Grounds for Divorce Under Hindu Marriage Act,1955

According to the legal dictionary divorce means, “The legal separation of man and wife, effected, for cause, by the judgment of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties.” It is a process which completely dissolves and puts a final end to a lawful marriage. It is believed that there was no concept of divorce under ancient Hindu law. Ancient Hindu law rested in a rule that “once a marriage is always a marriage”, nobody can get out of the bond, not even the death of parties may separate them or dissolve the marriage. According to Hindu philosophers, marriage is a sacrament, a divine covenant and a pure relationship.

Divorce is only permitted for grave reasons and it is definitely not encouraged in Indian society. The dissolution of marriage by a competent court means divorce. Hindu law permits divorce only on some particular grounds. Divorce is not generally favoured or encouraged by courts but it is permitted only for serious and grave reasons and divorce cannot be granted within the first year of the marriage.

Lord Blansburgh while delivering a judgement observed, “So long as divorce, in contrast with marriage, is not permitted to be a matter of agreement between parties, but the public at large are directly interested in them, affecting as they do, not only the status of the two individuals immediately concerned but not remotely when taken in the mass, the entire social structure and the preservation of a wholesome family life throughout the community.”

The idea or the concept of divorce is very old and its origin is not traceable. According to Letourneau, “divorce as an institution is the final milestone in the process of freeing the woman from the slavery of man in marital relationship”.

The grounds of divorce under Hindu Law are divided into four parts,

  1. The fault grounds or the grounds based on guilt theory of divorce.

(i) Grounds on which either of the parties may obtain the decree of divorce.

(ii) Grounds on behalf of which wife alone can claim divorce

  1. Breakdown grounds of divorce.
  2. Divorce by mutual consent.
  3. Divorce under special laws and customary laws. Section 13 of Hindu Marriage Act, 1955, provides for nine fault grounds of divorce. Some of these grounds are typically based on guilt theory or are called fault grounds of divorce, such as adultery, desertion, cruelty, insanity, leprosy, venereal disease, and then there are some grounds which are religion-based such as conversion or renunciation of world. To get the order of divorce either party has to prove at least one ground of divorce provided by the statute. In Rajender v. Anita, the court had held that a marriage cannot be put to an end or dissolved on a ground not specified under Hindu Marriage Act, 1955.

 

Adultery – According to the Hindu Marriage Act, adultery is considered as one of the most important ground for seeking divorce. Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite sex. Even the intercourse between the husband and his second wife i.e. if their marriage is considered under bigamy, the person is liable for adultery.

The landmark judgement of Joseph Shine v. Union of India decriminalised adultery on the ground that women are not a property of men and it harmed the autonomy, dignity and privacy of women.

The concept of adultery was inserted under the Hindu Marriage Act by the Marriage Laws Amendment Act, 1976. In the case of Swapna Ghose v. Sadanand Ghose adultery was first time taken as a ground for divorce.

Essentials of Adultery

  1. One of the spouses involved in the intercourse with another person, married or unmarried, of the opposite sex.
  2. Intercourse should be voluntary and consensual.
  3. At the time of the act, the marriage was subsisting.
  4. There must be sufficient circumstantial evidence to prove the liability of another spouse.

 

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. Physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental cruelty is lack of kindness which adversely affects the health of the person. While it is easy to determine the nature of physical cruelty, it is difficult to ascertain mental cruelty. The landmark judgement of cruelty as a ground for divorce was  Mayadevi v Jagdish Prasad

Desertion – If a spouse voluntarily abandons his/her spouse without any reasonable justification and without his consent for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Essentials

  1. Permanent abandonment of the other spouse.
  2. Rejection of the obligation of marriage.
  3. Without any reasonable justification.
  4. No consent of another spouse.

The landmark judement where desertion was held as a ground for divorce was Bipin Chander Jaisinghbhai Shah vs Prabhawati

Conversion – If either of the spouses converts himself/herself into another religion without the consent of the other, the other spouse may file a divorce case based on this ground. The Landmark judgment of Vilayat Raj Alias Vilayat Khan vs Smt. Sunila  where conversion was taken as a ground for divorce for the first time.

Mental Disorder/ Insanity – It can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore it cannot be expected from the couple to stay together.

Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following two requirements-

  1. The respondent has been incurably of unsound mind.
  2. The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

The landmark judgement of Om Prakash Gupta vs Puspa Kumari  where insanity was taken as a ground for divorce for the first time

Leprosy – Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. This disease is transmitted from one person to another. Thus, it is considered as the valid ground for divorce. A landmark judgement for leprosy is Swarajya Lakshmi vs G. G. Padma Rao

Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS comes under venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead. It is a typical Hindu practice and considered as a valid ground for divorce.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a ground for divorce.

The following are the grounds for divorce in India on which a petition can be filed only by the wife.

If the husband has indulged in rape, bestiality and sodomy.

If the person is still married but remarries another woman without giving divorce to his first wife then that stands as a ground for divorce of the first wife and the second marriage is considered void.

A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before, she attains eighteen years of age.

If there is no co-habitation for a period of one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.

 

Concept of Divorce with Mutual Consent

According to section 13B, the person can file the petition for divorce by mutual consent of both the parties. If the parties want to dissolve their marriage as a mutual consent are required to wait for one year from date of marriage. They have to show that they are living separately for one or more year and not able to live with one another.

No petition for Divorce within one year of Marriage

According to section 14, no court will entertain the petition of divorce within the one year of the marriage. But can be entertained if the matter is related to bigamy, and where the consent of the spouse was taken through misrepresentation, fraud, undue influence etc.

Remarriage of Divorced Person

According to Section 15, after the marriage gets dissolved and no further petition was filed by either of the spouses against the order of the court and the time for appeal has expired, it is assumed that both the spouses are satisfied. After that the divorced person can marry again.

Conclusion

The Hindu Marriage Act, 1955 provides various grounds for divorce. The Hindu Marriage Act defines “divorce as a dissolution of marriage”. The main three theories related to divorce are fault theory, mutual consent concept, and irretrievable theory. In India, the fault theory works in the matter of the divorce. Under this theory, marriage can be ended when one of the spouses is responsible or liable for the offence under the grounds mentioned above. The innocent spouse can seek the remedy of divorce. Under the Hindu Marriage Act, the basic grounds on which the Hindu spouse can seek the remedy of divorce are adultery, desertion, conversion, leprosy, cruelty, heard not alive, renunciation etc. Then there are certain grounds specifically for women to seek divorce such as if she below the age of 15 then she can renounce the marriage when she attains the age of 18 etc. The Hindu married women can also apply for the maintenance which is provided under section 125 of the criminal procedure code (CPC).   So, the spouse who is innocent can approach the court and can seek the remedy of divorce.

The Supreme Court observed that Holding High Office does not entitle one to anticipatory bail

The 3-Judge bench of Supreme Court comprising of Justices Sanjay Kishan Kaul, Krishna Murari and Hrishikesh Roy observed that holding high office does not entitle one to anticipatory bail.

Anil Kumar Singh and others have been accused under Section 447 of the Bihar Nagar Palika Act, 2007 for professed disclosure of false information in nomination papers which were submitted for General Nagar Palika elections, 2007.  The State Election Commission had found that the allegation was correct as a result of which the commission declared the elections void. The commission also directed to lodge FIR against him under Section 447 of the Bihar Nagar Palika Act which is read with Section 420/34, Indian Penal Code

Regarding this, Anil Kumar Singh and others filed writ petition before the Supreme Court asking directions for the anticipatory bail applications pending before Patna High Court. The bench which was headed by Justice Sanjay Kishan Kaul told the petitioner that it is not possible to issue any such directions. The counsel then addressed the bench on merits of the case. The counsel submitted that the accused were willing to join the investigation and there is no need for custodial interrogation of the petitioner.

“We are unable to agree with the contention of the learned counsel for the petitioners in view of the conduct of the petitioners and the greater the office held, the greater the responsibility of the person as in the case of the petitioners. It cannot be said that the petitioners held a high office, they are ipso facto entitled to anticipatory bail.”, the bench said.

