THE LAWFILE

Posts Tagged ‘Supreme Court

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“As the examining bodies have not been exempted, and as the examination processes of examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act,” a Bench of Justices R V Raveendran and A K Patnaik said. The apex court made the observations while directing the Institute of Chartered Accountants of India (ICAI) to reveal “standard criteria” relating to moderation, employed by it, for the purpose of making revisions to a candidate.

“The RTI Act does not bar or prohibit the disclosure of question papers, model answers (solutions to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answerscripts is completed, as at that stage they will not harm the competitive position of any third party,” the court said.

No burden

The bench rejected the contention of ICAI that it would burden the examination body with extra work. “Additional workload is not a defence. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon.”

“Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information.

Public authorities should realise that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information,” the court said. The bench also noted that the Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the Civil Society, and in its wisdom, has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act.

COURTESY: DECCAN HERALD

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Sen courted trouble as Receiver

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FORMER CALCUTTA HIGH COURT JUSTICE SOUMITRA SEN

For the beleaguered Justice Soumitra Sen of the Calcutta High Court, trouble started in 1983, when the Steel Authority of India Ltd. filed a money suit in the court against the Shipping Corporation of India for sale of Periclase Spinal Bricks lying at the Bokaro Steel Plant.

On April 30, 1984, the court appointed Justice Sen, who was a lawyer at that time, as a Receiver to make an inventory, sell these goods, and keep the proceeds until the case was decided. Between April 1, 1993 and June 1, 1995, he received the sale amount of Rs. 33.23 lakh.

In 1996, though he was entitled to keep only five per cent, Rs 1.66 lakh, towards remuneration, he kept the entire money in a fixed deposit with ANZ Grindlays (which later merged into Standard Chartered) and later transferred it to Lynx India Ltd, a company authorised by the RBI.

On January 20, 1997, another High Court Bench directed Mr. Sen to be the Receiver in another case and to keep Rs. 70 lakh for distribution among workers of Calcutta Fans. But he deposited this amount also in Grindlays Bank. Between May 14, 1997 and August 6, 1997, he issued several cheques to the workers.

On February 26, 1997, he deposited Rs. 25 lakh (from out of Rs. 70 lakh) with Lynx India, which sank. The shortfall was made up by taking Rs. 25 lakh from the SAIL money and depositing it in the Calcutta Fans account

On February 27, 2003, the SAIL filed an application in the High Court asking the Receiver to return the entire sales proceeds and render true and faithful accounts. He failed to do so until he was appointed judge on December 3, 2003.

On August 3, 2004, the High Court appointed a new Receiver, without asking Justice Sen to refund money lying with him till then.

Subsequently on February 15, 2005 when the matter was posted before another judge, he issued notice to Justice Sen for return of the money. On June 30, 2005 after the High Court ordered an enquiry, it came to light that Justice Sen, as Receiver, never filed any accounts, though he was required to do so every six months.

On November 1, 2005 he deposited Rs. 5 lakh. On April 10, 2006, the court directed him to repay Rs. 57.65 lakh, which included an interest of Rs. 26.26 lakh. Justice Sen went on leave and on his return, he was not allotted judicial work. Between June 27, 2006 and September 5, 2006, he repaid Rs. 40 lakh and on November 21, 2006, he repaid the balance amount.

On September 25, 2007, a Division Bench quashed single judge’s order and expunged remarks. The Bench held that there was no material to hold that Justice Sen had misappropriated any amount or made any personal gain.

But on a report from the then Chief Justice of the High court, the then Chief Justice of India K.G. Balakrishnan formed a three-member committee to probe the charge

In February 2008, the in-house committee, found Justice Sen guilty of breach of trust and misappropriation. It said he did not have any honest intention since he mixed the money received as Receiver with his personal money. There was misappropriation, at least temporary, of the sales proceeds.

Acting on the report, he was asked to resign or to seek voluntary retirement, but he declined.

In August 2008, the then CJI, K.G. Balakrishnan, asked Prime Minister Manmohan Singh to initiate removal proceedings against Justice Sen for his misconduct.

On February 27, 2009, 58 MPs of the Rajya Sabha moved a motion seeking Justice Sen’s removal.

On March 4, 2009, the Chairman of the Rajya Sabha appointed a probe panel headed by the then Supreme Court judge, B. Sudershan Reddy.

On September 10, 2010, the committee held him guilty on two counts — misappropriation of money and misrepresentation of facts to the High Court — and recommended his removal.

On August 18, 2011 the Rajya Sabha voted the resolution to remove Justice Sen.

