SOME RECENT SUPREME COURT JUDGMENTS
OF PUBLIC IMPORTANCE
1. On 11th January, 2008, a two Judges Bench in Brajendra Singh vs State of M.P. & Anr. [Civil Appeal No.7764 of 2001] held that a Hindu married woman "cannot adopt at all during the subsistence of the marriage except when the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband". In the instant case, a Hindu lady because of her physical deformity lived separately from her husband and that too for a very long period right from the date of marriage. Appellant was adopted by the said lady so that he can look after her. There is no dispute that Appellant was in fact doing so. The said lady claimed entitlement to the declaration that Appellant was her adopted son. Examining the issue, the Bench held that though "the husband and wife were staying separately for a very long period and the wife was living a life like a divorced woman", but "there is conceptual and contextual difference between a divorced woman and one who is leading life like a divorced woman" and "both cannot be equated". The Bench held that the said lady was not entitled to the declaration sought for" since "there was no dissolution of marriage or a divorce
in the eye of law".
2. On 16th January, 2008, a three Judges Bench in Samira Kohli vs Dr. Prabha Manchanda & Anr. [Civil Appeal No.1949 of 2004] inter alia examined the questions as to (i) whether informed consent of a patient is necessary for surgical procedure and if so what is the nature of such consent and (ii) whether, when a patient consults a medical practitioner, consent given for diagnostic surgery can be construed as consent for performing additional or further surgical procedure -- either as conservative treatment or as radical treatment-- without the specific consent for such additional or further surgery, and held as follows:-
"(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to;
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences
of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment;
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision; (iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery; (v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury case but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment."
3. On 18th January, 2008, a two Judges Bench in Premkumari & Ors vs Prahlad Dev & Ors [Civil Appeal No.490 of 2008] while examining the question as to whether the insurer was liable in case the driver had a fake licence held that "when the owner after verification satisfied himself that the driver has a valid licence and driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988, in that event, the Insurance Company would not be absolved of liability." The Bench held that "even in the case that the licence was fake, the Insurance Company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive."
4. On 18th January, 2008, a three Judges Bench in State of Punjab & Anr. vs Jalour Singh & Ors. [Civil Appeal No.522 of 2008] held that "the Lok Adalats have no adjudicatory or judicial functions. Their functions relate purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance, and put its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the court from which the reference was received, for disposal in accordance with law. No Lok Adalat
has the power to "hear" parties to adjudicate cases as a court does. It discusses the subject matter with the parties and persuades them to arrive at a just settlement. In their conciliatory role, the Lok Adalats are guided by principles of justice, equity, fair play. When the Legal Services Authorities Act, 1987 refers to 'determination' by the Lok Adalat and 'award' by the Lok Adalat,
the said Act does not contemplate nor require an adjudicatory judicial determination, but a nonadjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The 'award' of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat." "The endeavour and effort of the Lok Adalats should be to guide and persuade the parties, with reference to principles of justice, equity and fair play to compromise and settle the dispute by explaining the pros and cons, strength and weaknesses, advantages and disadvantages of their respective claims", the Bench said. "Where an award is made by Lok Adalat in terms of a settlement arrived at between the parties, (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise."
5. On 25th January, 2008, a two Judges Bench in Mangat Ram vs State of Haryana [Criminal Appeal No.182 of 2008] held that "when the matter is decided by a Court, reasons must be recorded in support of such decision. It is because the aggrieved party may make grievance in the superior Court that the reasons recorded by the trial Court were non-existent, extraneous, irrelevant, etc. The successful party, on the other hand, may support the reasons recorded by the Court in his favour. Finally, the superior Court may also consider whether reasons recorded by the Court in support of the order passed by it were in consonance with law and whether interference is called for." The Bench observed that "if the final order is without any reason, several questions may arise and it will be difficult for the parties to the proceedings as well as the superior Court to decide the matter one way or the other. This Court has, therefore, deprecated the practice of pronouncing final order without recording reasons in support of such order."
6. On 30th January, 2008, a two Judges Bench in Ran Singh and Anr. vs State of Haryana and Anr. [Criminal Appeal No.222 of 2008] referring to the word 'dowry' as defined in Section 2 of the Dowry Prohibition Act, 1961 held that "there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third 'at any time' after the marriage. The third occasion may appear to be unending period. But the crucial words are 'in connection with the marriage of the said parties'." Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression 'dowry'."
