Cabinet clears bill on surrogate motherhood

Draft bill which aims to safeguard the rights of surrogate mothers and make parentage of such children legal was cleared by the Union Cabinet on Wednesday.

According to the Health Ministry proposal, the draft Surrogacy Bill, 2016 aims at regulating commissioning of surrogacy in the country in a proper manner.

THE GOVERNMENT on Wednesday approved a Bill that bans commercial surrogacy, and bars married couples who have biological or adopted children, single people, live-in partners and homosexuals from opting for surrogacy.

The Surrogacy (Regulation) Bill, 2016, cleared by the Cabinet, only allows “altruistic surrogacy” for childless couples who have been married for at least five years. Then too, the surrogate mother should be a “close relative” of the couple, should be married and have borne a child of her own.

Briefing the press after the Cabinet meeting, External Affairs Minister Sushma Swaraj said foreigners, NRIs and PIOs who hold Overseas Citizens of India (OCI) cards have also been barred from opting for surrogacy as “divorces are very common in foreign countries”.

Swaraj headed the Group of Ministers (GoM) who finalised the Bill in its current form, dealing solely with surrogacy — in contrast to another Bill, which the department of health research has been working on for years now, seeking to regulate all aspects of assisted reproductive practices. There are enough regulations on IVF, Swaraj said.

New surrogacy Bill bars single parents, homosexuals, live-in couples, foreigners married woman who has at least one child of her own can be a surrogate mother only once in her lifetime. Childless or unmarried women are not allowed to be surrogate mothers.Without taking any names, Swaraj said it was “unfortunate” that couples, who already have a son and a daughter of their own, opt for surrogacy “just because it is fashionable”.

Replying to a question, she said: “We do not recognise homosexual or live-in relationships, that is why they are not allowed to commission babies through surrogacy. It is against our ethos.”

Bill, which borrows heavily from UK’s altruistic surrogacy Bill, has changed the British provision of allowing only blood relatives to “close relatives”, a term that will be further elaborated in the rules.

“In commercial surrogacy, one would just pay the surrogate mother and ensure that the mother and baby never come in touch. But in this case it is an open thing, there are no ethical issues. The child would know who the biological mother is because it is a close relative,” said Swaraj. In the absence of close relatives, the couple should opt for adoption, she said.

“The reason we have not allowed a couple with a biological or adopted child to commission another baby through surrogacy is because there is bound to be discrimination, if not at the time of bringing up the child, then certainly when the question of property arises,” Swaraj said.

The Bill requires all surrogacy clinics to be registered. Clinics can charge for the services rendered in the course of surrogacy, but the surrogate mother cannot be paid. National and state surrogacy boards will be the regulating authorities.\

Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, selling/ import of human embryo have all been deemed as violations that are punishable by a jail term of at least 10 years and a fine of up to Rs 10 lakh. Clinics have to maintain records of surrogacy for 25 years. The rights of the surrogate child will be the same as that of a biological child.

Meanwhile, Swaraj’s dismissal of homosexuality, though in line with the Supreme Court’s order upholding Section 377 criminalising gay sex, is at odds with the opinion of her cabinet colleague Arun Jaitley. “When you have millions of people involved in this (gay sex), you can’t nudge them off… Jurisprudence world over is evolving, I think the judgment was not correct and, probably at some stage, they may have to reconsider,” Jaitley had said earlier.

Amit Agarwal v/s Sanjay Aggarwal Punjab Hariyana High Court - 31.05.2016

Punjab-Haryana High Court

Amit Agarwal And Ors vs Sanjay Aggarwal And Ors on 31 May, 2016

Crl. Misc. No.M-36736 of 2014 (O&M)                                                                   1

             IN THE HIGH COURT OF PUNJAB & HARYANA
                         AT CHANDIGARH

                                  Date of decision : 31.05.2016

Amit Agarwal an
                                             Crl. Misc. No.M-36736 of 2014 (O&M)
          
 d others
                                                                                     ......Petitioner(s)

                                                  Versus


Sanjay Aggarwal and others
                                                                                     ...Respondent(s)


CORAM: HON'BLE MRS. JUSTICE ANITA CHAUDH
RY
   1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No
   2. To be referred to the Reporters or not? Yes
 petitioners.

                 Mr. A.S. Manaise, Advocate
     
   3. Whether the judgment should be reported in the digest? Yes


Present:         Mr. Sukhbir Singh, Advocate
                 for th
e            for the respondents.

                                    ****

ANITA CHAUDHRY, J.

The instant petition has been filed under Section 482 Cr.P.C. seeking quashing of complaint filed under the Domestic Violence Act.

It is necessary to give the factual issues before referring to the legal issues. A complaint under the Domestic Violence Act was filed by Sanjay Aggarwal, brother of Ritu Aggarwal. Ritu was married to Amit Aggarwal in October, 2003. A child was born to them in October, 2004. Allegations were levelled that there was demand of a car before marriage. The family gave Rs.2 lacs in cash, gold items besides electrical goods. There was a demand even at the time of birth of the child, the wife was beaten up and tortured and kicked out of the house finally in June, 2006. The Istridhan and the dowry articles were retained by the accused. A claim for 1 of 13 maintenance, compensation as damages, residence in the shared house hold was made.

