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SECTION 2(q) OF DV ACT: Words “Adult Male” Deleted


The Hon’ble Supreme Court has held that the words “adult male” as used in section 2(q) of the Domestic Violence Act would be deleted.

The present proceedings arise because mother and daughter have now filed a writ petition, being Writ Petition No. 300/2013, in which the constitutional validity of section 2(q) has been challenged. Though the writ petition was amended, there was no prayer seeking any interference with the order dated 15-2-2012, which, as has already been stated hereinabove, has attended finality.

The Hon’ble K. Joseph and R.F. Nariman, JJ., have held that a conspectus of the above and the judgment in Kusum Lata Sharma’s case also leads to the result that the microscopic difference between male and female, adult and non-adult, regard being had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, as per the principle settled in the Subramanian Swamy judgment, the words “adult male person” are contrary to the object of affording protection to women who have suffered from domestic violence “of any kind”. We, therefore, strike down the words “adult male” before the word “person” in section 2(q), as these words discriminate between persons similarly situate, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act.

Having struck down these two words from the definition of “respondent” in section 2(q), the next question that arises is whether the rest of the Act can be implemented without the aforesaid two words. This brings us to the doctrine of severability – a doctrine well-known in constitutional law and propounded for the first time in the celebrated R.M.D. Chamarbaugwalla v. Union of India. This judgment has been applied in many cases. It is not necessary to refer to the plethora of case law on the application of this judgment, except to refer to one or two judgments directly on the point.

An application of the aforesaid severability principle would make it clear that having struck down the expression “adult male” in section 2(q) of the 2005 Act, the rest of the Act is left intact and can be enforced to achieve the object of the legislation without the offending words. Under section 2(q) of the 2005 Act, while defining ‘respondent’, a proviso is provided only to carve out an exception to a situation of ‘respondent’ not being an adult male. Once we strike down ‘adult male’, the proviso has no independent existence, having been rendered otiose.

Having struck down a portion of section 2(q) on the ground that it is violative of Article 14 of the Constitution of India, we do not think it is necessary to go into the case law cited by both sides on literal versus purposive construction, construction of penal statutes, and the correct construction of a proviso to a section. None of this becomes necessary in view of our finding above.

Hiral P Harsora v. Kusum Narottamdas Harsora, 2016 (167) AIC 5 (SC).


RETURNED CANDIDATE NOT VOTER: Election Void


The Hon’ble Supreme Court has held that returned candidate is not voter, must be established.
The Hon’ble Ranjan Gogoi and P.C. Pant, JJ., have held that under section 100(1)(d), an election is liable to be declared void on the ground of improper acceptance of a nomination if such improper acceptance of the nomination has materially affected the result of the election. This is in distinction to what is contained in section 100(1)(c) i.e., improper rejection of a nomination which itself is a sufficient ground for invalidating the election without any further requirement of proof of material effect of such rejection on the result of the election. The above distinction must be kept in mind. Proceeding on the said basis, we find that the High Court did not endeavour to go into the further question that would be required to be determined even if it is assumed that the appellant — returned candidate had not filed the electoral roll or a certified copy thereof, and, therefore, had not complied with the mandatory provisions of section 33(5) of the 1951 Act. In other words, before setting aside the election on the above ground, the High Court ought to have carried out a further exercise, namely, to find out whether the improper acceptance of the nomination had materially affected the result of the election petition. This has not been done notwithstanding issue No. 6 framed which is specifically to the above effect. The High Court having failed to determine the said issue i.e., issue No. 6, naturally, it was not empowered to declare the election of the appellant returned candidate as void even if we are to assume that the acceptance of the nomination of the returned candidate was improper.

Under section 100(1)(a) the election of the returned candidate is liable to be declared void if, inter alia, he was not qualified for membership of the Parliament or the State Legislature, as may be. Section 5 of the 1951 Act deals with qualifications for membership of a Legislative Assembly of a State which, inter alia, requires a candidate to be an elector of any Assembly constituency of the State. To declare an election void under section 100(1)(a), it must, therefore, be established that the returned candidate is not a voter of any Assembly constituency of the State.

Rajendra Kumar Meshram v. Vanshmani Prasad Verma, 2016 (167) AIC 28 (SC).


ACCUSED INNOCENT UNLESS PROVED GUILTY


The Hon’ble Supreme Court has held that accused is innocent unless proved guilty.
The Hon’ble V.G. Gowda and A.K. Goel, JJ., have held that before considering this aspect with reference to the evidence on record, we may advert to the settled principles of law dealing with the issues arising in the present case. The approach to be adopted by the court generally in appreciating the evidence in a criminal case as also the approach of the Appellate Court is discussed in several decisions of this Court, some of which have been cited by the learned counsel for the parties.

It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refer to two conditions – (i) when a person feels absolutely certain of a fact – “believe it to exist”; and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of a prudent man who is assumed to possess the capacity to “separate the chaff from the grain”. The degree of proof need not reach certainty but must carry a high degree of probability.

Bhagwan Jagannath Markad v. State of Maharashtra, 2016 (167) AIC 231 (SC.)


EVIDENCE OF VICTIM OF RAPE: As Evidence of Injured Witness


The Hon’ble Supreme Court has held that evidence of victim of rape is as evidence of injured witness.
The Hon’ble P.C. Ghose and Amitava Rao, JJ., have held that this Court in Raju, while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight, but the same cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth.

The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged.

Raja v. State of Karnataka, 2016 (167) AIC 250 (SC)

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