Source: https://www.livelaw.in/news-updates/holding-of-high-office-does-not-entitle-an-accused-to-anticipatory-bail-164267

Order: https://www.livelaw.in/pdf_upload/pdf_upload-382656.pdf

The Karnataka High Court said that Registration Of FIR Not Required On Secret Information About A Crime Which Is About To Occur

The Karnataka High Court has stated that the ratio which was laid down in the judgement of Lalita Kumari vs Government of Uttar Pradesh and Others, which said that a Station House Officer on receiving information disclosing a cognizable offence is bound to register FIR, will not apply in cases wherein an officer receives secret information about a crime which is yet to occur.

The bench made this observation while setting aside the bail applications of Tasleem N.P and others accused under the Narcotic Drugs and Psychotropic Substances Act, 1985.

While rejecting their contention, Justice Sreenivas Harish Kumar stated:

“In Lalita Kumari (supra), the focus is on the duty of a Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed. And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time.”

According to the petitioners, the Police Inspector received credible information that about six persons living in a house bearing No. 65, Kapila Cross Road, Behind Maruthi Dental College, Vinayaka Layout, Hulimavu, were possessing narcotic substances such as ganja, MDMA, ecstasy tablets and LSD strips and they were about to sell those substances.

The court stated:

“Sometimes, offences do take place in the presence of the police officers. In such a situation, his first duty is to arrest the accused and collect the evidence, and not registration of FIR. In the case in hand what the police officer received was a report about likelihood of offences under NDPS Act being committed, the informant only suspected possession of contraband substances, regarding which no FIR could be registered without ascertaining the truth in the information. The seizure panchanama discloses that the petitioners and other accused possessed contraband substance for the purpose of selling them. He seized the substances and made a report of the same. No error can be found in it.” The court also turned down the argument of the accused that contraband substances were not seized from the ‘conscious’ possession of the accused.

The court dismissed the petitions by stating “In these petitions, there are prima facie materials against the petitioner, section 37 of the NDPS Act is very much attracted. Therefore, the petitions are dismissed.”

 

Source: https://www.livelaw.in/news-updates/lalita-kumari-dictum-on-fir-registration-not-applicable-to-secret-information-about-crime-yet-to-occur-karnataka-hc-read-order-164245

Case: https://www.livelaw.in/pdf_upload/pdf_upload-382595.pdf

Suo Moto Petition Registered by the Madhya Pradesh High Court and Issue Notice

The Madhya Pradesh High Court i.e. Jabalpur Bench in yielding of the order of the Supreme Court dated 16.09.2020 passed in Writ petition (Civil) No.600/2016 (Ashwini Kumar Upadhyay & others vs. Union of India & others, registered a suo motu petition on 21.09.2020 for monitoring the progress of the trials of the pending criminal cases against sitting/former Legislators (MPs & MLAs).

Additionally, the Division Bench of the then Chief Justice Ajay Kumar Mittal and Justice Sanjay Yadav on 29th September issued notice to the respondents, who were

(1) Union of India through Secretary, Department of Justice, Ministry of Law & Justice, New Delhi;

(2) The State of M.P. through the Chief Secretary, Vallabh Bhawan, Bhopal,

(3) High Court of M.P. Jabalpur through the Registrar General and

(4) The Principal Secretary, Department of Law & Legislative Affairs, Govt. of M.P., Vallabh Bhawan, Bhopal (M.P.).

It must be brought into notice that the Supreme Court on 16th September had asked the Chief Justices of the High Courts to formulate an action plan to rationalize the disposal of criminal cases pending against legislators. Especially, with an aim to enable “timely action” in criminal cases pending against sitting and former MPs and MLAs, the High Court of Manipur on 1st October directed the State Government to create two “exclusive Special Courts” at Imphal at the Sessions and Magisterial levels

In addition to that the Court asked the State Government to ensure that they cooperate and take initiative in the establishment of “safe and secure witness examination room” and the provision for “Video Conferencing” in these Courts for early and speedy conduct of the trials.

Not so long ago even the Division Bench of the Orissa High Court comprising Chief Justice Mohammad Rafiq and Justice B. R. Sarangi asked the Advocate General AK Parija to obtain instructions and file details of the criminal cases pending before different the courts of all the districts of Odisha against sitting/former M.Ps and M.L.A.s

Even, the Karnataka High Court has directed the Registrar General of the Court to register a suo motu petition, in view of the directions issued by the Supreme Court.