The petitioners are the husband, father in law & the brother in law. It was the second marriage for petitioner no.1. It is claimed that Ritu left the matrimonial home in June, 2006 to attend two functions and took all the jewellery with her to wear on the occasion at Ludhiana on 02.02.2006. It was pleaded that petitioner no.1 and his parents had made a number of calls but she refused to return till petitioner no.1 separated from his family. She was insisting for a separate residence or transfer of some property in her name. The petitioners had pleaded that petitioner no.1 got the FIR registered against respondent no.2 on 10.09.2006. A week later Ritu got a case registered under Section 498-A and 406 IPC against petitioner no.1, his parents and other relatives. The FIR against the sister and brother in law was quashed in October, 2008. The FIR qua the husband and his parents was quashed on the ground that no part of the cause of action had arisen at Batala, however, the Apex Court transferred the trial to Delhi. It was pleaded that petitioner no.1 had filed a divorce petition and Ritu failed to appear though she had been served and exparte decree of divorce was passed. An application for setting aside the exparte decree was filed after 14 months but it was dismissed for non-prosecution on 18.07.2011. Another application was filed for its restoration, which was pending. It was pleaded that since a divorce had been granted, there was no domestic relationship and the complaint under the Domestic Violence Act was not maintainable. It was pleaded that so far as the maintenance was concerned, a petition under Section 125 Cr.P.C. had been filed and maintenance was granted by the 2 of 13 Magistrate against which an appeal had been filed, which was pending and maintenance up to October, 2014 had been paid and all the articles had been recovered by the police.

Respondent no.1 filed the reply and it was pleaded that the issue of maintainability of the complaint had been raised by the petitioner before the trial Court and it was pending and the petitioner could not raise the same issue before this Court. It was pleaded that respondent no.1 had filed a complaint on 01.12.2007, which was withdrawn on 27.03.2009 as the complainant wished to withdraw the complaint and file a fresh one and a statement in that regard was made on 27.03.2009. It was pleaded that an exparte decree of divorce was passed and no service was effected and an application for setting aside the decree was filed and was pending. It was pleaded that the decree had not attained finality and the exparte decree did not wash away the previous incidents of domestic violence and respondent no.2 was pushed out of the house in June, 2006. It was pleaded that although petitioner no.3 was the brother in law of petitioner no.1 and married prior to the marriage of respondent no.2 but he was actively involved in the acts of domestic violence. It was pleaded that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person could present an application to the Magistrate under Section 12 of the Domestic Violence Act and he had filed the complaint on behalf of his sister. It was admitted that a complaint was filed and was withdrawn and no liberty was granted to file again though he had reserved his right to file again.

I have heard the counsels of both the sides.

The counsel for the petitioners had contended that the 3 of 13 complaint under the Domestic Violence Act had been filed approximately after three years from the date the wife had left the matrimonial home and the complaint had been filed by the brother. It was urged that during her total stay in Delhi, no complaint was given to the police though the police station was at a walking distance. It was urged that the brother filed a complaint and withdrew it and without disclosing that fact another complaint was filed. It was urged that in view of the provisions contained in D.V. Act, a complaint can be filed only within a period of one year of the incident and since there was a divorce, the complaint was not maintainable. It was urged that the complainant had also named the brother in law who had been married five years prior to the marriage and he did not have a domestic relationship and the complaint was liable to be dismissed qua him. It was urged that the FIR was got registered against the petitioner and his family members and the High Court had quashed the FIR partly, against the sister and brother in law in 2008 and the FIR has been quashed against the husband. It was urged that the wife had left the matrimonial home before the Act came into existence and she was living in Batala and no domestic violence could be committed by them as they had never lived together. It was urged that so far as the maintenance was concerned, a petition under Section 125 Cr.P.C. had been filed in the Courts at Batala and the Court had granted maintenance to the wife and the child and there are two parallel jurisdictions and the wife had already availed the remedy of filing a petition under Section 125 Cr.P.C. and later a petition under Section 127 Cr.P.C. was filed seeking enhancement of the interim maintenance. It was pleaded that the wife was an income-tax assessee and she had a D-Mat account and she 4 of 13held shares in the D-Mat account and was doing business and had received Rs.2,49,000/- from the first husband as full and final settlement.

The submission on the other hand was that a complaint was filed earlier where a statement was given and liberty was sought for instituting another complaint and therefore, second complaint was filed after few days. It was urged that the brother had filed the complaint and there is no restriction and any person can file a complaint on behalf of the aggrieved person. It was urged that the question of limitation did not arise as the wife was asking for residence and maintenance which was a recurring cause of action. It was urged that an application has been filed before the Court below on the similar lines and the petitioners could not have filed a petition under Section 482Cr.P.C.

A perusal of the petition would show that in the title, the petitioner has sought quashing of Annexure P-3, which is a complaint, which had already been withdrawn. It appears that the correction made with the ink was erroneous otherwise an objection would have been taken by respondent. The petitioner is seeking quashing of Annexure P-1.

Few facts need to be noticed first. Sanjay Aggarwal, brother of Ritu filed a complaint under the Domestic Violence Act some time in November, 2007, which was subsequently withdrawn vide Annexure P-4. Though the complainant had sought liberty to file a fresh complaint but the order dated 27.03.2009 (Annexure P-5) shows that no such liberty was granted. The husband had filed a petition seeking dissolution of the marriage. Service was effected on the respondent and she failed to appear and was proceeded exparte and exparte decree of divorce was passed on 5 of 1316.05.2008. The complaint under the D.V. Act was filed against the husband, his father and brother in law. The brother in law admittedly is residing separately, though in the same city. Exparte decree of divorce has not been set aside till date.

