A Woman Requires No Express or Implied Consent of The Husband For Getting Pregnancy Terminated Under The Medical Termination of Pregnancy Act - Supreme Court Order

Upholding the decision of the Punjab and Haryana High Court, a bench of the Chief Justice Dipak Misra, A.M.Khanwilkar and D.Y.Chandrachud of the Supreme Court held that a "woman requires no express or implied consent of the husband  for getting pregnancy terminated under the Medical Termination of Pregnancy Act"  and accordingly dismissed a man's petition seeking damages from his estranged wife for undergoing an abortion without his consent. 

In the present case the couple got married in 1994 and had a son in 1995. But due to conflict, the wife and son had been staying with her parents in Chandigarh since 1999. During the pendency of the wife's petition seeking maintenance under Section 125 of Cr.P.C. the Lok Adalat in Chandigarh had directed the couple to live together in the husband's house in Panipat. In November 2002, they started living together and in January 2003 the wife discovered that she was pregnant

But as the relationship showed no signs of improvement, and became more bitter, the wife wanted to terminate the "unwanted" pregnancy, which was objected by the husband and as such he refused to sign the clinical papers for medical termination of pregnancy but the woman went forward with the abortion at a Chandigarh hospital. 

As the pregnancy was less than 12 weeks old, the doctors terminated the pregnancy with the sole consent of the mother. 

The man then filed a civil suit in Punjab and Haryana High Court against his estranged wife, her parents, and brother, and the doctors for recovery of Rs 30 lakh towards damages on account of mental pain, agony and harassment. He contended that the termination of pregnancy without any medical need and without the consent of the unborn child's father was illegal under the MTP Act.

Rejecting the contention, the Punjab and Haryana High Court  held that

" In the present case, the wife knew her conjugal duties towards her husband.  Consequently, if the wife has consented to matrimonial sex and created sexual relations with her own husband, it does not mean that she has consented to conceive a child. It is the free will of the wife to give birth to a child or not.  The husband cannot compel her to conceive and give birth to his child. Mere consent to conjugal rights does not mean consent to give birth to a child for her husband.  The wife did so in order to strengthen the matrimonial ties. "

" The wife is the best judge and is to see whether she wants to continue the pregnancy or to get it aborted.  When the husband has no right to compel her wife, not to get the pregnancy terminated, he has no right to sue her wife for compensation."

The Court added 

“ Nobody can interfere in the personal decision of the wife to carry on or abort her pregnancy which may be due to the reason that an effort to live together under one roof has failed.  A woman is not a machine in which raw material is put and a finished product comes out.  She should be mentally prepared to conceive, continue the same and give birth to a child.  The unwanted pregnancy would naturally affect the mental health of the pregnant woman." 

And thus held that

Keeping in view the strained relations between the husband and wife, the wife's decision to terminate the unwanted fetus was right. The termination of pregnancy had not soured the relations between the two... So, keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting pregnancy terminated under the (Medical Termination of Pregnancy) Act."

The Court also held that 

" She is a mother and an adult who says she did not want the pregnancy. How can she or others be made liable for it....How can parents and doctors be made liable?"

The HC had also directed the husband to pay a sum of Rs 25,000 to every respondent.

The Supreme Court upheld the above decision of the High Court.

Read More

A Woman Has Right To Reside In Her Matrimonial Home or Shared Household, Irrespective of 'whether she has any right, title or interest in the said household or not'- Bombay High Court Order

The Bombay High Court recently  (WRIT PETITION NO.10696 OF 2017, Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari) held that  " a woman has right to reside in her matrimonial home or shared household, irrespective of 'whether she has any right, title or interest in the said household or not'."

