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Behaviour which when considered in the context of the hearing of a petition for divorce indicates that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent, i.e., that the marriage has broken down irretrievably. Cruelty has no artificial meaning in relation to proceedings for divorce, but it must be constituted by ‘grave and weighty matters’.

There is no precise wording of cruelty in a family law book.

Cruelty is defined under section 13 (1)(1a) the legal concept of cruelty has changed from time to time and from society to society through the changing social and economic conditions at the beginning of English law the purpose was considered an essential element of cruelty. In modern law no longer does modern law take the view that the purpose is to record protection for their innocent group to scold as scolding and even accompanied by meekness have been held to be included cruelty, and abroad human nature is essentially the same everywhere foreign decisions. Quality can be of necessity for us but it should also not be forgotten that in India a very large number of couples live in close-knit families and living together in Family has its own challenges and its own problems that may not arise elsewhere.

In case Russell v. Russell, “conduct of such a character as to have caused danger to life, Limb or health, bodily or mental or as to give rise to a reasonable apprehension of such danger.”

1976 Amendment, Cruelty became the basis for divorce. The words, included, “do not cause reasonable concern or fear that something bad will happen to the applicant’s mind that it will be harmful or harmful to the applicant to live with another person”. Cruelty perhaps heartbreaking or faint may be physical or mental may be verbal or peaceful May 20 as the meaning defines meaning can only be after considering all the facts and circumstances and cannot be determined by a firm fixed formula means lack of respect and understanding can be violence a certain attitude or even animal peace. A change in the definition of cruelty would mean that an act or omission or aggressive conduct that is the cause of divorce or legal separation even though it may result in imprisonment of any kind in the applicant’s mind is decided under the old system.

Under English law eight marriages resulting in an act of 1973 cruelty is one of the indications of marital breakdown and the operation of clauses is like giving cruelty a much more expansive meaning.

Cruelty should not always be the same as causing harm to health or well-being but injury or damage to health resulting from appropriate pain and mental anguish will also equate cruelty.

The plaintiff cannot be said to be cruel. Cruelty Also depends on social strata to which parties belong.

Intention to Be Cruel is not material At one time in English law intention to Be Cruel was an essential ingredient of cruelty a change of attitude to place an intention to enjoy a no longer agreement and essential element of cruelty in 1952 House Of Lords said that an actual intention of injury was not an essential element and that unintentional acts May amount to cruelty.

Under Hindu law also intention or motive is not an essential element of cruelty. In cruelty mens rea is not important. Mental cruelty also need not be International.

DIVORCE UNDER THE HINDU LAW

The city is said to be a cursed place where women are not respected and the family is respectful and respect for women is a place of happiness and prosperity. There are many misconceptions about the position of women in ancient times. Women were not always present, considered younger than men. According to Rig-Veda, women were equal to men in terms of “access and the power of the highest knowledge, even the knowledge of the Absolute. ”In a marriage union, the wife was given the same respect and authority as her husband in matters of religious rights and was also free to participate in religious ceremonies with her husband. Rig-Veda therefore provided a very high society status for eligible women in those days. It was Manu who gave women a dangerous position in society. According to Manu Smriti the wife was a wife who is to be a slave to an adulterous and wicked husband. She would not marry after the death of her husband though the couple may remarry in the event of the death of the first one. According to Manu Smriti, “her husband had the right to beat his wife when she committed a crime.”

Any action of the husband such as infidelity, cruelty, drunkenness etc. was to be ignored and expected to listen and be honest. The degradation of women led to their lack of education. Marriage at a young age too then the responsibility of managing the household chores made him less self-reliant and led him away from public works. In addition the acceptance of several social ills such as Sati, dowry, child marriage and forbidding the marriage of widows made it difficult for women to live according to their wishes. The result of all of this was the decline of women’s dignity in society.