COURTESY: THE HINDU

Calcutta High Court Justice Soumitra Sen resigns

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JUSTICE SOUMITRA SEN & JUSTICE RAMASWAMY

Justice Soumitra Sen of the Calcutta high court resigned on Thursday, five days before his impeachment motion was to taken up in the Lok Sabha.

“I have put in my papers today,” Justice Sen, against whom the Rajya Sabha has approved an impeachment motion, said.

“I have decided not to go to the Lok Sabha and instead put in my papers,” Sen, who was to have appeared before the Lok Sabha on September 5, said.

In his letter to the President, Justice Sen has said that since Rajya Sabha has decided in its wisdom that he should not continue as a judge, he is resigning and wants to live as a common citizen, his lawyer Subhash Bhattacharya said.

The Rajya Sabha had on August 18 overwhelmingly approved the impeachment motion against Justice Sen. The Upper House made history when it initiated the process against the controversial judge  and when it passed by a majority of 172 votes a motion to impeach Justice Soumitra Sen of the Calcutta High Court for misconduct.

After the motion was passed by a voice vote, Rajya Sabha Chairman Hamid Ansari called for a division.

The electronic voting system showed 189 members in favour or the motion and 17 against it. Of the 207 membes present in the house at the time, one abstained. The law required for the motion to be passed by a two-thirds majority of those present and voting.

He has been held guilty on corruption charges by a specially constituted committee.

Justice Sen was held guilty of misappropriating Rs. 33.23 lakh in a 1983 case. 53-year old Sen is now the second judge against whom impeachment proceedings has been initiated when Rajya Sabha takes up the motion.

The first such case involved the impeachment motion in Lok Sabha of justice V Ramaswami of the Supreme Court in May 1993 which fell due to lack of numbers after Congress members abstained.

The first of the two grounds of misconduct against Sen being cited in the motion is misappropriation of large sums of money, which he received in his capacity as receiver appointed by the high court.

The second ground is that he misrepresented facts with regard to the misappropriation of money before the high court.

 

Rajiv case outcome will settle fate of India’s 18 ‘dead men walking’

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Rajiv Gandhi and R.L.Lakhina

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J.VENKATESAN & VINAY KUMAR in THE HINDU

With as many as 18 clemency petitions filed by death-row convicts or their family members still pending consideration with the Government — some for years on end — the eventual fate of the petition filed by the three condemned men awaiting execution in the Rajiv Gandhi case is bound to have an impact on other prisoners awaiting the gallows across India.

In a plea admitted by the Madras High Court on Wednesday, Perarivalan, Santhan and Murugan said that the eleven years the government took to process and reject their mercy petition made the execution of their death sentence unduly harsh and excessive. Rajiv Gandhi was assassinated in 1991 and the trio, who were convicted of being part of the larger conspiracy, have already been incarcerated for 20 years, mostly in solitary confinement.

The last execution in India was carried out in Kolkata in August 2004, when Dhananjoy Chatterjee was hanged for raping and killing a schoolgirl. Since then, there has been no execution of convicts awarded the death penalty.

According to information furnished by the Minister of State for Home, Mullappally Ramachandran, in the Lok Sabha on August 16, 18 mercy petition cases of death convicts are pending. Though “the power under Article 72 of the Constitution does not contain any limitation as to the time in which the power conferred might be exercised,” the minister asserted that, “As per the orders of the Supreme Court, the cases of mercy petitions are processed expeditiously in consultation with the governments/departments concerned for a final decision of the President of India, under Article 72 of the Constitution.”

The facts, however, speak otherwise.

Mercy petitions are usually filed soon after the Supreme Court rejects the petitions seeking review of the judgment convicting and sentencing the accused to death. Right after the mercy petition is filed, the

President’s office forwards it to the Union Home Ministry for advice by the Council of Ministers. Invariably, delay takes place in the government forwarding its advice to the President. Thereafter, the President decides on the mercy petition based on the government’s advice. Lengthy delays occur there too.

In the case of the three convicts in the Rajiv case, the mercy petitions were sent to the President soon after the review petitions were dismissed in October 1999. It took about five years for the government to convey its decision to the President to reject the mercy plea and six years for the President to accept the advice and pass appropriate orders.

Recently the Home Ministry has asked the President to reject the mercy petition of Afzal Guru, sentenced to death in the Parliament attack case of December 2001. In reply to information sought under the RTI Act by Subhash Chandra Agarwal, the President’s Secretariat said the oldest petition pending with them was from 2005, while six mercy petitions were submitted to her office in 2011 alone.

The petition of Sushil Murmu from Jharkhand, who was convicted of killing a nine-year-old child for a religious ritual, has been pending since 2005. Another case is of Jafar Ali, who is facing the death penalty for murdering his wife and daughters. He applied for the President’s mercy August 21, 2006.