In the present case, the Respondent has filed a Petition for a decree of nullity on the ground that his marriage with the Petitioner is null and void and, in the alternate, for a decree of divorce. In the said Petition, the present Petitioner-wife appeared and resisted the same vide her written statement, stating that she has been subjected to mental and physical torture by the Respondent, his brother, his brother-in-law and sister-in-law, even during pregnancy, she was constrained to live in constant fear. After the birth of the daughter also, she is not spared from the harassment, ill-treatment and cruelty

She also contended that she was thrown out of the matrimonial home and was compelled to move to her parental home at Colaba on 8th December 2013. Then, she informed the said fact to the Colaba Police Station and also to the Maharashtra State Commission for Women etc. She also conveyed that she want to return back to her matrimonial home and eventually, on 3rd February 2014, accompanied by a woman police, she went to her matrimonial home. However, she was not allowed to enter into the house. Again she made such attempt on 29th March 2014 with the help of Mulund Police. The said attempt was also not successful

However  the petitioner must have some roof over her head and except for her matrimonial home, she cannot have such
roof and, therefore, she sought the relief of interim injunction, restraining the Respondent-husband and his family members from dispossessing her from her matrimonial home.

The Family Court thought it fit to grant the relief of status-quo. It was directed that the Respondent-husband shall not disturb her possession in that house

Then, the Respondent filed an application for vacating the impugned order of the status-quo, contending that the Petitioner was already married and there is no legal dissolution of the said marriage. Hence, her marriage with the Respondent during subsistence of her marriage is null and void ab initio. She is not his legally wedded wife. It was further stated that, the said house belongs to his father and it is his self-acquired property. Hence, she has no right to reside in the house of his father.

The Family Court, after hearing learned counsel for both the parties, vide its impugned order, vacated the status-quo by holding that the said premises belongs to the father of the Respondent.

While giving judgement the Court came to a finding that

" As the necessary question raised for consideration in this Writ Petition is, 'whether the Petitioner is having the right of residence in her matrimonial home?', one has to go through the provisions of the Protection of Women from Domestic Violence Act, 2005. Section 19 of the said Act provides for 'Residence Orders'. The 'Statement of Objects and Reasons' of the said Act is very illustrative as to why this Section 19 was inserted or why this very Act was passed.

Clause 4(iii) of the 'Statement of Objects and Reasons' lays down that,

'This Act seeks to provide for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate'.

Thus, the 'Statement of Objects and Reasons' of the Act makes it clear that, this D.V. Act is enacted to secure the right of a woman to reside in her matrimonial home or shared household, irrespective of the question 'whether she has any right, title or interest in the said household or not'.

Now what is 'shared household' is also defined in Section 2(s) of the D.V. Act, as follows :-
“ 'Shared Household' – 'a household, where a person aggrieved lives or at in any stage has lived in a domestic relationship, either singly or along with the respondent and includes such a household, whether owned or tenanted, either jointly by the aggrieved person and the respondent..... and includes such a household, which may belong to the joint family, of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household'.”

Section 19 of the said D.V. Act provides for 'Residence Orders'. It lays down that,

“When any application under Section 12 is made with a complaint of domestic violence, while disposing of such application, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order; (a) restraining the respondent from dispossessing, or, in any other manner, disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household'.”

The Court observed that

" In this case, admittedly, till the dispute started between the Petitioner and Respondent, both of them were very much residing in the flat at Mulund and, therefore, as they have lived together in the said flat as a 'couple', as a 'husband and wife', in a domestic relationship, it becomes her 'shared household', as stated in the definition of Section 2(s) of the D.V. Act. In such a situation, whether the said flat belongs to or owned by the Respondent- husband, is totally irrelevant.

As regards the contention of the Respondent that, he has left the said house and gone to reside at New Bombay, which is again a routine defence taken by the husbands in such proceedings, there is nothing on record to show that he has actually shifted his residence Therefore, it is clear that, this ploy is adopted by the Respondent just to deprive the Petitioner from her rightful claim to reside in the 'shared household', which is the Flat at Mulund. This Court cannot fall victim to the tricks or ploys played by the Respondent-husband in such cases."

