Legally Sane

Under the scheme of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'Act of 2005') an aggrieved person can avail the benefits provided under the Act of 2005 against respondant only. Aggrieved person is defined under section 2(a) as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. This definition manifestly suggests that an aggrieved person can solely be a woman. Further, section 2(q) defines respondent as any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the Act of 2005. Proviso to section 2(q) further says that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. Bare perusal of both the definitions lead us...

According to Exception 2 to section 375 IPC, sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.  POCSO Act, 2012 doesn't provide any such exception in the statute book. On 11/10/2017, Hon’ble Supreme Court while dealing with a writ petition(Independent Thought vs Union of India), concerning to the above-mentioned subject matter, partially struck down Exception 2 to section 375 IPC and held that, the Exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Articles 14,15 and 21 of the Constitution and our commitmen...

On 15/10/2020, Hon’ble Supreme Court while dealing with a civil appeal partly overruled it's earlier judgment delivered in the case of SR Batra vs Taruna Batra and held that, shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent. The words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. The definition of shared household given in Section 2(s) cannot be read to mean that ...

On 16/10/2020, Hon’ble Supreme Court while dealing with transfer petitions filed under section 406 of Cr. P. C. Read with Order XXXIX of the Supreme Court Rules held that transfer power under section 406 of Cr. P. C. Is to be invoked sparingly. Only when fair justice is in peril, a plea for transfer might be considered. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises.  While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere application of a hyper sensitive person. While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant, the Witnesses, the Prosecution besides the larger issue of trial being conducte...

In the words of Jeremy Bentham "witnesses are eyes and ears of justice." In an adversarial system, which is prevalent in India, the court is supposed to decide the cases on the basis of evidence produced before it. This evidence can be in the form of documents. It can be oral evidence as well, i.e., the deposition of witnesses. The witnesses, thus, play a vital role in facilitating the court to arrive at correct findings on disputed questions of facts and to find out where the truth lies. Notwithstanding the same, There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case. Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked as under - "Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused ...