ISSUE - X (NOVEMBER 2 -NOVEMBER 8)


VOX IURA MAGAZINE- ISSUE 10
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1. SUPREME COURT STAYS ELECTION COMMISSION’S ORDER REVOKING ‘STAR CAMPAIGNER’ STATUS OF KAMAL NATH

Case name: Kamal Nath v. Election Commission of India

Court: Supreme Court

Background: The Election Commission revoked the Star campaigner status of Kamal Nath based on the complaint given by BJP party for violating the model code of conduct.

Order: A bench of Chief Justice SA Bobde, Justice AS Bopanna and Justice V.Ramasubramanium held that the Court will stay the order and will examine if the poll panel has the power to issue such an order. The court further asked whether the Election Commission has the power to pass such order under Section 77 of the Representation of People’s Act, 1951


2. DESERTED WIVES, CHILDREN ENTITLED TO ALIMONY FROM DATE OF APPLICATION- SUPREME COURT:

In a significant judgment by a Bench of Justices Indu Malhotra and R. Subhash Reddy, the top court said women deserted by husbands were left in dire straits, often reduced to destitution, for lack of means to sustain themselves and their children. The judgment was based on a matrimonial plea from Maharashtra on the question of payment of maintenance by a man to his wife and son under Section 125 of the Code of Criminal Procedure. The case had been dragging on for years.

The court said despite a plethora of maintenance laws, women were left empty-handed for years, struggling to make ends meet after a bad marriage.

Deprived of sustenance

Both the applicant wife and the respondent husband have to disclose their assets and liabilities in a maintenance case. Any earlier case filed or pending under any other law should also be revealed in court.

Education expenses

The expenses of the children, including their education, basic needs and other vocational activities, should be factored in by courts while calculating the alimony.

Permanent alimony

The court opined it would not be equitable to order a husband to pay his wife permanent alimony for the rest of her life, considering the fact that in contemporary society marriages do not last for a reasonable length of time. Anyway, the court said, the duration of a marriage should be accounted for while determining the permanent alimony.

“Section 125 of the CrPC was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children,” Justice Malhotra noted.

The judgment reiterated that Section 125 of the CrPC would include couples living together for years within its ambit.“Strict proof of marriage should not be a pre-condition for grant of maintenance under Section 125 of the CrPC,” the court said.


3. ALL INSULTS NOT OFFENCE UNDER SC/ST ACT- SC

The SC on 5/11/20 observed in a case that All insults or intimidations to persons belonging to Dalit or tribal communities will not be an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. An offence is made out under the statute only if “such insult or intimidation is on account of the victim belonging to a Scheduled caste or Scheduled tribe. The court said the insult should be specifically intended to humiliate the victim for his caste.

4. SC DISMISSES FRANCO’S PLEA AGAIN

The Supreme Court has dismissed a plea to review its earlier order refusing to discharge former Jalandhar bishop Franco Mulakkal accused of raping a subordinate Nun. The Court said that “ we have perused the review petition and the connected papers. We do not find any error in the order impugned, much less an apparent error on the face of the record, so as to call for its review.” The review Petition was dismissed.


5. DELHI GOVERNMENT BANS SALE, PURCHASE AND BURSTING OF FIRECRACKERS TO COMBAT AIR POLLUTION & COVID-19:

The Delhi Government on November 5, 2020 imposed a ban on the sale, purchase and bursting of firecrackers in the National capital during November 7-November 30, 2020 to combat air pollution and rising COVID-19 cases. The decision was taken by Chief Minister Arvind Kejriwal after analysing the current COVID-19 situation.


6. INDIA-ITALY VIRTUAL BILATERAL SUMMIT 2020:

The Bilateral Summit between India and Italy was held virtually on 6th November 2020. The Summit was attended by the Indian Prime Minister Narendra Modi and Prime Minister of Italy Prof. Giuseppe Conte. The two leaders reviewed the broad framework of the bilateral relationship and reaffirmed their commitment to strengthen cooperation against common global challenges, including the COVID-19 pandemic. A wide range of issues were discussed in the Summit including political, economic, scientific & technological, space and defence cooperation. 15 Memorandum of Understandings/Agreements were signed during the Summit in various sectors such as energy, fisheries, design etc.


7. INTERIM ORDER IN WRIT PETITION CHALLENGING SARFESI PROCEEDINGS SHOULD GENERALLY NOT BE PASSED WITHOUT HEARING SECURED CREDITORS: SC

Case Name: C. Bright v. The District Collector, Civil Appeal No.3441 of 2020.

The Supreme Court in the case of C. Bright v. The District Collector observed that interim orders in writ petitions challenging SARFESI proceedings should generally not be passed without hearing the secured creditor. Interim orders defeat the very purpose of expeditious recovery of public money, said the bench comprising Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters, the Court added.

The Bench relied on the case of United Bank of India v. Satyawati Tondon, wherein it was observed that, in cases relating to recovery of dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. The Court further made an observation that the remedy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, however, borrowers and other aggrieved persons are invoking the jurisdiction of the High Court under Articles 226 or 227 of the Constitution of India without availing the alternative statutory remedy. The bench therefore said:

“The Hon’ble High Courts are well aware of the limitations in exercising their jurisdiction when effective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim order should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money”.

These observations were made while upholding a Kerala High Court judgment that Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, mandating the District Magistrate to deliver possession of a secured asset within 30 days, extendable to an aggregate of 60 days upon reasons recorded in writing, is a directory provision.


8. GUJARAT HIGH COURT ALLOWS PERSONS HAVINNG FULL TIME/PART TIME JOBS HAVING LAW DEGREE TO GET ENROLLED WITH THE BAR:

Case Name: Twinkle Rahul Mangaonkar v. Union of India

The Gujarat High Court read down Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules and allowed persons engaged in other professionals having an LLB degree to get enrolled with the Bar. As per Rules 1 and 2 of the BCG Enrollment Rules, a person who is engaged in any trade, business or profession either in full time /part-time must not be admitted as an advocate and every person applying as an advocate shall make an application that he is not in full or part-time service or employment. The Court read down the said rule to allow Mrs.Twinkle Mangaonkar an LLB holder who was engaged in some other profession, a single mother, and the only bread winner of the family to get enrolled as an advocate and appear for All India Bar Examination (AIBE). Furthermore, the Court said after clearing the Bar Council Entrance Exam, the applicant would file a declaration on oath that she has given up the job and also directed the Bar Council of Gujarat to issue the Enrollment Number to the writ applicant on the same line and same format as given to all other applicants.


9. MAINTENANCE AWARDED MUST BE REASONABLE AND REALISTIC; OBJECTIVE OF ALIMONY IS NOT TO PUNISH THE OTHER SPOUSE: SC

Case Name: Rajnesh v. Neha, Cr.A.No.730 of 2020.

The Supreme Court has observed that the objective of granting interim / permanent alimony/maintenance is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury, the bench comprising Justices Indu Malhotra and R. Subhash Reddy observed in the case of Rajnesh v. Neha.

The Court also noted that there is a tendency on the part of the wife to exaggerate her needs, and there is a corresponding tendency by the husband to conceal his actual income. To make an objective assessment for grant of interim maintenance, the bench has also directed that Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court.

The court noted that the factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing and looking after adult members of the family; reasonable costs of litigation for a non-working wife.

The Court also added that the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Bench also laid down certain criteria to be taken into account by the Courts for determining the quantum of maintenance payable to the applicant.

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