Month: March 2023

-Report by Umang Kanwat

If the High Court is the common High Court for two or more States under Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it, the power under Section 24 of the Civil Code of Procedure may be exercised by the High Court even for the interstate transfer of a suit, appeal, or another proceeding. Section 25 applies to the interstate transfer of a suit, appeal, or another proceeding where both States have a High Court under Article 214 of the Constitution. The present case of Shah Newaz Khan & Ors. V State Of Nagaland & Ors. deals with an appeal regarding the issue of such an interstate transfer of suits between courts.

FACTS:

A request to transfer a case from the district judge’s court in Dimapur, Nagaland, to the district judge’s court in Guwahati, Assam, was denied by the Gauhati High Court in this case. Two issues, in particular, were raised before the Apex Court in the present appeal :

(1) According to section 25 of the Code of Civil Procedure (hereafter referred to as “the CPC”), is the Supreme Court the only body with the authority to order the transfer of a lawsuit, appeal, or another process from a civil court in one state to a civil court in another state?
(2) Is it permissible for a High Court to consider a transfer request under section 24 of the CPC and transfer a suit, appeal, or another proceeding from one Civil Court to another Civil Court for consideration and decision if the High Court is the common High Court for two or more States?

APPELLANT’S CONTENTIONS:

The appellant argued that if the High Court is the common High Court for two or more States according to Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it, the power under Section 24 of the CPC may be exercised by the High Court even for the interstate transfer of a suit, appeal, or another proceeding. Section 25 applies to the interstate transfer of a suit, appeal, or another proceeding where both States have a High Court according to Article 214 of the Constitution. The learned advocate prayed before the court for a new review of the appellants’ request under section 24 of the CPC. As an alternative, he argued that section 25 applicability can be taken into account by us on its own merits.

RESPONDENT’S CONTENTIONS:

The respondent retaliated that the provisions of both sections 24 and 25 of the Code must be examined because this involves an inter-State transfer and not an intra-State transfer simplicity to understand whether the common High Court has the authority to withdraw any suit, appeal, or other proceeding pending before any Court subordinate to it from one State and to transfer the same to any Court subordinate to it, in another State. After taking into account the arguments made, it is obvious that the legislative intent was clear: under section 25 of the CPC, only the Supreme Court has the power to ordain the transfer of a lawsuit, appeal, or another legal proceeding from one civil court in a state to another civil court in a different state. The CPC’s section 25 expressly and only grants this authority, hence a High Court cannot use it.

The legal counsel for the respondent argued in favour of upholding the contested judgement rather than having it overturned.

JUDGEMENT:

The questions framed at the beginning of this case were answered by concluding that :

(1) Section 25 of the CPC applies to an interstate transfer of a lawsuit, appeal, or another proceeding when both States have a high court under Article 214 of the Constitution, but not when both States have a common high court under Article 231 of the Constitution; and 46.

(2)Additionally, if the High Court is the common High Court for two or more States under Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it, it may exercise the power under Section 24 of the CPC even for the inter-State transfer of a suit, appeal, or another proceeding.

The supreme court asked the Gauhati High Court to give the application under section 24 of the CPC a reasonable amount of priority and to resolve it as soon as feasible, provided that it is convenient for all parties. Additionally, it directed the Parties to pay their expenses.

READ FULL JUDGEMENT: https://bit.ly/3Ye9N6D

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-Report by Eshna Ray

The Supreme Court in the recent judgement of AMAN SEMI-CONDUCTORS (PVT.) LTD. VERSUS HARYANA STATE INDUSTRIAL DEVLOPMENT CORPORATION LTD. & ANR., passes required conditions that the Respondent needs to follow for the industrial plot allotment, failure to comply which will have consequences.

FACTS:

The appeals, brought by special leave, concern orders issued by the National Consumer Disputes Redressal Commission (NCDRC). The NCDRC allowed a revision petition filed by the respondent corporation, Haryana State Industrial Development Corporation (HSIDC), which had resumed an industrial plot allotted to the appellant, a proprietary concern, for failing to fulfill the terms and conditions of the allotment. The appellant had applied for the plot in 1994, and possession was handed over in 1995, but no concrete steps were taken to set up the industrial unit on the site. The appellant sought extensions of time, citing the absence of basic infrastructure facilities, but failed to produce any concrete evidence or document to satisfy HSIDC. The NCDRC held that the appellant’s grounds and reasons were vague and evasive and that HSIDC was justified in resuming the plot. These appeals challenge the NCDRC’s orders.

