"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, November 10, 2008

SC Judgments

Matrimonial - Women Beware, Being Career Oriented is Mental Cruelty!
Suman Kapur v. Sudhir Kapur Civil Appeal No. 6582 of 2008, Date of Judgment 7-11-08
A matrimonial affair reaching the SC for final verdict as appeal against the confirmation order of the HC of the grant of divorce by the trial court on the ground of cruelty [Section 13 (i) of Hindu Marriage Act]. Cruelty is not defined in the Act but through case laws it has been well established that it includes mental cruelty. The case also refers to a recent decision of the SC (Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511) in which a detailed explanation of mental cruelty is given.
The SC affirmed the decision of the HC finding mental cruelty on the part of the wife. By doing so the SC has added another dimension to mental cruelty, wife being career oriented. One could argue that it is cumulation of many facts, including the abortions allegedly without the consent of the husband, that made the court reach the decision of disallowing the appeal.
The HC found the attitude of the wife towards career objectionable and a threat to a "healthy married life", which could be read in the following words of the court. The court also found and added to mental cruelty that the wife's non belief in Indian social values.
"The High Court also observed that the appellant wanted to pursue her professional career to achieve success. In her written statement itself, she had admitted that she was very much interested in her career; that she was independent since 1979 and she was keen to live independent life."
By affirming the decision of the HC verbatim, the SC endorsed the approach and finding of the HC.
The remaining issue would be, will it be the same if the husband was career oriented and interested in the career!

Probate of Will and Later Compromise between Legatees - Legal Effect
Chandrabhai K Bhoir v. Krishna Arjun Bhoir. Civil Appeal No. 6575 of 2008 Date of Judgment 7-11-08.
The lagatees though initially raised objections on the probate of the will, reached a compromise and entered into a detailed statement of agreement as to the devolution of the property of the testator. The agreement was not honoured and hence the cause of action. The court had to decide the legal effect of the agreement of the lagatees which incidentally varies the terms of the will.
"A probate when granted binds the whole world. It is a judgment in rem. The Executor, therefore, has to administer the estate of the testator in terms of the Will and not on the basis of the settlement arrived at by and between the parties which would be inconsistent with the terms of the Will. In case of any conflict between the terms of the Will and the settlement, the former will prevail."

Impact of Delay and Latches on Writ Remedy
Virender Chaudhary v. Bharat Petroleum Corporation & Ors. Civil Appeal Nos. 6567-69 of 2008. Date of Judgment 7-11-08
1. A writ remedy is discretionary in nature
2. Court should be satisfied about the equity of granting a remedy
3. Dealay and latches are relevant factors to be considered
4. Though there is no prescribed period of limitation for filing a writ, it should be filed within a reasonable time.

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