Meanwhile, the RTI reply also said that the President had commuted the death sentences of 10 convicts to life imprisonment following mercy petitions. In 2009 alone, death sentences of seven convicts had been commuted to life imprisonment.

In May, President Patil rejected the mercy plea of Mahendranath Das alias Govinda Das who had severed the head of 68-year-old Harakanta Das, secretary of the Guwahati Truck Drivers Association, in 1996. He was sentenced to death by a sessions court in 1997. Another mercy plea rejected by the President was that of Devinder Pal Singh Bhullar, who has been given the death penalty in a 1993 car bombing case in New Delhi.

During his tenure, President A.P.J. Abdul Kalam decided only two mercy petitions. In 2004, he rejected the plea of Dhananjoy Chatterjee, and in 2006 he commuted convict Kheraj Ram’s death penalty to life imprisonment. President K.R. Narayanan did not clear any mercy petition.

In 2009, the Supreme Court judgment in Jagdish vs State of Madhya Pradesh asked the Centre to decide the mercy petitions expeditiously, preferably within three months. It said the condemned prisoner and his suffering relatives have a very pertinent right in insisting that a decision in the matter be taken within a reasonable time, failing which the power should be exercised in favour of the prisoner and the sentence should be commuted into one of life imprisonment.

A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice, the court said.

In July this year, the Supreme Court issued notice to the Centre on a plea by Devinder Pal Singh Bhullar to explain the inordinate delay of several years in deciding the mercy petitions of convicts after the Supreme Court had pronounced its final verdict. The petitioner said, “The power is not merely a privilege but a matter of performance of official duty. The power has to be exercised not only for the benefit of the convict, but also for the welfare of the people who may insist for the performance of the duty and therefore the discretion has to be exercised on public considerations alone.”. The matter is still pending as the Centre is yet to file its reply. However, days after Bhullar filed his petition, his mercy plea — which had been hanging fire for years — was speedily processed and rejected by the Home Ministry and President.

Panel probing judges can probe more charges: Supreme court

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The Supreme Court Friday held that a committee set up under the Judges Inquiry Act can go beyond the charges contained in the notice of motion admitted in the Lok Sabha or Rajya Sabha and forwarded to the committee in pursuance of an impeachment motion against a judge.

’It will be naive to contend that the committee has no discretion in the matter of framing charges. Rather, the committee is duty bound to carefully scrutinise the material forming part of the notice of motion and then frame definite charges,’ said the bench of Justice G.S. Singhvi and Justice Chandramauli Kumar Prasad in their judgment.

Speaking for the bench, Justice Singhvi said: ‘We hold that the procedure adopted by the committee cannot be faulted on the ground that it made a preliminary inquiry before framing charges against the petitioner and relied upon the material received from various sources and recorded statement of some persons.’

The court said this while dismissing the petition by former chief justice of Sikkim High Court, P.D. Dinakaran (since resigned), challenging the judges inquiry committee headed by apex court judge Justice Aftab Alam holding preliminary inquiry and framing charges that were beyond those contained in the notice of motion.

Justice Dinakaran had also contested the committee’s action in seeking more information from the those who briefed the Rajya Sabha members before the motion of impeachment was initiated.

In the notice of motion sent to the Judgers Inquiry Committee, there were 12 charges which were increased to 14 by the probe committee headed by Justice Alam.

The committee, the judgment said, can also receive other material which may support or contradict the allegations enumerated in the notice of motion.

In an appropriate case, the committee can require any person including the one who may have supplied material to the members of the Lok Sabha or the Rajya Sabha, as the case may be, to give clarification on any particular point or make available authentic copies of the documents, the judgment read.

The committee can also call upon such person to file affidavit or make a statement and summon him at the stage of investigation so that the judge may get an opportunity to cross-examine him, the judgment added.

COURTESY : LEGAL INDIA

 

Indian Supreme Courts new norms:Law degree compulsory for legal correspondents

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The supreme court of india. Taken about 170 m ...

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Sabir shah in THE NEWS

If the widely anticipated new Indian Supreme Court reporting norms are enforced in true letter, the new ruling is likely to disqualify at least 80 per cent of the journalists covering the Apex Court proceedings in the world s biggest democracy.
According to Thursday s (August 25, 2011) web edition (Livemint.com) of India s Daily Mint, a business newspaper published by Hindustan Times Media (the publishers of The Hindustan Times) in collaboration with the prestigious American broadsheet Wall Street Journal, the recently promulgated Supreme Court s revised norms for accreditation of the legal correspondents in the Indian apex court makes a law degree mandatory for journalists covering the top court proceedings.

