights provided under Article 14, 15 and 16. Justice Chandrachud said although Article 33 of the Indian Constitution permits restriction on Fundamental Right in armed forces and it is mentioned that it could be restricted up to the extent that it is essential to maintain the adequate discharge of duty and discipline. There are certain conditions laid down granting PCs to SSC women officers. Justice Chandrachud also said that “Constitution is itself feminist, as the main function off feminism is to distort social Hierarchies and so is of constitution.”

CRITICAL ANALYSIS

Indian Court has always come forth to protect the rights of women and this judgment again proven that our court stands up for the right of the women which were not granted to them. It is genuinely a progressive judgment and literally safeguards its place as a guardian of the constitution.

The fundamental rights guaranteed under Indian Constitution would granted to us if not followed by the quotes in letter and spirit. There were number of cases where the courts have extended fundamental right such as in Chairman Railway Board and others v. Chandrima Das (Mrs) and others and C.B. Muthamma v. Union of India to Anuj Garg v. Hotel Association of India.

CONCLUSION

“It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces when the true picture of their service conditions tells a different story”. Supreme Court on Indian’s Army failure to enact the judgment which allows PC for women officers. This judgment undoubtedly appreciatable and commendable but it still left us with a question whether do we the holder of right. There is a need to ask our right from other institutions.

Article 39 of the Indian Constitution empowers the state to work for securing equality for men and women and a right to proper means of livelihood. This whole issue arises from the stereotypical idea against women that they are physically weaker than men, not enough efficient to fight and are not capable to face such situations. This mindset should be needed to change because it violates firstly their rights and also break them mentally and emotionally.

Case Summary

SHAYARA BANO V. UNION OF INDIA AND ORS (2017) 9 SCC 1

July 28, 2021 Team Attorneylex Leave a comment

This Case Summary is written by Krithika CJ, a student of Bishop cotton women’s Christian law college

INTRODUCTION:

On 22nd of August in 2017 the Supreme Court of India pronounced Muslim separation through triple ta-laq illegal. Via triple (talaq–e–biddat) Muslim men could separate from their spouses in a flash and without state intercession by articulating “talaq” threefold. The case had been brought under the watchful eye of the court by the applicant Shayara Bano and other women who had been separated along these lines. Diverse Muslim ladies’ gatherings had interceded to help them. On the result, the court was parted three to two. The three adjudicators in the majority regarded triple talaq invalid, however utilized diverse thinking to come to their end result: Justices Rohington Nariman and U. U. Lalit held that the 1937 Muslim Personal Law (Shariat) Application Act, to the extent that it alludes to significantly increase talaq, disregarded Article 14 of the Indian constitution – the right to equality. Justice Kurian Joseph rather contended that triple talaq was not a substantial practice in Islam and was subsequently unlawful. The minority observance, held by Chief Justice Jagdish Singh Khehar and Justice Abdul Nazeer, was that however triple talaq was undesired, the courts couldn’t strike it down, and just the parliament could direct on the matter. The judgment is a milestone case in the Indian ladies’ development’s agitating for additional rights under the umbrella of personal laws. From there on 28th December, 2017 Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017. On 9th August, 2018 alterations to the Bill was circled in the Rajya Sabha and on 10th August, 2018, the Chairman, Rajya Sabha announced that the Bill couldn’t be introduced because of absence of concurrence and from there on 19th September, 2018, it is said that the statute being referred to was proclaimed. Ultimately the Muslim women (protection of rights on marriage) Act, 2019 was passed by the parliament, as per this, a Muslim man is not allowed to divorce his wife abruptly by way of ‘Instant divorce’ as it has become unconstitutional and hence illegal.

“The Triple Talaq Bill is not about politics but empowerment and justice for women. This bill is not about any specific religion and community. The bill is about humanity and justice.” — Ravishankar Prasad, Former Minister of Law and Justice of India.

FACTS INVOLVED IN THE CASE:

Shayara Bano, spouse of Rizwan Ahmad was hitched for a period of 15 years. Her significant other articulated ‘talaq’ multiple times within the sight of two witnesses and conveyed ‘talaq-nama’ on 10/10/2015 to her. The spouse tested something very similar before the Supreme Court contending that these three practices – triple talaq, polygamy and nikah halala were illegal because of which the sacred legitimacy of such practice was called before an established seat of the apex court comprising of 5 adjudicators from various grounds. She guaranteed that these practices were violative of a few given under the Constitution of India including;

a) Article 14 which states, “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”

b) Article 15(1) which states that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

c) Article 21 which states that no person shall be deprived of his life or personal liberty except according to procedure established by law, and

d) Article 25 which guarantees freedom of religion.

