Law Point

The Supreme Court observed that a court has to reject a plaint if it finds that none of the reliefs sought in it can be granted to the plaintiff under the law.

In such a case, it will be necessary to put an end to the sham litigation so that further judicial time is not wasted, the bench of Justices L. Nageswara Rao and BR Gavai observed.

The court added that underlying object of Order VII Rule 11 of CPC is that when a plaint does not disclose a cause of action, the court would not permit the plaintiff to unnecessarily protract the proceedings.

In this case, a civil suit was filed by the plaintiffs before the Calcutta High Court claiming various reliefs in connection with assets and properties of the firm "Soorajmull Nagarmull". The case of the plaintiffs is that in spite of demise of the three original partners of the partnership firm, through whom the plaintiffs were claiming, the defendants have been carrying on the business of the partnership firm.

The defendants filed application seeking rejection of the plaint on the ground that the plaint does not disclose any cause of action, and the relief as claimed in the plaint could not be granted. Though the single bench dismissed these applications, they were allowed by the Division Bench.

In appeal, the appellant contended that the Division Bench, in the impugned judgment and order, has almost conducted a mini-­trial to find out as to whether the relief as claimed in the plaint could be granted or not. That, such an exercise is impermissible while considering an 6 application under Order VII Rule 11 of CPC. On the other hand respondents, contended that, if the reliefs, as sought in the plaint, cannot be granted, then the only option available to the Court is to reject the plaint.

In this regard, the bench referred to the judgments in T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 and Pearlite Liners (P) Ltd. v. Manorama Sirsi (2004) 3 SCC 172) and observed:

15. It could thus be seen that this Court has held that reading of the averments made in the plaint should not only be formal but also meaningful. It has been held that if clever drafting has created the illusion of a cause of action, and a meaningful reading thereof would show that the pleadings are manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, then the court should exercise its power under Order VII Rule 11 of CPC. It has been held that such a suit has to be nipped in the bud at the first hearing itself.
17. It could thus be seen that the court has to find out as to whether in the background of the facts, the relief, as claimed in the plaint, can be granted to the plaintiff. It has been held that if the court finds that none of the reliefs sought in the plaint can be granted to the plaintiff under the law, the question then arises is as to whether such a suit is to be allowed to continue and go for trial. This Court answered the said question by holding that such a suit should be thrown out at the threshold. This Court, therefore, upheld the order passed by the trial court of rejecting the suit and that of the appellate court, thereby affirming the decision of the trial court. This Court set aside the order passed by the High Court, wherein the High Court had set aside the concurrent orders of the trial court and the appellate court and had restored and remanded the suit for trial to the trial court.
The court said that it is in agreement with the Division Bench of the Calcutta High Court which came to the conclusion that the reliefs as sought in the plaint, cannot be granted. While dismissing the appeal, the court further observed:

20. It could thus be seen that this Court has held that the power conferred on the court to terminate a civil action is a drastic one, and the conditions enumerated under Order VII Rule 11 of CPC are required to be strictly adhered to. However, under Order VII Rule 11 of CPC, the duty is cast upon the court to determine whether the plaint discloses a cause of action, by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. This Court has held that the underlying object of Order VII Rule 11 of CPC is that when a plaint does not disclose a cause of action, the court would not permit the plaintiff to unnecessarily protract the proceedings. It has been held that in such a case, it will be necessary to put an end to the sham litigation so that further judicial time is not wasted.

Citation: LL 2021 SC 483

Case name: Rajendra Bajoria Vs. Hemant Kumar Jalan

Case no.| Date: CA 5819-­5822 OF 2021 | 21 September 2021

Coram: Justices L. Nageswara Rao and BR Gava

The Supreme Court reduced sentence awarded to a man convicted under section 498A of IPC to period already undergone after he agreed to pay compensation to his wife and children.

The object of any criminal jurisprudence is reformative in character and to take care of the victim, the bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed.

In this case, the second wife of the accused filed a complaint under Section 498A IPC alleging mental and physical torture and demands of dowry by the accused. The Trial Court held him guilty and sentenced to three years of rigorous imprisonment with a fine of Rs.10,000/-. The First Appellate Court dismissed the appeal filed by him and later the revision petition filed by him was also dismissed by the High Court.