Two important issue arise in the case. Whether the wife can file a complaint under the Domestic Violence Act when the relationship has come to an end with a decree of divorce and whether a petition under Section 482 Cr.P.C. would be maintainable.

Coming to the issue of maintainability, the submission on behalf of the petitioner was that the inherent powers under Section 482 Cr.P.C. can be exercised whether it is found that the allegations are groundless or where the complaint can not proceed then the parties cannot be left to undergo the agony of a criminal trial.

The submission of the other side was that an application had been filed before the trial Court and the trial Court was yet to examine the issue and the petition under Section 482 Cr.P.C. would not be maintainable.

The Apex Court, in the case of Kailash Chandra Agarwal & Anr. Vs State of U.P. & Ors., reported in 2014 AIR (SCW) 6152 noticed that the complaint did not attribute specific role to the relatives of the husband and it was quashed, by referring to the judgment in the case of Kans Raj Vs. State of Punjab & Ors. ((2000) 5 SCC 207), which reads thus:

"5........A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths 14 which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have 6 of 13 been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."

This question has been examined in a number cases. The Apex Court in Ashish Dixit and others Vs. State of U.P. and another MANU/SC/0156/2013 had quashed the proceedings under the Domestic Violence Act in a petition filed under Section 482 Cr.P.C. This High Court in Jasvir Kaur and another Vs. Manpreet Kaur in CRM No.M-29792 of 2011 allowed the petition filed under Section 482 Cr.P.C. seeking quashing of the complaint filed under the Domestic Violence Act. The Karnatka High Court in Smt. Nagarathnamma Vs. M.S. Vanithashree in Cr, P. No.5246/2010 had allowed the petition filed under Section 482 Cr.P.C. Thus a complaint can be quashed in the petition filed under Section 482 Cr.P.C. if it is found that the complaint was an abuse of the process of the Court or has filed only with a view to harass the other side.

The complaint had filed by the brother. An objection was taken that no authority had been given to the complainant to lodge a complaint. It is necessary to notice Section 12 of the Domestic Violence Act. It reads as under:-

Section 12 in The Protection of Women from Domestic Violence Act, 2005

12. Application to Magistrate.--

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider ..................................................................... A perusal of the above would show that a complaint can be filed by an aggrieved person or a Protection Officer or any other person on 7 of 13 behalf of the aggrieved person and there is no bar and the other person on behalf of the aggrieved person can file a complaint.

A perusal of the record reveals that the complaint had been filed which was withdrawn and liberty was taken to lodge a fresh complaint but no liberty was granted and the fact that earlier a complaint was filed and was withdrawn, was not mentioned in Annexure P-1.

The next question is does the aggrieved person even mean a 'divorced woman'. Answer to the question lies in the definition provided in Section 2 (a), it defines the aggrieved person as under:-

"2 (a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent"

The use of the word is any woman 'who is' or 'has been'. Both the expressions are in the present tense. The legislature has not used the word 'who was' or 'had been'. This means the domestic relationship has to be in the present and not in the past. The definition requires that on the date Act come into force, the woman should be in domestic relationship.

The definition of domestic relationship given under Section 2

(f) further supports the view that the requirement under D.V.Act is that the relationship which is the basis of invoking the jurisdiction under D.V.Act has to be in the present. Section 2 (f) of the D.V.Act reads as under:

(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when 8 of 13 they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

The definition clearly speaks of a domestic relationship between two persons who live or have at any point of time lived together in a shared household and are related by marriage or through a relationship in the nature of marriage. This definition also speaks about the existence of a relationship by marriage or a relationship in the nature of marriage at the time. The expression used is 'are related' by marriage. The expression by the legislature is not 'were related'. From the bare reading of these two provisions it is apparent that the intention of the legislature is to protect those women who are living in a domestic relationship.

The contention of the respondent was that when the wife can move the jurisdiction of the court under Section 125 Cr.P.C., nothing prevents her from invoking the jurisdiction of the court under D.V.Act. It was further contended that the expression used under Section 2 (f) 'at any point of time lived together' also includes a divorced wife.

This issue has been examined in (2010) DLT 67 titled Harbans Lal Malik vs. Payal Malik wherein it had been held:

"11. It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act. Domestic relationship is defined under Section 2 (f) of the Act and is as under:

9 of 13 "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when the complaint under Domestic Violence Act is filed.

It has been held in Harbans Lal Malik (supra) that definition of 'wife' as available in Section 125Cr.PC cannot be merged into Domestic Violence Act. Section 125 specifically provides that the wife means 'divorced wife'. Explanation under Section 125 (1) (b) reads as under:

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried;

The court had further observed as under:

10 of 13

19. I, also consider that the definition of "wife" as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined "wife" as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Cr.P.C. is to prevent vagrancy where wife is left high and dry without maintenance. Law gives a right to claim maintenance under Civil Law as well as Section 125 Cr.P.C. even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband or family and is free to live wherever she wants. She has a right to claim maintenance and enforce other rights as per law. She has a right to claim custody of children as per law but denial of these rights do not amount to domestic violence. .... .... .....

