Can’t act in a mechanical manner in matrimonial matters: Allahabad HC - Business Guardian
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Can’t act in a mechanical manner in matrimonial matters: Allahabad HC



While taking a very strong, sensible and principled stand, the Lucknow Bench of Allahabad High Court has in an extremely commendable, courageous, composed, cogent and convincing judgment titled Anamika Srivastava v. Anoop Srivastava in First Appeal No. 30 of 2022 and cited in 2022 LiveLaw (AB) 267 that was finally delivered on May 27, 2022 observed forthrightly that the Court is not supposed to act in a mechanical manner and force the parties to engage in mediation where the marriage has irretrievably broken down. The Bench of Justice Rakesh Srivastava and Justice Ajai Kumar Srivastava-I further stressed that reference of the parties to mediation is not compulsorily required where the facts and circumstances of the case showcase that no purpose would be served out of such reference. The Court made these significant observations in light of Section 9 of the Family Courts Act which casts a duty upon the Family Court to make efforts for settlement. The Court opined emphatically that the endeavour to get the matter settled is compulsory, but the reference to mediation by the Family Court itself is not. At the outset, the Division Bench of Lucknow Bench of Allahabad High Court comprising of Hon’ble Justice Rakesh Srivastava and Hon’ble Justice Ajai Kumar Srivastava sets the pitch in motion of this brief, brilliant, bold and balanced judgment by first and foremost putting forth in para 1 that, “This first appeal under Section 19 of the Family Courts Act, 1984 has been filed challenging the orders dated 02.02.2022 and 07.03.2022 passed by the Family Court (Principal Judge, Family Court, Barabanki) rejecting the prayer made by the Appellant and the Respondent to waive the minimum period of six months stipulated under Section 13-B(2) of the Hindu Marriage Act, 1955 (for short ‘the Act’) for a motion for passing a decree of divorce on the basis of mutual consent.” To put things in perspective, the Bench then envisages in para 2 that, “Anamika Srivastava, the Appellant, was married to Anoop Srivastava, the Respondent, according to Hindu rites and rituals at Barabanki on 17.06.2010. Soon after the marriage, differences arose between them to such an extent that the Appellant left her matrimonial home on 24.09.2010 and since then she has been living with her parents. On 01.05.2013, the Appellant moved an application under Section 125 CrPC against the Respondent before the Family Court. The said case was registered as Criminal Misc. Case No. 258 of 2013 (Anamika Srivastava vs. Anoop Srivastava). On 03.10.2018, the Family Court allowed the application moved by the Appellant and directed the Respondent to pay a sum of Rs. 5000/- (Rupees five thousand only) per month to the Appellant towards maintenance with effect from the date of judgment. The judgment and order dated 03.10.2018 was assailed by the Respondent before this Court in Criminal Revision No.10 of 2019.” As it turned out, the Bench then observes in para 3 that, “This Court vide its order dated 08.09.2021, passed in the said criminal revision, referred the matter to the Mediation and Conciliation Centre of this Court to explore the possibility of an amicable settlement between the parties. The mediation was successful. The Appellant and the Respondent agreed to dissolve their marriage. It was agreed that the Respondent shall pay a sum of Rs. 4,25,000/- (Rupees four lacs twenty five thousand only) to the Appellant towards full and final settlement of all disputes and the litigation between them whether civil or criminal will terminate. In terms of the settlement arrived at between the parties, the Respondent paid a sum of Rs. 3,00,000 (Rupees three lacs only) to the Appellant and on 13.01.2022 the parties jointly filed an application under section 13-B of the Act before the Family Court for dissolution of their marriage. The said case was registered as Regular Suit No.56 of 2022, Smt. Anamika Srivastava v. Anoop Srivastava. A copy of the settlement agreement dated 30.03.2022 signed by the Appellant, the Respondent, their counsel and the mediator has been brought on record as annexure no. SA-2 to the supplementary affidavit dated 12.04.2022.” Briefly stated, the Bench then notes in para 4 that, “On 13.01.2022 the Family Court passed an order, whereby the petition for divorce moved by the Appellant was ordered to be registered. 02.07.2022 was the date fixed for second motion and in the meantime the parties were directed to appear before the mediation centre on 14.02.2022.” In brief, the Bench then also points out in para 5 that, “On 02.02.2022 the Appellant and the Respondent jointly moved an application before the Family Court under Section 13- B(2) of the Act, seeking waiver of six months waiting period to make a motion for the court to pass decree of divorce on the ground that the mediation between the parties had already taken place before the mediation centre of this Court wherein the parties had agreed to dissolve their marriage by mutual consent and, as such, there was no occasion for the second mediation. The said application was rejected by the Family Court.” In short, the Bench then discloses in para 6 that, “On 07.03.2022 the parties again moved an application for waiving the statutory period of six months for second motion. It was inter alia said in the said application that parties had been living separately for more than ten years; that before the Mediation Centre of this Court the parties freely on their own accord, without any coercion or pressure, have arrived at a joint settlement. In the circumstances, six month waiting period be waived and a decree of divorce be passed forthwith. By an order dated 07.03.2022 the said application has been rejected by the Family Court on the ground that in terms of the order passed in the said case, the parties had not appeared before the mediation centre and, as such, there was no good ground to waive the