MATTERS IN QUESTION:

1)Regardless of whether the act of talaq-e-biddat (explicitly immediate triple talaq, a fundamental act/practise of Islam).

2)Regardless of whether the act of triple talaq abuses any fundamental rights.

RELIGIOUS SUBSTRATUM OF THE MATTER:

The concept of divorce has been regarded as a natural sequel to a marriage. However, divorce was not recognised by all communities in olden days. The general belief that marriage is indissoluble is no longer welcome by the 21st century. It was merely granted as a matter of necessity which hold special circumstances and aims at bringing about a sense of equality between a man and a woman. The ideals may differ from one religion to other but it has persisted in-spite of acute disagreement, in order to set a balanced approach to marital life and conjugal relations.

Under the Muslim law, a marriage is called off either by the death of either of the spouse or by divorce. The Quran grants permission somewhat in view of some face to the traditions and part of the way to empower men to dispose of a terrible association. The Prophet gave to the woman the right of obtaining separation on reasonable grounds. The Prophet is reported to have said that if a marriage is detrimental to a woman, then it can be allowed to be broken off.

The bone of contention in this case was about one of the modes of talaq which is ‘Talaq-e-biddat’, recognised among the Hanafis which could be affected only by the husband. The effect of irrevocability itself makes the practise sinful as observed by Islamist jurists. It was said to be introduced by Omeyyads in order to break free from the severity of the legal repercussions. In the case of Fazlur Rahman v. Aisha, the validity of this type of divorce was held questionable and argued that it goes against the Quranic precepts. Furthermore, in excess of 20 Islamic nations including Egypt, Sudan, Morocco, Iraq, even Pakistan and Bangladesh, are refreshing Sharia laws, and have forced a directive against the utilization of ‘triple talaq’ by spouses. In Turkey and Cyprus, unilateral divorce also has necessary court intercession.

In Gazula Dasaratha Rama Rao v. State of A.P. Das J, said, “Even if there was a custom which has been recognised by law … that custom must yield to a fundamental right.” However, India is a country that has held customs to be sacrosanct but only upto a limit that those do not supersede or override the effects of statutory laws.

In the case of A. Yousuf Rawther v. Sowramma, Justice V. R. Krishna Iyer observed that, “The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict divorce does not accord with Islamic injunctions … “

Hence, there was a decisive understanding that talaq has to be on the basis of good will and must not hold any malicious intent to outrage the dignity of a Muslim woman.

CONTENTIONS OF THE PETITIONERS:

Article 14 of the Indian constitution expressly goes on to say that the state shall not deny equality to any person before the law and ensures equal protection for all within the ambit of the country’s territory. This article holds the essence of the right to equality. It not only removes discrimination but also implies that no individual shall exercise special privilege than the other. In a philosophical sense, equality is a dynamic norm.

In this context, the practise of talaq-e-biddat, allowed a male spouse an extended right to cut the ties of a marriage, which clearly violates the basic principle of article 14 of the Indian constitution. A female spouse had no say in this particular matter and yet again it goes against the protection of all persons by Article 14. Furthermore, it infringes the right guaranteed under clause (1) of Article 15, which prohibits any kind of disparities on the basis of sexual orientation. This established an element of prejudice and unjust distinction of the female spouse in a marriage under Islamic law and made the way clearer to empower the Muslim women and change the social attitude of the community entirely.

“What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

In Rukia khatun’s case, the division bench stated that the correct law of talaq as ordained by Holy Quran is that (a) Talaq must be for reasonable cause, and (b) Talaq must be preceded by an attempt of reconciliation between the husband and the wife and two arbiters. Thus, the apex court of India has disapproved the instant divorce followed in India.

SETTLEMENT ARRIVED AT:

Justice R.F. Nariman and Justice U.U. Lalit saw that applying the trial on arbitrariness of the case within reach, plainly triple talaq is a type of talaq which is itself considered as something inventive for example it’s anything but Sunna, being a sporadic type of talaq. The Hanafi school which perceives this type of talaq, explicitly expresses that however legitimate it is corrupt in that it causes fierceness of God. Since triple talaq is moment and unalterable/irrevocable, clearly any endeavour at compromise among a couple by two referees from their families, which is vital for save conjugal tie, can’t at any point happen. It is additionally certain that this type of talaq is plainly subjective in sense that conjugal tie can be broken eccentrically and fancifully by Muslim man with no endeavour at compromise in order to save it. This type of ‘talaq’ must, accordingly, be held to be violative of key right contained under Article 14 of Constitution of India.