20. This definition pre supposes that the woman is living with the person who committed violence and domestic relationship is not dead buried or severed. This does not speak of past violence which a woman suffered before grant of divorce."

It is apparent that the provisions under the D.V.Act can be invoked only when the domestic relationship is in existence. Where the domestic relationship ceases, the provisions under the D.V.Act cannot be invoked.

In the present case, a decree of divorce had been passed.

Though it was an exparte decree but it has not been set aside by the competent Court. Once the domestic relationship came to an end after the decree of divorce the complaint under the Domestic Violence Act could not have been filed. It is necessary to refer to the observations made in Inderjit 11 of 13 Singh Grewal's case (supra):-

"24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.

25. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same."

A FIR had been lodged by the wife against the husband and other relatives. The FIR has been quashed qua the relatives. The FIR qua the husband was also quashed as the Court did not have the jurisdiction, however, the trial was transferred to Delhi from Batala by the Apex Court. The aggrieved person had also filed a petition under Section 125 Cr.P.C. and interim maintenance has been granted.

Considering the above, it is held that the present complaint is an abuse of the process of the Court. The domestic relationship had come to an end. The complainant had impleaded relatives who were not living in the 12 of 13 shared house and permitting the Magistrate to proceed with the complaint would be an abuse of the process of law. The complaint and the proceedings therein are quashed.

Before parting, it may be clarified that the aggrieved person would be entitled to continue with other cases in accordance with law without being influenced with the observations made herein. The said observation has been made only to decide the petition filed under Section 482 Cr.P.C.

The petition is allowed.

31.05.2016                                      (ANITA CHAUDHRY)
JUDGE

Supreme Court favours life imprisonment for milk adulteration

Expressing concern over alarming level of milk adulteration  in the country, the Supreme Court on Friday favoured stringent punishment+ of life imprisonment for the offence which at present is punishable only up to six months jail term or fine. 

A bench of Chief Justice T S Thakur and Justices R Banumathi and U U Lalit said that there was an urgent need to tackle the menace of growing sale ofadulterated and synthetic milk in different parts of the country. It said that themilk adulteration+ could adversely affect the growth of future generations as it was the staple diet of all children and infants. 

Asking Centre and states to consider to amend the present lenient law, the bench said that states of Uttar Pradesh, West Bengal and Odisha had already amended the law making adulteration punishable up to life imprisonment and there was nothing wrong in following their footsteps for making stringent law. 

"It will be in order, if the Centre considers making suitable amendments in the penal provisions at par with the provisions contained in the state amendments to the IPC. It is also desirable that the Centre revisits the Food Safety and Standards Act to revise the punishment for adulteration making it more deterrent in cases where the adulterant can have an adverse impact on health," it said. 

The court directed the government to spread awareness about the hazardous impact of milk adulterations and to teach people easy methods for detection of common adulterants in food by conducting workshops. It directed the Centre and state governments to evolve a complaint mechanism for checking corruption and other unethical practices of food authorities and their officers. 

"Since in India traditionally infants/children are fed milk, adulteration of milk and its products is a concern and stringent measures need to be taken to combat it," the bench said and referred to 2011 report of Food Safety and Standards Authority of India (FSSAI) which said that over 68% of the milk sold in the market found adulterated. 

The report said that cases of milk adulteration was rampant in the country and the situation was worst in Bihar, Chhattisgarh, Odisha, West Bengal, Mizoram, Jharkhand and Daman and Diu where adulteration in milk was found up to 100%.

The court passed the order on a bunch of petition filed by people from different states seeking its direction to the governments to make stringent punishment for the offence of milk adulteration. 

Advocate Anurag Tomar, appearing for the petitioners, contended that milk contaminated with synthetic material was being sold in various states particularly in northern states posing serious threat to the life and health of the consumers. He pleaded that the Centre should be directed to amend the prevailing law to provide punishment of life imprisonment for the offence. 

Peepli Live' co-director Mahmood Farooqui gets 7 years in jail for rape of US woman

Live' co-director Mahmood Farooqui , who was last month found guilty of raping an American woman , was on Thursday sentenced to seven years in jail and was also ordered to pay to pay a fine of Rs 50,000.

A lower court in Delhi said that if Farooqui didn't pay the fine, his jail sentence would be increased by three months.

Farooqui, who also specializes in the art of Urdu storytelling called Dastangoi, was on July 30 convicted of raping the American woman at his South Delhi residence last year. The filmmaker, who at the time of the conviction was out on bail, was taken into custody soon after the court found him guilty.

The case relates to the March 28, 2015 rape of a 35-year-old American, a student at New York's Columbia University, who was in the Capital for research work on her doctoral thesis. During her deposition as a prosecution witness in the court, the woman alleged that Farooqui raped her and later apologised via several e-mails exchanged between them. Farooqui denied the allegations and said he was falsely implicated.

Delhi police had filed its chargesheet in the case on June 29, alleging that Farooqui raped the woman at his Sukhdev Vihar residence. Police also accused Farooqui of destroying evidence against him. 

Gujarat HC quashes 10% quota for economically backward classes

The Gujarat high court on Thursday quashed the state government's notification granting 10% reservation for the economically backward classes (EBCs) in educational institutions.