statutory period of six months.” It deserves mentioning that the Bench then reveals in para 7 that, “The orders dated 02.02.2022 and 07.03.2022 are under challenge in this appeal.” To be sure, the Bench then states in para 12 that, “The three ingredients for initiating proceedings under Section 13-B of the Act for divorce by mutual consent are: firstly, that the parties to the marriage have been living separately for a minimum period of one year. Secondly, they have not been able to live together, and thirdly, they have mutually agreed that marriage should be dissolved.” Be it noted, the Bench then specifies in para 13 that, “Sub-section (1) of Section 13-B of the Act is an enabling section. It enables the parties to file a petition for divorce by mutual consent. Subsection (2) of Section 13-B lays down the procedure for the parties to adhere to after expiry of six months from the date of filing of the petition for divorce by mutual consent. The second motion, which as per Sub-section (2) of Section 13-B is to be made not earlier than six months after the date of presentation of the petition, enables the court to proceed with the case. If the court is satisfied that the consent of the parties was not obtained by force, fraud or undue influence and they mutually agree that the marriage should be dissolved, the court is left with no other option but to pass a decree of divorce.” It must also be noted that the Bench then mentions in para 14 that, “Sub-section (2) of Section 13-B of the Act, in unequivocal terms, provides that the second motion has to be made not earlier than six months from the date of presentation of the petition before the Court.” We cannot be oblivious that the Bench then clearly states in para 15 that, “Section 14 of the Act provides that notwithstanding anything contained elsewhere in the Act, it shall not be competent to the Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless on the date of presentation of the petition, one year had elapsed since the date of marriage. However, the proviso to Section 14 provides that the Court may, on application made to it, in accordance with such rules as may be made by the High Court, allow a petition to be presented before one year has elapsed since the date of marriage, on the ground that the case is one of exceptional hardship to the Appellant or of exceptional depravity on the part of the respondent.” It is worth noting that the Bench then points out in para 16 that, “The provisions of the Hindu Marriage Act evince an inherent respect for the institution of marriage, which contemplates the sacramental union of a man and a woman for life. However, there may be circumstances in which it may not reasonably be possible for the parties to the marriage to live together as husband and wife. The Act, therefore has provisions for annulment of marriage in specified circumstances, which apply to marriages which are not valid in the eye of law and provisions of judicial separation and dissolution of marriage by decree of divorce on grounds provided in Section 13(1) of the said Act, which apply to cases where it is not reasonably possible for the parties to a marriage to live together as husband and wife.” Notably, the Bench then reveals in para 17 that, “Section 13-B incorporated in the Act with effect from 27.5.1976, which provides for divorce by mutual consent, is not intended to weaken the institution of marriage. Section 13-B puts an end to collusive divorce proceedings between spouses, often undefended, but time consuming by reason of a rigmarole of procedures. Section 13-B also enables the parties to a marriage to avoid and/or shorten unnecessary acrimonious litigation, where the marriage may have irretrievably broken down and both the spouses may have mutually decided to part. But for Section 13-B, the defendant spouse would often be constrained to defend the litigation, not to save the marriage, but only to refute prejudicial allegations, which if accepted by Court, might adversely affect the defendant spouse.” Practically speaking, the Bench rightly enunciates in para 18 that, “Legislature has, in its wisdom, enacted Section 13-B(2) of the Act to provide for a cooling period of six months from the date of filing of the divorce petition under Section 13-B(1), in case the parties should change their mind and resolve their differences. After six months if the parties still wish to go ahead with the divorce, and make a motion, the Court has to grant a decree of divorce declaring the marriage dissolved with effect from the date of the decree, after making such enquiries as it considers fit.” While citing the relevant case law, the Bench then states in para 19 that, “Prior to the judgment in Amardeep Singh (Supra), subsection (2) was treated to be mandatory in nature. In Neeti Malviya v. Rakesh Malviya, (2010) 6 SCC 413, a Bench of two Judges of the Apex Court, while dealing with the question as to whether the period prescribed in Sub-section (2) of Section 13-B of the Act could be waived off or reduced by the Apex Court in exercise of its jurisdiction under Article 142 of the Constitution, observed as under: “7. As already stated, the language of the said provision is clear and prima facie admits of no departure from the time-frame laid down therein i.e. the second motion under the said sub-section cannot be made earlier than six months after the date of presentation of the petition under sub-section (1) of Section 13-B of the Act.”” Of course, the Bench then hastens to add in para 20 that, “However, in Amardeep Singh (supra), the Apex Court considered the question as to whether the minimum period of six months stipulated under Section 13-B(2) of the Act for a motion for passing decree of divorce on the basis of mutual consent was mandatory or it could be relaxed in any exceptional situations and after taking into account the statutory provisions and the judgment on the issue for the first time opined that the statutory period of six months specified under subsection (2) of Section 13-B of the Act was not mandatory and the court, in exceptional circumstances, can