Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Monga, J. disposed of the writ petition after issuing necessary direction to Superintendent of Police to protect the life and liberty of the petitioners.

A writ petition was issued for the protection of life and liberty as enshrined under Article 21 of the Constitution of India vis-à-vis a conceded violation of Section 5 (iii) of the Hindu Marriage Act, 1955, inasmuch as a girl aged 20 years 9 months and boy aged 20 years and 3 months claim to have married each other having purportedly being in love with each other.

The brief facts of the case were that petitioner knew each other for the last two year and thus they decided to get married but parents of the second petitioner were against their marriage. Petitioner stated that respondents had issued a threat that they will kill the petitioners in order to break their matrimonial tie and hell-bent in ruining their life one way or the other. Thus, the petitioner approached Senior Superintendent of Police but no action was taken by the same.

D.D. Sharma, Counsel for the petitioner stated that they were living in the constant danger as they had every apprehension that private respondents will catch them and carry out their threats and may go to the extent of even committing their murder. Thus the present writ petition was filed by the petitioner in order to seek appropriate orders in the present matter.

The Court opined that a perusal to Section 5 of the Hindu Marriage Act, leaves no doubt that one of the essential condition related to age is not fulfilled, but which does not make the marriage a void marriage. The Court supported the legislative intent after relying on the case of Jitender Kumar Sharma v. State, 2001 (7) AD (Delhi) 785. The Court in this issue suggested that this condition may be satisfied before the appropriate forum if the same is challenged. The Court regarding the issue of personal right and liberty held that Constitutional Fundamental Right under Article 21 of Constitution of India stands on a much higher pedestal. Being sacrosanct under the Constitutional Scheme it must be protected, regardless of the solemnization of an invalid or void marriage or even the absence of any marriage between the parties. It is the bounden duty of the State as per the Constitutional obligations casted upon it to protect the life and liberty of every citizen. Thus it was ordered to Superintendent of Police to verify the content of the petitioner particularly the threat perception of the petitioners and thereafter provide necessary protection qua their life and liberty if deemed fit.[Gurwinder Singh v. State of Punjab, 2019 SCC OnLine P&H 879, decided on 21-06-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of CJ Hrishikesh Roy and A.K. Jayashankaran Nambiar, J. opined that the students could not be compelled to continue in a college which according to their perception was detrimental to their career and laid that there was no reason to interfere with the judgment of the single Judge whereby students were allowed the inter-college transfer.

Respondent student sought inter-collegiate transfer from the Cochin Institute of Science and Technology to another self-financing college under the same university since the amenities and infrastructure in his college were inadequate. But the college principal did not accord permission for the inter-college transfer. Thus, the respondent herein had filed a petition before this Court and a Single Judge Bench[1] allowed the same holding that college could not arbitrarily reject issuance of NOC to students desirous of taking admission into another college/ institute. Aggrieved by the said decision, the appellant-college preferred the instant appeal.

The counsel for the appellant, Anoop V. Nair and M.S. Sandeep Sudhakaran contended that if such inter-college transfer was permitted, the functioning of the appellant college would itself be put to jeopardy as it might possibly adversely impact those opting to continue in the Cochin Institute of Science and Technology.

The Court relied on the judgment of Supreme Court in the case of K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, in which it was held that the right of a person to individual autonomy was matter of personal choice and preferences were integral to his dignity and thereby it was his fundamental right under Article 21 of the Constitution of India. It remarked that “freedom to choose the college of his/her choice for pursuit of their studies is according to us, an aspect of the Fundamental Right to privacy, guaranteed under Article 21 of the Constitution.”

The Court held that the appellants had not been able to show any condition either statutory or contractual which obliged a student admitted to their college to necessarily continue their course of study in the same institution and therefore when a student felt that he could secure better education in another college and there was no legal bar in exercise of such option, appellants could not compel the students to continue their curriculum from the same college. Hence, the Court dismissed the appeals for being devoid of merit.[Cochin Institute of Science and Technology v. Jisin Jijo, 2019 SCC OnLine Ker 1800, decided on 04-06-2019]

[1] https://blog.scconline.com/post/2019/06/12/ker-hc-college-cannot-arbitrarily-reject-issuance-of-noc-to-students-desirous-of-taking-admission-into-another-college-institute/

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. set aside the detention order passed by respondent 2-District Magistrate, Baramulla and ordered the detenu to be released from preventive custody.

In the present case, the petitioner had challenged a detention order passed by respondent 2 whereby the petitioner was taken under preventive custody. The respondent had also filed a counter affidavit wherein they resisted the petition by pleading that the detention order was passed by following the procedure under the law.

Learned counsel for the respondent, Asif Maqbool, produced the detention record to lend support to the stand taken in the counter affidavit.

Learned counsel for the petitioner, Mir Shafaqat Hussain, pointed out that the detenu had been shown involved in various FIRs but the fact that he had already been admitted to bail in these FIRs had not been mentioned though the mention of the FIRs was made. This showed that all the circumstances and materials were not examined. A person involved in a criminal case could be detained under the provisions of preventive laws provided there were compelling circumstances to do so. Preventive detention is an invasion to personal liberty which infringes the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, should not be on the ipse dixit of the detaining authority.

While relying on Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, it was pointed out that the procedural requirement are the only  safeguard available to the detenu, therefore, the procedural requirement should be strictly complied with, it was the duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If the record suggested that there was non-application of mind, which ipso facto meant that subjective satisfaction was missing.

Due to the cumulative effect of the above discussion, it was held that, the impugned order of detention passed by respondent 2 was not valid. The order was set aside directing that the detenu be released from the preventive custody.[Shahid Ahmad Tantray v. State of J&K, 2019 SCC OnLine J&K 422, decided on 08-05-2019]

Case BriefsHigh Courts

Tripura High Court: A Division Bench of Sanjay Karol, CJ and Arindam Lodh, J. dismissed an appeal filed under Section 19(1) of the Family Courts Act, 1984 against the order of the family Judge whereby the husband was directed to pay pendente lite maintenance of Rs 8000 per month to her wife.

Arijit Bhowmik, Advocate representing the appellant-husband submitted that though the appellant was an employee of ONGC having a salary of Rs 39, 649, however, he received only Rs 19,338 after various deductions. It was prayed that the maintenance allowance may be reduced. per contra, H.K. Bhowmik, Advocate appearing for the respondent-wife submitted that Rs 8,000 per month were minimum to lead a dignified life, which is one of the essential features of Article 21 of the Constitution.

On perusing the record, the High Court found that the wife was forced to stay at her parents’ house. it was noted that there were many bald allegations levelled against her such as she was not interested in having sex with the appellant-husband and that she threatened him to commit suicide. In the Court’s opinion, the allegations were not substantiated by cogent evidence. It was said: “these are the normal wear and tear of marital life and for this, the wife should not be forced to be separated from the appellant-husband. The wife is entitled to lead a life at part the standard of the husband.”

Having considered all the aspects, the court was not inclined to interfere with the order passed by the family Judge. Resultantly, the appeal was dismissed. [Debasish Chakraborty v. Soma Bhattacharjee, 2019 SCC OnLine Tri 159, decided on 29-05-2019]

Case BriefsHigh Courts

Kerala High Court: P.V Asha, J. allowed a petition directing the respondent college to issue NOC to the students applying for transfer to another college as per the rules of the concerned university.

The petitioners, in this case, were students pursuing their engineering course from Cochin Institute of Science and Technology which was a self-funded college. All the petitioners were either in their 2nd or 4th semester and wanted to get themselves transferred to another self-funded college, as their institution had a provision of transferring students before the starting of their 3rd and 5th semester as per the wish of the students and after the issuance of  “No Objection Certificate (NOC)” by the principal. The deplorable condition of the college forced 106 students to file an application for their transfer which the college arbitrarily rejected. Principal of the college was even requested by the parents to issue the NOC but there was no revert. Feeling aggrieved by the act of college, students filed this petition requesting the Court to direct the college to issue the NOC.

Learned counsels for the petitioner D. Kishore and A.C Devasia argued that when the petitioners did not want to continue in the College and the University permitted inter-college transfer, denial of NOC recommendation on their applications was derogatory to their fundamental right to education under Article 21 of the Constitution. They also informed the Court that they apprehend vindictive measures against the students on their continuance in the college as such open declarations were made by the College and that such measures could adversely affect the very future and the career of all these petitioners. Furthermore, they placed their reliance on Kottayam Institute of Technology and Science v. Admission Supervisory Committee for Professional Colleges in Kerala, 2016(4) KHC 620 and argued that the transfer could be allowed even without the recommendation of the Principal of the College, as it was only a matter of procedure and not a necessity. Thus, it was submitted that the petitioners were entitled to get their certificates released for admission in another College.

Learned counsel for the respondent P. Ravindran argued that the petitioners did not have any right for transfer and the College was not under any obligation to grant NOC or to recommend their applications, as the applications were made based on the norms issued by the university which did not have any statutory force. It was argued that the petition itself was not maintainable for enforcement of guidelines. It was also argued that even as per the norms, it was open to the Principal to recommend or not and only if the application is recommended, the petitioners could further process the applications.

The Court observed that the petitioners did not come under any prohibited category and were entitled to get the NOC. It was further observed that “compelling the students, who did not want to continue in a college, could only affect the future and career of the students. An atmosphere without room for apprehensions and conducive to carry on the studies peacefully, was essential and hence it required paramount consideration.” Therefore, the Court ordered the principal of the college to recommend the applications of the petitioners for inter-college transfer within three days of passing of this judgment. It was also made clear that in the event of any delay on the part of the respondent, the opted Colleges was free to act upon and process the applications submitted by the petitioners as if the applications were recommended. Thus, the petition was allowed.[Jisin Jijo v. APJ Abdul Kalam Technical University of Kerala, 2019 SCC OnLine Ker 1691, decided on 31-05-2019]

Case BriefsHigh Courts

Punjab & Haryana High Court: A Single Judge Bench of Raj Shekhar Attri, J., allowed a writ petition filed by the petitioners seeking protection from private respondents 4 to 6, since the petitioners apprehend danger to their life, limb and liberty from the hands of private respondents.

The main issue that arose before the Court was whether the petitioners were entitled to get protection on the basis of apprehension of danger.

The Court observed that the Constitutional philosophy completely eradicates discrimination on the grounds of castes, creed, religion, domicile etc. It has propounded the equality and freedom but after a lapse of 68 years since after coming into force of the Constitution of India, the citizens, especially in the rural areas, are under the influence of orthodox phenomenon and believe in the traditional societies. It gravely affects the doctrine of social justice and equality. The petitioners in the present case had provided sufficient evidences of their age and it was proved that they were both majors who got married and were living together. Since both the petitioners are citizens of India, they have a right to live with dignity. The Court referred to its own decision in the case of Pardeep Kumar Singh v. State of Haryana2007 SCC OnLine P&H 1230, wherein several guidelines with regard to safety concerns of run-away couples were laid down by the Court.

The Court held that the petitioners had every right to seek protection of their lives as the same has been guaranteed to them under Article 21 of the Constitution of India. It is incumbent upon the state to ensure the safety of such couples.[Sushmita v. State of Punjab, CRM M No. 49692 of 2018 (O&M), order dated 13-11-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court:  A Division Judge Bench comprising of Surya Kant, CJ and Ajay Mohan Goel, J., disposed of an appeal wherein the right to water and electricity supply was directed as them being the basic necessities of life.

The petitioner constructed a residential house against which eviction proceedings were initiated against the petitioner as the land in possession was owned by the State Government. The petitioner applied for the electricity and water connections, but both these amenities were denied on the premise that ‘No Objection Certificate’ was not issued by the Municipal Council.

The respondents submitted that the same cannot be granted as the petitioner has not risen the construction after getting building plan sanctioned plus the petitioner unauthorizedly occupied the Government land and raised illegal construction, without seeking prior approval of the authorities.

The Court agreed to the fact that ordinarily, it would be reluctant in granting relief to a person alleged to be an encroacher over the Government property, but at the same time, it was not expedient to express any view on merits, as any observation in relation to this issue was likely to have impacted on the merits of the case.

The prime consideration was whether the basic amenities of water and electricity shall be granted to the petitioner or not. It was stated that as they were an integral part of Right to Life within the meaning of Article 21 of the Constitution of India calls for immediate action. Thus till the title dispute remains pending, for that considerable period the petitioner shall be granted the same on subject to their payment of requisite charges and shall remain purely an interim and ad hoc measure till the title dispute was decided. Accordingly, the appeal was disposed of. [Madan Lal v. State of Himachal Pradesh, 2018 SCC OnLine HP 1495,  decided on22-10-2018]