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Madras HC Allows 15 Year Old to Terminate Pregnancy; Said ‘If Foetus Is Given A Choice It Would Definitely Proclaim That It Doesn’t Wish To Be Born’

The Madurai Bench of Madras High Court last month permitted the termination of pregnancy of a 15 year old girl from Virudhu Nagar district while observing that “the court must put itself in the shoes of the unborn Child and objectively decide if coming into this world would be in its best interest.

By: Khushi Yadav, FIMT College, GGSIP University

A bench of Justice G.R. Swaminathan was hearing a petition filed (writ of mandamus) to direct the third respondent to terminate the pregnancy of the petitioner minor girl namely J aged about 15 within the time frame fixed by this court. J’s father had died in the year 2012 and her mother is mentally unstable. And so she is being looked after by her uncle and aunt. 

The bench underlined that “If a choice is given to the foetus now in the womb of the minor, it would definitely proclaim that it would not wish to be born.”

The petitioner approached the court to direct the official respondents to terminate her pregnancy.  In this case, one Sundar enticed J and kidnapped her and established physical intimacy with J several times and since J had become pregnant.

The court ordered notice to the respondents, considering the urgency of the matter, Assistant Surgeon, Virudunagar Government Medical College, and Hospital, and after examining the girl, they categorically opined that her gestational age is about 10 to 11 weeks and that continuing the pregnancy may endanger her physical and mental health. The report also cited the risk involved in continuing pregnancy and called upon this court to permit the termination of pregnancy on medical grounds. 

The pregnancy of the minor girl cannot be terminated without the consent in writing of her guardian as per Section 3 of the Medical Termination of Pregnancy Act, 1971. 

The Court quoted the views expressed by Adi Shankara in “Bhajagovindam”, wherein he sang “Again, and again, one is born, and again and again one dies, and again and again one sleeps in the mother’s womb, help me to cross this limitless sea of life, which is uncrossable, my Lord.”

The court said, “While we do celebrate life, the foremost spiritual prayer is that there should be liberation from the cycle of births and deaths.” The court pointed out that “The safety and health of the victim is paramount and doctors will bear in mind. The sample of foetus shall be preserved for carrying out of medical tests for the purpose of the criminal case.” The Court further said that cannot be the end of the matter and thus called for the fast-tracking of the case. 

The court also directed that after the fourth despondent files the final report, the decision regarding taking cognizance will be taken by the special court within three days as mandated in the statutory rules and if cognizance is taken, the trial was directed to be disposed of on merits and as per law within three months thereafter. 

The bench observed “Though from a common perspective one may comment the J eloped with Sundar, in the eye of law she is a child. She is a victim of circumstances. The Protection of Children from Sexual Offences Act, 2012 Contains beneficial provisions for payment of compensation. After applying the legal Provisions to the fact of the case the Court held that the minor is entitled to interim compensation.” 

Thus the investigation officer was directed to take out an application for payment of interim compensation before the Special Court under the aforesaid provision. 

It was said that Special Court will pass an appropriate order so that a sum of 5,000 is credited every month to the bank account of Thiru Veluchamy to maintain J and such remittance will be made for 36 months.

This court will make arrangements for providing the necessary funds for disbursement by the Special Court. 

Lastly, the court allowed the petition with the mentioned directions.

News, Top Stories

Punjab & Haryana HC Directs Protection For Muslim Couple Who Married Against Family’s Wishes [READ ORDER]

The Punjab and Haryana High Court recently granted protection to a Muslim couple who had married against the wishes of their family in the case titled Shoukat Hussain & Anr. Versus The State of Punjab & Ors.

By: Shannia Yesenia, LLB, Prima University

The Punjab & Haryana High Court granted protection to a 17-year-old Muslim girl who married a 36-year-old Muslim man, claiming that both are at legal age to marry according to the Muslim law which presumes that a person who attains puberty is considered competent into a marriage

Both parties had fallen in love two years ago and decided to marry, and so they solemnized their marriage on 21st January 2021 as per Muslim rites and ceremonies.

Learned counsel for the petitioners argued that this is the first marriage of both the petitioners. He has relied upon the decisions by this Court in several cases such as ‘Kammu vs. State of Haryana &Ors.’, ‘Yunus Khan vs. State of Haryana &Ors.’ and ‘Mohd. Samim vs. State of Haryana &Ors.’ to contend that in Muslim law puberty and majority are the same and that there is a presumption that a person attains majority at the age of 15 years. It is further contended that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere.

Furthermore, it also states that the life and liberty of the petitioners are in grave danger at the hands of respondent Nos.4 to 14 and they submitted a representation to the Senior Superintendent of Police, S.A.S. Nagar, Mohali (respondent No.2), however, no action was taken thereon 

Lastly, it was prayed that directions be issued for deciding the said representation in a time-bound manner following the law.