The website states: Issued by the court on Saturday, the norms require that permanent and temporary accredited print journalists have a professional law degree and at least seven years of experience. Electronic media reporters need, apart from the law degree, at least three-and-a-half-years of experience. The circular did not set a deadline for the norms to come into force. Court officials didn t throw light on when the circular would come into effect, when asked on Tuesday. The new norms follow instances in which faults were found in coverage. Two of these arose from coverage of the Vodafone tax dispute. Vodafone lawyer Harish Salve complained to the Supreme Court that a Press Trust of India (PTI) report on 10 August had misquoted him.

It further said: Salve had argued that Vodafone could avoid tax as tax avoidance was permissible under law. Indian income-tax authorities have alleged that Vodafone evaded tax by structuring its $11.2 billion transaction to buy out Hutchison s Indian cellular business through tax-saving routes. Salve spent more than a day demonstrating to the bench the difference between tax avoidance and evasion, and that his client had acted in accordance with the law. The court sought a response from PTI on an application made by Salve after the agency s report.

The Livemint.com reported: Chief Justice S.H. Kapadia s three-judge bench asked PTI to file a detailed affidavit explaining whether its reporter was present in the court at the time Salve made his argument. The court reportedly observed that norms for journalists needed to be revisited in light of the incident and what it said were other recent inaccurate reports. Previously, Kapadia had expressed displeasure at a 15 December news report in a national daily that said the judiciary wanted to retain one per cent of the Rs2,500 crore deposit made by Vodafone to the court s registry.

It further read: The report suggested that a cash-strapped judiciary was trying to source funds from novel methods such as these. Kapadia had then said: People write whatever they want. But the court did not initiate any action against the reporter or the newspaper. Different benches of the court have, in the past, pointed to inaccurate or sensational news reports. However, Mint could not immediately ascertain the immediate reasons for the revision of the norms.

It is noteworthy that it is for the first time in the Indian journalism and the judicial history that a law degree has been declared mandatory for all reporters covering the Apex Court proceedings, as till now, reporters without a law degree were entitled to get a temporary six-month pass and cover the court proceedings.

While Clause 6 of the rules deals with temporary accreditation for working journalists desiring to report regularly the Supreme Court proceedings, Clause 8 deals with temporary reporting facility for journalists who can access the court for a day/short duration or for a specific case.

Clause 10 says grant of accreditation will be the sole discretion of the Chief Justice of India and his decision in this regard shall be deemed final and binding on all.

Meanwhile, Clause 11 says that the accreditation, whether permanent or temporary, can be withdrawn, at any time, without assigning any reason.

The new requirement of the Indian Supreme Court has evoked mixed response from leading journalists and solicitors across the border.

The Bar and Bench News Network of India, a comprehensive news and analysis portal for the country s legal professionals, states in one of its recent editions: R. Jagannathan, Editor-in-Chief, Firstpost said: The requirement that Supreme Court proceedings can only be covered by people with a law degree defies common sense. If only chartered accountants can comment on company results, if only doctors can report on medicines and hospitals, all reporters would need to do another five years of specialised courses – which is a waste.

The portal of the Indian legal professionals, further quotes R. Jagannathan as saying: You do an MBBS to become a doctor, not to write about medicine. Restricting court reporting to law degree holders would mean restricting the profession to a closed cabal of law insiders. The law expert can also miss the obvious – since ultimately court decisions need to pass the common sense test, which requires no law degree. If the reasoning behind this new requirement is that reporters sometimes misrepresent what the court says or rules, maybe the Supreme Court should mandate a short, one-day course for court reporters which focuses on the do s and don ts or court reporting. A law degree is a waste of everybody s time.

The portal maintained: Speaking to Indian Express former Chief Justice of India V N Khare said: This is not fair. When on one side you are talking of transparency…why is even a law degree necessary? You, as a correspondent, are not going to the SC to argue a case but to report. Journalism is a profession by itself. So when you report a matter concerning engineering, do you as a reporter need to have an engineering degree? So how many degrees do you need?

It quoted P. George Giri, Advocate-on-Record in Supreme Court, as viewing: It is a good move on the part of the Supreme Court of India. Prevention is better than cure. The norms introduced by the Supreme Court are only a reasonable restriction on the press freedom. Otherwise, there is every possibility to spread unwanted news by the media; by the reports of the young and energetic journalists, without properly understanding the court procedures.