waive the same, subject to certain conditions specified therein. Paragraph 19 of the said report is extracted below: “19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself; (ii) all efforts for mediation/ conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; (iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned.” (emphasis supplied).” Quite pertinently, the Bench then clarifies in para 21 that, “Thus, as held by the Apex Court in the case of Amardeep Singh, the period mentioned under Section 13-B(2) of the Act is not mandatory but directory. It is open to the Court concerned to exercise its discretion in the facts and circumstances of each case. However, the discretion to waive statutory period of six months is a guided discretion for consideration of interest of justice where there is no chance of reconciliation and the parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13-B(2) of the Act.” While citing a very recent and relevant case law, the Bench then envisages in para 22 that, “In Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270, the Apex Court enumerated some of the factors which are to be taken into consideration while exercising the discretion of waiving the statutory period of six months for moving a motion for divorce and observed as under:- “27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B(2) of the Hindu Marriage Act, the Court would consider the following amongst other factors : – i. the length of time for which the parties had been married; ii. how long the parties had stayed together as husband and wife; iii. the length of time the parties had been staying apart; iv. the length of time for which the litigation had been pending; v. whether there were any other proceedings between the parties; vi. whether there was any possibility of reconciliation; vii. whether there were any children born out of the wedlock; viii. whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc.”” No doubt, the Bench rightly states in para 24 that, “Subsection (3) of Section 23 of the Act further provides for methods to facilitate the process, which reads as follows: “23. (3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court, as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.” (emphasis supplied).” Needless to say, the Bench then adds in para 25 that, “The Family Courts Act was introduced with the avowed object to set up Family Courts for the settlement of family disputes, where emphasis was to be laid on conciliation and achieving socially desirable results without adherence to rigid rules of procedure and evidence.” It deserves noting that the Bench then lays bare in para 26 stating that, “Section 9 of the Family Courts Act makes it obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings are informal and the rigid rules of procedure do not apply. The said provision reads as follows: “9. Duty of Family Court to make efforts for settlement.— (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. (2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement. (3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.” (emphasis supplied).” Most significantly, the Bench then holds in no uncertain terms in para 27 that, “No doubt Section 9 of the Family Courts Act casts an obligation upon the Family Court to make efforts for settlement. However, the Court is not supposed to act in a mechanical manner, and force the parties to engage in mediation where the marriage has irretrievably broken down. Section 9 itself states that the Court is required to make an endeavor to assist and persuade the parties to arrive at a settlement. It also says that this has to be done in consistence with the nature and circumstances of the case. Therefore, it is clear that reference of the parties to mediation is not compulsorily required where the facts and circumstances of the case showcase that no purpose would be served out of such reference. The endeavor to get the matter settled is compulsory, but the reference to mediation by the Family Court itself is not.” While referring to relevant case laws, the Bench then states in para 28 that, “At this juncture, it is relevant to support the above conclusion by making reference to certain extracts of a judgment of the Apex Court in Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, wherein a three Judge Bench of the Apex Court observed as under: “72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. 74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. 85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality. 86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.” (emphasis supplied).” Most forthrightly, the Bench then while citing the concerned case law states in para 29 that, “In the case of Amit Kumar (Supra) the Apex Court has observed where marriage between the parities has irretrievably broken down and the parties have mutually opted to part ways, it is better to dissolve the marriage. Paragraphs 18 and 19 of the report are extracted below:- “18. The object of Section 13B(2) read with Section 14 is to save the institution of marriage, by preventing hasty dissolution of marriage. It is often said that “time is the best healer”. With passage of time, tempers cool down and anger dissipates. The waiting period gives the spouses time to forgive and forget. If the spouses have children, they may, after some time, think of the consequences of divorce on their children, and reconsider their decision to separate. Even otherwise, the cooling period gives the couple time to ponder and reflect and take a considered decision as to whether they should really put an end to the marriage for all time to come. 19. Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filing of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage. Thus, if the marriage has broken down irretrievably, the spouses have been living apart for a long time, but not been able to reconcile their differences and have mutually decided to part, it is better to end the marriage, to enable both the spouses to move on with the life.” (emphasis supplied).” Read concluding part on

