Monthly Archives: December 2012

பெண்கள் நாட்டின் கண்கள் ; எந்த பெண்கள் ??? ….. 80 வயது மூதாட்டியை , தாயை 17 வருடமாய் சிறையில் அடைத்து வைத்து இருக்கும் சுதந்திர நாடு இந்தியா !!!

பெண்கள் நாட்டின் கண்கள் ; எந்த பெண்கள் ??? ….. 80 வயது மூதாட்டியை , தாயை 17 வருடமாய் சிறையில் அடைத்து வைத்து இருக்கும் சுதந்திர நாடு இந்தியா !!! அந்தம்மாவுக்கு விடுதலை வேணும்னாலும் தெருத் தெருவாய் அலைய வேண்டி இருக்குது 😦

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http://fromvinayak.blogspot.com/2012/12/80-year-old-woman-in-jail-last-17-years.html

HC seeks doctor’s view on release of jailed women

Last Updated: Saturday, December 15, 2012, 01:09

Mumbai: Hearing petitions filed by two women convicts, aged 80 and 90, seeking premature release on health grounds, the Bombay High Court has asked Kolhapur Central Jail Superintendent to take them to the prison hospital and get them examined by the Civil Surgeon of Kolhapur.

A bench of Justice Abhay Oka and Justice S S Shinde directed that the Civil Surgeon of Kolhapur or a medical officer deputed by him should examine the petitioners.

The Court further directed the authorities to submit a report on December 18 in a sealed envelope after making health assessment of the petitioners.

The Court was hearing a petition filed by Champa Kamble, 90, and Hausabai Kohli, 80, who claimed premature release on health ground by invoking clause (ii) of Rule 27 of Maharashtra Prisons (Review of Sentences) Rules.

Kamble had pleaded that she wanted to spend rest of her life with her near and dear ones. Hausabai, convicted for murdering her daughter-in-law for dowry, has spent 17 years in jail. She pleaded that her daughter and grandson were keen to take her home. Both wrote letters from Kolhapur Jail where they are undergoing the sentence.

Earlier, the Court had asked the State to take a stand on the plea made by Kamble and Kohli for premature release. However, the State informed the Court that the Governor K Sankaranarayanan had rejected their plea.

Kamble and Kohli then challenged the communication dated October 22 by which rejection of their prayer for release was communicated to them.

Advocate Arfan Sait, who was appointed by the High Court’s legal aid cell, said under the Maharashtra Prison Review of Sentence Rules, 1972, a medical officer can recommend early release of a convict on the ground that he or she is suffering from illness which may aggravate the condition or result in death.

The Petitioners relied upon the Health Report dated January, 31, 2012 issued by the Medical Officer attached to Kolhapur Central Prison, Kalamba. In Clause 10 of the said reports, it is recorded that general condition of the Petitioners was weak and poor due to old age. It is stated that the Petitioners were bedridden and may die in few days.

It was pointed out to the Court that as of 31st January, including remissions, Kamble has undergone sentence for 7 years and 26 days. A certificate to that effect issued by the Superintendent of Kolhapur Central Jail. In case of Kohli, it was stated that she had served 17 years, one month and 22 days in jail.

Kamble also mentioned that Additional Superintendent of Police, Sangli, had recorded no objection for her premature release from jail. She also referred to another communication issued by Civil Surgeon to Superintendent of Kolhapur Central Jail dated February 2, 2011, in which it was stated the physical condition of the petitioner was weak.

The Judges, however, felt that before the petition was considered on merits it was desirable that the petitioners should be examined and an assessment of their health be made to enable the Court to resolve the issue raised in the petitions.

PTI

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Husband dies during divorce case. Husband’s father continues the fight !!

 

 

Bombay High Court

Civil Application (Caf) No. 1514

 

Lubhan Gopal Nikhare vs Aged About 38 Years, Occ.: Service on 5 October, 2011 Vs Sau. Sandhya w/o Lubhan Nikhare, aged 30 years, Occupation : Household,

 

Bench: A. B. Chaudhari

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

CIVIL APPLICATION (CAF) No. 1514 of 2011 (In FIRST APPEAL NO.836 OF 2009)

APPELLANT :- Lubhan Gopal Nikhare aged about 38 years, Occ.: service r/o Navegaon Vidyalaya, Navegaon Bandh, Tahsil Arjuni Morgaon, Distt. Gondia.

…VERSUS…

RESPONDENT :- Sau. Sandhya w/o Lubhan Nikhare, aged 30 years, Occupation : Household, r/o c/o Nilkanth Ganpat Dhakate, Indira Gandhi Ward, Chandani Chowk, Bhandara.

APPLICANT : Gopala Bansilal Nikhare, aged 80 years, r/o Sangadi, Tah. Sakoli, Distt. Bhandara.

————————————————————-

Mr. Anil Mardikar Advocate for appellant.
Mr. J.R. Kidilay Advocate for respondent.

————————————————————-

CORAM : A.B. CHAUDHARI,J.

DATED : 05.10.2011

ORAL JUDGMENT

This is an application filed by the father of the appellant seeking permission to prosecute the present appeal and for bringing him on record in place of his son- original appellant, who expired during the pendency of this appeal.

2. This application has been vehemently opposed by the respondent/wife and reply has also been filed. Placing reliance on the decision of supreme Court in the case of Smt. Yallawwa v. Smt. Shuntavva – AIR 1997 SC 35 learned counsel for the respondent/wife argued that the appellant/husband Lubhan having expired during the pendency of present appeal and the subject matter of the appeal being the proceedings for divorce between husband and wife on the ground of desertion and cruelty, the cause was purely a personal cause of action and, therefore, the same would die with the husband. He then argued that the respondent/ wife has one child and at any rate on merits of the matter there is no substance in the present appeal as the decree of dismissal of divorce petition is well justified. According to him, the person sought to be substituted in place of original appellant is his father, who is not a class I heir but the child is, and therefore, no better rights can be read in favour of father as against the son of original appellant and respondent. Therefore, the cause of action being a personal cause of action, this appeal will have to be dismissed as having been abated. In support of his contentions, he relied on para 10 of the judgment of supreme court, cited supra.

3. Per contra, Mr.Mardikar opposing the objection to his application for bringing the father of original appellant on record, submitted that the aforesaid supreme court decision is in fact a decision in favour of the applicant. He submits that in the said decision though the facts were similar the decree that was passed was an ex parte decree. The said ex parte decree was set aside by the High Court and the proceedings of the petition for divorce were restored before the trial Court. Once the effect of ex parte decree was wiped out by virtue of the decision of High Court by setting aside ex parte decree, there was no decree standing in the way of either of the parties. Therefore, at the stage after remand the proceedings due to the death of one party assumed character of purely personal cause of action, and therefore, in the facts of the said decision of Supreme Court it was held that the proceedings of divorce could not be continued in the trial Court. However, he argued that sofar as the instant appeal proceedings are concerned, the Supreme Court in categorical terms has held that prosecution of appeal by legal heir would be maintainable.

4. I have heard learned counsel for the rival parties at length and also carefully considered the supreme court decision, cited supra. It s not necessary to repeat what the Supreme Court has stated in the aforesaid decision. Insofar as the present case is concerned,it would be relevant to quote the extracted portion from para 7 in caption (i) and (ii) of the said decision.

“But once these proceedings are initiated by the concerned aggrieved spouse, the trial then proceeds further. It is of course true that pending such trial if either of the spouses expires then, as seen earlier, the personal cause of action against the husband or the wife, as the case may be, dies with the departing spouse.

As no rights are still crystallised by then against or in favour of either spouse, no proprietary effect or any adverse effect on the status of the parties would get generated by mere filing of such petition and the status quo ante would continue to operate during the trial of such petition.

However, the situation gets changed once a decree of divorce follows in favour of either of the spouses whether such decree is bipartite or ex parte.

Thereafter, as noted earlier direct legal consequences affecting the status of parties as well as the proprietary rights of either of them, as noted earlier, would flow from such a decree.

Under these circumstances, if the aggrieved spouse who suffers from such legal effects of the adverse decree against him or her is told off the gates of the appellate proceedings or proceedings for setting aside such ex parte decree, the concerned spouse would suffer serious legal damage and injury without getting any opportunity to get such a decree set aside on legally permissible grounds.

Consequently, it may be held that once the petition under Section 13 of the Hindu Marriage Act results into any decree of divorce either ex parte or bipartite then the concerned aggrieved spouse who suffers from such pernicious legal effects can legitimately try to get them reversed through the assistance of the Court.

In such an exercise, all other legal heirs of deceased spouse who are interested in getting such a decree maintained can be joined as necessary parties.

Section 13(1) of the Hindu Marriage Act can obviously come in the way of such proceedings being maintained against the legal heirs of the decree-holder spouse. …..

In a decree of divorce on these grounds whether ex parte or bipartite is not permitted to be challenged by the aggrieved spouse, it would deprive the aggrieved spouse of an opportunity of getting such grounds re-examined by the competent Court. It cannot, therefore, be said that after a decree of divorce is passed against a spouse whether exparte or bipartite such aggrieved spouse cannot prefer an appeal against such a decree or cannot move for getting ex parte divorce decree set aside under Order IX Rule 13, C.P.C. Such proceedings would not abate only because petitioner who has obtained such decree dies after obtaining such a decree. The cause of action in such a case would survive qua the estate of the deceased spouse in the hands of his or her heirs or legal representatives. Consequently in such appellate proceedings or proceedings under Order IX, Rule 13 C.P.C., other heirs of the deceased spouse could be joined as opposite parties as they would be interested in urging that the surviving spouse against whom such decree is passed remains a divorcee and is not treated to a widow or widower of the deceased original petitioner so that she or he may not share with other heirs the property of deceased spouse.

So far as the other heirs of the deceased spouse are concerned, they would certainly be interested in getting the decree of divorce confirmed by the appellate court or by the trial court by opposing application under Order IX, Rule 13 C.P.C., if it is an ex parte decree against the concerned spouse. It must, therefore, be held that when a divorce decree is challenged by the aggrieved spouse in proceedings whether by way of appeal or by way of application under Order IX Rule 13, C.P.C., for setting aside the ex parte decree of divorce, right to survive to the aggrieved surviving spouse if the other spouse having obtained such decree dies after decree and before appeal is filed against the same by the aggrieved spouse or application is made under Order IX, Rule 13 by the aggrieved spouse for getting such an ex parte decree of divorce set aside.

Similarly, the right to sue would also survive even if the other spouse dies pending such appeal or application under Order IX, Rule 13, C.P.C. In their case proceedings can be continued against the legal heirs of the deceased spouse who may be interested in supporting the decree of divorce passed against the aggrieved spouse……”

5. To my mind, the ratio decidendi of the aforesaid supreme court judgment applicable in the present case is that the decree of dismissal of divorce petition of the appellant/ husband would continue to operate against (his legal heirs) interest without hearing his appeal, and that obviously would be violative of principles of natural justice. Hence, applicant- father of the original appellant/husband will have the right to continue to prosecute this appeal as the legal heir. That being so, it is imperative that the said legal heir of the appellant ought to be allowed to prosecute the present appeal and contest the decree which was passed against the original appellant/ husband. In that view of the matter, the objection taken by the learned counsel for respondent/wife will have to be over-ruled. In the result, I make the following order.

ORDER

C.A.F. No. 1514 of 2011 is allowed in terms of its prayer clause (i).

Amendment be carried out within one week. C.A. disposed of.

6. Learned counsel for respondent/wife submits that the application made by the wife for appointment on compassionate ground in place of her husband has not been considered by the competent authority only because of pendency of the present appeal, and as a result the wife and her child are suffering financial crisis. He has filed photo copy of letter dated 5.9.2011 issued by Navodya Vidyalaya Samiti, which is marked “X” for identification and taken on record, which supports what the counsel is saying. He, therefore, prayed for disposal of appeal on merits, to which the learned counsel for the appellant has no objection. In that view of the matter, let this appeal be fixed for final hearing on 18.10.2011 at 2-30 p.m.

JUDGE

/TA/

source
Indiakanoon . org

The Lawyer and cricket bat

 

I like what Papu (Delhi) once wrote about lawyers in matrimonial cases that husbands fight these days ..;

 

what he said is something *like this*
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– assume you are on to a game of cricket
– the lawyer is the bat
– you are the player
– having a good / strong bat helps …but NOTHING more
– IF you let the lawyer (bat) decide the game you are screw3d
– IF you do NOT know the game you are screw3d
– IF you think the bat will do everything for you you are screw3d

 

– IF you are a good player, even an average bat is good enough
– remember you are the player, you make the strategy, you decide which ball to answer, you decide when to strike etc

– and I have to add the following
========================================
– Once you know the above the bat will know its place
– Once you network with 20.. 50 .. 100 other harassed husbands the knowledge base you have will be 10 times what any average lawyer has
– Assume that Waiting time / ok playing time !! is un limited and you are waiting for the best ball
– enjoy