7. On 1st February, 2008, a two Judges Bench in State of Rajasthan vs Madan Singh [Criminal Appeal No.234 of 2008] held that "the measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy."
"Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence", the Bench said. "The legislative mandate to impose a sentence for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. The proviso to Section 376(2) IPC, of course, lays down that the court may, for adequate and special reasons to be mentioned in the judgment,
impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age is not less than 10 years' RI, though in exceptional cases 'for special and adequate reasons' sentence of less than 10 years' RI can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for 'special and adequate reasons' and not in a casual manner. Whether there exist any 'special and adequate reasons' would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule of universal application can be laid down in that behalf", the Bench said.
8. On 20th February, 2008, a two Judges Bench in Board of Directors, H.P.T.C.& Anr vs K.C. Rahi [Civil Appeal No.4524 of 2006] held that "the principles of natural justice cannot be put in a straight jacket formula. Its application depends upon the facts and circumstances of each case. To sustain a complaint of non-compliance of the principle of natural justice, one must establish that he has been prejudiced thereby for non-compliance of principle of natural justice." Inasmuch as Respondent knew that a departmental enquiry was initiated against him yet he chose not to participate in the enquiry proceedings at his own risk, the Bench held that "the plea of principle of natural justice" would be "deemed to have been waived" and he would be "estopped from raising the question of non-compliance of principle of natural justice."
9. On 20th February, 2008, a two Judges Bench in K.V. Rami Reddi vs Prema [Civil Appeal No.2551 of 2001] held that "the declaration by a Judge of his intention of what his `judgment' is going to be, or a declaration of his intention of what final result it is going to embody, is not a judgment until he had crystallized his intentions into a formal shape and pronounced it in open court as the final expression of his mind". The Bench observed that the "CPC does not envisage the writing of a judgment after deciding the case by an oral judgment and it must not be resorted to and it would be against public policy to ascertain by evidence alone what the `judgment' of the Court was, where the final result was announced orally but the `judgment', as defined in the CPC embodying a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision, was finalized later on".
10. On 11th March, 2008, a two Judges Bench in Divine Retreat Centre vs State of Kerala & Ors. [Criminal Appeal No.472 of 2008] that the "Public Interest Litigant must disclose his identity so as to enable the court to decide that the informant is not a wayfarer or officious intervener without any interest or concern." The Bench said that "there is heavy duty cast upon the constitutional courts to protect themselves from the onslaught unleashed by unscrupu lous litigants masquerading as Public Interest Litigants". "The individual judges ought not to entertain communications and letters personally addressed to them and initiate action on the judicial side based on such communication so as to avoid embarrassment; that all communications and petitions invoking the jurisdiction of the court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. The individual letters, if any, addressed to a particular judge are required to be placed before the Chief Justice for consideration as to the proposed action on such petitions. Each Judge cannot decide for himself as to what communication should be entertained for setting the law in motion be it in PIL or in any jurisdiction", said the Bench.
11. On 12th March, 2008, a two Judges Bench in Manipal Academy of Higher Education vs Provident Fund Commissioner [Civil Appeal No.1832 of 2004] while examining the question as to whether the amount received by encashing the earned leave is a part of "basic wage" under Section 2(b) of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 requiring pro rata employer's contribution observed that "in many cases the employees do not take leave and encash it at the time of retirement or same is encashed after his death which can be said to be uncertainties and contingencies. Though provisions have been made for the employer for such contingencies unless the contingency of encashing the leave is there, the question of actual payment to the workman does not take place". "The inevitable conclusion is that basic wage was never intended to include amounts received for leave encashment", the Bench said.
12. On 14th March, 2008, a two Judges Bench in Chand Patel vs Bismillah Begum & Anr [Criminal Appeal Nol.488 of 2008] held that under the Hanafi law as far as Muslims in India are concerned, "an irregular marriage continues to subsist till terminated in accordance with law and the wife and the children of such marriage would be entitled to maintenance under the provisions of Section 125 CrPC. The Bench held that "the bar of unlawful conjunction (jama bain-al-mahramain) renders a marriage irregular and not void."
13. On 26th March, 2008, a two Judges Bench in Madan Mohan Abbot vs State of Punjab [Criminal Appeal No.555 of 2008] observed that "that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation." "This is a common sense approach to the matter based on ground realities and bereft of the technicalities of the law", the Bench said.