According to Hindu mythology, marriage is a sacred ceremony. Because marriage is more sacramental than ever according to the treaty, the concept of divorce was unknown to the Hindu community before. Various ancient thinkers such as Atri, who considered they to be “immature,” were considered “unsuitable for divorced or divorced.” However, there is also sufficient evidence that although divorce was not so prominent in the Hindu community, was present among them. According to Manu Smriti, a man can leave wife if she is not pregnant within eight years, or if the child dies within ten years, or if the woman gives birth to a girl child only in the eleven years they have been married. Not only that, the text says a man should leave his wife if she has a sharp tongue, or if she is drunk, or if she is having an affair, indulging in alcohol Immorality. “A wife who is persistent does things that are displeasing to her husband; he suffers from diseases like leprosy, mistreats the domestic servants, and destroys him. The husband, who has worked hard, must be divorced without delay. ” Violence as a result of divorce was not uncommon before laws were enacted in 1955-1956. It was during the revival of the 19th and 20th centuries that when finally, the movement began to bring about a good change in the status of women. Reform movement and organizations founded by Raja Ram Mohan Roy once Ishwar Chandra Vidyasagar created pressure that led to “a change in attitudes toward marriage and Divorce”. One such example was the passing of the Civil Marriage Act, 1872 which resulted in enforcement of one woman. Before Independence, provinces such as Baroda and Kolkata introduced consensus laws on the dissolution of the marriage but it was part of a social law passed in 1955 that officially recognized cruelty as a valid reason for legal separation.

However, the Hindu Code faced a lot of criticism for trying to destroy it on which the Hindu community was based. According to many orthodox traditionalists the launch of the clause’s

Divorce can damage the very foundation of the Hindu community by seriously damaging the marriage arrangement. It was said by another Lakshmi Kanta Moitra that the introduction of a system that allows cruelty as a basis of the divorce it had provided was ‘holy and without blemish.’ But if we remember the modern social reality, it was not it is possible to cling to the

Preconceived notion of infidelity and lasting unity between man and woman. It was natural for the founders of the Law, in spite of all religious opposition, to provide for divorce. Following.

English law, the Act provides for marital infidelity, divorce and legal separation”

CLASSIFICATION OF CRUELTY IN THE MODEL OF CRUELTY IS DEFINED IN TWO HEADS

Physical cruelty, and

Mental cruelty

Physical cruelty

Acts of physical violence by one response to another resulting in injury to body Limb or health or causing reasonable apprehension of the same have been traditionally considered as cruelty this is the original meaning of cruelty. Depending upon the susceptibility and sensibility of the party concerned, what acts of physical violence will amount to cruelty will differ in each case. In Kaushalya v. wisakhiram,The husband ill-treated the wife, beat her, so much so that she had to go to the police to lodge a report. Dua,J. rightly said that even though injuries on the person were considered to be not very serious as to call for their medical treatment, yet she had been actually ill-treated and beaten-up; this must be held to amount to cruelty. In case Sayal v.Sarla and Saptmi v. Jagdish, are cases of physical cruelty in the latter case, the husband constantly abused and insulted the wife and ultimately on one day in her father’s house he pushed her against the wall causing her bruises.

MENTAL CRUELTY

In Bhagat v. Bhagat, the Supreme Court defined Mental cruelty as that conduct which impose Upon The other party such mental pain and suffering as would make it not possible for that party to live with the other in other words mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together the situation must be such that the wrong party cannot reasonably be asked to put up with such conduct and continue to live with the other party it is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner.

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Legally Speaking

Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.

The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.

In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.

While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.

The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.

Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.

The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.

Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.

In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.

It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.

Accordingly, the court will now hear the matter on 14 December.

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.

The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.

On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.

In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.

In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.

The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.

Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.

The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.

The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.

The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.

It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”

The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.

In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.

However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.

Mr. Arvind Gupta, Advocate on Record has filled the present petition.

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Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court

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Don’t compare Turban, Kirpan with Hijab: SC

The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.

The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.

Also, the court imposed a cost of Rupees one lakh on Singh.

In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.

While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.

The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.

However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.

It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.

Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.

The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.

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Post-conviction compounding of offences is permissible: Himachal Pradesh High Court

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The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.

The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.

Thus, the petitioner had sought compounding of offences.

In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.

However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.

The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.

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‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’

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The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.

The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.

In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.

However, the court disallowed the claims on two grounds:

Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.

In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.

Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.

The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.

The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.

Accordingly, the court dismissed the petition.

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