Based on the above findings and observations Justice DR. SHALINI PHANSALKAR-JOSHI held that

" Accordingly, the Writ Petition is allowed. The impugned order passed by the Trial Court on 30th May 2017  of vacating the order of status-quo, is set aside. The earlier order of status-quo passed by the Family Court, Mumbai, on 29th September 2014  is restored. "

.

Read More

" A married woman cannot by relying on her husband’s caste claim entitlement to contest election for the seat reserved for a Scheduled Caste candidate " - Bombay High Court Order

The Bombay High Court recently (WRIT PETITION NO. 9528 OF 2017 Mrs. Anuradha Sudhakar Katkar Vs Divisional Caste Scrutiny Committee, Solapur, Ambedkar Bhawan Satrasta, Solapur & Ors.) held that " a married woman cannot by relying on her husband’s caste claim entitlement to contest election for the seat reserved for a Scheduled Caste candidate." 

In the present case the Petitioner has been elected as a candidate in the election of the Solapur Municipal Corporation. The Petitioner had contested the election as candidate of  Congress party for the seat available for OBC category. The Petitioner at the time of filling election form, submitted the documents in support of her caste case claiming as “Tambat” OBC on the basis of her husband's caste and not her father's caste. The Petitioner's election form was accordingly accepted. The Petitioner upon submitting her caste claim as Tambat OBC had been elected as Corporator of Solapur Municipal Corporation in the election conducted in February 2017.

The Divisional Caste Scrutiny Committee had thereafter directed the Petitioner to submit the caste of her father's side and accordingly, the Petitioner had submitted the documents of her father's side which supported the caste claim of “Lohar NT”.

On 10 March 2017 the State Election Commission informed the Secretary of   Town Planning Department, Mantralaya that the orders regarding cancellation of election of a candidate should be passed   with retrospective effect.

However, due to non-availability of members of the scrutiny committee, no decision regarding the caste claim of the petitioner was taken. Consequently, the said writ petition was filed. 

While deciding the case the court came to a finding that

"the issue of whether a woman by virtue of her marriage can rely upon her husband’s caste and claim entitlement to the benefit of reservation as a Scheduled Castes and/or be entitled to contest the election for the seat reserved for a Scheduled Castes candidate has been answered by the Supreme Court. 

The Supreme Court in  Meera Kanwaria Vs.
Sunita & Ors(2006(1) SCC 344) relying upon the judgment of the Supreme Court in Mrs. Valsamma Paul v. Cochin University and Others (1996)3 SCC 545 after reviewing the entire law on the subject in paragraph 24, held thus:­
“It is, therefore, beyond any doubt or dispute that a person who is a high caste Hindu and not subjected to any social or educational or backwardness in his life, by reason of marriage alone cannot ipso facto become a member of Scheduled Caste or Scheduled Tribe. In the absence of any strict proof he cannot be allowed to defeat   the very provisions  made by the reserving certain seats for disadvantaged people.”

Thus observed

" It is thus clear that a married woman cannot  by relying on her husband’s caste claim entitlement to contest election for the seat reserved for a Scheduled Caste candidate."

And held that

" the Petitioner has been wrongfully elected as Corporator based on the caste case from her husband's side and the Petition deserves to be dismissed, in view of the law laid down by the Hon'ble Supreme Court in Meera Kanwaria (supra) "

Read More

Mere Incorrect Averment in an Affidavit Cannot be Classified as Fraud- Madras High Court Order

A Bench of Chief Justice Indira Banerjee and Justice M. Sundar of the Madras High Court on 09.10.2017  (W.M.P.Nos.27473 and 27474 of 2017, W.P.No.3424 of 2017) observed that mere incorrect averment in an affidavit cannot be classified as fraud.