 

Source: https://www.livelaw.in/news-updates/criminal-cases-against-mpsmlas-madhya-pradesh-hc-registers-suo-moto-petition-issues-notices-read-order-163920?infinitescroll=1

Order:  https://www.livelaw.in/pdf_upload/pdf_upload-382340.pdf

The Supreme Court observed that a court cannot refuse to hear a bail application on merits on the ground that the accused had failed to comply with the settlement offer made earlier.

The Supreme Court made a remark, “a court cannot refuse to hear a bail application on merits on the ground that the accused had failed to comply with the settlement offer made earlier.”

This was observed by the Supreme Court bench, headed by Justice L Nageswara Rao. The court dismissed the order passed by the Madras High Court which set aside a bail application on the ground that the accused had gone back on the promise to settle.

The case of G Selvakumar vs State of Tamil Nadu emerged out of an FIR registered over allegations of criminal breach of trust, cheating etc. The accused had pursued for an interim bail by stating that he will settle the disputes relating to the payment of money once he is released. Based on this, the Court granted him interim bail.

The accused later told the court that he was facing difficulties to pay the money due to certain domestic circumstances. The High Court did not appreciate this response of the accused and dismissed his bail application.

Challenging this High Court order, the accused filed a Special Leave Petition in the Supreme court. Advocates for the petitioner side were Senior Advocate R Basant along with Advocates A Karthik and Sarath S Janardanan.

The SC observed that the HC should have considered the bail application on merits and should not have set it aside on the ground that he did not fulfil his promise. “In any event, the High Court ought to have heard the bail application on merits and ought not to have dismissed the same on the ground that the petitioner has gone back of the promise made to the High Court on 18.02.2020”, the SC observed.

The bench, also including Justice Ajay Rastogi, observed, that it was not planning to send the matter back to the HC for fresh consideration and ordered that the accused should be released on bail, subject to the satisfaction of the trial court.

 

Source: https://www.livelaw.in/top-stories/court-cannot-refuse-to-hear-bail-application-on-merits-saying-accused-went-back-on-promise-to-settle-sc-163927

Order: https://www.livelaw.in/pdf_upload/pdf_upload-382364.pdf

The National Human Rights Commission took a serious note on the “non responsive attitude” of the Director General of Police, Telangana and issued conditional warrant

The National Human Rights Commission took a serious note on the “non responsive attitude” of the Director General of Police, Telangana and has asked him to be personally present before it in connection with a claimed harassment of an anti-CAA protestor, by senior police officials in the state. The Commission has issued the conditional warrant under section 13, of the Protection of Human Rights Act, 1993, after the DGP failed to submit the required report, as requested by the Commission, in the month of January this year.

The Commission observed, that it had taken cognizance of the matter on January 22, 2020 and had asked for the Action Taken Report from DGP, Telangana but no report was received. Subsequently, proceedings dated May 12, 2020 was put on and last opportunity was given to the DGP to submit the required report but the same has not been received till date.

It was observed, “Despite giving last opportunity no report has been submitted till date. The Commission takes a serious note of this non responsive attitude. Let be issued against the DGP Telangana. He is directed to personally appear before the Commission on 01.02.2021 at 11 am along with the requisite report.”

It was even clarified that if the requisite report is received in the Commission a week prior to the scheduled date then his personal appearance shall be relinquished. NHRC had taken cognizance on a complaint by Amnesty member named Mohammad Abdul Mujeeb, proclaiming harassment by senior police officials against a person who was protesting against the Citizenship Amendment Act 2019 (CAA) in the state of Telangana, in the month January this year.

In view of the newspaper report narrating Mohammad Abdul Mujeeb complaint, his advocates Bilal Khan and Anshu Kapoor moved the NHRC on behalf of him. They urged that the complainant was purely exercising his Fundamental Right under Article 19(1)(b) whereas the allegations against the police were serious. However, the Karimnagar police had outrightly rejected these claims.

 

Source : https://www.livelaw.in/news-updates/police-harassment-of-anti-caa-protester-nhrc-takes-serious-note-of-telangana-dgps-non-responsive-attitude-issues-conditional-summons-read-order-163905

Order : https://www.livelaw.in/pdf_upload/pdf_upload-382327.pdf

The Delhi Court set aside the complaint filed against Prime Minister Narendra Modi and Amit Shah for alleged ‘Corrupt Practice’

The Delhi Court dismissed a criminal complaint filed against Prime Minister Narendra Modi and Home Minister Amit Shah for a supposed ‘Corrupt Practice’ during 2014 General elections and misappropriation of public property thereafter.

The Single bench Court of Judge Ajay Kumar Kuhar at Rouse Avenue District Court set aside the complaint filed by Shrikant Prasad stating that the allegations are lacking any substance to call on for a “criminal jurisdiction”.

Furthermore, the Court stated that the complaint fails on the ground that there is no prior sanction either under Section 197 CrPC or under Section 19 of the Prevention of Corruption Act. “For want of such a sanction, no cognizance can be taken in the present case,” the Court said.

The Court said that the complaint is liable to set aside for want of sanction. The Court said, “At the very outset, when an offence is alleged to be committed by a public servant while acting or purporting to act in discharge of his official duty, the court cannot take cognizance of the offence without a prior sanction under Section 197 of Criminal Procedure Code. For an offence under the Prevention of Corruption Act, particularly under Section 13, no court can take cognizance of the said offence except with the prior sanction of the competent authority under Section 19 of PC Act.” Reliance was placed on State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372.

As for the allegations of false promise, the Court said, “The same does not warrant criminal action as per Representation Peoples Act, 1951. Lastly, on the allegations of misappropriation by privatization of Public Sector Undertaking.” The Court further stated that the same is “without any content and substance showing any criminal intent.”

 

Source: https://www.livelaw.in/news-updates/corrupt-practice-under-representation-of-peoples-act-does-not-call-for-criminal-action-delhi-court-dismisses-criminal-case-against-pm-modi-amit-shah-read-order-163875

Judgment: https://www.livelaw.in/pdf_upload/pdf_upload-382304.pdf

Delhi High Court: “Cannot provide Legal opinion in Application moved under Section 151 Of Civil Procedure Code”

The 2-Judge Bench consisting of Justice Rajiv Sahai Endlaw and Justice Asha Menon of Delhi High Court made a clarification that it doesn’t have the advisory jurisdiction to provide legal advice to the parties in applications moved under section 151 of the Civil Procedure Code. The Court advised the Petitioner that he’s free to seek the opinion of Justice Endlaw after he resigns office on August 13, 2021.

The order came after an application moved under section 151 of CPC requesting for the following clarification: “Whether the share in the property received by a son on partition of a Hindu Undivided Family is “HUF” or “individual” in his hands?”

The court while declining to provide legal opinion, called attention to the point that: “Neither Section 151 of the CPC nor any other provision of law vests in this Court, acting as the Company Appeal Court, advisory jurisdiction. It is surprising that advocates are moving applications, seeking legal opinion of the Court; not only so, there are several other advocates including an advocate as Court Commissioner, in the matter. The application is thoroughly misconceived.”

The court stated that: “However one of us (Justice Rajiv Sahai Endlaw) will be demitting office on 13th August, 2021 and the advocates are at liberty to approach him for advice at that time, by deferring the execution of the sale deed till then!”

 

Source: https://www.livelaw.in/news-updates/cant-provide-legal-opinion-in-application-moved-under-sec-151-of-cpc-delhi-hc-holds-while-advising-petitioner-to-seek-advice-judge-after-he-demits-office-163765?infinitescroll=1

Judgement: https://www.livelaw.in/pdf_upload/pdf_upload-382208.pdf

Delhi High Court issues notice on the petition asking for immediate stay on the suspension of Prasanta Karmakar

The Delhi High Court on 30th September issued a notice on the petition filed by Arjuna Awardee and international paraswimmer Prasanta Karmakar, who was asking for immediate stay on his suspension.

A single-judge bench of Justice Jyoti Singh heard the case and issued notice to the respondents to file the responses within a week.

Prasanta Karmakar was suspended in 2018 and was banned after he was accused of filming female swimmers during the country’s national championships the previous year. The swimming coach had allegedly asked an associate to do the filming. It was claimed that he was taking photographs of female swimmers with a camera on a tripod. He was rumoured to even have had a quarrel with the officials of Paralympics Committee of India (PCI) and refused to delete the photographs.

The petition was filed by the advocates of the petitioner, Amit Kumar Sharma and Satyam Singh Rajput, asking for “the direction to the Paralympics Committee of India to accept the entry of Karmakar for the IWAS World Games, 2020 so that he may achieve Minimum Qualification Standards (MQS), a prerequisite for participation of a swimmer in the Tokyo Paralympic Games.”

The advocate for the petitioner, Advocate Ashok Arora, appearing before the court submitted that “PCI had been suspended and derecognized by the Ministry of Youth and Affairs in years 2011, 2015, and 2019 and was further suspended by the International Paralympic Committee three times for its irregularity. PCI had always indulged in illegal activities. Mr. Arora further added that that PCI has not only suspended the Arjuna Awardee Prasanta Karmakar but also suspended its own, President Inderjit Rao, who is a Cabinet Minister.”

Additional Solicitor General Chetan Sharma affirmed that the petitioners have correctly submitted that the PCI was indulged in illegal activities and that is why PCI is still under suspension by the government.

Prasanta Karmakar is an Arjuna Awardee and the only Commonwealth and Asian Games medallist swimmer and the fastest para-swimmer in India. He even represented India as a swimming team coach for the 2016 Rio Paralympic Games and has been the national champion in his specific category for 16 consecutive years.

October 8 is set as the date for hearing of case the bench.

 

Source: https://www.indialegallive.com/constitutional-law-news/courts-news/prasant-karmakar-plea-seeking-immediate-stay-on-suspension-delhi-high-court-issues-notice/

“Traumatic for Foreign National to face Indian trial”- Himachal Pradesh High Court

“When a Foreign National gets arraigned as an accused in a criminal case, then he gets stuck here. It may be traumatic to him, and to his education, family, friends, business, and “n” number of things, which an ordinary human being cannot even imagine. The answer lies in the speedy disposal of cases of foreign nationals, whether they are in custody or on bail”, the Himachal Pradesh High Court stated in a recent case which involved two Nigerian nationals.

The Single Judge Bench of Justice Anoop Chitkara heard the bail plea of two Nigerian nationals. They were prosecuted as accused in FIR No. 115 of 2019, dated 2.09.2019, registered under Sections 21 Section 29 of the NDPS Act, Section 12 of Passport Act, 1967, Section 14 of Foreigners Act 1946, Sections 420 Section 468  Section 471 of IPC [for selling 13.95 grams of heroin (Diacetylmorphine)]

The main factor which has to be taken into consideration is that the Court heard two different bail pleas (Cr. MP (M) No. 39 of 2020 and Cr. MP (M) No. 40 of 2020). The facts of the case and the reasoning given by the Court are similar in nature.

The Court held that the quantity of drug involved in this case is less than the commercial quantity but greater than “small quantity”. As a result of which, the Court noted that the rigours of Section 37 of NDPS Act shall not apply in the present case.

The case was to be treated like any other case of grant of bail in a penal offence. The Court took into consideration the fact that the petitioner was in judicial custody since 5th September,2019 and that the investigation is complete and the report under section 173(2) CrPC, stands filed.

Although the court granted the bail, it also observed, “The solution to this lies not in denying bail. It lies in verifying the antecedents of these types of suspects, before approving or granting visa, and once accused of substance abuse, then revoking the visa. The synergy of law with technology is the next big thing.”

The Court granted bail to the petitioner with four conditions:

  • Furnish a personal bond of Rs. 1,00,000
  • Within thirty days of his release from prison, the petitioner has been directed to obtain a smartphone, and inform its IMEI number and other details to the SHO/I.O. of the police station.
  • He has to always keep the phone location/GPS on the “ON” mode.
  • He has to produce the existing phone to the SHO/I.O. of the police station and give details of his new phone before changing his phone.

 

Source: https://www.livelaw.in/news-updates/traumatic-for-a-foreign-national-to-face-trial-denying-bail-no-solution-answer-lies-in-speedy-disposal-of-such-cases-hp-hc-163717

Judgements: