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Online Education shall be denied to those who do not pay fees despite being economically capable – High Court of Delhi [READ ORDER]

The petitioner stated Delhi Government’s circular is ultra -virus to the Delhi School Education Act, 1973 due to which approximately 40% of the students are defaulting in payment of tuition fees. 

By Diksha 

In the case, Queen Marry School, Northend vs GNCT of Delhi, a petition was in the Hon’ble High Court of Delhi to seek writ order to quash the Circular dated 18.04.2020 and to allow the petitioner to charge actual expenditure incurred during the lockdown period in the form of fees from the students. The petition claimed that “Right to fix the fee” is a fundamental right under Article 30 [All minorities, whether or not they are based on religion or on language, shall have the right to establish and administer educational institutions of their own choice] and 19(1)(g) [Right to practice any profession or to carry on any occupation, trade or business to all citizens] of the Constitution of India

The learned counsel of the petitioner submitted the grievances against three of the clauses of the Circular, Clause (i), clause (viii) and clause (x). It was pointed out that Clause (i) of the Circular states that no fee except tuition fee will be charged from the parents during the lockdown period. It was pleaded that Clause (viii) of the same Circular further states that in no case, the ID and password shall be denied for getting online access of educational facilities/classes/materials to those students who are unable to pay the school fee due to financial crisis arising out of closure of business activities.

The petitioner stated “unfair advantage of clause (viii), about 40% of the students are defaulting in payment of tuition fee resulting in grave financial crisis to the petitioner. It is pleaded that the petitioner is struggling to pay the salaries of the staff and the teachers”.

The petitioner stated “unfair advantage of clause (viii), about 40% of the students are defaulting in payment of tuition fee resulting in grave financial crisis to the petitioner. It is pleaded that the petitioner is struggling to pay the salaries of the staff and the teachers”.

Also, petitioner submitted the Division Bench court’s judgment dated 24.04.2020 which passed in W.P.(C) 2993/2020 stated “that this provision should not be misused and it would be necessary for the parents seeking benefit of this relief to establish to the satisfaction of the school or the DOE that owing to the lockdown, they are in fact financially incapacitated from paying the tuition fee.

The learned counsel of Government of NCT stated “regarding Clause (viii) of the said Circular dated 18.04.2020, the petitioner is free to take steps including issuing of a notice to the parents of those students who are defaulting in payment of tuition fee. An opportunity may be given to the parents to explain as to whether they are suffering from any financial crisis. In case such parents are not able to satisfy/demonstrate the school regarding their financial problems, it is only in that eventuality that steps can be taken as per law by the school.”

The Coram stated that “where the parents are unable to satisfy/demonstrate to the petitioner regarding their financial difficulties, the petitioner is free to so communicate the same to the parents and decline to provide them ID and Password for online education facility for the students. In case the parents have any grievance against such an order passed by the petitioner School, the parents are free to approach appropriate authority of the Government of NCT of Delhi/respondent.”

The Coram stated that “where the parents are unable to satisfy/demonstrate to the petitioner regarding their financial difficulties, the petitioner is free to so communicate the same to the parents and decline to provide them ID and Password for online education facility for the students. In case the parents have any grievance against such an order passed by the petitioner School, the parents are free to approach appropriate authority of the Government of NCT of Delhi/respondent.”

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A Woman who lived, perceived and treated as a wife shall be treated with dignity and Maintenance under Section 125 of the Cr.P.C – High Court of Tripura

The Coram interpreted Section 125, Cr.P.C while observing the rampant changes in the relation between a man and woman, and held that even without the rituals of marriage conducted in accordance with the Hindu Marriage Act, such a woman was entitled to maintenance.

By Diksha 

In the case of Bibhuti Ranjan Das vs. Gouri Das, the Coram depended on Badshah vs. Urmila Badshah Godse and anr’s (1) dictum “Such a woman has a right to live in society with dignity and not as a destitute”, and remarked that woman who lived and perceived as a wife of a man even without the rituals of marriage conducted in accordance with the Hindu Marriage Act, were entitled to maintenance.

In the review petition of the judgment, the petitioner pleaded that the respondent is not the petitioner’s wife on the grounds –(i) his spouse is alive & (ii) the marriage had not solemnized in accordance to the Hindu Marriage Act, it was illegal. 