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Legally Speaking

Supreme Court holds off on decision in Baba Ramdev contempt case



The Supreme Court has deferred its decision on a contempt notice issued against yoga guru Ramdev, his associate Balkrishna, and their company Patanjali Ayurved in connection with a case involving misleading advertisements. The bench, comprising Justices Hima Kohli and Ahsanuddin Amanullah, stated, “Orders on the contempt notice issued to respondents 5 to 7 (Patanjali Ayurved Ltd, Balkrishna, and Ramdev) are reserved.” The Uttarakhand State Licensing Authority (SLA) informed the court that manufacturing licenses for 14 products of Patanjali Ayurved Ltd and Divya Pharmacy have been suspended immediately. The Supreme Court noted that the counsel representing the firm had requested time to submit an affidavit detailing the actions taken to retract the advertisements of Patanjali products and to recall the medicines.

Highlighting the importance of public awareness and responsible influence, the court emphasized that Baba Ramdev wields significant influence and should employ it responsibly. It awaits an affidavit from Patanjali outlining the measures implemented to withdraw the existing misleading advertisements of the company’s products, with instructions for submission within three weeks.

During the proceedings, Indian Medical Association (IMA) President R V Asokan extended an unconditional apology to the bench for remarks made against the top court in a recent interview with news agency PTI. Justice Kohli conveyed to Asokan that public figures cannot criticize the court in media interviews. However, the court indicated its disinclination to accept the apology affidavit submitted by the IMA president at present. In an earlier hearing on May 7, the apex court had denounced Asokan’s statements as “very, very unacceptable.” The court reiterated its stance that celebrities and social media influencers are equally liable for the products they endorse, warning that if such products are found to be misleading, they could face repercussions.

The case stems from a plea filed in 2022 by the IMA alleging a smear campaign by Patanjali against the Covid-19 vaccination drive and modern medical systems. As the legal proceedings unfold, the Supreme Court continues to emphasize the importance of accountability and responsible conduct in advertising and public discourse. The case underscores the need for stringent regulations to curb misleading advertisements and ensure consumer protection. With the demand for transparency and ethical practices on the rise, the judiciary plays a pivotal role in upholding standards of integrity in commercial communications.

As the court awaits the submission of the affidavit from Patanjali, stakeholders across industries are keenly observing the developments, anticipating their implications on advertising practices and regulatory enforcement in the country.

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Australia fights Musk’s platform over control of online content



In a courtroom battle that underscores the complex interplay between global tech giants and national regulatory frameworks, Elon Musk’s X, formerly known as Twitter, finds itself at odds with Australian law over the removal of graphic content depicting a terrorist attack.