Before the Apex Court, the man said he was willing to pay compensation of Rs.3.00 lakhs the wife and the children and requested for about six months' time to raise the money. The court noted that the wife was agreeable to receive the compensation of Rs.3.00 lakhs.

"If the petitioner/appellant is showing remorse and is willing to make arrangements for respondent No.2 and his two children born out of the wedlock, we would not like to come in the way of such an arrangement, which should be beneficial to respondent No.2 and her children.", the court said.

The bench further observed that the object of any criminal jurisprudence is reformative in character and to take care of the victim.

"It is towards this objective that Section 357 of the Code of Criminal Procedure is enacted in the statute. The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case, it is one of voluntarily offering the amount albeit to seek a reduction of sentence.", the court noted.
Taking note of the fact that the accused has now undergone about seven months of sentence, the bench reduced the sentence to the period undergone in case he pays a sum of Rs.3.00 lakh as compensation. We, however, make it clear that if the amounts are not deposited, the appellant will have to undergo the remaining part of the sentence of 3 year, the bench added.

Case: Samaul SK vs. State of Jharkhand ; CrA 894 OF 2021
Citation: LL 2021 SC 410
Coram: Justices Sanjay Kishan Kaul and Hrishikesh Roy

Title:AMAR SINGH VS. SMT. VIMLA

The Madhya Pradesh High Court has recently observed that compelling a married woman to live in her parental home after marriage amounts to cruelty and that for this reason, it cannot be said that she was living seperately without reasonable reason.

The development came from a single judge bench comprising of Justice GS Ahluwalia who was dealing with a criminal revision petition challenging the Family Court's order directing the husband to pay Rs.7,000/- per month to wife under sec. 125 CrPC.

An application for maintenance was filed by the respondent wife on the ground that she was harrassed and beaten by her husband and in laws for the demand of dowry after which she was ousted from her matrimonial house and started residing in her parental home seven months prior to the filing of the said application.

It was also the wife's case that in the meantime, neither the husband nor the in laws made any efforts to bring her back.

On the other hand, it was the case of the husband that the wife had resided in her matrimonial house for a period of four days and that she never allowed him to consummate the marriage and had allegedly questioned his potency.

Further submitting that they were acquitted for the offence under sec. 498A IPC, it was submitted by the husband that he was disrespected when he had gone to the parental home of his wife for taking her back.

The Family Court had reasoned that it cannot be said that the wife was residing separately without any reasonable reason and had also found that the she was unable to maintain herself as she wasn't doing any work.

Challenging the said order, it was submitted by the husband that Rs. 7000 maintenance amount per month was on a higher side as he was a student working part time in a shop.

Considering the facts of the case, the High Court observed thus:

"Under these circumstances, this Court of the considered opinion that after having levelled serious allegations against her and her parents and having failed to prove the same, it cannot be said that the respondent is residing separately without any reasonable reason."

Furthermore, it said:

"Thus, it is also clear that the applicant (husband) has deserted the respondent (wife) and he cannot take advantage of his own wrong. Further, compelling a married women to live in her parental home, is also a cruelty. Accordingly, it is held that it cannot be said that the respondent is residing separately without any reasonable reason."

Affirming the order passed by the Family Court, the Court ordered thus:

"It appears that by order dated 06/02/2019, Court had below awarded an amount of Rs.3,000/- by way of interim maintenance. Accordingly, it is directed that the amount paid by the applicant by way of interim maintenance is liable to be adjust in the arrears of maintenance amount."

The petition was accordingly dismissed.

The Punjab and Haryana High Court has decided to continue hearing cases through video conferencing mode from June 28 in view of the COVID-19 pandemic.

A notification in this regard was issued by the Registrar General of the Punjab and Haryana High Court stating that the decision had been taken by the Chief Justice of the High Court with a view to ensuring the safety of the judges, advocates, staff, and litigants.

The notification also states that mentioning for the listing of all categories of cases will be done away with from June 28, and all the cases will be entertained by the DRR section (filing section) for the listing of matters in urgent motion.

