Case BriefsHigh Courts

Calcutta High Court: Rajarshi Bhardwaj, J., addressed an appeal arising out of a judgment and order of conviction passed by the Additional District and Sessions Judge sentencing the appellant to suffer rigorous imprisonment and fine along with the payment of compensation to the victim for commission of offence punishable under Sections 376 and 511 of Penal Code, 1860.

The present matter pertains to the contentions and facts that the victim during school hours went to use the toilet and at that time the appellant entered into the toilet and committed rape upon the victim girl.

A complaint was filed in regard to the stated prosecution case after which the officer-in-charge initiated the case under Section 376 (2) of the Penal Code, 1860. The accused was arrested and produced before the Court. Charges were framed against the accused under Sections 376 and 511 of the Penal Code.

Tapan Dutta Gupta, Counsel appearing on behalf of the appellant submitted that the case was concocted out of political rivalry and was established by the defence.

Advocate for the State submitted that the version of the victim has been corroborated by other witnesses, the appeal is liable to be dismissed. Some of the statements of the prosecution witnesses are mentioned below in order to understand the victim’s stand better:

  • PW-1, father of the victim stated that on returning from school, victim girl told him that in the school she had gone to attend her nature’s call and that was the time when the accused entered into the latrine and forcibly committed rape upon her.
  • PW-2, Victim herself stated that on the fateful day she went to the latrine of the school accompanied by her elder sister. She forgot to lock the room of the toilet from inside and at that time the accused entered into the toilet room and pressed his penis in her private part and when she started crying, the accused fled away from the spot.
  • PW-5, the Medical officer, stated that the victim girl did not face any intercourse, though, during the examination, swelling was found over both vulva present and reddish discolouration inside labia minora. Such type of injury may be caused if any person tries to insert his penis in the vagina of a girl aged about 6 years.

Therefore, it appears from the evidence on record that the victim girl was a minor on the date of incident.

High Court stated that, although it has been desperately argued that the appellant was not present at the time of the incident, no such plea was raised nor any evidence led to probabilise, such plea of alibi on behalf of the appellant during the trial.

Hence, in view of the above discussion, appellant is found guilty of the offence punishable under Sections 376 and 511 of the penal Code, 1860 and further sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs 4,000 only, in default to suffer simple imprisonment for 6 months is modified to the extent that the appellant was sentenced to suffer rigorous imprisonment of 5 years and fine of Rs 4,000 in default to suffer simple imprisonment for another 1 month.

Accordingly, the appeal is dismissed.[Pratap Dolai v. State of West Bengal, 2019 SCC OnLine Cal 2306, decided on 06-09-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed a criminal leave petition filed by the State challenging the order of the Additional Sessions Judge whereby the respondent-accused was acquitted of offences punishable under Sections 376, 366 and 363 IPC along with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The father of the victim had lodged a complaint that his minor daughter (aged about 17 years) had not returned home from school. During the course of the investigation, the victim was recovered from the possession of the accused. After completion of investigation, charge sheet wassailed against the accused of the offences as aforementioned. The accused was, however, acquitted by the trial court.

Aashaa Tiwari, APP appearing for the State, submitted that as the victim was a minor at the relevant time, her consent to accompany the accused and to have physical relations with him was of no consequence.

Perusing the statements of the victim, the High Court noted that she has misrepresented her age to be 18 years to the accused. She had also categorically stated that had she not done so, the accused would not have allowed her to accompany him.

It was observed: “The element of mens rea, which is an essential ingredient of Sections 363, 376 IPC is missing. In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent-accused bonafidely believed to be true that he allowed her to accompany him.”

The Court noted further: “In fact, statement of the prosecutrix clearly negates any charge including Section 6 of POCSO. Consequently, as the respondent-accused had not knowingly committed any offence, none of the charges can be said to have been proven.”

Considering the well-settled law that an acquittal order cannot be lightly interfered with by the Appellate Court, the High Court declined to interfere with the order of the acquittal passed by the trial court. The leave petition was thus dismissed.[State (NCT of Delhi) v. Kaishar Ali, 2019 SCC OnLine Del 9875, decided on 30-08-2019]

Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah, Qazi Muhammad Amin Ahmed, JJ. allowed a criminal appeal against a conviction order under Section 302 (b) of Pakistan Penal Code, 1860 which was passed on the basis of confessional statements.

 Appellants herein were tried before trial court for committing murder of a minor. As the investigation progressed, the accused were hauled up by the police and produced before a Judicial Magistrate when they, one by one, confessed the guilt. They were convicted under Section 302(b) of PPC and sentenced to death. The conviction order was upheld by the Peshawar High Court. Hence, the instant appeal.

The counsels for the appellants, Khalid Mehmood and Zahoor Qureshi, contended that reliance on confessional statements by the Courts below was fraught with multiple errors, heavily impinging upon the principle of safe administration of criminal justice; according to him, the statements were inherently flawed; these were contradicted by prosecution’s own witness, a dichotomy that escaped notice of the courts below.

The Court noted that since the appellants had been handed down the ultimate corporal penalty which was irreversible in nature on the basis of their confessions, the said confessions warranted careful scrutiny.

It was noted that both the appellants appeared before the Magistrate one after another on the same date which was quite intriguing. Both of them conducted themselves in a comfortable unison even in an extreme crisis situation; and both were in tune with the prosecution, which reasonably excluded the hypothesis of voluntary disclosure, free from taints of inducement or persuasion. The Court observed that it appeared to be more of a negotiated settlement rather than a volitional representation as there was a remarkable similarity in both the statements, in terms of sequential order as well as the pattern these were reduced into writing.

The Court observed that The fate of the prosecution’s case is hinged upon confessional statements, made by the convicts before a Magistrate and it is on the basis of their disclosures that they have been handed down the ultimate corporal penalty, irreversible in nature and thus warrants most careful scrutiny.” On overall analysis of the prosecution’s case, it was held that the confessional statements could not be relied upon without potential risk of error. The Court held that, “In the absence of evidentiary certainty, it would be unsafe to maintain the convictions on moral satisfaction that certainly cannot equate with legal proof.”

In view of the above, the appellants were held entitled the benefit of doubt and their appeal was allowed, thus setting aside the impugned judgments.[Muhammad Azhar Hussain v. State, 2019 SCC OnLine Pak SC 10, decided on 02-05-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Division Bench of Qazi Faez Isa and Mazhar Alam Khan Miankhel, JJ. dismissed a petition challenging assailing the judgment of Peshawar High Court vide which custody of a minor girl was handed over to her mother.

Petitioner herein, father of the minor, submitted that the child did not even recognize her mother and was not ready to go with her. He also relied on the decision of a jirga, which had decided that the custody of child should remain with the petitioner-father.

The Court noted that the petitioner worked as a labourer in Dubai and her stepmother and a divorcee sister of the petitioner looked after the child. The petitioner also had three children from his second wife. However, the respondent had not married again after divorce from the petitioner.

At the outset, the Court opined that a jirga has no legal authority to decide custody of children, and in doing so, it violated the law and Islamic injunctions. A mother cannot be compelled to part with her child by a jirga. Mother cannot be called upon to barter the right to her child’s custody to secure a divorce, nor can a child be used to settle personal scores.

The Court placed reliance on Razia Bibi v. Riaz Ahmad, 2004 SCMR 821 and opined that poverty on the part of a lady is no ground to disentitle her from the custody of minor. It was held that welfare of the minor is of paramount consideration in determining custody, and principles of hizanat must be adhered to unless there are valid reasons not to do so. The dictum in Rubia Jilani v. Zahoor Akhtar Raja, 1999 SCMR 1834 was relied on in this regard.

