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Father must maintain son only till he is 18: Gujarat HC

The Times of India, Mar 19, 2016

Gujarat high court ruled that a parent is liable to maintain a son till he turns 18 and starts earning. The HC made it clear that a parent is liable to maintain an unmarried daughter even after she attains an majority and is also liable to spend for her wedding. However, the same provision does not apply for a son. According to provisions of Section 125 of CrPC, a father or mother is not responsible to pay maintenance to a son once he turns 18 if he is not mentally or physically unfit.

The case in question is a divorce petition involving a doctor, Dinesh Oza, who practices in Visnagar and his wife Nita. The wife was driven out of the home in 2006 and she lodged an FIR with Satellite police in 2006. On the other hand, the doctor filed a divorce petition in Mehsana. The woman filed for maintenance in Ahmedabad's family court. The court ordered the doctor to pay his wife and son. In the second round of litigation, the court enhanced the amount and asked the doctor to continue to pay his son till he turned 18 years. The father stopped payments to his son when he turned 18 in October 2013. The wife moved the family court against this. The family court asked her to move the HC for clarification on whether the father should continue to pay after the boy turned 18. The court also asked the doctor to deposit arrears of Rs 78,000 with the court.

The woman moved the high court again, where her lawyer argued that the father is liable to maintain his son till he starts earning. The doctor's lawyer Dakshesh Mehta argued that the law is clear on this aspect that a son must be maintained only till he turns 18. After hearing the case, Justice JB Pardiwala concluded that he cannot accept the provisions made to maintain daughters for maintenance of a son. He cited an order passed by Karnataka high court, which said that it would be a moral and social obligation of every father to bring up his children by giving proper education, culture etc not only as his children, but also as the future citizens of the nation. But, there is no law that mandates a parent to give maintenance to a son once he turns 18. And hence the father can stop paying maintenance amount to the son.

Section 319 vs. Section 227: discharge of accused for insufficient evidence

The Times of India, Aug 05 2015

Dhananjay Mahapatra

Even if not charged, summoned accused can't seek discharge: SC

Settling a longstanding conflict between two provisions of the CrPC, the Supreme Court ruled that a person not chargesheeted by the police, yet summoned as an accused by the trial court cannot seek discharge on the ground of insufficient evidence. The two conflicting provisions were Section 319, under which a trial court could summon a person not named in the chargesheet as an accused after examining the evidence, and Section 227, permitting an accused to seek discharge on the ground of insufficient evidence.

A bench of Justices S A Bobde and R K Agrawal said, “The exercise of power under Section 319 of the CrPC must be placed on a higher pedestal.“ The bench said a trial court exercised the extraordinary power under Section 319 only if it found very strong and cogent evidence against a person from the evidence led before the court. It said on the other hand, as per Section 227, “If the judge is of the view that there are no sufficient grounds for the proceedings against the accused, he may be discharged and proceedings dropped.“

Drawing a comparison between the two sections having opposite effects on a person, Justice Bobde said, “It does not stand to reason that a person who is summoned as an accused to stand trial, and added as such to the proceedings on the basis of a stricter standard of proof, can be allowed to be discharged from the proceedings on the basis of a lesser standard of proof such as a prima facie connection with the offence necessary for charging the accused.“

The bench said, “Needless to say, the accused summoned under Section 319 are entitled to involve remedy under law against an illegal or improper exercise of power under Section 319 but cannot have the effect of the order undone by seeking discharge under Section 227. If allowed to, such an action of discharge would not be n accordance with the purpose of the CrPC in enacting Section 319 .“

The ruling came in a case from Bihar. Four persons were chargesheeted in April 2001, for a murder committed in 2000, and later, added another person. After the case was committed to trial, the sessions judge issued notices to the four and after hearing them, the trial judge summoned them as accused using Section 319. Then they moved an application seeking discharge under Section 227 citing insufficiency of evidence. They withdrew their petition from the HC after the district court discharged them from the case. The state then appealed and the HC allowed the petition, saying discharge under Section 227 could not nullify the summoning order under Section 319. The accused challenged the HC order before the SC, which dismissed their appeals.

Section 482/ Closure of trial

‘HC’s inherent powers no licence for accused to seek closure of trial’

TIMES NEWS NETWORK

From the archives of The Times of India 2007, 2009

New Delhi: When framed in a criminal case or fighting an FIR lodged to harass, an accused moves high court requesting it to exercise its inherent powers under Section 482 of Criminal Procedure Code to quash the proceedings or the FIR.

The Supreme Court realised the importance of the provision in CrPC but also felt that accused persons cannot treat this extraordinary power vested in HCs as a ticket to seek closure of cases without trial and HCs should not accept the plea to decide whether there should be a trial or not merely on prima facie view of the allegations in FIR.

This important ruling came on Thursday from a Bench comprising Justices P Sathasivam and Anil R Dave allowing an appeal filed by Andhra Pradesh government challenging an HC decision to quash trial proceedings in an excise case.

Writing the judgment for the Bench, Justice Sathasivam said while exercising jurisdiction under Section 482, it would be improper for the HC to assume the role of a trial court and start scrutinising the reliability of evidence to determine whether the charges were sustainable against the accused.

While advising HCs to be extremely circumspect while exercising powers under Section 482, the Bench said this provision was not an “instrument handed over to an accused to short-circuit a prosecution and bring about its closure without an inquiry”.

The HCs could step in when it was amply clear that criminal proceedings were initiated with an ulterior motive to wreak vengeance on the accused due to personal grudge, the Bench said.

Rights of accused, rights of witnesses

The Times of India, Aug 31 2015

1985 TADA Act was the 1st to provide witness security in terrorism cases

Does an accused or the public have the right to know the witnesses?

In most countries, including India, it is the right of accused person to have an open public trial in their presence.The accused also has the right to examine the witnesses. These rights to open trial are designed for the benefit of the accused as well as the public, as both have a right to know how the trial was conducted. These rights, however, are not treated as absolute and can be restricted in the interest of fair administration of justice.

Doesn't this contradict the rights of witnesses?

Witnesses can be classified in three broad categories victim witnesses known to the accused, victim witnesses not known to the accused (cases of indiscriminate firing and so on) and witnesses whose identity is not known to the accused. The right of the accused to examine the witnesses (who could be victims) runs counter to the desire of victims to give their testimony in the absence of the accused as his or her physical presence could cause trauma and fear. In case of witnesses unknown to the accused too, there is a possibility that their testimony could cause danger to their lives or property or that of their close relatives. In this case, focusing solely on the rights of the accused could hamper the fair administration of justice.

What are the witness protection laws in other countries?

In many countries, including the United Kingdom, US, Australia, New Zealand and several European Union countries, courts have the power to pass orders of ano nymity in the larger interest of the administration of justice. The European Convention permits protection of a witness's identity as an exception to the laws dealing with the rights of the accused.In a 1979 case, the House of Lords in UK clarified that there can be exceptions to the rule of open trail when protection of the identity of the witness is in the interest of administration of justice. In the US, a 1968 court ruling stated that it is appropriate to excuse a witness from answering questions about his or her identity if the witness's personal safety was endangered. These rulings over time became the laws in these countries.

Do Indian courts have inherent powers to protect the identity of witnesses?

Section 482 of the criminal procedure code (CrPC), 1973 says that nothing in the code shall be deemed to limit the inherent powers of the high courts. It, however, doesn't talk about the positions of other criminal courts ma gistrate, session s and so on. The ab sence of such a provision for lower courts led the Supreme Court to conclude that subor dinate courts do not have these inherent powers. The position was made clear in a 1977 judgement. Based on these facts, the 198th report of the law commission states that subordinate courts in the country cannot pass orders for anonymity of witnesses under inherent powers and hence legislation is required to confer powers to these courts to pass anonymity orders during trials.

Are identities protected in some cases?

In the pre-constitutional era, Sec 31 of the Bengal Suppression of Terrorist Outrages Act 1932 empowered a special magistrate to exclude some witnesses from presence in court premises during the trial. The TADA Act of 1985 was the first to provide protection of identity and address of the witness. The protection however was only valid for witnesses of terrorism cases and didn't apply to all criminal cases. There are laws about protection of privacy of victims who are also witnesses in sexual offences but no law to cover other serious crimes like murder, riots and so on.