In the present case a Petition for recall of an order passed by the Madras High Court was filed on the ground that the Respondents had defrauded the Court by making a factually incorrect averment

The complaint of the Petitioner was that the Respondents had put up a huge commercial construction and had, inter alia, let it out to several shops in an area which is classified as residential zone but  it was, in fact, a mixed residential zone and not a residential zone as averred in the original petition.

The learned counsel appearing for the recall petitioners submitted that the above factually incorrect averment made by the Respondents amounts to fraud.

Mr.N.Pragasam, learned counsel, who appeared for the Respondents very fairly submitted that it was an inadvertent error on the part of his client in stating that the area is a residential zone. It is submitted by him that when his client Dr.V.Ganesan, a medical practitioner, had purchased the property at Survey No.213/71, Plot No.2, First Street, Raju Nagar, Thuraipakkam, Chennai 600 097 and moved in there, it was a residential zone and it is now learnt that it was subsequently converted into a mixed residential zone by the Chennai Metropolitan Development Authority (CMDA), about which the writ petitioner was not aware at the time of filing of the writ petition.

The Bench came to a finding that 

" The lone and pivotal point on which the recall petition is predicated is that the writ   petitioner(Respondents) has not placed correct facts before this Court, as, according to the recall petitioners, the area in question is a mixed residential zone and not a residential zone as averred in the writ petition."

And observed that

" mere incorrect averment in an affidavit or for that matter, that too in the nature of referring a mixed residential zone as residential zone cannot be classified as fraud." 

On the basis of the above observation the Bench held that

" We find absolutely no scope for entertaining this recall petition in the light of our narrative supra. This recall petition fails and the same is dismissed."

Read More

5 Major Differences Between Affray and Assault

5 major differences between affray and assault are 

1. Definition:-  According to section 159 of IPC 1860  "When two or more persons, by fighting in a public place, disturb the public peace, they are said to “commit an affray”.

According to section 351 of IPC, "Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or prepa­ration will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault."

2. Place:- An affray must be committed in a public place.
An assault may take place anywhere

3. Nature of offence:-  Affray is regarded as an offence against the public peace.
An assault is an offence against the person of an individual

4. Affray and assault:- An affray is nothing more than an assault committed in public place and in a conspicuous manner as it makes men afraid.
In assault there is no actual fight or use of force, only gestures of preparation are used so as to cause a person present to apprehend that criminal force is about to be used.

5. Punishment:-  Affray- According to section 160 of IPC, "Whoever commits an af­fray, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both."

Assault:- According to section 352 of IPC, "Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. " 

References
Ratanlal & Dhirajlal- THE INDIAN PENAL CODE-33rd Edition
Criminal Law: Cases and Materials - Sixth Edition - K.D.Gaur
Prof. S.N.Misra - INDIAN PENAL CODE- 15th  Edition

Related Topics

7 Major Differences Between Kidnapping and Abduction

7 Major Differences Between Wrongful restraint and Wrongful confinement 

5  Major differences between Riot and Affray

5 major Differences Between banker and money lender

Five Difference between Protectorate and Vassal State

Difference between Interpretation and construction

Read More

7 Major Differences Between Wrongful restraint and Wrongful confinement

7 Major Differences Between Wrongful restraint and Wrongful confinement are

1. Definition :- According to section 339 of IPC 1860  “Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person”

According to section 340 of IPC 1860 

“Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine” that person.”

2. Illustrations :- Wrongful restraint- A obstructs a path along which Z has a right to pass. A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z.

Wrongful Confinement- A causes Z to go within a walled space, and locks Z. Z is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines z.

3. Restriction :- Wrongful restraint is partial restraint of the personal liberty of a person. 

Wrongful confinement is absolute and total restraint or obstruction of personal liberty

4. Limits or boundaries :- In Wrongful restraint no circumscribing limits or boundaries are required. 

In Wrongful confinement certain circumscribing limits are always necessary.

5. Obstruction in movement :- In Wrongful restraint movement of only one or some directions is obstructed leaving thereby a choice for the victim to move in any other direction.