In view of the above, the petitioner was directed to, immediately and peacefully, handover the minor girl to her mother.[Bat Khan v. Sherin Bibi, Civil Petition No. 809-P of 2018, Order dated 08-02-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of V.M. Deshpande, J. dismissed an appeal challenging the judgment and order of Additional Sessions Judge whereby the appellant was convicted for offences punishable under Sections 376 and 506 IPC along with Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012.

Appellant was accused of committing the offence of rape and sexual assault on a mentally-retarded minor girl victim after which she became pregnant. After the victim’s pregnancy came to light, she had to undergo an abortion and subsequently a case was filed against the appellant. For the said offence he was tried and convicted by the Additional Sessions Judge and sentenced to suffer imprisonment. Aggrieved thereby, appellant challenged the said judgment in the present appeal on various grounds.

One of the grounds contended by R.M. Patwardhan, Advocate for the appellant was that the DNA report should not be accepted as there was no reason for the medical officer who conducted abortion of the victim’s pregnancy to preserve the aborted foetus for DNA testing in absence of registration of offence against anybody.

Rejecting appellant’s contention as meaningless, the High Court noted Dr Kanchan Gadhe’s presence of mind and commitment towards her duty and opined that preservation of foetus was not unnatural as she knew that abortion was conducted on the minor unmarried girl. Furthermore, relying on Mukesh v. State (NCT of Delhi), 2017 (6) SCC 1, the Court observed, “the DNA report or scientific method to determine the paternity or sexual assault is firmly established. The only challenge for it can be set up that there occurred tampering with the blood sample of the accused at any stage.” Since there was no such challenge in the present case, the DNA report was accepted. Not finding any infirmity in the impugned order, the court dismissed the appeal. [Shaktiman v. State of Maharashtra, 2019 SCC OnLine Bom 139, dated 29-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The criminal appeal was filed before a Division Bench of P.K. Jaiswal and Anjuli Palo, JJ. by the accused to set aside the conviction and sentence passed under Section 363 of Penal Code and criminal reference to confirm death penalty awarded by First Addl. Sessions Judge, Nagod for a crime under Section 376(a)(b) of Penal Code.

Accused was convicted and was given death penalty for gruesome rape of a 4-year-old girl. Trial Court had charged the appellant under Sections 363, 376(a)(b) of Indian Penal Code and Section 5(j)(n) of Protection of Children from Sexual Offences Act. Trial Court had found him guilty. Appellant in this appeal challenged the findings of the Trial Court on the ground that there was no direct evidence against him and that its finding was contrary to the law and facts. The question before the court was whether the trial court had rightly convicted accused and whether this case comes under rarest of the rare category. High Court did not find any mistake while examining of the DNA and the testimony of the witnesses was also found to be reliable. Thus, Court viewed that Trial Court had rightly convicted appellant. Thereby, his conviction was maintained. Appellant urged that he was only aged about 28 years and had no previous criminal conviction.

High Court observed that a person who was performing the pious duty of a teacher had to nurture the character and morality in children and not commit a crime against them. Court after considering the facts and circumstances of the case along with the mitigating circumstances concluded that this case comes under the category of the “rarest of the rare case”. Therefore, this appeal was dismissed and sentenced to death penalty was affirmed. [Mahendra Singh Gond v. State of M.P., 2019 SCC OnLine MP 200, dated 25-01-2019]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Local Division: This case was filed before a Bench of G.G. Goosen, J. where Court dealt with the sentencing of accused who was convicted for kidnapping, rape and robbery with aggravating circumstances.

The two accused were convicted of kidnapping, robbery and rape. It was found that Accused 1 had already been convicted on 4 occasions. With respect to Accused 1 Court stated that- “He is however not a youth whose callow immaturity might explain his aberrant conduct.” He had experience of the effects of punishment and despite that, it did not cause him to change his behaviour which mandates a heavy punishment. The impact of the crime subjected to the victim, outweighs the personal circumstances of the accused. Accused 2 was a minor and thus was to be dealt with under the Child Justice Act, 2008. Accused 2 was of 16 years of age at the time of the commission of a crime. He had no previous convictions and the life he had been through showed that he was a child used to drugs and in need of care.

High Court found direct sentencing of imprisonment to be appropriate. According to the Act, imprisonment was to be given as a last resort and the Court viewed the case of Accused 2 to be one falling within the scope of imprisonment. [State v. Donovan Heugh, Case No. CC 17 of 2018, dated 25-01-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vibhu Bakru, J. allowed the termination of pregnancy of a minor whose fetus had already undergone a gestation period of 22 weeks.

In the present order, it was noted that the petitioner had approached the High Court for direction to respondents in regard of termination of her pregnancy even after being aware of the high risks involved with the same. The Court on interaction with the 16-year old rape victim noted that she insisted on the termination of pregnancy and seemed to be in considerable distress.

Further, the Court noted the observation of Dr Sanjay Agrawal, Director Professor of Psychiatry, who was of the view that the unwanted pregnancy was causing a considerable amount of distress to Ms X. Medical Board had submitted the report which indicated that abortions of about 22 weeks carry a higher risk of mortality and morbidity. The stated risk was explained to the petitioner as well as her father, both of whom were adamant that the pregnancy should be terminated.

Learned Counsel for the petitioner while citing various decisions of Supreme Court including Chanchala Kumari v. Union of India, WP(C) No. 871 of 2017 and Venkatalakshmi v. State of Karnataka, Civil Appeal No. 1538 of 2017, noted that the Court on examining the medical reports had permitted the termination even after 24 weeks of pregnancy.

Thus, the High Court keeping in consideration the above-stated allowed the petition and directed for the termination of pregnancy of the minor child. [X v. State (NCT of Delhi),2018 SCC OnLine Del 12891, Order dated 01-12-2018]

Case BriefsForeign Courts

South Africa High Court, Western Cape Division: Two matters came for review before a 2-Judge Bench comprising of DM Thulare AJ; MJ Dolamo J, where the proceedings were held considering the accused as major but they were found to be minor.

One of the accused pleaded guilty and thereby he was convicted under Section 112(1)(a) of the Criminal Procedures Act, 1977. While mitigation of sentences were being held it was brought before the court that the accused was minor as a consequence of which he was released and the matter was postponed for the determination of the correct age of the accused.  The second accused was found guilty and accordingly sentenced where his age was not determined.

The High Court viewed that terminology used in Section 12, 13 and 14 in Part 3 of Chapter 2 of the Child Justice Act, 2008 were not interpreted and applied in the best interests of children. Court with respect to Section 12 observed that police officer after arrest should have treated a youngster as child unless there were other reasons to the contrary. Further, Section 14 states that where the age of accused is uncertain, it is for the presiding officer to hold enquiry to determine same.  It was found that the presiding officer before whom the accused first appeared failed to determine the age of accused. Finding the Magistrate to be correct who said that the wrong determination of date caused prejudice to the accused conviction was liable to be set aside. Therefore, Court ordered the conviction of first accused and sentence on second accused to be set aside and the matter was remitted back to the magistrate for sentencing under Chapter 10 of Child Justice Act, 2008. [State v. B O, 2018 SCC OnLine ZAWCHC 3, dated 02-11-2018]

Case BriefsHigh Courts

Kerala High Court: The question before a 2-Judge Bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ., was to determine the jurisdiction of Court, whether Court can entertain a matter related to guardianship of a minor or not where the expression “the place where the minor ordinarily resides” in Section 9(1) of the Guardians and Wards Act, 1890 was to be interpreted.