Importantly, the notification states that matters involving life and liberty, including anticipatory and regular bails, habeas corpus petitions, criminal writ petitions pertaining to protection, parole, furlough, premature release, and application for suspension of the sentence would be taken up on dates already fixed between June 26 and July 30 irrespective of the year of registration and that such cases would not be adjourned automatically.

Also, all the 'freshly registered cases' lying pending in the registry for listing in 'Urgent Motion Cause List' will be listed serial wise before Hon'ble Benches subject to a maximum number of cases that can be taken up on a particular day.

Regarding, hearing of the cases through VC mode, the notification states that no other person except the advocate/litigants shall be allowed in the Room of the video-conferencing/video-call facility.

It has also been notified that the advocates/ advocates-clerks/law interns/general public shall not be permitted inside the High Court building.

As reported by The Tribune, perturbed over the curtailed functioning of the High Court, the Punjab and Haryana High Court Bar Association had recently raised the issue with the Chief Justice of the High Court claiming that the court had reduced its working even on the virtual mode, resulting in a further backlog of the cases.

The Karnataka High Court has said that "though second marriage is permissible under the Mohammedan Law, but the personal law cannot override the Special Law of POCSO, Child Marriage Restraints Act and General Penal Code of this Country."

A single bench of Justice K Natarajan, while dismissing the bail application filed by accused RAHUL @ NAYAZ PASHA, said "Merely because the parties are Mohammedan that does not mean that the petitioner-accused No.1 has right to marry a minor girl by enticing and abducting her. The consent or will of the victim minor girl is immaterial and even if she has voluntarily went with the accused, that amounts to abduction or kidnapping under Section 363 of IPC. The accused not only abducted the victim minor girl aged about 15 years, he got married to her which attracts Sections 9 and 10 of the Child Marriage Restraint Act. Apart from that, he has sexually assaulted her which also attracts Sections 4 and 6 of POCSO Act."

The court also turned down the no-objection given for bail to be granted to the accused by the victim. The court opined "The age of the victim being 15 years, her capacity of understanding cannot be on par with an adult person who has completed 18 years. Therefore, even otherwise, if she has given consent for abduction or marriage or sexual in*******se, her consent is immaterial as she was minor."

Further, the court noted the respondent No.2, the complainant who appeared through an advocate and produced the affidavit of the victim stating that the victim herself went along with the accused and got married and she is residing in the house of the petitioner-accused.

The court said "That cannot be taken as her consent for granting bail. Even if the victim stated 'no objection', but as she is a minor girl, it cannot be considered as a valid 'no objection' as it is against the law."

Further the court observed "The victim has made her statement under Section 164 of Cr.P.C,she has categorically stated they threatened her to marry the accused and taken her to his first wife's house (accused No.2's house) and there the accused had sexual in*******se. Section 164 of Cr.P.C. is foremost important for considering the bail petition of the accused. Even if the minor girl gives 'no objection' to release the accused in an heinous crime like r**e on a minor girl and granting bail to the accused is nothing but giving license to the offender to commit similar offences which would dilute the Special Act enacted by the Parliament for protecting the children from sexual offences and also deviating the provisions of Sections 9 and 10 of Child Marriage Restraint Act."

The court added "Apart from the provisions of Section 375 of IPC, it will send a wrong message to the Society. Therefore, in the interest of the public at large and with an intention to curtail such types of sexual offences, the Court shall ignore the consent of a minor girl giving 'no objection' for granting bail to the accused and the Court should deal with such an heinous offence with an iron hand."

Case Background:

As per prosecution, the mother of the victim filed a complaint on 05.10.2020 alleging that her daughter, the victim girl, aged about 15 years was abducted by petitioner-accused. It was alleged that on 27.09.2020 at about 11.00 p.m., her daughter was sitting by holding the mobile phone. Thereafter from 28.09.2020, she was missing from the house. On 03.10.2020, at about 2.00 p.mThe victim girl came back by weeping. When she enquired her, the victim informed her mother that on 27.09.2020, when she was sitting with her mobile phone, the petitioner forcibly abducted her by gagging her with napkin and took her to his relative's house, kept her for three days and not allowed her to talk with anybody.