Terming the ordinance issued on May 1 as "inappropriate and unconstitutional", a division bench of Chief Justice R Subhash Reddy and Justice V M Pancholi said that such quota is not a classification, as claimed by the government, but it is indeed reservation.

The court also observed that 10 per cent reservation for poor among the unreserved category takes the total quota beyond 50 per cent, which is not permitted as per the Supreme Court's earlier decision.
The high court also said that state government gave the reservation to EBCs without any study or scientific data.

The state government pleader requested the court to stay its order so that they can approach Supreme Court, following which the HC issued a two-week stay on its order.
Petitioners Dayaram Verma, Ravjibhai Manani, Dulari Basarge and Gujarat Parents' Association had separately challenged the ordinance announcing reservation of 10 per cent seats to candidates belonging to the unreserved category with family income cap of Rs 6 lakh annually in government jobs and educational institutions.

U S. Supreme Court Blocks Transgender Bathroom Ruling

The U.S. Supreme Court agreed Wednesday to put on hold a federal judge's order in the growing controversy over restrictions on the use of bathrooms by transgender students.

The school board in Gloucester County, Virginia, is challenging a decision by a federal appeals court that ruled it must allow a student, who was born a girl but now identifies as male, to use the boys' bathroom during the coming school year.

While the board prepares to appeal the decision, it asked the Supreme Court to block the lower court order. And on Wednesday, the justices granted that request in a brief order.

LG administrative head of National Capital Territory, rules Delhi High Court

The Delhi High Court on Thursday upheld Article 230 of the Constitution stating that the Lieutenant Governor remains the administrative head of the National Capital Territory, concluding the legal tussle between Delhi's AAP government and Lt governor Najeeb Jung.

A division bench of Chief Justice G Rohini and Justice Jayant Nath ruled that Delhi government notifications must be issued after consulting the LG.

"Policy direction can't be issued without communicating the to Lt Governor," the bench said.

The court said that it is constitutionally correct that Anti-Corruption Branch cannot initiate investigation against central government officials.

The court's judgement came on nine different petitions arising out of the spat between the LG and Delhi's Aam Aadmi Party government over the power to appoint bureaucrats in the national capital and other issues.

Delhi High Court said that  AAP govt's contention that LG is bound to act on advice of Council of Ministers like in other states in India is without any substance and cannot be accepted, stating the LG of the National Capital Territory is not bound by the aid and advice of Council of Ministers.

Ruling on the AAP's plea alleging undue interference from the Centre and the Lt Governer, the court said that all service matters fall outside the jurisdiction of Delhi Legislative Assembly and if the Lt Governor  chooses to exercise his powers then it cannot be deemed unconstitutional.

The ruling is being seen as a major setback for the AAP government who have time and again been in loggerheads with the Centre over who wields more power in the National Capital Territory.

After the court ruling, the 21 May, 2015, notification of Centre barring ACB from proceeding against central government employees is neither illegal nor unsustainable.  Similarly, the high court ruling automatically made defunct the Commission of Inquiry in the CNG fitness scam and DDCA scam since the same was issued without concurrence of LG.

Meanwhile, reacting to the huge setback in what was more a political battle, AAP has decided to move the Supreme Court. AAP government's counsel has said that hey will immediately file an appeal against the verdict in the apex court

ADAMBHAI MAHAMADBHAI VORA. V/s. GUJARAT STATE TRANSPORT NIGAM GUJARAT hIGH COURT 13/04/2016

C/SCA/16205/2015 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 16205 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G.SHAH

==========================================================

1 Whether Reporters of Local Papers may be allowed

to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of

the judgment ?

4 Whether this case involves a substantial question of

law as to the interpretation of the Constitution of

India or any order made thereunder ?

==========================================================

ADAMBHAI MAHAMADBHAI VORA....Petitioner(s)

Versus

GUJARAT STATE TRANSPORT NIGAM....Respondent(s)

==========================================================

Appearance:

MR TEJAS P SATTA, ADVOCATE for the Petitioner(s) No. 1

MR HARDIK C RAWAL, ADVOCATE for the Respondent(s) No. 1

==========================================================

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

 Date : 13/04/2016

 ORAL JUDGMENT

1.Heard learned advocate Mr.Tejas P.Satta for

the petitioner and learned advocate Mr.Hardik

C.Rawal for the respondent.

2.The petitioner herein is original claimant in

Motor Accident Claim Petition No.431 of 1998

filed before the Motor Accident Claims

Tribunal, Ahmedabad (Rural). Such claim

petition was dismissed for default in absence

of the petitioner, when it was listed for

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final disposal by an order dated 27.7.2009.

By such order, the Motor Accident Claims

Tribunal (Main), Ahmedabad Rural has observed

that petitioner and his advocate have

remained absent when the matter was called

out and that sufficient time and opportunity

has been given to the petitioner, but it

appears that petitioner has no interest to

proceed with the matter, hence, the claim

petition is dismissed. Such claim petition

was filed because of accidental injuries

sustained by the claimant on 5.9.1997 when he

was traveling in S.T. Bus, which met with an

accident when the driver of the S.T. Bus

could not control the bus because of his rash

and negligent driving on Viramgam Highway and

thereby, the bus had turned turtle and gone

into the road-side ditch. The petitioner had

received several injuries on different parts

of the body for which he has claimed

Rs.25,000/- as compensation. When such

petition was dismissed for want of

prosecution, the petitioner has filed

restoration application before the same

Tribunal, but, because there was delay in

filing such restoration application, the

petitioner has filed one Civil

Misc.Application No.287 of 2014 to condone

the delay of four years, seven months and six

days in filing such application.