The court took note of the judgments cited on behalf of the petitioners and also the fact that the girl is aged more than 17 years. The court also observed that in Yunus Khan (Supra) it has been held that that the marriage of a Muslim girl is governed by the personal law of the Muslims.

Further, the court also referred to Dinshah Fardunji Mulla’s book – Principles of Mohammedan Law to note that “as per Article 195 from the book Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla, the petitioner No.2 being over 17 years of age was competent to enter into a contract of marriage with a person of her choice. Petitioner No.1 is stated to be more than 36 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law.”

The court also noted that just because the petitioners have got married against the wishes of their family members, they cannot be deprived of their fundamental rights. It was said that“The Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.”

Thus, given the above discussion, the petition was disposed of with a direction to the Senior Superintendent of Police, S.A.S. Nagar, Mohali (respondent No.2) to decide the representation of the petitioners dated 21.01.2021 (Annexure P-4) and take the necessary action as per law.

News, Top Stories

Supreme Court Dismissed Review Petition Against Shaheen Bagh Judgment [READ ORDER]

A bench comprising Justices SK Kaul, Aniruddha Bose, and Krishna Murari said that Shaheen Bagh Judgment of October 2020 “does not suffer from any error apparent warranting its reconsideration.”

By: Priya Kumari, B.A.LL.B., Maharashtra National Law University Aurangabad

The Supreme Court dismissed the review petition filed against its controversial Shaheen Bagh judgment stating that there was no error with the original judgment.

In the original judgment, the Supreme Court held that the right to protest cannot be used to occupy public spaces for indefinite periods.

The court had said that“The right to protest cannot be anytime and everywhere. There may be some spontaneous protests but in case of prolonged dissent or protest, there cannot be continued occupation of public place affecting rights of others.” 

A bench constituting Justices SK Kaul, Aniruddha Bose, and Krishna Murari passed this judgment. The same judges also delivered the initial verdict in October 2020 which came in the context of the protests held against the Citizenship Amendment Act that were conducted at south Delhi’s Shaheen Bagh area. These protests started on December 15, 2019, and ended only after a lockdown imposed by the Central government on March 24, 2020, due to COVID-19. The protests threw traffic out of gear in Shaheen Bagh, prompting one Amit Sahni, a resident of Delhi, to file public interest litigation (PIL) before the Apex court. 

The Supreme Court had ruled, “We have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.”

Twelve activists had filed a review petition in November 2020 as they called the Supreme Court’s October verdict ‘ambiguous.’ The review petition under Article 137 of the Constitution had raised five grounds to challenge the October order, the main ground being the vast powers the judgment conferred on police. They argued that the order of the apex court could lead to abuse of power by the police and the government.

The petitioner contended that by focusing extremely on the regulation of protests by the administration, Article 19 of the Constitution that guarantees the right to criticize the government through the peaceful assembly is being violated.

Further, it was argued that the decision of the court that protests could be held at ‘designated places alone’ went against the five-judge bench decision of the Supreme Court in the Himat Lal Shah Case which was decided in September 1972, wherein the Supreme Court upheld the right of a citizen to hold public meetings on public streets. 

Considering all questions raised in the review petition, the review order said, “We have considered the earlier judicial pronouncements and recorded our opinion that the Constitutional scheme comes with a right to protest and express dissent but with an obligation to have certain duties.” The bench having gone through the review petition and record of its earlier order said that they are convinced that the original order does not suffer from any error apparent necessitating its reconsideration. On this count, the review petitions were dismissed.

News, Top Stories

Lok Sabha Gives Nod To Arbitration And Conciliation (Amendment) Bill, 2021 [READ BILL]

The Lok Sabha on Friday passed the Arbitration and Conciliation (Amendment) Bill, 2021 which aims to make India a big hub for international and domestic arbitration

By: Priya Kumari, B.A.LL.B., Maharashtra National Law University Aurangabad

On February 4, 2021, Union Law Minister of India, Ravi Shankar Prasad, introduced the Arbitration and Conciliation Amendment Bill in Lok Sabha.

This bill seeks to amend the Arbitration and Conciliation Act, 1996 and it contains provisions to deal with domestic and international arbitration. It defines the law for conducting conciliation proceedings.

It will replace the ordinance issued on 4 November 2020. This amendment provides for the following –

  1. To grant an unconditional stay of enforcement of arbitral awards, where the underlying arbitration agreement, contract or arbitral award is induced by fraud or corruption;
  2. To omit the Eighth Schedule of the Act which laid down the qualifications, experience and norms for accreditation of arbitrators; and
  3. To specify by regulations the qualifications, experience and norms for accreditation of arbitrators and the said amendment is consequential in nature.