The learned counsel on behalf of the petitioner reemphasized that “unless the marriage between two Hindus is solemnized by observing rites and customs of Hindu Marriage and also fulfilling the conditions of marriage as laid down in the Hindu Marriage Act, such marriage cannot be declared valid. In absence of any valid marriage between man and woman, the woman cannot be termed as the legally wedded wife of the man. What is gathered from such statement is that even the marriage cannot be deemed”

The learned counsel on behalf of the respondent had submitted the evidence, and stated that “evidence could not be rebutted by the petitioner and as a result the Additional Judge, Family Court allowed the prayer for maintenance in favor of the respondent” and put reliance on the decision of the SC on Badshah’s judgment . The statement declared that “the marriage between respondent No.1 and petitioner was solemnized, the petitioner had kept the respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into martial tie with respondent No.1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125, Cr.P.C. as respondent No.1 is not “legally wedded wife” of the petitioner? Our answer is in the negative. We are of the view that at least for the purpose of Section 125 Cr.P.C., respondent No.1 would be treated as the wife of the petitioner, going by the spirit of the two judgments we have reproduced above.” 

The Judgment in Badshah’s case stated that “Provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from “adversarial” litigation to social context adjudication is the need of the hour”

After hearing both the sides, the judge dismissed the plea and pronounced that the petitioner is liable to provide maintenance in the terms of the order. The court also observed that the marriage has proved by the evidence and the denial of the respondent’s knowledge on the petitioner’s first marriage. 

The Coram remarked that, “When one statute ensures maintenance for the person to be in the relationship in the nature of marriage, the other statute cannot be interpreted to abrogate the provision relating to grant of maintenance. Thus, a purposive interpretation would be extremely instrumental and evocative for achieving its object. Moreover, such interpretation will be harmonious to the constitutional empathy embedded in Article 21 of the Constitution of India as, such woman has right to live in society with dignity and for not as destitute.”

(1) (2014) 1 SCC 188

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An Extension of a Month is Granted to the Centre to Implement the Supreme Court’s Decision on Permanent Commission to Women Army Officers – Supreme Court

Amid the pandemic and the lockdown, the Centre moved an application to extend deadline to grant permanent commission to women in 10 non-combat units.

By Diksha 

The Centre, citing the pandemic and the lockdown, moved an application for pleading an extension of deadline on Supreme Court’s order to reduce the gender disparity. To which the Supreme Court provided an extension of a month for the implementation of its judgment to grant permanent commission to women in 10-non combat units under Short Service Commission (SSC).

In 2010, petitions were filed by women SSC officers in the Delhi High Court, the order directed the Centre to grant these officers permanent Commission.

In 2010, petitions were filed by women SSC officers in the Delhi High Court, the order directed the Centre to grant these officers permanent Commission. The Centre challenged the order. The direction had been given to complete the process in three months and grant a permanent commission to women in 10 non-combat streams.

The learned counsel of the Ministry of Defense cited the COVID -19 pandemic and stated “On account of lack of staff, closure of hospitals, including Army hospital and non-availability of other requirements necessary to comply with the directions of the Supreme Court, it was very difficult to continue with the process of consideration of women officers for grant of permanent commission…..In view of the corona pandemic and the ensuing lockdown coupled with exigencies of service, the applicant has not been able to complete the same and requires more time to complete the entire process.” 

The bench, headed by Justice DY Chandrachud, commented on the implementation of the order and the situation which could not be foresee by anyone, stated “We extend the time for compliance by one more month.”

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Governor’s move to affirm absolute reservation to the Teachers of Scheduled Tribe Community is Constitutionally invalid – The Supreme Court of India [READ ORDER]

A review petition against Supreme Court’s judgment by which Andhra Pradesh Governor’s order to provide 100% reservation of ST community’s teachers was struck down. 

By Diksha

In the case, Chebrolu Leela Prasad Rao & Ors vs State of Andhra Pradesh, a review petition under Article 137 (subject to provisions of any law and rules made under Article 145) of the Constitution to seek a review on the order passed on 22th April 2020. A Coram of five judges, headed by Justice Arun Mishra, struck down the order of Andhra Pradesh Governor’s order by following the precedent laid down in Indra Sawhney vs. Union of India. (1)

The court pronounced that dispensing off a 100% is not permissible under the Constitution, as the limit of reservation was laid down in the Indra Sawhney judgment. A clear violation of Article 14 (Equality before law) and Article 16(4) (reservation of appointments or posts in favor of any backward) of the Constitution had been taken place by the Governor in the notice dated 5th November 1986. 

The court pronounced that, “The Governor is not conferred power to make any law in derogation to Part III or other provisions of the Constitution of India in the exercise of his power under Clause I, Para 5 of Schedule V. It was also held that G.O.Ms. No.3 is discriminatory as the same adversely affects not only the open category candidates but also other Scheduled Castes, Scheduled Tribes, and backward classes. It also opined that the reservation under Article 16(4) should not exceed 50%. However, little relaxation was permissible. The rules made under Article 309 of the Constitution could not be treated as an Act of Parliament or State Legislature.”

