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Legal

Updated on: Saturday, January 01, 2022, 11:08 PM IST

Year-ender 2021: Round-up of Bombay High Court's important judgments

Bombay High Court |

Bombay High Court |

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Bombay High Court benches gave several socially important judgments in 2021. Here is a round up of some key legal observations:

Consent for sex invalid if girl not told that boy's parents won't accept her later: HC

If a girl consents to have sexual intercourse after the man marries her but conceals the fact that his family won't accept her, then the consent won't be valid, held the Aurangabad bench of the High Court. The HC pronounced the ruling while dismissing a plea filed by a man, who sought quashing of the FIR filed against him under charges of rape.

A bench of Justices Tanaji Nalawade and Mukund Sewlikar was dealing with a plea filed by a 30-year-old Patna resident seeking to quash the FIR registered against him on a complaint filed by a Latur-based woman. The woman and the man became friends while working together in a Kolkata-based company and went on a trip to Shimla where she refused to indulge in any sexual activity since they weren't married. The accused then applied kumkum on the woman’s head and made her wear his own ring and claimed that since they were now married, they can have sex. After their return from Shimla, the accused revealed that he won't marry her since his family won't accept her as she belongs to a lower caste. "If he had made known to her that his parents would not okay their marriage, she would not have submitted herself to his desire to have physical relations. This clearly indicates that he concealed this fact from her and obtained her consent projecting as if his parents would not go against his wish," the judges noted further.

Not only media, even social media users cannot reveal identity of rape victims

In a significant ruling the Aurangabad bench of the Bombay High Court in February 2021 held that not only the electronic and the print media but even the common public that uses social media must refrain from either directly or indirectly disclosing the identity of rape victims. The HC said the media should act with circumspection and exercise restraint in such cases.

A bench of Justices Tanaji Nalawade and Mukund Sewlikar noted that despite detailed guidelines issued by the Supreme Court for the media to follow while reporting rape cases, there has been a breach of the same. The judges, while issuing additional guidelines said the same would be applicable not only on the electronic and print media but even on common public who use social media platforms like WhatsApp, Facebook, Twitter etc.

"The media and such citizens must not publish the names of the parents or relatives of the victim. Even the relationship between the accused and the victim need not be published," the judgment reads.

The bench further said that the details such as the residential or occupational address of the victim, her relatives and also of the accused must not be published.

"The media should act with circumspection and is expected to observe restraint. Publishing news item in detail thereby disclosing identity of the victim itself indicates that the media does not observe self-restraint," the judges said.

State or society cannot interfere with individual choices to marry or not

In a significant ruling, the Bombay High Court bench of Justices Vishwas Jadhav and Shrikant Kulkarni at the Aurangabad seat held that the state or the society cannot interfere into the choices of individuals as to whether to marry or not and if yes then to whom. The bench held that if parents oppose the marriage of their children, even in good faith, cannot do so at the cost of their fundamental rights.

"The decision to marry someone rests exclusively with the individuals themselves," the judges held, adding, "Neither the state nor society can intrude into that domain. The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture."

"Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms," the judges ruled.

The bench was dealing with a plea filed the parents of minor girl from Parbhani seeking directives to the police authorities to trace their daughter, who they claimed has been kidnapped.

However, during the course of the hearing and investigations, it transpired that the girl wasn't kidnapped and infact had on her own will left the house with her lover, who lived in her neighborhood.

Transgenders can move freely within India

A transperson, who came from Mysore in Karnataka to Mumbai in December 2020, to follow her dream to pursue a career in dance and to become a successful choreographer moved the Bombay High Court in July 2021 seeking protection from any coercive action from Mumbai police and Mysore police.

The plea, which was mentioned before the division bench of Justices Sambhaji Shinde and Nizamoodin Jamadar, stated that her parents and in particular her father was not willing to accept that she was a transperson, and that she had psychological issues, and wanted her to marry.