In Wrongful confinement movement in all directions is obstructed and a person is either not allowed to move or is compelled to move in any other direction.

6. Wrongful confinement implies Wrongful restraint but vice- versa is not correct. Wrongful confinement is a form of Wrongful restraint. 

7. Punishment :- Wrongful restraint-  According to section 141 of IPC  “Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.”

 Wrongful confinement- According to section 142 of IPC  “Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”



References
Ratanlal & Dhirajlal- THE INDIAN PENAL CODE-33rd Edition
Criminal Law: Cases and Materials - Sixth Edition - K.D.Gaur
Prof. S.N.Misra - INDIAN PENAL CODE- 15th  Edition

Related topics

7 Major Differences Between Kidnapping and Abduction

5  Major differences between Riot and Affray

5 major Differences Between banker and money lender

Five Difference between Protectorate and Vassal State

Difference between Interpretation and construction

4 major differences between ratio decidendi and obiter dicta 

Read More

In academic institutions, politics or political activities cannot be permitted - Kerala High Court Order

A Division Bench of Chief  Justice  MR.NAVANITI PRASAD SINGH  & MR. JUSTICE RAJA VIJAYARAGHAVAN V of the Kerala High Court on 10th October 2017 (Con.Case(C).No. 1597 of 2017 (S) IN WP(C).28239/2017) held that "in academic institutions, politics or political activities cannot be permitted".

In the present case the Bench was hearing a contempt petition filed by MES College, Ponnani. The counsel for the college has drawn the attention of the Court to a photograph of the shed erected along the boundary of the college with a banner of a political party with huge loudspeakers. The Bench observed that it is unauthorised encroachment on public properties which should forthwith be removed by the police. 

It was also observed that

"The right of law abiding citizens to traverse along the footpath or on the roads cannot be obstructed by any political parties for whatever cause it may have."

The Bench observed that

political activities like Dharna, hunger strikes and other practices like Sathyagrah have no place in a constitutional democracy, much less in academic institutions. Anyone indulging in the said activities in an educational institution would make himself liable to be expelled and/or rusticated. Educational Institutions are meant for imparting education and not politics. By their political ambition the political parties cannot hold to ransom the educational institution or the right of the civilized students to receive education.

The Bench also observed that

The very fact that people resort to Dharna/hunger strike shows that they themselves are aware that their demands are not legal or legitimate and they use these coercive methods to achieve what they could not have achieved legally, for if it was otherwise they ought to have peacefully come to court or move the statutory forums for redressal of their grievances.

The Bench further observed that

If they have a legitimate grievance, avenues for ventilating them are legally available. There is students council, academic council and there are courts including this Court where appropriate grievances can be raised. Dharnas have no place which would only vitiate the academic atmosphere. We cannot countenance such a thing

And then the Court strictly ordered that

" if any student is found to be resorting to and/or enforcing Dharna, strike or disruption of academic atmosphere of any college, the Principal or the authorities of the institution would have a right to rusticate them, for these are no means to ventilate their grievance."

The Court directed that

"If called upon by the college authorities, the police would be under an obligation to assist the authorities in maintaining peace and quiet and orderly conduct of academics in the college premises. It is also made clear that all pickets, tents, stalls, set up in and around the college campus or in its immediate vicinity for facilitating Dharna, hunger strike etc., be forthwith removed by the police and the area be maintained free of such Dharnas, hunger strike or any such obstructions."

The Court then warned the additional fourth respondent i.e., the Secretary of STUDENTS' FEDERATION OF INDIA, M.E.S PONNANI COLLEGE UNIT,   and cautioned him "to concentrate on his studies rather than indulge in politics in the college premises if he is so inclined, or he may withdraw from the college to continue his political carrier, if he so chooses. But the two cannot go together. The choice is his."

The Court listed  the  matter on 16.10.2017 for report from the police with regard to compliance of the directions of the Court. The Secretary of Student Federation is also directed to be present in the court on that day.