Justice Kurian Joseph likewise agreed the assessment of the over two Judges. He says that the section in Holy Quran identifying with talaq is very clear and unambiguous. Holy Quran has credited holiness to execution of marriage. Notwithstanding, he believes that in amazingly unavoidable circumstances, talaq is passable. Yet, an endeavour for compromise should be made and in the event that it falls flat, disavowal are Quranic fundamental strides before talaq accomplishes irrevocability. In triple talaq, this entryway is shut, thus, triple talaq is against fundamental precepts of Holy Quran and subsequently, it disregards Sharia.

Then again, Chief Justice Khehar and Justice Abdul Nazeer offered a contradicting input holding that religion involves confidence and not of rationale. It’s anything but open to court to acknowledge populist approach, over training (followed for as far back as 1400 years) which comprises indispensable piece of religion. Constitution permits supporters of each religion, to follow their convictions and strict customs. Constitution guarantees devotees, everything being equal, that their lifestyle, is ensured and would not be liable to any test, despite the fact that they may appear to others unsuitable, in this day and age and age. Constitution broadens this assurance, since confidence comprises strict cognizance of devotees. It is this strict awareness which ties adherents into independent substance. Constitution attempts to ensure and save, convictions of every one of independent substances under Article 25.

EXPOSITORY EPILOGUE:

Great amount of sanctity has been the moral foundation to the concept of marriage in Indian context. Yes, there are certain contradictory views in today’s society. Social reforms are essential for growth and progress in any country. Even in the Hindu culture, the bond of marriage is considered to be inseparable. The husband and wife are regarded as one. The ideals of Ram and Sita from the great Indian epic – Ramayana are still followed. Community and change within a certain framework of principles and values are some of the basic tenets of a modern society. Therefore, it becomes a collective responsibility of all of us to shun undesirable social practised that have existed for centuries. Problems are not cured wholly by legal reformation but also requires some inward introspection of our own thoughts.

Through time immemorial women have often been targeted atrociously. In this purview, the sad saga of the Muslim women was paid attention. It is the moral and legal duty of the people as well as the judiciary. Triple talaq has been termed ‘illegal’ and ‘unconstitutional’ and hence, blocks the escape routes for the accused. It sets an exemplary precedent which has similar circumstances and gives weightage to the victim’s plight.

CONCLUSION:

It is no uncertainty that the triple talaq judgment has become a landmark judgment particularly on the part of private law in this country. It has given us different various viewpoints on the best way to manage them particularly Justice Joseph’s “socially grounded” judgment. This judgment unquestionably showed that the high court has gained from its previous slip-ups on close to home law. In spite of the way that it needed to give lucidity on sex equity and imbalance in close to home laws and how they are to be dealt with. It likewise didn’t address if “saving” triple talaq implied that it had no legitimate impact at all or three utterances implied one. Hence completely said and done, it’s anything but a move towards correspondence and has given a spine to how future individual law and social changes need to occur. This judgment likewise dealt with the minority is an entirely feasible way which is a stage toward secularism. It is trusted that this judgment will be taken in the brilliant light and will help Muslim lady to live a superior and safer life as guaranteed by the tradition that must be adhered to.

Case Summary

Joseph Shine v. Union of India (2019) SCC 29

July 28, 2021 Team Attorneylex Leave a comment

This Case Summary is written by Saurabh Gupta & Yashaswini Sangania, students of Nirma University

Synopsis

The provision of adultery under section 497, Indian Penal Code saw women as men’s property has been repealed because it treats women as chattels rather than human beings. The culture in which we live has two sets of morality standards for assessing sexual behaviour: one for males and one for females, which ascribes unattainable qualities to women and restricts them to a restricted area of behaviour through the expectation of compliance.

The legal subjugation of one sex to another is immoral in and of itself, and is currently one of the greatest impediments to human progress in world; and that it should be replaced by a system of full equality, permitting neither power nor privilege on the one hand, nor handicap on the other hand, women cannot be treated as second-class citizens in today’s society with such discriminatory rules. This case comment deals with all the issues related to Adultery and its decriminalization.

Background

The constitutional validity of this provision has been challenged in 4 previous judgements.