3.By impugned judgment and order dated

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24.8.2015, the Motor Accident Claims Tribunal

(Auxiliary) and 8th Adhoc Addl.District

Judge, Ahmedabad (Rural) at Mirzapur has

dismissed the application by refusing to

condone the delay.

4.If we peruse the impugned judgment, it

becomes clear that the Tribunal has relied

upon the order of dismissal wherein the

concerned Tribunal at the relevant time has

observed that petitioner is not interested to

proceed with the matter. However, when

restoration application with an application

to condone the delay is preferred, now, what

is required to be looked into and appreciated

by the Tribunal is the reason for the delay

and non-appearance on a given date for which

claim was dismissed for default.

Unfortunately, in impugned judgment, the

Tribunal has relied upon the first order only

and therefore, in any case, there is a need

to interfere with such an order, which prima

facie results into not only irregularity, but

illegality, whereby rights of the petitioner

to claim compensation has been curtailed

without adjudication of his petition, which

otherwise needs to be adjudicated even in

absence of the petitioner and based upon the

information received by the Tribunal in Form

No.54 from the investigating agency, which is

a statutory necessity under the Act.

Alternatively, when such claim petitions are

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filed with an affidavit on day one and which

is to be decided in summary manner, there is

no reason for the Tribunal to dismiss the

petition for want of prosecution rather than

to award just and reasonable compensation

based upon the available evidence on record,

if any, supported by any other evidence, and

in absence of the same, then, atleast based

upon the affidavit, which is otherwise

produced as examination-in-chief with the

claim petition itself.

5.Though such issue relating to main petition

may be remote at this stage of deciding an

application to condone the delay, the fact

remains that the Tribunal has failed to

appreciate that there is sufficient cause in

not filing the restoration application in

time and thus committed error in holding that

there is no sufficient cause.

6.Though it is specifically averred by the

petitioner, Tribunal has failed to realise

that there was no fault on the part of the

petitioner - claimant being the victim of the

accident, but only of his advocate, who has

not bothered to call him at the relevant time

to adduce evidence and to proceed further in

his claim petition. When Tribunal has

recorded such position, it would have been

appropriate for the Tribunal to extend the

benefit to the victim – claimant rather than

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extending benefit to tort-feasor, who is

responsible for payment the compensation. In

fact, in such cases, compensation needs to be

paid immediately after the incident, without

entering into technicalities, but

unfortunately, Insurance Companies and State

Road Transport Corporation are taking hyper

technical views in all such matters to avoid

their responsibility to pay compensation to

the victims. It is also to be borne-in-mind

that victims of road accident are not

litigants in its true sense, but they are

real victim of the mishap and that the

legislature has enacted the provisions under

the Motor Vehicles Act for such claimants as

a benevolent piece of legislation in favour

of the victim and therefore, its true benefit

should be extended to all such claimants

without following technicalities. The

judgment in Jamnashanakr Ratilal Pandya Vs.

Babulal Ramgopal Patidar & Ors. in Special

Civil Application No.9761 of 2008 dated

16.9.2008 confirms such view. It cannot be

ignored that the petitioner is a senior

citizen and therefore, he has a reason to

plead that he was not able to proceed further

in time in absence of specific instructions

from his advocate when he has engaged an

advocate. It cannot be further ignored that

in such cases, in fact the Tribunals are

granting permission to engage advocate and

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therefore, if there is negligence on the part

of the advocate for not remaining present,

then, initially Tribunal shall recall the

order below the application seeking

permission to engage the advocate and thereby

to issue notice upon the petitioner to remain

present before the Court in final hearing.

7.In view of above facts and circumstances, the

petition needs to be allowed considering the

fact that the law of limitation is quite well

settled which confirms that no-one should be

non-suited on technical grounds. For such

principle, I am relying upon following

citations:-

(1) (2010)2 SCC 114 Dalipsingh Vs. State of UP,

(2) (2012)8 SCC 524 Cicily Kallarackal Vs.Vehicle

Factory,

(3) (2012)5 SCC 157 Maniben Devraj Shah

Vs.Municipal Corporation of Brihan Mumbai,

(4) (2012)3 SCC 563 Post Master General & Ors.

Vs. Living Media India Ltd.

(5) (2010)8 SCC 685 Balwant Singh (Dead)

Vs.Jagdish Singh,

(6) (2010)5 SCC 459 Oriental Aroma Chemical

Industries Ltd. Vs. Gujarat Industrial

Development Corporation,

(7) (2008)17 SCC 448 Pundlik Jalam Patil (Dead)

Vs. Executive Engineer, Jalgaon Medium

Project,

(8) (1997)7 SCC 556 P.K. Ramachandran Vs.State of

Kerala,

(9) 2012(7) SCALE 230 B.Madhuri Goud Vs.

