Supreme Court says Judges can recall orders passed in open courts

To read an article on whether "Judges can recall orders passed in open courts", click on the following link:
http://epaper.indianexpress.com/c/2828670

Renouncing Islam can annul marriage: HC

Source: The Times Of India dared May 12, 2014

Renouncing Islam can annul marriage: HC

Abhinav Garg TNN 

New Delhi: Interpreting a 75-year-old law, the Delhi high court has held that a woman who had embraced Islam after marriage but reconverted to her original faith can dissolve the marriage due to apostasy, which is defined as the renunciation or abandonment of one’s religious or political beliefs. 
    Granting divorce under the Dissolution of Muslim Marriages Act 1939 to Sultana (name changed), a division bench of Justices S Ravindra Bhat and Najmi Waziri clarified there is no requirement in such circumstances for a woman who leaves the pale of Islam to prove her act in a trial. The mere act of apostasy dissolves the marriage if she so desires. 
KNOTTY ISSUE 
    A woman who converted to Islam then reconverted to Hinduism seeks divorce on the ground of apostasy 
    Husband seeks proof of her renunciation of Islam 
    HC rejects the husband’s contention that she needed to prove apostasy saying: “Being of a religious persuasion or belief in a particular religion and continuance thereof is an existential choice.”

No need to prove apostasy to get divorce: HC

    A woman married under Muslim personal law is not empowered, nor is she conferred a right to divorce her husband by apostatizing. All that the law states is that were a woman married under the Muslim personal law to apostatize, the marriage stands dissolved. In such circumstances, the woman is entitled to seek a decree of declaration that the marriage stands dissolved from the date of her apostatizing,” Justice Waziri said. 
    The bench went into the circumstances under which the pre-Independence Act was passed in 1939 to emphasize, if people come or are brought into Islam from a different religion, they should be permitted to go back for which there should be no bar. In such a scenario there must be an immediate dissolution of marriage. 
    The court was hearing an appeal filed by Sultana’s husband Asif challenging the grant of divorce by a Saket family court on her petition. Asif contested the act of Sultana’s reconversion to Hinduism and alleged she did it under pressure from her parents. Asif also cited Section 4 of the Dissolution of Muslim Marriages Act that deals with the “effect of conversion to another faith” to contend that Section 4 prohibits dissolution of marriage only on the ground of apostasy. 
    On her part the estranged wife argued that for her reconversion to Hinduism no evidence was required as her mere statement ‘ipso facto’ amounts to abjuration of Islam and its tenets. She also filed an affidavit admitting to her apostasy along with two fatwas from two muftis. 
    The court agreed with the trial court verdict and ruled that Section 4 has not altered the rule of Muslim personal law that apostasy dissolves a marriage. Rejecting Asif ’s argument that Sultana needs to prove the act of apostasy, HC added, “Being of a religious persuasion or belief in a particular religion and continuance thereof is an existential choice. Manifestations of religious practices of a particular religion could lead to the inference of the person’s adherence to that religion. However, faith itself cannot be seen unless the person chooses to make it obvious, which in this case she has done.”

Can a woman outrage modesty of another?

Source: The Times of India dated 28.02.2014

‘Can a woman outrage modesty of another?’ 
Court Seeks To Know Legal Provision

Rosy Sequeira TNN 

Mumbai: The Bombay high court on Thursday questioned if a woman can be accused of outraging the modesty of another woman and sought the legal provisions for it. 
    A division bench of Justice Naresh Patil and Justice V L Achliya on Thursday heard a petition by a family of six from a Borivli housing society, including the 78-year-old matriarch Sarlaben Shah, seeking to quash an FIR filed against them by neighbour Preeta Jain (55). 
    It started with a dispute over grilles that the Shahs fitted outside their ground-floor flat, which was opposed by their neighbours, including the Jain family. During an argument, Sarlaben’s granddaughter was allegedly assaulted and manhandled. On October 23, 2009, she lodged a complaint of molestation against Jain’s son and husband and an FIR was registered. 
    A few months later, on February 27, 2010, the Jains also got an FIR registered against the Shahs and the charges included molestation. 
    In the court, Shah’s advocate Pradeep Havnur questioned how two FIRs could be registered for the same incident. “It is absurd that a 78-year-old woman can be accused of molesting another woman,” he exclaimed. At that, the judges questioned if a woman could indeed molest another woman and what was the legal position. “This is a serious question. Can a woman molest another woman? Even scientifically? Because there are the allegations,” said Justice Patil. “Go through the law. If a woman does commit such an act, can she be tried under the available law for molesting a woman?” 
    On going through section 354 of the IPC, the judges noted that while the section began with the word “whoever”, it later went on to refer to the accused as a “he” and the victim a “she”. “Can a woman be accused of outraging the modesty of another woman under section 354? Get the legal position,” said Justice Patil to Havnur. The judges pointed out that even the amended section 354 A referred to an act committed by a man on a woman. While parting with the matter, the judges said housing societies must intervene and sort out such problems instead of parties filing cross-complaints and coming to court. 
    (Names of disputing parties changed) 

SPAT AT BORIVLI SOCIETY 
In 2009, the Shah family in Borivli fitted grilles outside their groundfloor flat, which was apparently opposed by some of their neighbours, including Preeta Jain’s family. During an argument, the Shah family matriarch’s granddaughter was allegedly assaulted and manhandled. They lodged a complaint of molestation against Jain’s son and husband on Oct 23, 2009. On Feb 27, 2010, the Jains lodged a counter-complaint, against the Shahs, one of the charges being molestation 
Section 354 of Indian Penal Code 
Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage her modesty, shall be punished with imprisonment which may extend to two years, or with fine, or with both

Courts can try a person not booked by police, rules Bombay High Court

Source: The Times of India dated 24.02.2014

Courts can try a person not booked by police, rules HC

Shibu Thomas TNN 

Mumbai: A trial court can use powers under the Criminal Procedure Code (CrPC) to initiate criminal proceedings against a person who may not have been booked by police in a case, the Bombay high court has said. Justice Revati Dere ruled that even if a person is not named as an accused in the police chargesheet, a court can launch prosecution against him at any stage of the trial. But it added that this power has to be used sparingly. The court’s order comes as a relief to Malabar Hill resident Mani Narayan in a 17-year-old case of assault and outraging her modesty (see box). 

    “It is well settled that once amagistrate takes cognizance of an offence, he can proceed against those offenders also who have not been sent up by the police and that absence of chargesheet is not a bar. The power of Section 319 of CrPC is not controlled by the result of investigation,” said Justice Dere. The court set aside as “premature” a sessions court order which while accepting that such powers were available to the magistrate had held that since it was an old case it would amount to abuse of the process of law. 

    The HC held that the delay in the case was not Narayan;s fault, but due to the fact that the accused were absconding for over a decade.

HOPE FOR COMPLAINANT AFTER 16 YRS I n 1997, Mani Narayan alleged that watchmen of her Malabar Hill building obstructed her on the instructions of her society’s secretary, assaulted her and outraged her modesty. The FIR was lodged against two watchmen. Narayan, however, claimed that the police had not recorded her complaint properly and had not named as accused the secretary and other watchmen. In 1998, she moved a magistrate’s court to order further investigations. The two absconding accused were arrested only in 2008. In 2011, the magistrate rejected her plea. The sessions court too rejected her application and held that the trial court’s powers were not tenable as the case was old. Narayan then moved the HC

HC: Apply Section 319 sparingly 
    Merely on the ground that the case is an old one cannot justify holding that invoking of Section 319 of the CrPC will amount to abuse of the process of the law,” said the judge. 

    The HC however cautioned that the power under section 319 had to be used properly and only when the court was convinced that there was enough material available to convict the accused. “The court has to use the said power sparingly and primarily to advance the cause of criminal justice and not as a tool at the hands of the court to cause harassment to persons who are not involved in the commission of the crime,” said the judge adding that the provision should be invoked when from the evidence it appears that a person who has not been named by the police had committed the offence. The court said that the provision should be used “only on the existence of compelling reasons and should not be exercised where the possibilities of the summoned persons, being convicted are remote”. 

    Under Section 319, the court can initiate prosecution of a person who is not booked but against whom there is evidence that he has committed the crime. The court can summon such a person, order his arrest or detain him for the purpose of inquiry or trial.