The Bar and Bench News Network of India also quoted Rohit Panikker, correspondent with the Times of India, as asserting: It s important that every journalist knows in depth about what he is reporting; and ideally, a law background enables them to give the story a better perspective over straight reportage. But then, that also brings forward the question of what would happen to those journalists who have built their reputation over the years in reporting SC proceedings without having a law degree. If that s the case, does a film reporter require a filmmaking degree to go about his work?

http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=64908&Cat=6

CRUELTY AGAINST HUSBAND IN INDIA

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DHAWESH PAHUJA in LEGAL INDIA

In India where marriage is the union between man and woman to get social status in the society and marriage is nothing but procreation and caring of the child. According to Westmark Marriage has been often like as an institution made by itself. As there is increase in number of marriages every day, at the same time breakdown of marriages in the society has also been seen to be increasing whether by fault of husband or wife. Though cases filed by wife against husband and in-laws under Domestic Violence Act and 498-A of IPC to claim maintenance and divorce but all complaints are not filed bona-fidely. Freedoms of education, job opportunities, economic independence and social attitude have brought tremendous change in the status of women. The balance of scale has tilted reversely in favour of women.

Cruelty is an inhuman treatment and it is an act that causes mental sufferings and endangers to the life and health of the other. Cruelty may be in the form of physical as well as mental by the act either of the husband or the wife. Though it is the women who have always been subjected to be tortured and harassed by the husband and relatives, in fact saying this will not be proper as cases of torture and harassment against the husband by the wife is increasing day by day. Cruelty is the main ground to seek divorce as defined under ‘Sec 13(1) (i-a)’ of ‘The Hindu Marriage Act, 1955’ and party who is filing a case must prove that living between husband and wife became impossible.

There are many provisions made applicable for the protection of the women, which has got recognition from our constitutional law. The biased nature of these laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused and this means as soon as the complaint is made by the aggrieved person/ wife, the result is that the husband and his family may be immediately arrested and will be considered as accused in the eyes of law. According to the ‘Section 498-A’ of the ‘IPC’ the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty but genuineness of the case has to be looked into by the court as this section is cognizable, non-compoundable and non-bailable in nature.

What amounts to cruelty against husband? Though it is the duty of the court to decide the case based on facts and circumstances but what amounts to cruelty is an important aspect as misuse of Laws by the wife against husband in society is growing day by day and most apparently some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives and there are certain grounds on which cruelty against husband can be proved:-

• Misuse of Dowry Laws, Domestic Violence Act and ‘Sec: 498-A’ of IPC by wife against husband and in-laws of husband through lodging false complaints.

• Desertion by wife which means wife deliberately intending for separation and to bring cohabitation permanently to an end.

• Adultery by the wife means wife having sexual relationship with some other person during the lifetime of marriage and there must be strict law to punish wife who has committed adultery.

• Wife opting out for second marriage without applying for the divorce proceedings.

• Threatening to leave husband’s home and threat to commit suicide by the wife.

Cruel behavior of wife where wife tearing the shirt of the husband, refusing to cook food properly or on time and breaking of the mangalsutra in the presence of husband’s relatives.

• Abusing and accusing husband by way of insulting in presence of in-laws and in some cases wife abusing husband in front of office staff members.

• Wife refusing to have sex with husband without any sufficient reasons which can be considered as a ground of cruelty and husband can file a divorce petition.

• Lowering reputation of the husband by using derogatory words in presence of family members and elders.

• Lodging FIR against husband and in-laws which has later proved as false report.

• Conduct and misbehavior of the wife against husband i.e. pressuring husband to leave his home, insisting for the separate residence, mentally torture and disrespectful behavior towards husband and in-laws as well.

• Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, Impotency of wife, illicit relationship of wife with some other person and Wife suffering from the filarial.

• Extra-marital affairs of wife can also be a ground of cruelty against the husband.

• Initiating criminal proceedings against husband and in-laws of husband with mala-fide intention by the wife.

CASE LAWS: situations in Hindu marriage where a wife was held as ‘cruel’ to the husband and the Hindu divorce law was applied by the Supreme Court:

I. Mrs. Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16)

In this case petitioner/wife filed a false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as false in a court of law so it can be considered as cruelty against husband.

II. Anil Bharadwaj v Nimlesh Bharadwaj (AIR 1987 Del 111)

According to this case a wife who refuses to have sexual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband.

III. Kalpana v. Surendranath (AIR 1985 All 253)

According to this case it has been observed that where a wife who refuses to prepare tea for the husband’s friends was declared by the court as cruelty to husband.

Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. A strict law need to be passed by the parliament for saving the institution of marriage and to punish those women who are trying to misguide the court by filing false reports just to make the life of men miserable and ‘justice should not only be done but manifestly and undoubtedly be seen to be done’.

The author is an advoacte in Bengaluru