APPELLANT’S CONTENTIONS:

The appellant’s learned counsel, Mr. Rajiv K. Garg, argued that the appellant did not violate any of the terms of the allotment letter and had taken all the necessary steps in accordance with the terms of the allotment letter. The appellant had obtained the required certificate from the Industrial Department, applied for a power connection from the electrical department and deposited the requisite amount with the HSEB, and applied for financial assistance with the Financial Corporation. The appellant had also arranged for the required facilities from outside when they were not granted due to a change in government policy. The appellant’s counsel argued that the appellant did not violate any terms of the allotment letter and had taken all necessary steps, including obtaining certificates and applying for power connection and financial assistance. The appellant’s delay was due to government policy changes and not releasing capital. The counsel also contended that the resumption order was issued without granting an opportunity to the appellant and was non-speaking, which violated the principles of natural justice.

RESPONDENT’S CONTENTIONS:

In response to Mr. Garg’s arguments, Mr. Sangwan urged the court not to interfere with the NCDRC’s findings. He stated that the record showed that the appellant was given sufficient opportunity and a show cause notice was issued to him asking why he had not taken steps to construct an industrial unit on the plot. He argued that the overall objective of the scheme under which plots were allotted was to promote industrialization and ensure employment, and the persistent inaction of the appellant suggested that he was not interested in using the plot for any industrial activity.

Mr. Sangwan further highlighted that the allotment was based on the appraisal of the project proposed by the applicant and its feasibility, and the appellant was obliged to take swift and timely action towards putting up the unit as per the conditions in the allotment letter. He also argued that the allotment was hedged with several conditions, and many of them, upon violation, entailed cancellation. Therefore, he contended that HSIDC’s action in resuming the plot was not abhorrent or reprehensible.

JUDGEMENT:

The case revolves around the appellant’s allotment of an industrial plot by HSIDC and the subsequent cancellation of the allotment. The appellant claims that the cancellation was done without a hearing and violated principles of natural justice. Additionally, the lack of essential infrastructural facilities prevented construction within the stipulated time frame. The allotment had conditions for construction and production, and failure to comply could result in resumption by HSIDC. HSIDC could also call for periodical reports about the project’s progress.

Conditions for the industrial plot allotment included starting construction within six months and completing it within 1 1/2 years, as well as commencing production within two years of possession after constructing a minimum of 25% of the permissible covered area. Failure to meet these requirements would result in HSIDC resuming the plot, and the corporation could request periodic reports every six months about the project’s progress.

READ FULL JUDGEMENT: https://bit.ly/3kJn5u9

CITATION

(2017) 9 SCC 1

INTRODUCTION

The case of Shayara Bano vs Union of India refers to a landmark judgment by the Supreme Court of India in 2017 that upheld the constitutional validity of the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who challenged the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process.

FACTS

Shayara Bano vs Union of India is a landmark case that challenged the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who had been married to Rizwan Ahmed for 15 years and had two children. In October 2015, her husband divorced her by sending a letter with the word “Talaq” written thrice. Shayara Bano was devastated by the sudden and arbitrary divorce and decided to challenge the practice of Triple Talaq in court.

Shayara Bano’s petition challenged the legality of Triple Talaq, Nikah Halala, and polygamy, which are practices prevalent among the Muslim community in India. Triple Talaq is a practice that allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process. Nikah Halala is a practice where a divorced woman has to marry another man, consummate the marriage, and then get divorced again before remarrying her former husband. Polygamy is a practice where Muslim men are allowed to have multiple wives. Shayara Bano argued that these practices violated her fundamental rights as a woman and went against the principles of gender justice and equality enshrined in the Indian Constitution. She contended that the practices were arbitrary, and discriminatory, and left Muslim women vulnerable to abuse and injustice. She also argued that the practices were not essential to the practice of Islam and should be declared unconstitutional.

PROCEDURAL HISTORY

The case of Shayara Bano vs Union of India was filed in the Supreme Court of India on February 2016. Shayara Bano, the petitioner, challenged the constitutionality of the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying the word “Talaq” three times in one go.

The case was assigned to a five-judge bench of the Supreme Court, which held several rounds of hearings and considered arguments from both sides. The bench was headed by Chief Justice J.S. Khehar and included Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, and Abdul Nazeer. The first hearing in the case was held on May 11, 2017, and the court directed the Union of India to file its response to the petition. The All India Muslim Personal Law Board (AIMPLB) was also allowed to intervene in the case and present its arguments.