The petitioners, a mass of 3 organizations and 2 individuals, claiming to be social-workers dedicating their life towards the weaker and marginalized sections of the society challenged the claim on the grounds of errors. The impugned judgment is liable to be reviewed since there are errors which are apparent on the face of the record as detailed in the grounds below. Moreover, there are other sufficient reasons for reviewing the said impugned judgment”, the Petitioners stated 

The petitioners pleaded that the Hon’ble court had invoked the essence of Article 14, struck out the reservation and ignored the stark fact that the reservation was for Scheduled Area. They also claimed that the impugned notification was “a step towards literacy and ensuring the availability of teachers in Schedule areas”. They further argued that, “the Constitution in the historic perspective leans in favor of providing equality and those aims sought to be achieved by the Constitution by giving special protection to the socially and economically backward classes by providing protective umbrella for their social emancipation and providing them equal justice, ensuring the right of equality by providing helping hand to them by way of reservation measures”  

The Coram pronounced that the Governor under Fifth Schedule of the Constitution is empowered to direct any particular act but cannot extend to subordinate legislation. Under the para 5(1) of the Fifth Schedule (direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area) of the Constitution, the governor cannot override the notification issued by the President in exercise of powers under Article 371D. Thus, the notification providing for 100% reservation is not permissible under the Constitution, the outer limit is 50 per cent as specified in Indra Sawhney judgment. 

The Coram pronounced “It is rightly apprehended by appellants that the State may again by way of misadventure, resort to similar illegal exercise as was done earlier. It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney (supra) and other decisions holding that the limit of reservation not to exceed 50%. There was no rhyme or reason with the State Government to resort to 100% reservation. It is unfortunate that illegal exercise done in 1986 was sought to be protected by yet another unconstitutional attempt by issuing G.O.Ms. No.3 of 2000 with retrospective effect of 1986, and now after that 20 years have passed. In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date. We direct the respondents States not to exceed the limits of reservation in future.”

Further, the Bench said in extension of quashing these orders, the appointments made in excess of the permissible limit of 50% should be consequently set aside. Hence, their appointments will sustain.

(1) (AIR 1993 SC 47)

Interim Relief granted to Hindustan Unilever Limited against Emami Limited for “Glow & Handsome” products range- Bombay High Court
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Interim Relief granted to Hindustan Unilever Limited against Emami Limited for “Glow & Handsome” products range- Bombay High Court

HC restrained Emami from further legal proceedings against HUL, granted interim relief for not giving a 7-days prior notice.

By Diksha 

In the case, Hindustan Unilever Limited vs Emami Limited, the plaintiff filed a petition under Section 142 of the Trade Marks Act, 1999 (Groundless threats of legal proceedings) to seek injunction against the Defendant. 

The counsel on behalf of the plaintiff, pleaded to seek ad-interim against the defendant to provide at least 7-days written notice to the plaintiff before proceeding with any legal action. 

On 2nd July 2020, after the plaintiff’s official announcement of rebranding “Fair & Lovely” as “Glow & Lovely” and “Fair & Handsome” as “Glow & Handsome”, the defendant alleged the plaintiff violated the rights in its trade mark as “Emami Glow & Lovely”.The defendant sent a notice on 5th July 2020 to which the plaintiff pleaded under Section 142 praying to restrain Emami’s “groundless threats”. 

On 2nd July 2020, after the plaintiff’s official announcement of rebranding “Fair & Lovely” as “Glow & Lovely” and “Fair & Handsome” as “Glow & Handsome”, the defendant alleged the plaintiff violated the rights in its trade mark as “Emami Glow & Lovely”. The defendant sent a notice on 5th July 2020 to which the plaintiff pleaded under Section 142 praying to restrain Emami’s “groundless threats”. 

The counsel on behalf of the plaintiff stated on 7th September 2018, that Hindustan Unilever Limited honestly and independently coined the term “Fair & Lovely” and “Fair & Handsome”. The learned counsel also provided the examination report dated on 10th October 2018. In July, 2019 the trade-marks registration under Section 9(1)(a) of the Trade Marks Act, 1999 (which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person) was rejected, though the appeal is still pending in the Intellectual Property Appellate Board.

In June, 2020, HUL filed another set of applications to seek registration and mark labels, on 2nd July 2020 made the official announcement of “Fair & Lovely” as “Glow & Lovely” and “Fair & Handsome” as “Glow & Handsome”,

The court pronounced that “Prima facie it does appear that having filed its trade mark application in September 2018 and subsequently on 25th June 2020 for the mark ‘GLOW & HANDSOME’, the Plaintiff (HUL) is the prior adopter of the said mark. Further, from a perusal of the newspaper cutting at Exhibit-S to the Plaint, it prima facie appears that the Plaintiff has already started commercial advertisements in respect of the trademark ‘GLOW & HANDSOME’.” 

After hearing the plea of the petition, the court as ex-parte granted relief to HUL and restrained Emami from further Legal proceedings. 

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