October 4, 2022

The Lawmatics Bulletin- 6

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14-09-2020 to 27-09-2020

MAJOR UNMARRIED DAUGHTER NOT SUFFERING FROM ANY PHYSICAL OR MENTAL ABNORMALITY IS NOT ENTITLED TO CLAIM MAINTENANCE FROM FATHER U/S 125 OF CrPC

ABHILASHA V. PRAKASH 2020

The Supreme Court has held that a daughter who attained majority and is still unmarried is not entitled to claim maintenance from her father in proceedings under Section 125 Cr.P.C. if she is not suffering from any physical or mental abnormality/injury.
The bench headed by Justice Ashok Bhushan held that unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Hindu Adoptions & Maintenance Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of Act.
SECTION 20(HAMA,1956) V. SECTION 125(CRPC)
The maintenance as contemplated under Act, 1956 is a larger concept as compared to the concept of maintenance under Section 125 Cr.P.C..”
Section 20 of Hindu adoption and maintenance act 1956, casts obligation on hindu father to maintain his unmarried daughter who is unable to maintain herself out of her own earnings or property. Hence, Section 20 is right granted under personal law, which can very well be enforced by her against her father.


Section 125(1) of Cr.P.C., thus, contemplates that claim of maintenance by a daughter, who has attained majority is admissible only when by reason of any physical or mental abnormality or injury, she is unable to maintain herself.”


GAUHATI HC DISMISSED REVIEW PETITION AGAINST ITS ORDER THAT WIFE’S REFUSAL TO WEAR ‘SAKHA AND SINDOOR’ IS HER REFUSAL TO ACCEPT HER MARRIAGE

RENU DAS V. BHASKAR DAS 2020

The Bench of Chief Justice Ajai Lamba and Justice Soumitra Saikia observed that when a wife, who used to wear Sindoor, suddenly stops wearing it due to differences with her husband, it can be safely concluded that her marriage with her husband has “irrevocably broken”.
BACKGROUND
In june 2020, Gauhati High Court observed that under the custom of Hindu Marriage, a lady who has entered into marriage according to Hindu rituals and customs, her refusal to wear ‘shakha and sindoor’ will project her to be unmarried and/or signify her refusal to accept the marriage and also by relying on Rani Narasimha Sastri v. Rani Suneela Rani, 2019, observed that the act of lodging criminal cases on unsubstantiated allegations against the husband and/or the husband’s family members amounts to cruelty by wife.


PROSTITUTION NOT A CRIMINAL OFFENCE: BOMBAY HIGH COURT

The Bombay High Court recently observed that prostitution has not been made an offence under Immoral Traffic (Prevention) Act, 1956 and that an adult woman has fundamental right to choose her vocation and cannot be detained without her consent. In its judgement, high court ordered to free 3 sex workers from the Corrective Institution.
By explaining the purpose and role of the Immoral Traffic (Prevention) Act (PITA), 1956, the Court said, “there is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution. What is punishable under the Act is, sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person in view of Section 8 of the said Act”. The Court observed that since the victims, according to the learned Counsel, are not being prosecuted, there is no question of continuing their detention in the custody of Navjeevan Mahila Vastigruha, Deonar, Mumbai or with any other institution. The Court also said the said Act [Immoral Traffic (Prevention) Act, 1956] does not empower the Magistrate to hold the custody of the victims beyond the period of 3 weeks without there being any final order to that effect after following due process of law.


CONCEPT TO SAME SEX MARRIAGE NOT RECOGNISED UNDER HINDU CULTURE: SOLICITOR GENERAL OF INDIA

Solicitor General of India Tushar Mehta has opposed a plea filed before the Delhi High Court seeking to recognize the rights of same-sex couples to get married under the Hindu Marriage Act, 1956. He submitted that the concept of same-sex marriage is not recognized under Indian culture or under Indian law and our law only permitts marriage between husband and wife.

Our culture and law don’t recognize the concept of same-sex marriages

The SG said

BACKGROUND
Last week, a PIL was filed in Delhi High Court seeking a declaration to recognize the right of same-sex couples to get married under the Hindu Marriage Act, 1955. In the plea it was contended that,”Section 5 of the Act clearly lays down that marriage can be performed between ‘any two Hindus’ and nowhere in the Act is it mentioned that the ‘two Hindus’ getting married must be a Hindu Man and a Hindu Woman”and also said Right to Marry is also stated under Human Rights Charter within the meaning of the right to start a family. The Right to Marry is a universal right and it is available to everyone irrespective of their sexual orientation and gender identity.