The facts leading to the instant petition are that the appellant (mother of minor) filed a petition in family court for the custody of her minor child. The respondent (father of the minor) contested the above petition by challenging the jurisdiction of Court on grounds that by virtue of Section 9(1) of the Act Court had no jurisdiction to try this matter as the correct jurisdiction would be where the minor ordinarily resides. Court thereby ordered appellant to file the petition before the court having jurisdiction. This order of the court is challenged before the High Court in the instant petition. The High Court referred case of Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 where Apex Court held that test to determine the jurisdiction of Court to entertain the application of guardianship of minor is the place of ordinary residence of a minor. Appellant pleaded that under Section 6 of Hindu Minority and Guardianship Act, 1956 custody of a minor who is below five years of age is with the mother and since minor was less than five years old appellant would be the natural guardian of the minor thus her residence would be the ordinary residence of minor. Court rejected this pleading and cleared that it is the ordinary residence of the minor which is going to decide the jurisdiction of the Court and not the residence of natural guardian.

Therefore, Court found no error in the finding of lower court that it had no jurisdiction to try this matter as minor was not ordinarily residing within its jurisdiction. [Divya J. Nair v. S.K. Sreekanth,2018 SCC OnLine Ker 3375, dated 12-09-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Rakesh Kumar Jain, J., refused to grant permission to terminate pregnancy of a 14-year minor girl.

The facts of the case are that the petitioner was father of a minor girl of 14 years of age who was raped and an FIR was filed against the accused under Section 6 of the POCSO Act, 2012 and Sections 376(3) and 506 of Penal Code. As soon as pregnancy of the minor came into light the petitioner approached the Court for termination of 28 weeks pregnancy in accordance with the Medical Termination of Pregnancy Act, 1971 wherein permission of Court is required if the pregnancy is of more than 20 weeks. Question before Court was whether if pregnancy of the minor is terminated, there would be danger to life of minor or not. Director, PGIMS Rohtak gave opinion according to which if pregnancy is terminated, there could be grave risk to minor’s life. Accordingly, Court in the instant petition refused to permit termination of pregnancy. Petitioner asked for directions in light of the case of Shewata v. State of Haryana, 2015 SCC OnLine P&H 20442 wherein termination of pregnancy of a girl was rejected but directions were given by Court for the welfare of the girl.

The High Court, therefore, issued directions to the Director, PGIMS Rohtak for the welfare of the minor. Some of the important directions are given here for reference.

  • Direction to admit minor as an indoor patient with a private room.
  • Minor was to be given medicines, food, clothes and other facility and during delivery, minor should be personally monitored by the Head of the Department of Obstetrics and Gynaecology.
  • Authorities of Medical College to ensure privacy and non-discloser of her name to the public.

With the above directions, the petition was disposed of by the Court. [Sikander v. State of Haryana, CWP No.21291 of 2018, decided on 28-08-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench comprising of J.K.Maheshwari and Akhil Kumar Srivastava, JJ., addressed the issue of rape and murder of a minor girl to see if capital punishment of death penalty could be imposed upon the accused.

Accused in this case was alleged under Sections 376A, 302, 342, 201/511of IPC. He raped a minor girl aged 12-year old after which the girl died. The court had no doubt as to the commission of rape by the accused as many people witnessed the accused running away from the hut where the girl was found dead. The post-mortem report confirmed rape but the reason for her death was stated to be asphyxia. Trial Court observed that the case was proved beyond reasonable doubt. While sentencing accused, Trial Court took aid under Section 42 of POCSO Act as the victim was a minor girl. Stating instant case as rarest of rare case capital punishment of death was awarded.

The appeal went before High Court where the question of whether it was a “rarest of the rare case” was to be decided. Court referred various judgments of Apex Court to understand “rarest of the rare case” and on perusing the aggravating and mitigating circumstances court was of the view that the instant case would not come under “rarest of the rare case”. Therefore, Court set aside the capital punishment given for the offence under Section 376A of the I.P.C. [Sunil Adiwasi v. State of M.P., Criminal Appeal No.5015 of 2018, dated 17-08-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: NHRC has taken suo motu cognizance of a media report that a six year old girl, studying in a government school in Delhi, has been allegedly raped by a person working as an electrician with the school around 1.30 P.M. on the 8th August, 2017.

The Commission has observed that the contents of the news report, if true, amount to violation of human rights of the victim. Accordingly, it has issued notices to the Chief Secretary, Government of NCT of Delhi and the Commissioner of Police, Delhi calling for a detailed report in the matter within four weeks. The Chief Secretary is expected to inform whether all the guidelines/directions issued by the authorities for the safety of the students are being followed by the schools in Delhi. The Commission has also observed that the incident is reported to have happened in a government school. Being the custodian of the students, the school authorities are responsible for the safety and security of its students, especially the girl students. Prima Facie the incident indicates towards negligence by the school administration.

The NHRC also feels that there should be a State Human Rights Commission in Delhi to deal with such cases of alleged violation of human rights. However, till it comes into existence, it would continue addressing the issues pertaining to the NCT of Delhi. According to the media report, carried on the 10th August, 2018, the incident took place when the victim girl was about to return home, but she was stopped by the accused. The accused also allegedly warned the victim not to tell it to anyone. The victim was medically examined and the reports confirmed that she has been subjected to rape. An FIR in the matter has been registered by the police and the accused has been arrested.

National Human Rights Commission

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Debasish Kar Gupta and Shampa Sarkar, JJ. dismissed the petition filed under Article 226 of the Constitution due to inordinate delay in filing the application thereunder.

Father of the petitioner was working for gain as a temporary employee with Respondent 3. He died in harness in 1986. The petitioner was a minor, 11 years old, at the relevant time. After four years of attaining majority, the petitioner submitted an application to Respondent 3 for appointment on compassionate grounds. However, the application was rejected and further, the appeal filed before the Administrative Tribunal was also dismissed on grounds of inordinate delay. The petitioner challenged the decision of the Tribunal in the instant petition.

The High Court perused the record and found that the petitioner was a minor at the relevant time. The Court held it to be settled law that a minor had no vested right to claim appointment at the time of the death of his father in harness. The Court also took notice of unexplained inordinate delay of over four years in submitting the application for appointment even after attaining majority. The High Court found no fault with the impugned decision of the Administrative Tribunal. Thus, the petition was dismissed. [Kamal Adhikari v.  State of W.B., 2018 SCC OnLine Cal 3394, dated 04-06-2018]

Case BriefsHigh Courts

Bombay High Court (Goa Bench): A Single Judge Bench of the Goa Bench comprising of C.V. Bhadang, J. allowed a criminal writ petition filed against the judgment of the Sessions Judge whereby the petitioner was directed to pay maintenance to his adult son.

Earlier, Respondent 1 (wife of the petitioner) had filed an application under Section 12 of Protection of Women from Domestic Violence Act 2005 (DV Act), seeking, inter alia, monetary reliefs. Learned Magistrate by his order granted interim maintenance of Rs. 8000 per month for Respondent 2, son of the petitioner. It was not disputed that Respondent 2 was a major, aged 25 years. The petitioner filed an appeal before the Sessions Judge against the order of the Magistrate contending that under the provision, only a ‘child’ is entitled to maintenance. However, the Sessions Judge dismissed his appeal holding that the petitioner was liable to pay maintenance to Respondent 2 since he was an engineering student with no source of income. Feeling aggrieved, the petitioner approached the High Court.

In order to settle the issue, the High Court referred to Section 2(b) of the DV Act. On perusal of the section, the Court observed that ‘child’ within the meaning of the section means any person below the age of 18 years. In light of the undisputed fact that Respondent 2, son, was 25 years of age, the High Court held that he could not be included within the definition of ‘child’ as envisaged under Section 2(b). Hence, the petition was allowed and the impugned order was set aside. [Antonio De Matos Sequira Almeida v.  Felicidade Wilma Almeida, 2018 SCC OnLine Bom 1123, dated 04-06-2018]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Division: In a landmark judgment delivered by M.J. Lowe J., in the case of a minor being attacked by dog and claiming compensation in that reference, the High Court granted compensation.

The minor was below the age of 10 years and was attacked by the dog owned by the defendant while sitting on the brick wall separating the two properties. In a statement by defendant it was stated on his part that he had earlier warned the minor to not climb the wall in his absence showing his concern to not be able to control the dog (Bull Mastiff).

The Court analysed the case by discussing the points of law thoroughly. To start with “The Law of Delict in South Africa” wherein it has been explained, “the actio de pauperie for harm caused by domestic animals” in which owner of a domestic animal is strictly liable for the harm caused to another person in contradiction to its nature. For the said act the owner of the animal who had caused injury or damage will be liable. Liability under this point of law “actio de pauperie” would apply only when the animal must have acted “contra naturam sui generis.” The interpretation of “contra naturam” rule is wide in nature and suitability to the case.

The Court further dealt with the issue of provocation in which it was observed that on record there was nothing to indicate in the behaviour of the minor that constituted to any particular external stimuli for the dog to act “contra naturam”. Though, on the other hand it was also analysed by the Court that any reasonable dog would not have attacked a child simply on his climbing the boundary wall, which clearly puts the dog into the arena of acting “contra naturam”. Further it was also stated that the action of “actua de pauparie” is a special action limited to those who are lawfully on the defendant’s land when bitten and dealing with the present case, it was held that the child has a “pauperian” claim even if found without direct lawful entitlement. [Phildentia Kohl v. Charl Grobbelaar; Case No. 4962/2017; dated 22.05.2018]

Case BriefsHigh Courts

Bombay High Court: The sentence of the appellant who was convicted for kidnapping and rape, was reduced to the period already undergone by him, by a Single Judge Bench comprising of K.K. Sonawane, J.

The appellant was accused of forcibly taking away the prosecutrix (victim), who was a minor at the time of incident. She was taken away on the pretext of marriage and the appellant had sexual intercourse with her a number of times during that period. The appellant was charged under Section 361 read with Section 363, Sections 366 and 376 IPC. He was convicted by the trial court for the offences charged under. The appellant challenged the order of the trial court.

On considering the record, the High Court found that at the relevant time, the victim was 14 years of age. It was proved by the School Leaving Certificate signed by the Headmaster of the School. The evidence led by the prosecution and the statement of witnesses proved that the appellant kidnapped the victim and therefore committed the offence under Section 361 read with 363 IPC. Further, the fact of the appellant having sexual intercourse with the victim was proved by the medical report. And since the victim was below 16 years of age, therefore, her consent doesn’t count and the appellant was guilty of offences under Sections 366 and 376. However, the facts remained that the victim never raised alarm as to her kidnapping, never informed or tried to contact her family, lived with the appellant as husband and wife, and also that the appellant was a youngster, 24 years old, at the time of commission of the offence. The High Court finally upheld the conviction of the appellant; however, his sentence was reduced to the period already undergone by him in light of the mitigating circumstances as noted hereinabove. Thus, the appeal was partly allowed. [Bapu v. State of Maharashtra, 2018 SCC OnLine Bom 920, dated 03-05-2018]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: The Single Judge Bench comprising of Tarlok Singh Chauhan, J., addressed a very unusual petition in which the court exercised its “parens-patriae” jurisdiction.

In accordance to the facts of the case, petitioner is said to have requested her parents to marry “L” who is a facebook friend of the petitioner/ “K”, but after several attempts also petitioner’s parents did not agree for the marriage and instead they lodged a complaint against “L” under Sections 363, 366 376  IPC and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012. Further the petitioner was handed over to her parents when she had claimed to have married “L” but later the petitioner came back to “L’s” house.

On filing the instant petition, the petitioner had sought reliefs on not being restrained by her parents or the police from living in her husband’s house or from any kind of harassment and also provision of police protection.

However, the Court had earlier asked for a status report in which it was seen that the petitioner is happily living with “L’s” parents and is being treated well by them. On looking at this report the Court directed that no authority shall remove the petitioner from such custody without the leave of this Court.

Therefore, the Hon’ble High Court, exercised “parens-patriae” jurisdiction to secure the welfare of the minor by taking instance from the Supreme Court case of Lata Singh v. State of U.P., (2006) 5 SCC 475 and proposing to the petitioner to live at Balika Ashram till the time she attains the age of majority and thereby, she will be free to go anywhere, marry anyone and love anyone she likes on reaching the age of majority, till that time no authority or person shall have the permission of the Court to take the petitioner from the Balika Ashram. [‘K’ v. State of H.P., 2018 SCC OnLine HP 432, dated 12-04-2018]

Case BriefsHigh Courts

High Court of Kerala: The Division Bench comprising of V. Chitambaresh and Sathish Ninnan, JJ., recently dealt with a writ petition filed by the mother for presenting the child in question to the Court since he had allegedly been removed from her custody without any orders from a court of law.

The petitioner contended that following her separation from her husband, despite her having full custody of the child, he was taken away by his paternal grand parents from his maternal aunt’s house while she was away working and was never returned back. The paternal grand parents refuted the claims and instead alleged that he was found abandoned in a store nearby the school. They also contended that by virtue of their son, the father of the child, being the natural guardian and since he was living abroad, they would have custody of the child.

The Court referred to Section 352 of Mulla’s Principles of Mahomedan Law wherein it has been laid down that a mother is entitled to the custody of her male child until he has completed 7 years of age or her girl child until she has attained puberty. The only exception to the rule arises if the mother has remarried, in which case, the father gets custody of the child. In the present case, since the child has not completed 7 years, the mother gets the custody.

The Court also acknowledged that the question of guardianship is separate from that of custody as was held in Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654. The Court also referred to Nithya Anand Raghavan v. State (NCT of Delhi),  (2017) 8 SCC 454 wherein it was held that at the threshold the High Court is only supposed to examine whether “the minor is in lawful custody” of the respondent or not and a natural guardian would constitute as one by default. The biological mother is one such natural guardian. Once such a factor has been ascertained, only in exceptional cases can writ petitions for removal of guardianship of the child from the mother be entertained by the High Courts.

The Court thus ordered for the custody of the child to be returned to the mother and the parties to move the Family Court for further remedies if needed. It quoted Cardinal Mermillod’s famous quote, “A mother is she who can take the place of all others, but whose place no one else can take”. [Ancy A. v. Station House Officer, WP(Crl). No. 42 of 2018, order dated 7-2-2018]

Case BriefsSupreme Court

Supreme Court: The bench of Madan B Lokur and Deepak Gupta, JJ reserved the judgment in the issue relating to criminalising of forced sexual acts by the husband with his minor wife.

The Court was hearing the petition filed by NGO Independent Thought and Advocate Gaurav Agarwal, appearing for the NGO had contended before the Court that by the Criminal Law (Amendment) Act, 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years, however, exception 2 to section 375 of the IPC still retains the age of consent as 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl. He added that if the object behind increasing the age of consent to 18 years in 2013, was that a girl below that age is incapable of realising the consequences of her consent, then marriage of girl between the age of 15-17 years does not make the girl mature enough, mentally or physically, for the purpose of consent.

Taking note of the argument, the Court had, on 01.09.2017, sought to know whether it can create an offence by striking down the exception 2 of section 375 of IPC which the Parliament has refused to do. It also showed concern over the fate of the children born from such marriages if the provision was struck down. [Independent Thought v. Union of India, Writ Petition(s)(Civil) No(s). 382/2013, order dated 06.09.2017]