B.Damodar Reddy,

(10) AIR 2012 SC 640 Abdul Gafoor Vs. State of

Bihar,

(11) AIR 2011 SC 428 Delhi Development Authority

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Vs. Bhola Nath Sharma,

(12) AIR 2011 SC 977 Union of India Vs.Giani,

(13) AIR 2011 SC 1150 Parimal Vs. Veena,

(14) AIR 2010 SC 1445 State of J & K Vs.Mohmad

Maqbool Sofi,

(15) AIR 2009 SC 1927 State of Jharkhand Vs.Ashok

Kumar Chokhani,

(16) AIR 2009 SC 2577 State of Karnataka Vs.Y.

Moideen Kunhi,

(17) AIR 2009 SC (Supp.) 695 State (NCT of Delhi)

Vs. Ahmed Jaan,

(18) AIR 1984 SC 1744 O.P. Kathpalia Vs.Lakhmir

Singh (Dead) by 3 Judges bench of Apex Court,

(19) AIR 2008 SC 1688 Sinik Security Vs. Sheel

Bai, AIR 2009 SC 2170 D.D. Vaishnav Vs. State

of M.P. and AIR 2009 SC (Supp.) 195

Commissioner, Nagar Parishad, Bhilwara

Vs.Labour Court, Bhilwara,

(20) AIR 1987 SC 1353 Collector, Land Acquisition, Anantnag Vs. Mst. Katiji.8.In view of above facts and circumstances, the petition is allowed. Learned advocate Mr.Hardik C.Rawal has submitted that in view of such situation, when petitioner has not bothered to proceed further in his claim

petition for almost a decade, it should be made clear that he is not entitled to claim

interest for the period of such delay. However, at this stage of deciding the

application to condone the delay, no such condition can be imposed, but it is made

clear that respondent can raise the issue before the Tribunal when main petition is

heard on its own merits and it would be appropriate for the Tribunal to decide such

issue in accordance with law. 

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(S.G.SHAH, J.)

RAKESH KUMAR v. UNITED INDIA INSURANCE COMPANY LTD. AND ORS. ETC. ETC. [2016] (13 July 2016)

REPORTABLE 

IN THE SUPREME COURT OF INDIA CIVIL 

APPELLATE JURISDICTION CIVIL APPEAL Nos. 6199-6202 OF 2016 (ARISING OUT OF SLP (C) Nos.33036-33039 of 2015) 

Rakesh Kumar & Etc. Etc. Appellant(s) 

VERSUS 

United India Insurance Company Ltd. & Ors. Etc.Etc. ……Respondent(s)

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are filed against the common final judgment and order dated 22.05.2014 passed by the High Court of Punjab and Haryana at Chandigarh in F.A.O. Nos. 6935, 6937, 6977 of 2011 and 907 of 2012 (O&M) wherein the High Court partly allowed the appeals of the Insurance Company and reversed the award dated 13.09.2011 of the Motor Accident Claims

Tribunal, Ambala in MACT Case Nos. 97, 109 of 2008 and 28 of 2009 and

exonerated the Insurance Company from the liability arising out of the accident.

3. Facts of the case lie in a narrow compass. They, however, need mention in brief to appreciate the short controversy involved in the appeals.

4. On 16.09.2008, Sheo Ram, Madan Mohan, and Mohindro Devi along with others were traveling in a three wheeler bearing Registration No. PH-11TC- 468 from Naraingarh to Shahzadpur. Madan Mohan was driving the three wheeler on the left side of the road. At about 10.30 a.m., when the three wheeler reached near Bus stop of Village Bharanpur on Naraingarh Shahzadpur Road, a truck bearing Registration No. HR-37-C-7937, which came from the opposite side, struck the three wheeler. Though its driver Madan Mohan tried to avoid the accident by taking his vehicle on the extreme left side of the road, yet all the occupants of the three wheeler suffered multiple injuries. The injured were taken to Civil Hospital, Naraingarh in private vehicles. Thereafter, Sheo Ram was referred to PGI Chandigarh where he succumbed to his injuries. A criminal case bearing FIR No. 88 dated 16.09.2008 was registered against Jaipal, driver of Truck No. HR-37-C-7937 at the Police Station, Shahzadpur, District Ambala for the commission of offence punishable under Sections 279/337/304-A of the Indian Penal Code, 1860 (hereinafter referred to as “the Code”). Madan Mohan, another injured, who was driver of the three wheeler also died later at Civil Hospital, Naraingarh. Smt. Mohindro Devi, the third injured, also suffered a number of injuries in the accident and was shifted to Civil Hospital, Naraingarh but later she also died.

5. The legal representatives of Sheo Ram filed claim petition being MACT

Case No. 97/2008, the legal representatives of Madan Mohan filed claim

petition being MACT Case No. 109 of 2008 and legal representatives of

Mohindro Devi filed claim petition being MACT Case No. 28 of 2009 before

the MACT (in short “the Tribunal”), Ambala under Section 166 of the Motor

Vehicle Act, 1988 against the owner, driver and insurer of offending vehicle, i.e., HR-37-C-7937 claiming compensation for a sum of Rs.20,00,000/-, Rs.20,00,000/-and Rs.10,00,000/- respectively.

6. It was contested by the non-applicants. One of the defence of Insurance Company (R-3 therein) was that the driver of the offending vehicle had no valid and effective license and hence no liability can be fastened on the Insurance Company.