YUSUF ABDUL AZIZ v. STATE OF BOMBAY

The appellant Yusuf Abdul Aziz, when charged under section 497 of IPC, challenged its constitutional validity that it violated his right to equality under article 14 and 15(1). He claimed that the provision of adultery did not make women culpable in an adulterous relationship and was discriminatory against men making them solely liable for the act. The supreme court upheld the constitutional validity of the impugned section by declaring it a special provision safeguarded under article 15(3) of the constitution which does not allow the article to prevent the State from making any special provision for women and children.

SOWMITHRI VISHNU v. UNION OF INDIA & ANR.

Sonwrithi vishnu approached the supreme court under article 32 of the constitution, challenging the constitutional validity of section 497 of the Indian Penal Code. It was contended that this section does not give a wife the right to prosecute her husbands or the woman they have sexual relations with, for the offence of adultery. It was further contended that the provision that prima facie seems to be a measure of positive discrimination in favor of women, was in fact based on the notion that women are mere chattels of men. The apex court upheld the validity of the provision and interpreted the definition of adultery literally, stating that it could only be committed by men and not women. Extending the ambit (if required) of the offence under section 497 was a task for the legislature and not judiciary.

V. REVATHI v. UNION OF INDIA

In this case V. Revathi filed a petition under article 32 of the constitution, challenging the Section 198 Cr.P.C. She contended that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband. the court ruled in the favor of the provision stating that it Is not discriminatory on the basis of sex, as it does not allow the wife or the husband to prosecute each other on the occurrence of such an offence. It punishes the third party i.e. a male who commits adultery and defiles the sanctity of the matrimonial bond.

W. KALYANI v. STATE THROUGH INSPECTOR OF POLICE AND ANR

The constitutionality of section 497 was not questioned in this case but it was remarked that a woman is completely immune to the charge of adultery and cannot be proceeded against for the same.

Brief Facts

Joseph Shine, a Keralite hotelier in Italy, filed a writ petition under Article 32 questioning the constitutional validity of Section 497 of IPC read with Section 198 of CrPC. He argued that this provision for adultery violated article 14, 15 and 21 and was also discriminatory on the basis of sex.

Suicide of his close friend in Kerala due to false rape charges made by a female co-worker motivated him to file the PIL where he claimed that such a provision defiles the dignity of women by treating them as mere objects or property of men while also imposing culpability on only men for an act that was consensual.

Issues

Whether Section 497 of Indian Penal Code is manifestly arbitrary and discriminatory under Article 14 of the Indian constitution.
Whether Section 497 of Indian Penal Code encourage women to be a mere chattel violating under Article 15 of the Indian constitution.
Whether Section 497 of Indian Penal Code violates private realm of an individual violating Article 21 of the Indian constitution.

Arguments

AGRUMENT ADVANCED BY THE PETITIONER

VIOLATION OF ARTICLE 14 OF INDIAN CONSTITUTION

The learned counsel on the behalf of petitioner argued that Section 497 of IPC & Section 198(2) of CrPC deprives the women right to prosecute her husband, who had maintained sexual relationship with another unmarried women and thereby is arbitrary and fails to pass reasonable classification test laid down under Article 14 of the Indian Constitution. It discriminates on the basis of sex and violates the fundamental principle of equality and equal treatment.

The counsel further argued that reasonable classification on the basis of sex is absurd and does not benefit any class and relied on the case of State of U.P. v. Deoman Upadhyaya, where the court held that reasonable classification under Article 14 has to be made only when absolutely necessary. Moreover, in the case of Lachhman Das v. State of Punjab, it was held that anxious and overemphasis on the doctrine of reasonable classification may lead to devoid Article 14 its own virtue.

Moreover, in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors, it was held that to pass the test of reasonable classification, the classification should have reasonable nexus with the object sought. Learned counsel in the present case argued that Section 497, IPC made classification on the basis of gender and marital status and such classification does not have reasonable nexus with the object sought, and therefore violative of Article 14 of the Indian Constitution.

VIOLATIVE OF ARTICLE 15 OF THE INDIAN CONSTITUTION

The counsel on the behalf of petitioner argued that in the case of Kalyani v. State of Tr. Inspector of Police and Another, it was held that the consent of women is not relevant under section 497, IPC. Thereby Article 15 of the Indian Constitution cannot disguise itself as a protective discrimination and cannot act as a cover up for offences having penal consequence and promoting oppression against women which is not maintainable under any sound law.