Read More

Fundamental Right to hold public meetings under Article 19(1)(b) of the Constitution cannot be denied merely on the apprehension of violation of law and order- Madras High Court Order

The Madras High Court ( in Arappor Iyakkam vs State of Tamil Nadu. WP NO.25998 of 2017) on 5.10.2017 held that Fundamental Right to hold public meetings under Article 19(1)(b) of the Constitution cannot be denied merely on the apprehension of violation of law and order 

In the present case an organization named Arappor Iyakkam intended to organize
a public meeting to address about the issue of corruption in Tamil Nadu, they had submitted a request on 11.09.2017 to the The Inspector of Police, Mylapore seeking permission to organise a public meeting in
Mylapore Mangollai on 08.10.2017 between 5 p.m. to 9 p.m.

On 30.09.2017, the ACP therein issued a show cause notice as to why permission should not be granted for conducting the said meeting. On the very next day, i.e., on 01.10.2017, the organization  has given a detailed explanation establishing their right to freedom of speech and expression and to assemble peacefully.

But when their reply was not considered in time, the organization filed a writ petition before the Madras High Court and when the matter was called, the learned Additional Advocate General produced the copy of the order dated 04.10.2017 passed by the ACP, Mylapore Range rejecting the petitioner's request for permission on the ground that the respondent police had reliable information that the applicant was trying to instigate people for creating law and order problem under the guise of organizing a meeting.


In the course of giving judgement the Court came to a finding that

"  the petitioner's request has been rejected by the respondent on two grounds namely

a)the petitioner intends to instigate people for creating law and order problems and
b)there is likelihood of law and order problem from anti social elements."

On the basis of the above findings Justice M.S. RAMESH observed that

"I do not endorse the reasoning of the respondents for rejecting the petitioner's request for the simple reason that the police department has been created only for the purpose of tackling the above problems. Since it is the fundamental right of the petitioner to conduct such a meeting, if at all, the respondent is of the view that they intend to instigate people and thereby create law and order problem, it was always open to them to permit the petitioner to conduct the meeting by imposing conditions."

Regarding the nature of condition the Court observed that

" At this juncture, it would be appropriate to point out that the restrictions should be reasonable, what is meant is that the same should not be arbitrary and take away the freedom of speech over the issue of corruption, which issue is intended to be propagated in the meeting" 

The Court also observed that

" If the respondents had apprehended that anti social elements may infiltrate with the public and indulge in anti social activities, adequate protection can be extended during the course of the meeting to ensure that such incidents are thwarted. While that being so, the rejection order may not be justified."

On the basis of the above observation the Court held that

" It is no doubt that the petitioner has a right to peacefully assemble without arms and conduct a public meeting to propagate their principles " and granted liberty to approach the Deputy Commissioner of Police, Mylapore, Chennai, for permission to conduct the public meeting and on receipt of the same, the DCP shall accord necessary permission for conducting the meeting on the date requested by the petitioner by imposing reasonable restrictions.

Read More

7 Major Differences Between Kidnapping and Abduction

7 Major Differences Between Kidnapping and Abduction are

1. Definition:- According to section 359 of IPC 1860, "Kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship."

Section 360 of IPC, states," Kidnapping from India-  Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India. "

Section 361 of IPC lays down "Kidnapping from lawful guardianship-  Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

Section 362 of IPC defines Abduction as "Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."

2. Age :- The offence of kidnapping is committed only in respect of a minor under 16 years of age in case of a male and under 18 years in case of a female or a person of unsound mind.

Abduction may be committed in respect of a person of any age.

3. Lawful Guardianship :- In kidnapping the person kidnapped is removed out of lawful guardianship. Therefore there can be no kidnapping of an orphan.

Abduction refers to the person kidnapped. The person may not be under the guardianship of any body

4. Consent :- In kidnapping consent of the person taken or enticed is immaterial because they are not competent to give a valid consent.

In abduction consent of a person moved, if freely and voluntarily given, condones the offence.

5. Means :- Simple taking or enticing away of a minor or a person of unsound mind constitutes kidnapping.

In abduction material means like force, compulsion or deceitful means must have been used

6. Intention :- In kidnapping the intention of the kidnapper is wholly irrelevant.

In abduction the intention of the offender is an important factor to constitute the offence because abduction by itself is not an offence unless committed with certain intent as specified in section 364 of IPC 1860 and onwards.

7. Offence and Act :- Kidnapping is a substantive offence.

Abduction is only an auxiliary act, not punishable by itself, but only made Criminal only when it is done with one or the other of the intents specified in section 364 of IPC and onwards.

References
Ratanlal & Dhirajlal- THE INDIAN PENAL CODE-33rd Edition
Criminal Law: Cases and Materials - Sixth Edition - K.D.Gaur
Prof. S.N.Misra - INDIAN PENAL CODE- 15th  Edition

Related Topics

7 Major Differences Between Wrongful restraint and Wrongful confinement 

5  Major differences between Riot and Affray

5 major Differences Between banker and money lender

Five Difference between Protectorate and Vassal State

Difference between Interpretation and construction

Read More

5 Major Differences Between Riot and Affray

5  Major differences between Riot and Affray are

1. Definition :- According to section 146 of the IPC 1860 " Whenever force or violence is used by any member thereof, in prosecution of the common object of such assembly every member of such assembly is guilty of the offence of rioting."

According to section 159 of the IPC 1860 , "when two or more persons by fighting in a public place, disturb the public peace, they are said to commit an affray."

2. Place :-  A Riot may take place anywhere i.e.,both at a  public public and a private place.
An affray cannot be committed in a private place.

3. Number of persons :-  A Riot can be committed by at least five persons.
An affray can be committed by two or more persons

4. Unlawful Assembly :- Rioters first constitute an unlawful assembly, an affrayer need not be so.

5. Punishment:- According to section 147 of the IPC, "Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

According to section 160 of the IPC  "Whoever commits an affray, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both."

Read More

5 major differences between banker and money lender with example

Banker :- Banker may also be termed as bank. Both terms are synonymous and may be used in place of other.

According to professor H.L.A.Hart, " a banker is one who in the ordinary course of his business honours cheques, drawn upon him by persons from and for whom he receives money on current accounts."

The term banker holds the following features

1. The banker accepts deposit of money from anyone who offers his money for such purpose.

2. After accepting money they usually lend or invest such deposit.

3. The deposited money should be repayable to the depositor on demand or according to the agreement reached between depositor and banker.

4. Deposits are withdrawable by cheque, draft, order or otherwise

5. They maintain the current account or other records of similar nature in which names of the customer and deposits are entered.

So it obvious that receiving money from customers and repaying it by honouring their cheques as and when required is one function which distinguishes banking business from money lending.

Example :- Sahara Company is a para banking institution and is not a banker

5 major differences between banker and money lender

1. Acceptance of deposit :- Banks accepts deposit from the public.

Money lenders cannot accept deposit from the public except from their relatives.

2. Lending of Money :- Banks lend money out of the deposits which it has accepted from their customers.

Money lenders lends money from their own resources.

3. Monetary help :- Scheduled banks can get loan on securities from the Central Bank in times of crisis.

Money lenders cannot get loans from the Central Bank.

4. Chequable deposits :- Banks provides the facility of cheques by customers are allowed to withdraw money at any time.

A money lender if in any case accepts deposits, they are not chequable.

5. Application of the Act :- All the banks in India are subject to the provision of Reserve Bank of India Act 1934 and The Banking Regulation Act 1949.
These Acts do not apply to money lenders.


