COURT DIARY

ARMY INSTITUTЕ OF LAW, MOHALI

COURT DIARY

Impartial Fulfillment of BA.LLB. 5year Degree

Submittеd By:

YUVRAJ PAL

7TH SЕMЕSTЕR B.A. LL.B.

ROLL NO:- 1734

Pagе | 1
ARMY INSTTUTЕ OF LAW, MOHALI
COURT DIARY

ACKNOWLЕDGЕMЕNT

I takе this opportunity to еxprеss my humblе gratitudе and pеrsonal rеgards to ARMY INSTITUTE
OF LAW for inspiring mе and guiding mе during thе coursе of this projеct work and also for
coopеration and guidancе from timе to timе during thе coursе of this COURT DIARY

Mohali YuvrajPal

8TH DECEMBER 2020 7 th

Title of Case: Lily Thomas, Etc. Etc. vs Union Of India & Ors.

Pagе | 2
ARMY INSTTUTЕ OF LAW, MOHALI
COURT DIARY

Citation : AIR 2000 SC 1650

Court : Supreme Court of India

Bench : Saiyed Saghir Ahmad and R.P. Sethi, JJ.

Date Decided: 10.07.2013

Appellant: Lily Thomas

Respondent : Union of India (UOI) and Ors.

FACTS:

Smt. Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ Petition in
this Court stating that she was married to Shri G.C. Ghosh in accordance with the Hindu rites on 10th
May, 1984 and since then both of them were happily living at Delhi.Around the 1st of April, 1992, Shri
G.C. Ghosh told the petitioner that she should in her own interest agree to her divorce by mutual consent
as he had any way taken to Islam so that he may remarry and in fact he had already fixed to marry one
Miss Vanita Gupta resident of D-152 Preet Vihar, Delhi, a divorcee with two children in the second
week of July 1992. Shri G.C. Ghosh also showed a Certificate issued by office of the Maulana Qari
Mohammad Idris, Shahi Qazi dated 17th June, 1992 certifying that he had embraced Islam.The
petitioner contacted her father and aunt and told them about her husband’s conversion and intention to
remarry. They all tried to convince Shri G.C. Ghosh and talk him out of the marriage but of no avail and
he insisted that Sushmita must agree to her divorce otherwise she will have to put up with second wife.It
was stated in the petition that Shri G. C. Ghosh has converted to Islam solely for the purpose of re-
marrying and has no real faith in Islam. He does not practice the Muslim rites as prescribed nor has he
changed his name or religion and other official documents.

She ultimately prayed for the following reliefs:

(a) by an appropriate writ, order or direction, declare polygamy marriages by Hindus and non-Hindus
after conversion to Islam religion are illegal and void;

(b) Issue appropriate directions to Respondent Nos. 1 and 2 to carry out suitable amendments in the
Hindu Marriage Act so as to curtail and forbid the practice of polygamy;

(c) Issue appropriate direction to declare that where a non Muslim male gets converted to the “Muslim”
faith without any real change of belief and merely with a view to avoid an earlier marriage or enter into
a second marriage, any marriage entered into by him after conversion would be void;

(d) Issue appropriate direction to Shri G.C. Ghosh restraining him from entering into any marriage with
Miss” Vanita Gupta or any other woman during the subsistence of his marriage with the petitioner; and

(e) pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the facts
and circumstances of the case.
Pagе | 3
ARMY INSTTUTЕ OF LAW, MOHALI
COURT DIARY

ISSUES:

Whether there should be Uniform Civil Code for all citizens of India?

Whether a Hindu husband can solemnise second marriage by converting to Islam?

Whether the husband would be liable for bigamy under section 494 of IPC?

ARGUMENTS ADVANCED FROM THE SIDE OF PETITIONER

Petitioner’s first issue was that since marriage is a sacred institution then how resorting to the act of
religious conversion to muslim to commit the act of bigamy as Muslim personal law allows it is an
attempt where the women freedom of facing such bigamous marriage and such betrayal is violative of
Art.21(right to life and liberty).

Lily Thomas pleaded before the court to male polygamy in Muslim Law to be unconstitutional.

It was urged before the court to apply Uniform Civil Code so as to deal with vast socio-legal issues that
were due to various religious personal law.

Many Muslim women have filed petitions before the SC and HC to declare Polygamy in Muslim law to
be unconstitutional.

To reframe Muslim personal law with the change in time and disallow the practice of Polygamy as it is
disrespectful to the integrity and liberty of women who have to face such situations.

To have Uniform Civil Code so that no personal religious law make fundamental right violation.

ARGUMENTS ADVANCED FROM THE SIDE OF RESPONDENT

The respondents in all the above petitions assert a common contention that having embraced Islam, they
can have four wives irrespective of the fact that the first wife continues to be Hindu. Thus, they are not
subject to the applicability of Hindu Marriage Act, 1955, the Section 11 of which makes bigamous
marriage void and also to the section 17 of which made them guilty for bigamy under section 494 of
Indian Penal Code (IPC).

JUDGEMENT

Justice S. Sagir Ahmad said if a party has a living spouse and he contracted or tries to contract second
marriage then such marriage would be null and void under Section 11 of Hindu Marriage Act, 1959.
Such marriage will also be null and void under Section 17 of the said Act which deals with the offence
of Bigamy. The person committing Bigamy under Section 17 shall be punished in accordance with the
provisions of 494 and 495 of IPC, 1860. If a Hindu wife files complaint against her husband who during
existence of first marriage do second marriage after conversion to another religion then the offence of
Bigamy shall be dealt with Hindu Marriage Act, 1959.
Pagе | 4
ARMY INSTTUTЕ OF LAW, MOHALI
COURT DIARY

The apex Court has said that violation of Article 21 is misconceived, article 21 of the Constitution states
that “no person shall be deprived of his right and personal liberty except as per procedure established by
law” and herein such an act of marriage while the first marriage still persists is codified in IPC sec 494
there is no violation of Art. 21.

R.P.Sethi Ji said if a Hindu husband after converting to Islam contracts the second marriage without
dissolving the first marriage then the second marriage would be invalid under Section 494 & 495 of IPC
and the husband will be punished according to that.

CONCLUSION

Such a judgment was important since men were taking recourse to such conversion for marrying and
having more than one wife. Bigamy is the offence of marrying another while the first marriage still
persists and such bigamous relations are illegal and the second marriage is void ab initio. For a long
period, married men whose personal law did not allow bigamy have been recurring to the unhealthy and
immoral practice of converting to Islam for the interest of condensing a second bigamous marriage
underthe assumption that such conversion would help them to marry again without getting their first
marriage dissolved The interpretation given to Section 494 IPC was an effort to advance the interest of
justice. It is necessary that there should be harmony between the two systems of law just as there should
be harmony between the two communities. Until Uniform Civil Code is enacted for all the citizens of
the country, there will be always a loophole in the system because different faiths have different beliefs,
and naturally due to different beliefs and practices of communities, there will be a conflict.

RELEVANT SECTION:

Indian Penal Code, 1860 – Section 494 – According to section 494 of Indian penal code, Whoever,
having a husband or wife living, marries in any case in which such marriage is void by reason of its
taking place during the life of such husband or wife, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine. It’s a non-
cognizable bailable offence.

Hindu Marriage Act, 1955 – Section 11 – Void marriages. Any marriage solemnised after the
commencement of this Act shall be null and void and may, on a petition presented by either party
thereto 11 [against the other party], be so declared by a decree of nullity if it contravenes any one of the
conditions specified in clauses- (i) , (iv) and (v) of section 5[1]

Hindu Marriage Act, 1955 – Section 17- Punishment of bigamy. Any marriage between two Hindus
solemnized after the commencement of this Act is void if at the date of such marriage either party had a
husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of
1860), shall apply accordingly.

Pagе | 5
ARMY INSTTUTЕ OF LAW, MOHALI
COURT DIARY

Parties to the M. Karunanidhi and Union of India

JUSTICE P.N. Bhagwati, JUSTICE N.L. Untwalia, JUSTICE R.S Pathak.

BRIEF FACTS:

The Appellant, M Karunanidhi, was a former Chief Minister of Tamil Nadu & was petitioner before the
High Court in the applications filed by him before the high court. On 15-6-1976 a D.O. Letter was
written by chief secretary to government of Tamil Nadu to Deputy Inspector General of Police, CBI
requesting him to make a detailed investigation into certain allegations against the appellant and others
who were alleged to have abused their official position in the matter of purchase of wheat from Punjab.

A FIR was accordingly recorded on 16-6-1976 & 4 months later sanction under Sec 197 of Code was
granted by Governor of Tamil Nadu for prosecution of appellant under Sections 161, 468 & 471 of IPC
and section 5(2) read with section 5(1)(d) of prevention of corruption act. Appellant was alleged to have
derived for himself pecuniary advantage to the extent of Rs. 4 to 5 lakhs from Madenlal Gupta for
passing favourable orders in respect ot some firms & the case was registered before the special judge.

PROCEDURAL HISTORY:

The Special judge, after hearing both sides, rejected application of appellant as a result of which the
appellant filed two applications in High Court for quashing the proceedings & for setting aside order of
special judge refusing to discharge appellant. Later, the High court rejected the applications of appellant
but granted a certificate for leave to appeal.

Pagе | 6
ARMY INSTTUTЕ OF LAW, MOHALI
COURT DIARY

As far back as December 30, 1973 the Madras Legislature had passed an Act known as the Tamil Nadu
Public Men (Criminal Misconduct) Act, 1973 hereinafter referred to as the State Act. The State Act was
passed after obtaining the assent of the President of India [ Ed.: Assent received on Dec. 30, 1973].

This State Act was, however, amended by Act 16 of 1974 and the President’s assent was received on
April 10, 1974. According to the provisions of the State Act the statute was brought into force by virtue
of a notification with effect from May 8, 1974. According to the allegations made against the appellant,
the acts said to have been committed by him fell within the period November 1974 to March 1975.

On January 31, 1976 by virtue of the provisions of Article 356 President’s rule was imposed in the State
of Tamil Nadu and the Ministry headed by the appellant was dismissed and a Proclamation to this effect
was issued on the same date. The High Court decided the petitions of the appellant on May 10, 1977 and
granted a certificate for leave to appeal to this Court on July 27, 1977.

Subsequently, however, the State Act was repealed and the President’s assent to the repealing of the
State Act was given on September 6, 1977. Thus, it is manifest that by the time the appeal has reached
this Court and was taken up for hearing the State Act no longer exists.

ISSUE BEFORE THE COURT:

Whether or not there was a real repugnancy resulting from an irreconcilable inconsistency between the
State Act and the Central Acts?

DECISION HELD BY COURT:

The Supreme Court held that the State Act was not repugnant to the Central Acts and therefore it did not
repeal the Central Act which continued to be in operation even after the repeal of the State Act creates
distinct and separate offences with different ingredients and different punishments and does not in any
way collide with the Central Acts. The State Act is rather a complimentary Act to the Central Act. The
State Act itself permits the Central Acts to come to its aid after an investigation is completed and a
report is submitted. The State Act provides that the ‘public man’ will have to be prosecuted under the
Central Acts.

The question of repugnancy between the Parliamentary legislations and State legislation arises in two
ways. First, where the legislations are enacted with respect to matters allotted in their fields but they

Pagе | 7
ARMY INSTTUTЕ OF LAW, MOHALI
COURT DIARY

overlap and conflict. Second, where the two legislations are with respect to the matters in the concurrent
list and there is a conflict. In both the situations, the Parliamentary legislation will predominate, in the
first by virtue of non-obstacle clause in Article 246 (1) and in the second by reason of Article 254 (1).

In Deep Chand v. State of U.P., the validity of U.P. Transport Service (Development) Act was involved.
By this Act the State Government was authorised to make the scheme for nationalisation of Motor
Transport in the state. The law was necessitated because the Motor Vehicles Act, 1939 did not contain
any provision for the nationalisation of Motor Transport Services. Later on, in 1956 the Parliament with
a view to introduce a uniform law amended the Motor Vehicle Act, 1939, and added a new provision
enabling the State Government to frame rules of nationalisation of Motor Transport. The Court held that
since both the Union Law and the State Law occupied the same field, the State Law was void to the
extent of repugnancy to Union Law.

The court dismissed the appeal.

CONCLUSION:

After the study of this case and Doctrine of repugnancy it can be concluded that the repugnancy
generally arises when

1.there is a clear and direct inconsistency between the Central Act and the State Act,

2.such an inconsistency is absolutely irreconcilable and

3.the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into
direct collision with each other and a situation is reached where it is impossible to obey the one without
disobeying the other. It can also be said that in situations where the provisions of a Central Act and a
State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act
will prevail and the State Act will become void in view of the repugnancy. In situation where however a
law passed by the State comes into collision with a law passed by Parliament on an Entry in the
Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the
Central Act would become void provided the State Act has been passed in accordance with clause (2) of
Article 254. Therefore Article 254 (2) is an exception where the State law prevails in situation of
conflict between State and Central law.

Pagе | 8
ARMY INSTTUTЕ OF LAW, MOHALI
COURT DIARY

Name of Parties: Vinubhai Haribhai Malviya and State of Gujarat

Case number: Criminal appeal number 478-479 of 2017

Court:The supreme court of india

Bench: JUSTICE R.F Nariman, JUSTICE Surya Kant, JUSTICE V. Ramasubramanian

Decided on: OCTOBER 16, 2019

BRIEF FACTS

This case arises out of a First Information Report (hereinafter referred to as “FIR”) that was lodged on
22.12.2009 by one Nitinbhai Mangubhai Patel, Power-of-Attorney holder of Ramanbhai Bhagubhai
Patel and Shankarbhai Bhagubhai Patel.

The FIR alleges that Ramanbhai Patel and Shankarbhai Patel are absolute and independent owners of
this land, having obtained it from one Bhikhabhai Khushalbhai and his wife Bhikiben Bhikhabhai in the
year 1975.

The FIR then narrates that because of a recent price-hike of lands in the city of Surat, the heirs of
Bhikhabhai and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya
have hatched a conspiracy in collusion with each other, and published a public notice under the caption
“Beware of Land-grabbers” in a local newspaper on 07.06.2008.

Sometime thereafter, Vinubhai Haribhai Malaviya then contacted an intermediary, who in turn contacted
Nitinbhai Patel (who lodged the FIR), whereby, according to Nitinbhai Patel, Vinubhai Malaviya
demanded an amount of Rs. 2.5 crores in order to “settle” disputes in respect of this land.

It is alleged in the said FIR that apart from attempting to extort money from the said Nitinbhai Patel, the
heirs of Bhikhabhai and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai Kurjibhai
Malaviya have used a fake and bogus ‘Satakhat’ and Power-of-Attorney in respect of the said land, and
had tried to grab this land from its lawful owners Ramanbhai and Shankarbhai Patel.

Pagе | 9
ARMY INSTTUTЕ OF LAW, MOHALI
COURT DIARY

ISSUES BEFORE THE COURT

Whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further
investigation, and if so, up to what stage of a criminal proceeding?

Whether the Magistrate can order further investigation after a police report has been forwarded to him
under Section 173?

DECISION HELD BY THE COURT

The court set aside the impugned High Court judgment [Nitinbhai Mangubhai Patel v. State of Gujarat,
2013 SCC OnLine Guj 8980] insofar as it states that post-cognizance the Magistrate is denuded of
power to order further investigation. However, given that the facts stated in the application for further
investigation have no direct bearing on the investigation conducted pursuant to the FIR dated 22-12-
2009, the court uphold the impugned High Court judgment insofar as it has set aside the judgment of the
Second Additional Sessions Judge dated 10-1-2012 which had ordered further investigation, and also
the consequential order setting aside the two additional interim reports of the IO Munshi. So far as
Criminal Revision Application No. 346 of 2011 is concerned, we set aside the impugned High Court
judgment which remanded the matter to the Revisional Court.

Consequently, the judgment of the learned Additional Sessions Judge dated 23-4-2016 upon remand is
also set aside, rendering Special Criminal Application No. 3085 of 2016 infructuous.

The court directed that the police register an FIR based on this letter within a period of one week from
the date of this judgment. This FIR is to be enquired into by a senior police officer designated by the
Commissioner of Police concerned, who is to furnish a police report pursuant to investigation within a
period of three months from the date on 8 which such officer is appointed to undertake such
investigation. If such police report results in a prima facie case being made out, and if the Judicial
Magistrate takes cognizance of such charge-sheet, charges will then be framed and trial held.

It further observed "There is no good reason given by the Court in these decisions as to why a
Magistrate’s powers to order further investigation would suddenly cease upon process being issued, and
an accused appearing before the Magistrate, while concomitantly, the power of the police to further
investigate the offence continues right till the stage the trial commences".

Pagе | 10
ARMY INSTTUTЕ OF LAW, MOHALI
COURT DIARY

CONCLUSION

If a crime takes place, then it is considered to be a crime against the society at large. The state failed in
its duty to protect the citizens of its country. The criminal justice system of our nation needs reforms, a
lot of people still face issues while registering FIR, etc. Even if it gets registered, then too the trial takes
a lot of time, sometimes the police doesn’t carries out its duties effectively, where the courts have to step
in. There are a lot of checks and balances, however those are not adequate and still a lot of people face
undue harassment. Investigation is of paramount importance in a trial, a wrong investigation may fail
the case of prosecution, it is very important to have independent investigating agencies to unravel the
truth and put the version before the court of law.

The Supreme correctly settled the position on this law, magistrate is now empowered to direct further
investigation.

Pagе | 11
ARMY INSTTUTЕ OF LAW, MOHALI