Top News Headlines 31st Mar 2022: Long Period Of Incarceration Along With No Possibility Of Trial In The Near Future Can Be A Ground For Bail

Long Period Of Incarceration Along With No Possibility Of Trial In The Near Future Can Be A Ground For Bail: Allahabad HC 

• In the case of Anokhi Lal Second Bail vs State of UP the Hon’ble Allahabad HC has observed that in a case where there is no possibility of the trial being concluded in the near future, and the applicant has been in jail for a substantially long period of time, then this long period of incarceration can be a fresh ground for the purpose of granting bail. 
• The above observation was made by the Court while granting the bail application of the accused Anokhi Lal who was charged under sections 498A and 304B of IPC and section 3 and 4 of the Dowry Prohibition Act, and had been in jail since April 2018. 
• While rejecting the first bail application, as pointed out by the Counsel for the applicant, the Hon’ble Court had directed the trial Court to expedite the trial and make every endeavour to conclude the trial within a period of five months. It was thus submitted by the Counsel that despite the above order, a three year period had passed but the examination of the prosecution witness had not been completed. 
• The Counsel for the applicant had also contended that the applicant has been languishing in jail for a period of three years. He was also not a direct family member of the in-laws of the victim as he is a cousin brother of the husband. It was also argued that even though in the dying declaration, the victim had levelled the allegation on her mother-in-law and the applicant, yet the family members of the victim had given a statement that the main allegation is against the mother-in-law. 
• It was also argued that the husband and the mother-in-law have both been granted bail. The Counsel relied upon the decision of the Apex Court in the case of Union of India vs KA Najeeb AIR 2021 SC wherein it was held that the liberty granted by Part III of the Constitution also covers within its ambit access to justice and a speedy trial. In the case of SC Legal Aid Committee Representing Undertrial Prisoners vs Union of India it was held that undertrial prisoners cannot be indefinitely detained pending trial. Once it has been established that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obliged to release them on bail. 
• The Apex Court has also held in the case of Paras Ram Vishnoi vs The Director, CBI (2021) that during pendency of trial, the accused persons cannot be kept in custody for an indefinite period of time. 
• Relying upon the aforementioned decisions, the Hon’ble HC was of the opinion that the aforesaid grounds can be considered as fresh to consider a second bail application. Thus, without going into the merits of the case, the instant second bail application was allowed.  

One Year Waiting Period U/S 13B(1) Of Hindu Marriage Act CANNOT Be Waived: Madhya Pradesh HC

• The Madhya Pradesh HC has held, in the case of Vishal Kushwaha vs Mrs. Ragini Kushwaha that the period of one year of living in separation is a must for the filing of an application for divorce by mutual consent under section 13B(1) of the Hindu Marriage Act and the same cannot be condoned under section 14 of the Act.
• The instant appeal was filed under section 28 of the Hindu Marriage Act (HMA) against the decree of the lower Court wherein a joint application made by Vishal Kushwaha and his wife Ragini Kushwaha was rejected on the ground that the application had been filed before the period of one year under section 14 of HMA. 
• The Counsel for the applicant contended that the said application had been filed after 7 months and 24 days of the marriage. The parties had been living separately for a period of 7 months prior to the filing of the application. The Court had rejected the application for the reason of its being premature. Aggrieved, the husband had filed the present appeal.
• The Counsel for the appellant had placed reliance on the decision of the Calcutta HC in the case of Priyanka Maity (Ghosh) vs Shri Sabyasachi Maity AIR 2012 Cal. and argued that under section 14 of HMA a petition for dissolution of marriage by mutual consent can be filed before the statutory period of one year and that it is not mandatory to comply with mathematical precision. He also argued that the provisions of section 14 are directory and not mandatory. As the petition was pending before the Court for more than a year, that should be considered a substantial compliance of section 14(1) of the Act.
• It was further argued that the period of one year can be waived by the Court itself in light of the proviso to section 14(1)  when the Court sees that there are no chances that the parties can live together harmoniously as husband and wife. 
• The HC observed that the period of one year can be waived under the proviso to section 14(1) only in cases of exceptional hardship or exceptional depravity, but the same cannot have the effect of diluting the mandate of section 13(B)(1) of the Act, which clearly mandates the separation of one year between the parties before the presentation of their joint divorce petition. 
• The Court observed that the period of one year as envisaged in section 13(B)(1) of the Act is a part of the substantive law and is not a procedural formality that can be done away with. The provision of living separately for one year is mandatory and not directory and this requirement should be satisfied before the Court grants  any relief. 
• In arriving at its decision, the Court relied upon the decisions in Amardeep Singh vs Harveen Kaur (2017) SCC and Principal Judge, Family Court vs NIL AIR 2009 Bom. 
• Thus, finding no merit in the application, the same was dismissed. 

Exclusion Of One Of The Natural Heirs From Bequest Does Not Establish Existence Of Suspicious Circumstances; Article 14 Does Not Apply To A Will: SC

• In Swarnalatha vs. Kalavathy (2022), a bench consisting of Justices Hemant Gupta and V. Ramasubramanian observed that the absence of one of the natural heirs from a bequest in a Will could not be depended upon to conclude that there are signs of foul play. The Hon'ble Court further contended that Article 14 does not apply to stipulations made under a Will.
•       In the present case, the Madras HC overturned a District Court probate awarded to the appellant regarding two last Wills and Testaments, one by the father and one by the mother. The same was done regarding the case's mysterious circumstances. One of them was the daughter's complete exclusion from the bequest and the neglect to indicate the dates on which the daughter was paid particular amounts in the Wills.
• Article 14 states that all citizens will be treated in the same manner by the law under the same circumstances. This article forbids any kind of discrimination.
•  In a related case, Kavita Kanwar vs. Mrs. Pamela Mehta and Ors. (2020), the Court held that the Will in issue was surrounded by many suspicious circumstances that were material in character and went unexplained. Therefore, the appeal was dismissed at the cost of Rs. 50,000. H. Venkatachala Iyengar vs. B.N. Thimmajamma (1958) is another notable case which has also been taken into consideration by the Hon'ble Court .
•  In another pertinent case, VellasawmyServai vs. Sivaraman Servai (57 Ind App 96), it was held that where a will is promulgated by the chief beneficiary, who has taken a leading role in giving directions for its preparation and securing its execution, probate should not be granted unless the evidence eliminates suspicion and proves that the testator authorized the Will.
•   The Hon'ble Supreme Court stated that since it was not the respondents' contention that the testators were not sound, the HC found fault with the appellants for failing to disclose the nature of their illnesses. It further contended that the exclusion of one of the natural heirs from the bequest could not be used to establish that suspicious circumstances exist. Furthermore, the grounds presented in Exhibit P­1 (Will) were persuasive enough to demonstrate that the exclusion of the daughter occurred naturally; since, if Exhibit P­1 had been forged on blank papers with the mother's signatures, there would have been no reason for the father to cite the mother's implementation of the Will in his own Will.
• While referring to the aforementioned cases, the Hon'ble Supreme Court ruled that circumstances in which suspicion is generated are primarily those in which the testator's signature is contested, or the testator's mental competence is questioned. Furthermore, in determining the validity of Will's execution, the Court stated that it had no jurisdiction to determine whether the distribution made by the testator was fair and equitable to all of his children. 
• Therefore, the Court did not impose Article 14 on dispositions made according to the Will and allowed the appeal.