At the heart of the dispute lies a fundamental question: to what extent should a platform like X be compelled to adhere to the laws of a specific country when it comes to content moderation? The legal showdown commenced as the eSafety Commissioner of Australia sought the removal of 65 posts showcasing a harrowing video of an Assyrian Christian bishop being stabbed during a sermon in Sydney, classified as a terrorist incident by authorities.

Tim Begbie, representing the cyber regulator, argued that while X has policies in place to remove harmful content, it cannot claim unilateral authority to decide what is acceptable under Australian law. He contended that X’s resistance to globally removing the posts challenges the notion of reasonableness within the scope of Australia’s Online Safety Act.

X’s stance, guided by its mission to uphold free speech, underscores a broader philosophical debate surrounding the jurisdictional reach of national laws in the digital realm. The company maintains that while it has blocked access to the posts for Australian users, it refuses to implement global removal, asserting that the internet should not be governed by the laws of a single nation.

However, Begbie argued that geo-blocking, the solution proposed by X, is ineffective due to the widespread use of virtual private networks (VPNs) by a significant portion of the Australian population.

Amidst the legal wrangling, X’s lawyer, Bret Walker, contended that the company had taken reasonable steps to comply with Australian laws while balancing the principles of free expression. He emphasized the importance of allowing global access to newsworthy content, cautioning against the suppression of information on a global scale. The implications of such an approach, he argued, extend beyond Australia’s borders, potentially setting a precedent for censorship on a global scale.

As the case unfolds in the Federal Court, Judge Geoffrey Kennett has issued a temporary takedown order for the posts, extending it until June 10 pending a final decision. The outcome of this legal battle is poised to have far-reaching implications, not only for the regulation of online content in Australia but also for the broader discourse surrounding internet governance and free speech in the digital age.

Beyond the legal arguments, the case underscores the evolving dynamics between tech platforms and regulatory authorities, highlighting the challenges of reconciling competing interests in an increasingly interconnected world. With the proliferation of digital platforms and the rise of social media, questions surrounding content moderation, censorship, and the balance between freedom of expression and societal harm have come to the forefront of public discourse.

In the digital era, where information knows no borders and online platforms wield immense influence over public discourse, the case of X versus Australian law serves as a microcosm of the broader tensions between technology, governance, and individual rights. As societies grapple with the complexities of the digital age, the need for robust legal frameworks, ethical guidelines, and international cooperation becomes ever more apparent.

As the legal battle between X and Australian authorities unfolds, it underscores the intricate relationship between technology, law, and societal norms in the digital age. At stake is not just the removal of graphic content depicting a heinous act but also the broader principles of free speech, censorship, and the jurisdictional reach of national regulations in a globalized world.

The outcome of this case carries significant implications for the future of online content moderation and regulation. On one hand, proponents of free speech argue that platforms like X should have the autonomy to determine their content policies without being unduly influenced by the laws of individual countries. They contend that a global approach to content moderation ensures consistency and prevents the fragmentation of the internet along national lines.

On the other hand, proponents of regulation argue that national laws play a crucial role in safeguarding citizens from harmful content and upholding community standards. They assert that while platforms may operate globally, they must abide by the laws of the countries in which they operate, particularly when it comes to content that poses a threat to public safety or incites violence.

Amidst these competing interests, the case highlights the need for a nuanced approach to content moderation that balances the principles of free speech with the protection of users from harm. It also underscores the importance of international cooperation and dialogue in addressing cross-border challenges in the digital realm.

Beyond the legal realm, the case has broader implications for the future of internet governance and the regulation of online platforms. As technology continues to evolve at a rapid pace, policymakers around the world face the daunting task of crafting regulations that are effective, enforceable, and adaptable to the ever-changing digital landscape.

Moreover, the case raises important questions about the role of tech companies in shaping public discourse and influencing democratic processes. With social media platforms serving as key channels for information dissemination and political engagement, the decisions made by companies like X have far-reaching consequences for the functioning of democratic societies.

Ultimately, the resolution of this case will have significant implications not only for X and its users but also for the broader digital ecosystem. It will shape the future trajectory of online content moderation, influence regulatory approaches to technology platforms, and set precedents for how governments and tech companies interact in the digital age.

As the legal proceedings continue, stakeholders from across sectors will closely monitor developments, recognizing that the outcome of this case has the potential to reshape the digital landscape for years to come. Whether it leads to greater clarity in content moderation policies, a re-evaluation of regulatory frameworks, or a deeper understanding of the complexities of governing the internet, the case of X versus Australian law represents a pivotal moment in the ongoing debate over the future of online governance and free speech in the digital age.

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Legally Speaking

Supreme Court Framed Issues To Consider, Hearing In July 2024: Challenge To Surrogacy Law



SC seeks Centre’s reply on fresh pleas against CAA

The Supreme Court in the case Arun Muthuvel v. Union of India has elucidated the issues it will consider in a batch of petitions challenging provisions of the Surrogacy Regulation Act, 2021 and the Surrogacy Regulation Rules, 2022. The bench comprising of Justice BV Nagarathna and Justice AG Masih passed the order recording the following issues:

  1. Whether the prohibition of commercial surrogacy as stated under Section 4(ii)(b) and Section 4(ii)(c) of the Surrogacy (Regulation) Act, 2021 is constitutional?
  2. Whether the right of a couple to avail surrogacy being restricted to married couples between the age of 23 to 50 years and in case of female and between 26 to 55 years in case of male as it is being provided as stated under Section 4(iii)(c)(I) read with Section 2(1)(h) of the Surrogacy (Regulation) Act, is constitutional?
  3. Whether the right of a single woman to avail surrogacy being restricted to only widows or divorcees between the ages of 35 to 45 years as it is provided being under Section 2(1)(s) of the Surrogacy, the Regulation Act 2021, is constitutional?
  4. Whether the right of an intending couple to avail surrogacy being restricted to only those couples who do not have a surviving child as provided as stated under Section 4(iii)(c)(II) of the Surrogacy (Regulation) Act 2021, is constitutional?
  5. Whether individuals who initiated the process of availing surrogacy which being prior to the enactment of the Surrogacy, the Regulation Act, 2021 have any right to avail surrogacy in a manner which being beyond the scope of the Surrogacy (Regulation) Act, 2021, save for cases falling within the ambit of Section 53 of the Act?

The petitioner in the plea highlighted an additional issue which relates to exclusion of single men from the purview of Surrogacy Regulation Act.

Therefore, the lead petition in the matter has been filed by an infertility specialist from Chennai, Dr. Arun Muthuvel, through Advocate Mohini Priya and Advocate Ameyavikrama Thanvi.

Therefore, while highlighting various contradictions in the Surrogacy Regulation Act and the Assisted Reproductive Technology (Regulation) Act, 2021, thus, the petitioner in the plea points out that the twin legislations inaugurated a legal regime that was discriminatory and was violative of the constitutional rights of privacy and reproductive autonomy.

The Supreme Court in the case observed and has agreed to hear the petition wherein it challenges against the two Acts. In September last year, several other petitions and applications were filed wherein similar questions were raised, such as whether it was constitutional to exclude unmarried women from the ambit of the Surrogacy Act, or whether limiting the number of donations made by an oocyte donor under the ART Act would amount to unscientific and irrational restrictions.

The bench in the case observed and has expressed reservations about hearing the challenges to both the Acts simultaneously, as the linkage between the provisions of the two Acts could not be ascertained in the present matter. Further, the said court decided that issues wrt the Surrogacy Regulation Act will be heard first, followed by those which relate to the ART Act.

The court asked the parties to file written submissions on the foregoing issues. It has also been clarified by the said court that the petitioners need not restrict their submissions to the issues recorded by the court. Any ‘related’ issue may also be raised during the proceedings.

Accordingly, the court listed the matter for further consideration on July 30, 2024.

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Legally Speaking

SC ruling on spectrum allocation doesn’t affect satellites



SC seeks Centre’s reply on fresh pleas against CAA

The Supreme Court’s decision to reject the government’s application seeking clarification on administrative allocation of spectrum for non-mobile services is not expected to impact the allocation of satellite spectrum as outlined in the Telecom Bill, according to highly placed sources. In February 2012, the Supreme Court had upheld that auctions were the preferred method for allocating scarce public resources like telecom spectrum.

The Centre had filed a miscellaneous application in December last year seeking a clarification on the matter of administrative allocation of spectrum, which was mentioned in court last week. However, the SC registrar refused to accept the plea, arguing that it was seeking a review of the 2012 order and that there was no ‘reasonable cause’ to entertain it.