References:-
The Law of Banking,Volume 1 (1993)
R.N.Chaudhury, Banking Laws

Read More

Supreme Court issues notice to Centre in a PIL filed for abolishing the present practice of executing a death sentence by hanging

A Bench of Chief Justice Dipak Misra,Justice AM Khanwilkar and Justice DY Chandrachud on October 6,2017 issued notice to the Central Government in a PIL for abolishing the present practice of executing a death sentence by hanging.

On 12/09/2017 Rishi Malhotra a Supreme Court advocate filed a PIL in the Supreme Court for abolishing the present practice of executing a death sentence by hanging which involves “prolonged pain and suffering” and to replace it with intravenous lethal injection, shooting, electrocution or gas chamber in which death is just a matter of minutes

Acting on the PIL, the Supreme Court observed that the legislature can consider amending the provision of CrPC 1973, relating to death sentence which under section 354(5) provides   “when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead” 

The Court also considers that convict who in law has to face death sentence shall die in peace and not in pain since nothing can be equal to painless death.

But the Court left the mode of death sentence to be decided by the legislature.  

Read the petition filed by Rishi Malhotra  here

Read More

"A person repeatedly or constantly follows or watches or contacts a child with sexual intent can be said to have committed an offence under Section 11 of the POCSO Act" Bombay HC Order

The Bombay High Court on 27th September 2017 has ruled that

"If a person with sexual intent repeatedly or constantly follows or watches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act"

Bombay High Court

In the instant case( CRIMINAL WRIT PETITION NO.1947 OF 2017 MANJU TEJBAL VISHWAKARMA AND ANR. V/s.
THE UNION TERRITORY OF DAMAN & DIU) the petitioners filed a writ petition for quashing the proceedings in Special Case No.20 of 2016 pending against them on the file of the learned Special Judge under Protection of Children from Sexual Offences Act, at Daman

The learned advocate for the Petitioner argued  that  the  FIR  itself  is hearsay  and cannot constitute as admissible evidence for framing Charge against the accused persons i.e. petitioners.

The learned advocate for the petitioners, further argued that the allegation against petitioner no.2 / accused no.2  Valji Vadher are as vague as it is only averred that he had bad eye on the victim girl and therefore, this vague statement cannot make out an offence under Section 11 of the POCSO Act.  At any rate, such statement cannot be considered as evidence sufficient to frame Charge for the offence punishable under Section 11 and made punishable under Section 12 of the POCSO Act.

In giving judgement the Court find it appropriate to produce provisions Section 11 of the POCSO Act, which reads thus :

11. Sexual harassment : A person is said to commit sexual harassment upon a child when such person with sexual intent­
(i)utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or

(ii)  makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or

(iii)  shows any  object to a child  in any form or media for pornographic purposes; or

(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

(v) threatens to use, in any form of media, a real or fabricated depiction through electronic,film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or

(vi) entices  a child  for pornographic purposes or gives gratification therefor.

The Court held that

"In context of the instant case, it needs to be mentioned that if a person with sexual intent repeatedly or constantly follows or watches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act.  The question whether the act was with sexual intent is a question of fact which needs to be adjudicated on appreciation of evidence   adduced by the prosecution."

The Court also held that

"In her statement recorded under Section 161 of the Cr.P.C., she has stated that petitioner no.2 Valji Vadher always used to see her with bad intention.  Watching a female child with sexual intent comes under the mischief covered  by Section 11  of the  POCSO  Act. Therefore, it cannot be said that there are no sufficient grounds to proceed against petitioner no.2 Valji Vadher for the offence as defined by Section 11 and made punishable under Section 12 of the POCSO Act."

The Court finds that

In the instant case, material on record shows that there are no averments that petitioner no.1, who is mother of the victim female child, has done any act against the victim, who is her daughter, with any sexual intent, and therefore, Section 11 of the POCSO Act made punishable under Section 12 thereof is infact not invoked by the prosecution against petitioner no.1

In the result, the Court held that proceedings in Special Case No.20 of 2016 pending on the file of the learned Special Judge under the POCSO Act, cannot be quashed.

Read More