Monthly Archives: November 2016

Matrimonial Dispute – Terms “Cruelty” and “Mental Cruelty”

The word “cruelty” has not been defined in the Hindu Marriage Act. The word appears to have been used in the section in context of human behavior in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behavior or conduct of one spouse which adversely affects the other. Thus broadly speaking “cruelty” as a ground for the purpose of divorce under Section 13(1)(i-a) of the Hindu Marriage Act can be taken as a behavior of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively.
Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular stratum of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances. Puja Suri v. Bijoy Suri, 2016 (119) ALR 140.

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Cruelty by Wife – Seeking Separation of Husband from his parents

In this case the wife wanted the husband to get separated from his family. The evidence shows that the family was virtually maintained by the income of the husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meager income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.
In a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that. Normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the wife to constrain the husband to be separated from the family would be torturous for him and the trial court was right in concluding that this constitutes an act of cruelty. Narendra v. K. Meena, (2016) 9 SCC 455.

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Uttar Pradesh Rent Control Act – Definition of Family

Perusal of Section 3 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 would go to show that family in relation to landlord or tenant of a building would include: (1) spouse, (2) male lineal descendants, (3) such parents, grandparents, unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant as may have been residing with the landlord. The definition further says “family” includes in relation to landlord, any female having a legal right of residence in that building.

The inclusive part of the definition, which is enacted only for the benefit of “female” in relation to the landlord, adds one or more category of person in addition to those specified in clauses (i) to (iii), namely, “any female having a legal right of residence in that building”.

A fortiori, any female, if she is having a legal right of residence in the building, is also included in the definition of “family” in relation to landlord regardless of the fact whether she is married or not. In other words, in order to claim the benefit of the expression “family”, a female must have a “legal right of residence” in the building. Such female would then be entitled to seek eviction of the tenant from such building for her need. Gulshera Khanam v. Aftab Ahmad, (2016) 9 SCC 414.

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Lease Deed – Unregistered

It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. A three Judge Bench of the Hon’ble Apex Court in Anthony v. K.C. Ittoop and Sons, (2000) 6 SCC 394, held as under:

“12……..A lease of immovable property is defined in Section 105 of the Transfer of Property Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property, a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the Transfer of Property Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read alongwith the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph.

When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.

Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the process of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non-registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted.”

Thus, in the absence of registration of a document, what is deemed to be created is a month-to-month tenancy, the termination of which is governed by Section 106 of the Act. Park Street Properties Pvt. Ltd. v. Dipak Kumar Singh, (2016) 9 SCC 268.

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Ingredients and Purpose of Section 17-B of Industrial Disputes Act, 1947

The three necessary ingredients for the application of Section 17-B of the Industrial Disputes Act, 1947 are (i) the Labour Court should have directed reinstatement of the workman, (ii) the employer should have preferred proceedings against such award in the High Court or in the Supreme Court; and (iii) the workman should not have been employed in any establishment during such period.

It is apparent that Section 17-B of the Industrial Disputes Act was introduced for the purposes of mitigating hardship faced by the workman who had been reinstated but the reinstatement had been delayed on account of the contest laid by the employer before the High Court or the Supreme Court. It is also clear that Section 17-B of the Act, 1947 proposed to provide “payment of wages last drawn”. The object of introducing Section 17-B of the Act appears to ensure that a workman, in whose favour an award for reinstatement has been passed, is at least paid his last drawn wages. The purpose of introducing Section 17-B of the Act appears to be not to provide for a punitive measure or a disincentive for the employers to challenge the award passed by the Labour Court, but to mitigate the hardship faced by the workman on account of delays occasioned because of pendency of litigation before the High Courts and the Supreme Court. The Parliament in its wisdom, obviously thought it fit that the workman having succeeded in obtaining an award of reinstatement ought to be paid at least last wages that were drawn by him. It is also made a condition that for purposes of obtaining wages under Section 17-B of the Act, the employee should not be gainfully employed elsewhere. This object appears to be not to discourage an employer from assailing the award but to ensure that the workman who has prevailed before the Labour Court does not suffer for want of subsistence allowance for his sustenance. Management Committee v. Presiding Officer, 2016 (150) FLR 518.

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“Extension” and “Renewal” of Lease – Distinction Between

In  Provash Chandra Dalui v. Biswanath Banerjee, 1989 Supp (1) SCC 487, the Hon’ble Apex Court drew the distinction between “extension” and “renewal”. It was held thus:

“a distinction between “extension” and “renewal” is chiefly that in the case of renewal, a new lease is required while in the case of extension, the same lease continues in force during additional period by the performance of stipulated act. In other words, the word “extension” when used in its  proper and usual sense in connection with a lease, means prolongation of the lease.”

It is settled law that grant of renewal is a fresh grant though it breathes life into the operation of the previous lease or licence granted as per existing appropriate provisions of the Act, rules or orders or acts intra vires or as per the law in operation as on the date of renewal. State of Gujarat v. Nirmalben S. Mehta, (2016) 9 SCC 240.

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Filed under Extension and Renewal, Mining Law, Uncategorized

Consumer – Definition of

In Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583, while dealing with the connotative expanse of the term “consumer” in the unamended definition, the Court considering the Explanation added by the Consumer Protection (Amendment) Act, 1993 ruled that the said Explanation is clarificatory in nature and applied to all pending proceedings. Further proceeding, the Court held that:

“…….(ii) Whether the purpose for which a person has bought goods is a “commercial purpose” within the meaning of the definition of expression ‘consumer’ in Section 2(d) of the Act is always a question of fact to be described in the facts and circumstances of each case.

(iii) A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression ‘consumer’.

In Kalpavruksha Charitable Trust v. Toshniwal Brothers (Bombay) Pvt. Ltd., 1999 (37) ALR 814, reiterating the principles stated in Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583, the Court ruled whether a person would fall within the definition of “consumer” or not would be a question of fact in every case. In the said case, the National Commission had already returned a finding that the appellant therein was not a “consumer” as the machinery was installed for commercial purpose. An argument was advanced that the activity of , a charitable institution, though commercial in nature, was a part of charitable activity. For the said purpose, reliance was placed on CIT v. Surat Art Silk Cloth Manufacturers Association, (1980) 2 SCC 31. The two judge Bench distinguished the said verdict on the ground that it was a decision rendered under the Income Tax Act. It was also urged there that if the dominant object of the trust or institution is charitable, the activity carried on by it would not be treated as an activity for profit. To bolster the said submission, the authority in CIT v. FICCI, (1981) 3 SCC 156, was commended to the Court but the same was not accepted on the foundation that the verdict was in the context of Income Tax Act.  Eventually the Court held thus:

“In the instant case, what is to be considered is whether the appellant was a “consumer” within the meaning of the Consumer Protection Act, 1986 and whether the goods in question were obtained by him for “resale” or for any “commercial purpose”. It is the case of the appellant that every patient who is referred to the Diagnostic Centre of the appellant and who takes advantage of the CT scan, etc. has to pay for it and the service rendered by the appellant is not free. It is also the case of the appellant that only ten percent of the patients are provided free service. That being so, the “goods” (machinery) which were obtained by the appellant were being used for “commercial purpose.” Bunga Daniel Babu v. Sri Vasudeva Constructions, 2016 (118) ALR 901.

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