Government sources emphasized that this decision would not change the existing laws governing spectrum allocations for satellite communications, as clearly stated in the Telecom Bill. Sources clarified that the application did not seek to amend the 2012 judgment on 2G spectrum allotment nor did it seek permission for administratively allocating spectrum. Spectrum will continue to be auctioned for mobile services, while for the 19 specific use cases cited in the Telecom Bill, it will be allocated administratively.

The government had filed the miscellaneous application at the Supreme Court to explain its intentions before tabling the bill in Parliament, emphasizing that it was not seeking any permission from the court. The application aimed to seek appropriate clarifications from the court regarding the CPIL judgment in 2012, to establish a spectrum assignment framework that includes methods of assignment other than auction in suitable cases, to best serve the common good. In 2012, the SC had criticized the ‘first-come, first served’ method for spectrum allocation, known as the CPIL judgment, and had quashed the 2G spectrum allotted by the United Progressive Alliance government.

Since then, the government has been issuing spectrum administratively in certain cases where auctions are not technically or economically preferred or optimal. The Telecom Bill’s First Schedule lists satellite spectrum and 18 other sectors where administrative allocations will be compulsory, including law enforcement, public broadcasting, in-flight and maritime connectivity, the Indian Army and Coast Guard, and radio backhaul for telecom services. Government sources noted that all stakeholders were consulted on the issue, and the government was confident of its legal standing as outlined in the Telecommunications Act.

The SC, in a presidential reference, did not specify that all spectrum should be auctioned, only that for mobile services. The Supreme Court’s decision not to accept the government’s application seeking clarification on spectrum allocation for non-mobile services does not alter the framework outlined in the Telecom Bill. While auctions remain the preferred method for mobile services, administrative allocations will continue for specific use cases, including satellite spectrum, as delineated in the bill.

The rejection of the application underscores the importance of adherence to established legal procedures and the judiciary’s role in upholding regulatory frameworks. Moving forward, the government remains committed to transparent and efficient spectrum allocation, balancing the imperatives of economic efficiency and public interest in the telecommunications sector.

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Legally Speaking

Legal Victory for Ankiti Bose: Limits Imposed on Defamatory Content Regarding Former Zilingo Chief



A legal dispute has unfolded involving B2B fashion startup Zilingo, with former CEO Ankiti Bose on one side, and co-founder Dhruv Kapoor and former COO Aadi Vaidya on the opposing side.

A recent court decision in Delhi has brought focus to a legal dispute involving Ankiti Bose, the former CEO of Zilingo, a prominent technology platform. The court issued an ex parte order in Bose’s favor, instructing certain parties, including Zilingo co-founder Dhruv Kapoor and former COO Aadi Vaidya, to refrain from making defamatory statements against Bose. This decision underscores the importance of protecting reputational rights against unfair reporting.

The court’s ruling cited a prima facie case in Bose’s favor, acknowledging her legal right to safeguard her reputation from damaging remarks. It emphasized that failure to act promptly could lead to irreparable harm to Bose’s reputation. The order specifically bars Kapoor and Vaidya from making any further defamatory postings against the former CEO.

This legal action stems from a broader conflict within Zilingo, a B2B fashion startup that has faced financial struggles since its inception in 2015. Bose’s departure from the company was contentious, marked by allegations of misconduct and underperformance. She subsequently filed a First Information Report (FIR) accusing Kapoor and Vaidya of sexual harassment and business irregularities. In response, the accused have dismissed these claims as retaliatory, asserting that Bose’s actions were prompted by her dismissal from the company.

The litigation highlights the complexities of corporate disputes and the broader implications for individuals and businesses. Beyond the legalities, it reflects the challenges faced by startups navigating internal strife amidst financial difficulties. Zilingo’s trajectory, from inception to liquidation, encapsulates the turbulent landscape of the tech industry and underscores the importance of legal protections for individuals like Bose seeking to safeguard their professional standing amidst controversy. The court’s intervention serves as a reminder of the gravity of reputational issues in the modern corporate environment, particularly amidst the complexities of startup dynamics and leadership disputes.