Therefore, the counsel submitted that the law which takes away right of one particular sex to prosecute cannot be termed under the ‘beneficial legislature’ under Article 15 (3).

VIOLATIVE OF ARTICLE 21 OF THE INDIAN CONSTITUTION

The learned counsel submits that women in society needs to be considered on equal footing as men and plays equal role in the development as well as in the making of society. Article 21 of the Indian Constitution guarantees right to life with dignity, whereas Indian women are suffering from discrimination from ages in silence. Similarly, section 497 of IPC permits a man to have an adulterous relationship with a women other than his wife questions right to dignity of the wife and further depletes her legal right to prosecutes her husband in court of law.

Moreover, Hon’ble Supreme Court in the case of K.S. Puttaswamy and another v. Union of India held right to privacy under the ambit of Art. 21 of the Indian Constitution and layed immense stress on the dignity of the individual and held dignity and freedom to be dependent and a means to achieve the other. Therefore, the counsel submitted that any kind of relationship among the individuals is a matter of privacy and violating right to privacy of the individual would violate right to life under article 21 of the Indian Constitution.

ARGUMENT ADVANCED BY THE RESPONDENT

VIOLATION OF ARTICLE 14 OF INDIAN CONSTITUTION

The learned counsel on the behalf of Respondent argued that Art. 14 of the Indian Constitution is general in nature and needs to be read with other provisions which are set out the ambit of fundamental rights. It was further argued that Sex is a sound and valid classification and there can be no discrimination on the basis of sex. Moreover, the legislature itself differentiates on the basis of sex by providing special provisions for women and children. Therefore, it is submitted that by the virtue of art. 14 and special provisions for women validates section 497 of the IPC.

VIOLATIVE OF ARTICLE 15 OF THE INDIAN CONSTITUTION

The counsel on the behalf of Respondent laid its reliance on Yusuf Abdul Aziz v. The State of Bombay, and argued that section 497, IPC needs to be read Article 15(3) which provides provisions for protection of women and children. Section 497, IPC provides such protection as adulterous women cannot be punished, not even as an abettor, under the impugned section.

VIOLATIVE OF ARTICLE 21 OF THE INDIAN CONSTITUTION

The learned counsel on the behalf of Respondent rebutted the petitioner’s contention and argued that right to dignity and privacy enshrined under Art. 21 of the Indian Constitution is not absolute and is subjected to greater public interest. Further, individuals are free to have consensual sexual relationship outside the martial bond and only extra marital sexual relationships are warranted under Section 497 of the Indian Constitution.

The Counsel further argued that the India is a land of culture, ethics and tradition, where marriage is the founding stone for all. Section 497 of IPC, preserves the sanctity of the most important institution of the Indian Society and thus submitted that right to privacy and dignity could be restricted for public interest and greater good.

Judgement

VIOLATION OF ARTICLE 14

The court found that the impugned judgement was arbitrary and does not have reasonable classification. The court found the classification arbitrary as it gave prime importance to the husband allowing him as an aggrieved person the right to prosecute against adultery while giving absolutely no rights to women for the same. This offence is indirectly derived form the notion that women are mere property of men they are married to and any person trespassing that property without the permission of the husband is committing an offence against him. The court referred the case of Shayara Bano v. Union of India and stated that the a test of manifest arbitrariness should always be applied in such cases to check the validity of legislations and the arbitrary ones should be struck down.

Taking the case of E. P. Royappa vs State Of Tamil Nadu as a precedent It was noted that Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14

VIOLATION OF ARTICLE 15

The court found that the impugned provision was not a case of protective discrimination against women but an inherently discriminatory act deep rooted in patriarchy.

The court found the provision discriminatory as it further boosted the stereotype of men having control over their wives’ sexuality. It boosts the false notion that women are incapable of exercising their individual sexual freedom and can be wooed or seduced by men without their awareness. The provision treats women as passive objects which can be misappropriated and also gives them protection from being punished as abettors to the offence of adultery. The provision for protective discrimination against women in Article 15(3), as per the Government of Andhra Pradesh v. P B Vijayakumar, was made to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women. It was also noted from the case of Independent Thought vs. Union of India that protective discrimination was to be employed in a manner that is not entrenched in the paternalistic notions of ‘protection’ Dignity and autonomy are crucial to substantive equality and thus section 497 was found violative of Article 15(1) of the constitution.

VIOLATION OF ARTICLE 21

The court found section 497 violative of the sexual privacy and dignity of a women and takes away the autonomy granted to her by Article 21 of the constitution.

The provision did not make adultery an offence if committed with the husbands consent which implies that he is puppet master of his wife and hence the wife is deprived of her sexual autonomy as well as individuality. The impugned section gives the idea that even after the passage of 158 years, and big ideas of women being equal to men they are still subconsciously the chattels of their husbands who wouldn’t have an identity without them. By taking the cases of S. Puttaswamy and Anr. vs Union of India and others and Common Cause v. Union of India and ors. the court said that curtailing the sexual autonomy of women is violative of the fundamental right to dignity and equality provided under Article 21.

Critical analysis

Historically, adultery has always been seen as a severe and legitimate offence in many cultures and countries. The law on adultery is continuously developing as in the past, the woman was held accountable for the offence, however, under current legislation, the male who commits adultery was punished under section 497 of the Indian Penal Code, and the wife is not held responsible.

Criminalisation as well as decriminalisation is an importance facet of criminal law and it is important to note, how criminal law is interacting with the people and upholding the moral values that organises a society. Since, the society can’t be static, there is always a need of attention of legislature to satisfy the developing needs.

Marriage is one of the social institutions which is considered very important for the smooth functioning of the society. Adultery has been a conflicted issue since a very long time and its quite astonishing to find that the law which safeguards the holiness and sanctity of marriage from dishonesty and misrepresentation, has been decriminalised

As observed by Justice Dipak Mishra in the case of Joseph Shine v. UOI, the law of Adultery is premised on a discriminatory principle, since one of the adultery parties is assumed to be a victim and the other to be a criminal, and thereby a violation of Article 14 of the Indian Constitution because it leads to arbitrary gender categorization. While the judgment is likely to have a wide-ranging influence on marriages, the negative consequences cannot be overlooked. The legalisation of adultery will jeopardise the institution of marriage in a society where divorce rates and incidents of marital infidelity are on the rise. Not only does it risk promoting extramarital relationships, but it also risks catalysing the breakdown of marriages, leaving children of divorced parents in the lurch.

Decriminalizing section 497, IPC has a western influence and divorce rate in western countries is 52% and rising. To prevent India from following the trend, laws and sanctions against extra-martials affairs needs to be stricter.

Moreover, instead of decriminalising adultery under Section 497 IPC, only Section 198 of the Code of Criminal Procedure 1973, which prohibits wives from bringing adultery cases, should have been decriminalised. The section should have been gender-neutral from the start.

Conclusion

The Hon’ble Supreme Court has decriminalized 150 anti-adultery laws because they favour a husband who acts like a master of his wife. This case comment concludes that society has changed dramatically, and women are no longer considered the property of their husbands. The rule outlawing adultery, as Chief Justice of the Supreme Court of India at the time quoted, is arbitrary and degrades a woman’s dignity.

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Introduction

Fact of the Case

Issues Raised in appeal

Judgement

Verdict of the Court

Conclusion

Critical Analysis

Introduction

Fact of the Case

Issued raised

Judgement

Conclusion

Critical Analysis

Introduction

Facts

Questions Of Law

Conclusion

Held

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Introduction

Facts

Questions Of Law

Held

Conclusion

Critical Analysis

Introduction

Facts

Legal Issues Raised

Arguments Raised

Judgement

Conclusion

Suggestions

Introduction

Facts

Issues Raised

Arguments Raised

Judgement

Conclusion

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SYNOPSIS

BACKGROUND

FACTS OF THE CASE

ISSUES BEFORE THE COURT

CONTENTIONS OF THE PETITIONER

CONTENTIONS OF THE RESPONDENT

FINDINGS OF THE COURT

REASONING OF THE COURT

DISPOSITION AND THE POSITION AHEAD

CRITICAL ANALYSIS

CONCLUSION

SYNOPSIS

BACKGROUND

ISSUES RAISED

CONTENTIONS

RULES

FINDINGS

REASONING

CRITICAL ANALYSIS

CONCLUSION

INTRODUCTION:

FACTS INVOLVED IN THE CASE:

MATTERS IN QUESTION:

RELIGIOUS SUBSTRATUM OF THE MATTER:

CONTENTIONS OF THE PETITIONERS:

SETTLEMENT ARRIVED AT:

EXPOSITORY EPILOGUE:

CONCLUSION:

Synopsis

Background

Brief Facts

Issues

Arguments

Judgement

Critical analysis

Conclusion

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