In the Parliament, Ravi Shankar Prasad said that India needs a fillip to institutional arbitration. Replying to a discussion on the Bill, he said that India wants to be an excellent hub for arbitration and the Narendra Modi government will make India a big hub for domestic and international arbitration. He said that freedom must be given to the domestic and international arbitrators to make the process easier. This will lead the country to move towards the path of economic development. He asserted that India respects the honest process and the Indian government is committed to bringing transparent mechanisms in every sphere of governance. He said that India welcomes arbitrators of all nationalities and the bill will facilitate speedy appointment of arbitrators through designated arbitral institutions.

As per the bill, the arbitrators must be-

  1. an advocate under the Advocates Act, 1961 with 10 years of experience, or 
  2. an officer of the Indian Legal Service, among others.

The Bill clarifies that even during the pendency of the setting aside application, a stay on the arbitral award may be granted by the Court if it is prima facie satisfied that the relevant arbitration agreement or contract/ making of the award was induced by fraud or corruption which shall be deemed effective from October 23, 2015.

Most of the members of Parliament supported the Government for proposing the omission of Schedule 8 due to the reason that the 8th schedule will attract eminent international arbitrators to India and additionally achieving the goal of making India a hub of international commercial arbitration.

On the other hand, the proposal of amending Section 36 received a lot of opposition. This section provides an automatic stay of the award.

Pinaki Misra, an MP from the Biju Janata Dal party said that by the proposed amendment to Section 36 of the Act, the government is creating an ‘illogical hierarchy’ in the law.

He pointed out that Explanation 1(1) to S. 34(2)(b) of the Act already covers agreements induced by fraud or corruption and thus, there is no need to make the Act more complicated.The Union Law Minister told the House that the proposed amendment to Section 36 of the Act, despite the use of words Fraud/ corruption in Section 34 was required as the latter does not provide for an “automatic stay” of the award.

News, Top Stories

Adults Have The Right To Choose Their Life Partners: SC

The Supreme Court, on Tuesday, gave some progressive statements in a case which dealt with inter-caste and inter-faith marriage from Karnataka. The Supreme Court said that adults have the right to choose their life partners

By: Pragnya Prachurya Acharya, Madhusudan Law University, Cuttack, Odisha

It was a case of inter-caste and inter-faith marriage from Karnataka of a couple belonging to different states and different castes; the man was from Uttar Pradesh and the woman was from Karnataka. They were lecturers in the same University where they met in 2018 and then eloped in 2020. The woman’s parents did not approve of their relationship, and after their elopement, her parents filed a missing police complaint. But later on, they converted it into an FIR.

As the couple was residents of Uttar Pradesh, initially they approached the Allahabad High Court for protection but the date of hearing in the Allahabad High Court was after more than a month. Because of their fear for their lives, they approached the Supreme Court for protection as they had started receiving threatening messages from their family and the police.

Recently, the bench which was dealing with this case, comprising Justice Sanjay Kishan Kaul and Hrishikesh Roy, gave some progressive statements concerning inter-caste and inter-faith marriage.

Advocate Prabhat Kumar Rai who was appearing on the behalf of the couple said that Belgavi Police Station should not have lodged an FIR in such a case since there was no cognizable offense indicated in the missing persons.

The Advocate also said that the woman feared for her safety had she gone to Belgavi for the recording of the statement in front of police and also said that the right to marry a person of own choice is an integral part of Article 21 (Right to life and Liberty).

On Monday, Advocate Subhranshu Padhi appearing for the State Government informed the court that the woman’s statement has not yet been recorded in the police station about her consensual relationship with the man and the investigation is still underway.

To this, the bench questioned, “Why did the investigation officer not accept the woman’s request to record her statement at a place of her choice, so that she could feel safe?”

After listening to all the arguments and the facts, the Supreme Court made some observations and said that “It’s high time for the society to learn to accept inter-caste and inter-faith marriages.” It also said that “Educated young boys and girls are increasingly choosing their life partner on their own”, and inter-caste marriages are ‘hardly a desirable social exercise’ for parents who distance their children from them because they have chosen their life partner outside the community, caste or religion.  

It further observed the role of police and emphasized the counseling and training of police personnel, about how they should handle such cases because these cases are “socially sensitive.” So the approach must be different in such cases and there must be desirable guidelines provided to the police by the police department to handle these cases. It was said that “It might be viewed as a deviation by society and parents but the police authorities are bound to keep such couples out the harm’s way if there is no violation of law.”

So, the Supreme Court quashed the FIR and said that the couple could not be accused of a criminal case just because their parents refused to accept a relationship, because they are adults and they have the right to choose their partners.

Statements of the Supreme Court have been considered as a special statement especially in the wake of the controversial Ordinance passed by Uttar Pradesh and Madhya Pradesh Government and many other states passing anti-conversion or Love Jihad laws.

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