7. The Tribunal, vide common award dated 13.09.2011, allowed the

petitions filed by the claimants and awarded a sum of Rs.6,05,000/- in MACT

Case No. 97/2008, Rs.4,56,8000/- in MACT Case No.109 of 2008 and Rs.51,448/-

in MACT Case No.28 of 2009. It was, inter alia, held that the Insurance

Company is liable to pay compensation as the driver of the offending vehicle was holding a valid and effective driving license. It was also held that the Insurance Company failed to adduce any evidence to prove to the contrary.

8. Challenging the said order, the Insurance Company filed FAO Nos.

6935, 6937 and 6977/2011 and the claimants filed FAO Nos. 906 and 907 of 2012 seeking enhancement of the compensation.

9. By impugned judgment dated 22.05.2014, the High Court reversed the award of the Tribunal in part in the appeals filed by the Insurance Company and held that since the driver of the offending vehicle did not possess a valid license to drive the vehicle because he failed to file the original one and filed its photocopy, the Insurance Company cannot be held liable to pay the awarded sum. In other words, the High Court held that the driving license was not properly proved and hence it cannot be held that the driver was having a valid driving license. In this view of the matter, the Insurance Company was exonerated from the liability from paying the compensation. However, the Insurance Company was directed to pay the awarded sum to the claimants first and then to recover the awarded sum from the owner and driver of the offending vehicle on the principle of ‘pay and recover’.

10. Challenging the said order, the owner has filed these appeals by way of special leave before this Court.

11. A short question that arises for consideration in these appeals is whether the High Court was justified in exonerating the Insurance Company from the liability on the ground that the driver of the offending vehicle did not possess valid license? 12. Heard Mr. A. Tewari, learned counsel for the appellant and Mr. A.K.

De, learned counsel for respondent No.1.

13. Submission of Mr. A. Tewari, learned counsel for the appellant, while attacking the impugned order was essentially two-fold.

14. In the first place, learned counsel urged that the High Court erred in exonerating the Insurance Company from the liability arising out of the accident. He submitted that the Tribunal having rightly held that the Insurance Company was liable to pay the compensation to the claimants as the driver of offending vehicle was having a valid driving license at the time of accident and that the vehicle in question was admittedly insured with the insurance company, there was no justifiable reason for the High Court to have reversed the finding of the Tribunal and exonerated the Insurance Company from the liability.

15. In the second place, learned counsel urged that the High Court failed to see that the driver of the offending vehicle had filed the photo copy of his driving license, which was also proved (Exhibit-R 1) by him without there being any objection of the Insurance Company. Learned counsel further pointed out that apart from this, the Insurance Company failed to adduce any evidence to prove that the license held by the driver was fake or not genuine etc.

16. Learned counsel urged that the finding of the High Court is, therefore, not legally sustainable and hence deserves to be set aside and that of the Tribunal on this issue is liable to be restored.

17. In reply, learned counsel for respondent No.1 (Insurance Company) supported the reasoning of the High Court and contended that the impugned order should be upheld calling no interference therein.

18. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to accept the submissions urged by the learned counsel for the appellant as in our opinion, they deserve acceptance.

19. In our considered opinion, the Tribunal was right in holding that the driver of the offending vehicle possessed a valid driving license at the time of accident and that the Insurance Company failed to adduce any evidence to prove otherwise. This finding of the Tribunal, in our view, should not have been set aside by the High Court for the following reasons:

20. First, the driver of the offending vehicle (N.A.-2) proved his driving license (Exhibit-R1) in his evidence. Second, when the license was proved, the Insurance Company did not raise any objection about its admissibility or manner of proving. Third, even if any objection had been raised, it would have had no merit because it has come on record that the original driving license was filed by the driver in the Court of Judicial Magistrate First class, Naraingarh in a criminal case arising out of the same accident. Fourth, in any event, once the license was proved by the driver and marked in evidence and without there being any objection by the Insurance Company, the Insurance Company had no right to raise any objection about the admissibility and manner of proving of the license at a Ors., (2007) 13 SCC 476) and lastly, the Insurance Company failed to adduce any evidence to prove that the driving license (Ex.R1) was either fake or invalid for some reason.

21. In the light of foregoing reasons, we are of the considered opinion that the High court was not right in reversing the finding of the Tribunal.

Indeed, the High Court should have taken note of these reasons which, in our view, were germane for deciding the issue of liability of the Insurance Company arising out of the accident.

22. We, therefore, find no good ground to concur with the finding of the High Court. Thus while reversing the finding, we hold that the driver of the offending vehicle was holding a valid driving license (Exhibit-R1) at the time of accident and since the Insurance Company failed to prove otherwise, it was liable to pay the compensation awarded by the Tribunal and enhanced by the High Court.

23. In view of foregoing discussion, the appeals filed by the insured (owner of the offending vehicle) succeed and are allowed. Impugned order in so far as it relates to exonerating of the Insurance Company from the liability to pay the compensation is set aside and the Insurance Company (Respondent No.1) is held liable to pay the compensation awarded by the Tribunal and enhanced by the High Court jointly and severally along with the driver and owner of the offending vehicle.

24. No costs.

..................................J.

[J. CHELAMESWAR] ¦

..................................J.

[ABHAY MANOHAR SAPRE] New Delhi;