Advocate Vijay Hiremath told the court that her parents had come to the city along with Mysore police and met her at Versova, and submitted, "The Versova police had asked my client to leave Mumbai against their will.”

Justice Shinde observed, "How can you (Versova police) ask them to leave Mumbai? How can you even think of confining them."

"You have to protect them as they are the citizens of our country and can move as per this wish anywhere in India. Don't treat them as criminals," Justice Shinde remarked.

Adjourning the matter till a further date, Justice Shinde said, "Ensure they aren't harassed and now it is the responsibility of the police officers to ensure there is no danger to her life."

Even inserting finger in a girl's private part would amount to rape

The Bombay High Court bench of Justice Revati Mohite-Dere had in July 2021 held that even inserting a finger into the private part of a girl, would amount to rape. The bench accordingly upheld the conviction of 33-year-old man from Suburban Malad, who sexually assaulted an intellectually challenged girl. The bench was hearing an appeal filed the man, who lived in the same vicinity as that of the survivor girl (21). He had challenged his conviction by the Dindoshi sessions court in April 2019.

According to the prosecution case, the girl had been to a Kali Mata mandir nearby her house and from there the accused took her to a fair. Later, he took her in the bushes and disrobed her and inserted his finger in her private parts. But as the girl started crying, the accused stopped and dropped her near her house, where her mother and other family members were searching for her.

The mother, on seeing the survivor girl, sought to know where she was to which she narrated the entire incident. She even pointed out at the accused, who was peeing at the side of the road. The family members caught hold of the accused and called the police and registered a case and after extensive probe and trial he was convicted for committing rape and even under charges of kidnapping.

The accused argued that his conviction under rape was uncalled for and instead he should, at the most, be convicted for sexual assault.

Justice Mohite-Dere said, "From the evidence on record it appears the accused had inserted his finger in the prosecutrix's private part, which act is squarely covered under the definition of the offence `rape', as defined under section 375 of the Indian Penal Code.”

“Fingering of the vagina also constitutes an offence under the law," Justice Mohite-Dere ruled.

Key provisions of New IT Rules stayed by HC

In a major development, the Bombay High Court bench of Chief Justice Dipankar Datta and Justice Girish Kulkarni had in August 2021 stayed the key provision of the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (IT rules) of 2021, which mandates all online portals to adhere to certain set of code while publishing anything on the internet. The bench, however, didn't stay the provisions of the new Rules that provided for action against those, who wouldn't adhere to the code of ethics.

The bench was hearing petitions filed by legal news portal The Leaflet and senior journalist Nikhil Wagle, both challenging the new Rules stating that the same are an assault on free speech. The duo claimed that the new rules aren't needed as the same would lead to gagging media.

The main challenge was to Rules 7, 9, 14 and 16.

Rule 7 - Provides for action against those, who breach the code.

Rule 9 - Mandates for adherence to the code of conduct for all publishers.

Rule 14 - Provides for an Inter-departmental Committee, comprising of officials from various ministries of the Union government, that would look into the complaints against those, who post anything.

Rule 16 - Provides for blocking of objectionable content posted on the internet, in case of emergency.

In their interim orders, the bench didn't stay any of these provisions except for Rule 9 and two of its clauses.

Idol makers ordered to sell Ganpati, Dugra PoP idols as "objects not to be worshipped"

In what will have a direct impact on the festivals in 2022, the Bombay High Court bench of Justices Sunil Shukre and Anil Kilor at the Nagpur seat had in August 2021 ordered that the idols of Lord Ganesh and Godess Durga made up of Plaster of Paris (PoP) must not be sold as "idols" but only as "objects." The bench allowed selling of these PoP idols in 2021 on the condition that their makers will have to tell the devotees, who would purchase these idols, that these aren't to be worshipped or immersed in water bodies during the festivals.

The significant order comes on a petition filed by some idol makers challenging the May 2020 fresh guidelines by which the Union government banned the use of PoP in making idols. They claimed that already more than 4 lakh such idols have been made and are ready for sale and if not sold, it would impact their livelihood.

The bench, however, noted that a similar ban was imposed way back in 2012, wherein the HC had then allowed them to sell their PoP idols but on a condition that they won't be making such idols in the future.

"We find it necessary to protect financial interest of the petitioners who have already manufactured multiple PoP idols," the judges said, adding, "Accordingly, we would permit the petitioners to sell these idols only as PoP objects and not as idols on the express condition that while selling these objects, the petitioners would inform the buyers that they are not intended for any kind of worship nor are they intended to be immersed in any water body, natural or artificial."

The bench further ordered the makers to submit an undertaking that they will not sell these objects during present Ganesh festival or any other festival for this year or in future as well and that they shall sell these objects by mentioning the express conditions, and "that they henceforth would stop making of PoP idols of any deity for the purpose of their worship."

Daughters are daughters forever, sons are sons only till they are married, says HC

While dealing with a "sad case" of a son along with his wife torturing his 90 year old parents over their plush flat in suburban Juhu , the Bombay High Court in September 2021 said that there is some truth in the popular saying - Daughters are daughters forever and sons and sons till they are married. The HC accordingly ordered an "affluent" son to vacate the flat in Juhu within 10 days along with his wife.

Justice Girish Kulkarni was hearing a plea filed by Ashish Dalal, who challenged the orders of a Maintenance Tribunal, which in October 2020, had ordered him to vacate the flat within a month.

The friction between the family arose after the father Vinod Dalal, handed over the flat in question, via a gift deed, to his daughters. This was done on account of the threats, ill-treatment and torture meted out by Ashish and his wife to the parents.

While Ashish and his wife wanted to remove the parents from the house, the daughters of Vinod allowed the old couple to reside in the flat owing to their old age.

While referring to the provisions of the act, the judge said, "The obligation of the children or relative, as the case may be, to maintain a senior citizen, extends to the needs of such citizen so that senior citizen may lead a normal life, which would certainly take within its ambit a protection from any harassment and torture meted out by a son or relative by keeping himself on the premises of the senior citizens."

Just because a girl has intimacy for a boy, he doesn't get licence to abuse her sexually, rules HC

Observing that sexual assault isn't a physical injury but an injury to her soul, the Bombay High Court in December 2021 said that just because a girl had an intimacy with a boy, that doesn't give any license to him to sexually abuse her against her wish. The HC accordingly, upheld the conviction of a 26-year-old man from city's Borivali area, who had thrown acid on the victim after sexually abusing her.

Justice Sadhana Jadhav was hearing an appeal filed by Jitendra Sapkal challenging the decision of a special POCSO court in 2016, which sentenced him to 10 years jail on two counts, five years on three counts, and three years on two counts.

The victim was 17 years old at the relevant time and had some intimacy with Sapkal. However, after intervention of her family, she distanced herself from him but he didn't stop there. He continued to harass the victim and she twice informed the police about it. The police each time warned him and left him.

Pissed off with the victim's family registering an FIR, Sapkal picked her up when she was on her way to home and took her to Gorai beach. There, he threw acid on her face, with some of it entering her mouth, making her speechless for several months.

Justice Jadhav said, "There is no doubt that the victim had some intimacy for him in the beginning, but that by itself does not give licence to the accused to sexually abuse her and act against her wish."

"Sexual assault on a woman is not just physical injury, which can be cured. In fact, it is an injury to the soul of a woman as it ruins her womanhood," the judge observed.

"The act of the accused in the present case is such that he in fact wanted her to suffer from permanent or partial damage or deformity in such a manner that she would live with it for the whole life," Justice Jadhav said, adding, "Any amount of money in the form of compensation would not compensate for the damage and traumatizing memories of satanic act of the accused. It is a scar on her soul."

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Published on: Saturday, January 01, 2022, 11:08 PM IST
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