Later, in the night hours, the petitioner took her to a lonely place and obtained her signature. Thereafter, on 01.10.2020, at about 12.00 p.m., the wife of the accused took the victim and left her in a house where the petitioner is said to have sexually assaulted her. On 03.10.2020, at about 5.00 p.m., the victim escaped from the custody of the petitioner.

After registering the case, the Police arrested the petitioner under Sections 363, 342, 114, 506, 376 read with Section 34 of IPC, Sections 4, 6, 17, 18 of the Protection of Children from Sexual Offences Act and Sections 9 and 10 of the Child Marriage Restraint Act. The sessions court rejected the bail application filed by the accused following which he approached the high court.

Social Activist Medha Patkar Moves SC Seeking Uniform Policy For Release Of Prisonsers Aged 70 And Above For Decongestion Of Prisons Socialactivist Medha Patkar has approached the Supreme Court for directions toStates/Union Terr

The Delhi High Court has held that the obligation of a father to maintain his son under sec. 125 of CrPC would not come to an end when the son attains the age of majority after reasoning that the entire burden of his education including other expenses would fall entirely upon the mother.

A single judge bench comprising of Justice Subramonium Prasad directed that a sum of Rs. 15,000 per month is to be given as interim maintenance to the mother from the date of the son attaining majority till completion of his graduation or starts earning, whichever is earlier.The Court observed:

"It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority."

Furthermore, it said:

"The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter."

The Court was dealing with a revision petition against the order dated 21st April, 2018 passed by the Additional Principal Judge, Family Court declining maintenance to the wife and granting the same only to the two children i.e. daughter and son of Rs. 7,000 each which was later enhanced to Rs. 13,000 per month. The husband however, re married and got a child from the second marriage.

Noting that both the husband and wife were government employees working as Upper Divisional Clerk in Delhi Municipal Corporation and Joint General Manager (HR) with the Airports Authority of India respectively.

According to the affidavit filed by the mother in 2016, it was stated that her monthly income is Rs. 43, 792 and that the monthly expenditure is Rs. 75,000. On the other hand, the affidavit filed by the husband showed that he earned a gross salary of Rs. 96,089 per month.

After an application for grant of interim maintenance claiming a sum of Rs. 40,000 was moved by the wife in Family Court, the Court had concluded that since the wife was earning sufficiently for herself, she is not entitled to any maintenance. The Court also apportioned the income of the husband into 4 shares, out of which two shares have been given to the husband himself and one share each i.e. 25% was given to the two children.

The Court also said that the son of the parties would be entitled for maintenance till he attains the age of majority and the daughter would be entitled for the maintenance till she gets employment or gets married whichever is earlier.

Analyzing the aforesaid order by the Family Court, the Court was of the view that the object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy.

"Since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, the Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and facts which have to be proved by the parties." The Court said.

"The balance has to be taken care of by the wife i.e. the petitioner No.1 herein, who is also earning and is equally responsible for the child. The respondent has married again and has a child from the second marriage. This Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage. The further reduction of the amount after the birth of the child from the second marriage of the respondent also cannot be found fault with and the reasoning given by the Family Court does not warrant any interference at this juncture."

However, the Court also said that the Family Court had failed to appreciate the fact that since no contribution is being made by the husband towards the son, the salary earned by wife would not be sufficient for her to maintain herself.

"This Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner No.2 is not yet over and the petitioner No.2 cannot sustain himself. The petitioner No.2 would have barely passed his 12th Standard on completing 18 years of age and therefore the petitioner No.1 has to look after the petitioner No.2 and bear his entire expenses." The Court said at the outset.

In view of this, the Court directed thus:

"The amount earned by the petitioner No.1 will not be sufficient for the family of three, i.e. the mother and two children to sustain themselves. The amount spent on the petitioner No.2 will not be available for the petitioner No.1. This Court is therefore inclined to grant a sum of Rs.15,000/- per month as interim maintenance to the petitioner No.1 from the date of petitioner No.2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier."

Title: URVASHI AGGARWAL & ORS v. INDERPAUL AGGARWAL