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Legally Speaking

Supreme Court In Patanjali Case: Concerned With All FMCG/Drugs Companies Affecting Lives Of Children And Elderly Through Misleading Ads



The Supreme Court in the case Indian Medical Association v. Union Of India observed and has clarified against Patanjali over publication of misleading advertisements that it was not dealing with Patanjali as a standalone entity; rather, the Court’s concern, in public interest, extended to all those Fast Moving Consumer Goods, FMCGs or drugs companies which take consumers of their products for a ride through misleading advertisements. The bench comprising of Justice Hima Kohli and Justice Ahsanuddin Amanullah in its order stated that, this court must clarify that we are not here to gun for a particular party, or a particular agency or a particular authority.

This being the absolute Public Interest Litigation, PIL since it is in the larger interest of the consumers, the public to know which way they are going and how and why they can be misled and how […] is acting to prevent that misuse. Thus, at the end, this is also as we said a part of the process of rule of law. If that is violated, then it affects […].

The court in the case observed that the implementation of laws regulating misleading ads in relation to medicines require deeper examination, as the products are used for babies, school going children and senior citizens based on the ads: Further, the court stated that this court is of the opinion that the issue which relates to implementation of the relevant provisions of the Drugs and Magic Remedies Act and the Rules, the Drugs and Cosmetic Act and the Rules, and the Consumers Act and the relevant Rules needs closer examination in the light of the grievances raised by the petitioner…not just limited to the respondents before this court but to all similarly situated or placed FMCGs who have […] misleading advertisements, and taking the public for a ride…affecting the health of babies, school going children and senior citizens who have been consuming products on the basis of the said misrepresentation.

The court while taking into account the misleading ads issued in electronic media impleaded the Ministry of Information and Broadcasting, Ministry of Information Technology, and Ministry of Consumer Affairs. Therefore, the same was being done with a view to examine the steps taken by these Ministries to prevent abuse of Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 (and the Rules), the Drugs and Cosmetic Act 1940 (and Rules) and the Consumer Protection Act. Accordingly, the court listed the matter for further consideration on May 07, 2024.

Background Of The Case:

The Court raps Uttarakhand authorities The said court also came down heavily on the State of Uttarakhand for the failure of its licensing authorities to take legal action against Patanjali and its subsidiary Divya Pharmacy. The bench also asked why it should not think that the authorities were ‘hand in glove’ with Patanjali or Divya Pharmacy.

The court in its order stated that it was ‘appalled’ to note that apart from ‘pushing the file’, the State Licensing Authorities did nothing and were merely trying to ‘pass on the buck’ to ‘somehow delay the matter.’ The court stated that the State Licensing Authority is “equally complicit” due to its inaction against Divya Pharmacy despite having information about t heir advertisements violating the Drugs and Magic Remedies (Objectionable Advertisements) Act.

Further, the court stated that it was refraining from issuing contempt notices to other officers. Further, the court directed that all officers holding the post of Joint Director of the State Licensing Authority, Haridwar between 2018 till date shall also file affidavits explaining inaction on their part.

Background of the Case:

The contempt case was initiated wherein the petition is filed by the Indian Medical Association against Patanjali’s advertisements attacking allopathy and making claims about curing certain diseases. On the Supreme Court reprimand, the Patanjali on last November had assured that it would refrain from such advertisements. The court in the case noted that the misleading advertisements continued, thus, the Court had issued contempt notice to Patanjali and its MD in February.

The court in march considering that reply to the contempt notice was not filed, the personal appearance of the Patanjali MD as well as Baba Ramdev, who featured in the press conferences and advertisements published after the undertaking, was ordered by the said Court. Therefore, the Patanjali MD filed an affidavit wherein it is stated that the impugned advertisements were meant to contain only general statements but inadvertently included offending sentences. Further, the court stated that the advertisements were bona-fide and that Patanjali’s media personnel was not ‘cognizant’ of the November order (wherein the undertaking was given before the Supreme Court).

The affidavit filed also contained an averment that the Drugs and Magic Remedies Act was in an “archaic state” as it was enacted at a time when scientific evidence regarding Ayurvedic medicines was lacking. On the last date of hearing, both Baba Ramdev and MD Balkrishna were physically present in Court. The court expressed its reservations about MD Balkrishna’s affidavit, calling it “perfunctory” and “mere lip service”. The court gave last opportunity to the alleged contemnors for filing a proper affidavit.

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