The Union of India, represented by the Attorney General, took a neutral stand on the issue and argued that it was up to the Supreme Court to decide whether Triple Talaq was constitutional or not. The AIMPLB, on the other hand, supported the practice of Triple Talaq and argued that it was a matter of personal law and should be left to the community to decide.

The court held several rounds of hearings over the next few months and heard arguments from both sides. The bench also received submissions from several other Muslim women who had been victims of Triple Talaq and other similar practices.

Finally, on August 22, 2017, the Supreme Court delivered its judgment on the case.

JUDGEMENT AND ANALYSIS

This case is a landmark judgment that has inspired many women to make bold movements and is famously known as the judgment that changed India. This landmark case is also known for its unique diversity in the religion of the judges as it was headed by a Sikh Judge followed by judges from other religions namely, Christianity, Islam, Parsi, and a Hindu judge. In this case, Shayara Bano along with 4 other Muslim women was subjected to talaq e biddat also known as instant triple talaq. They demanded that talaq e biddat should be declared unconstitutional because they believed that it violated their fundamental rights. Hence the five-bench constitution bench mentioned before they were formed. It is also quite ironic that there was no women judge on the bench given the fact that the case dealt with gender justice. The verdict of this case was quite unexpected as the Supreme Court neither constitutionally banned nor legally, instead, they set aside the Muslim Personal law related to triple talaq. 2 out of the 5 judges namely CJI Khehar and Justice Nazeer said this law cannot be banned and the other 2 judges namely justice R.F.Nariman and Justice U.U.Lalit declared it unconstitutional. It was read perhaps for the first time that a Muslim Personal Law is also a fundamental right as the law comes under the religion of Islam and people have the right to practice any religion as a fundamental right. Thus, they said the law must not be banned.

On the other hand, the other two judges declared that the act was arbitrary, that is without any application of logic and also violating the fundamental rights of the women, the law is unconstitutional. They read that the Muslim personal is a pre-constitutional law that is not arbitrary and thus is to be banned. The last judge, Justice Kurian Joseph said that triple talaq is unislamic. He went on to justify his statement by stating that for talaq to occur, there are two prerequisites for the same. Justice Kurian Joseph said that for talaq to be valid, there must be reconciliation and arbitration and that in the form of triple talaq, there is no scope for either as it is irrevocable. Reconciliation and arbitration are two essentials of Islam divorce law where both parties may plan to reunite after marriage. Even though the judges did not declare it unconstitutional, it was sent forth to the parliament for implementation. Eventually, on 28 December 2017, the Lok Sabha passed the bill with a majority. 

The question here is whether the passing of the bill is a violation of the Islamic principle or a stepping stone toward women’s empowerment. 

We can see how patriarchal the laws are as the only way in which Muslim women can get separated from their Muslim husbands is by Talaq-e-Tafweez. The wife can approach the court for the dissolution of the marriage under the Muslim Marriage Act, of 1939 if any of the said conditions are practised by the husband. Moreover, it is like an agreement, they don’t have the option to pronounce talaq in different ways as Muslim men do. When talaq-e-biddat was banned in Shayara Bano v. Union of India., some sort of legal protection was awarded to the Muslim women and this landmark judgment was a ray of hope for them. 

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim women at the time of divorce can ask their husbands for maintenance only until the Iddat period. If the woman is not in a position to maintain herself and she has not married again, she is not entitled to ask her former husband for maintenance. Its constitutional validity was challenged in the landmark case of Daniel Latifi & Anr., v. Union of India.^[1], where it was argued that the rights of Muslim women are violated under articles 14, 15, and 21 of the constitution. Therefore, it was held that women are to be awarded maintenance under section 125 of CrPC. This section ensured that women in general is protected from destitution and vagrancy and were secular in nature.

These two landmark cases ensured the protection of the rights of women and a better position in society along with giving a wide interpretation of article 44 and the Uniform Civil Code. 

CONCLUSION

Men under Muslim law have the right to marry 4 women at a time whereas women can contractually enter only a single marriage. This clearly shows the patriarchy that women face and their plight when compared to men. In the present world of advanced science, technology, and advanced thinking, where there are different methods that have been developed for the rescue of people like adoption, IVF, etc. the procreation capacity of women cannot be considered a justification for polygamy. In such a scenario, UCC needs a safe and secure future for women in society. This is an important issue in the current scenario because, in many of Islam-practicing countries like Iran, Tunisia, Pakistan, etc. polygamy has already been abolished. It is high time for a country like India which give immense importance to human rights and equality to consider the same.

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ENDNOTES:

1. Daniel Latifi & Anr., v. Union of India., (2001) 7 SCC 740

This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.