“When a law is enacted with retrospective effect, it is not considered as an encroachment upon judicial power when the legislature does not directly overrule or reverse a judicial dictum. The legislature cannot, by way of an enactment, declare a decision of the Court as erroneous or a nullity, but can amend the statute or […]
Read more "The Nature of Judicial Power: Hon’ble Justice Dipak Misra"Appellant-Husband was treated cruelly by Respondent-Wife. There were repeated threats of suicide [Pankaj Mahajan v. Dimple, (2011) 12 SCC 1]; levelling of disgusting accusations of indecent familiarity with a person outside wedlock [Vijaykumar v. Neela, 2003 (6) SCC 334]. Both are acts of cruelty within the meaning of The Hindu Marriage Act, 1955. Respondent-Wife wanted […]
Read more "Monsters-In-Law III"My Lord, 1997 Amendment to Section 28 of The Indian Contract Act, 1872 – Retrospective? No. “What emerges on a reading of the Law Commission Report together with the Statement of Objects and Reasons for the Amendment is that the Amendment does not purport to be either declaratory or clarificatory. It seeks to bring about […]
Read more "Section 28 of The Indian Contract Act, 1872"The rule of construction by reference to ‘contemporanea expositio‘ is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous. This rule has been succinctly expressed in Crawford on Statutory Construction […]
Read more "The Doctrine of Contemporanea Expositio I"Throughout the history of the use of the term in Latin, ‘prima facie’ meant only the most cursory, initial impression. It retained that meaning upon its adoption into colloquial English. The term ‘prima facie’ is used in the law both as an adjective and as an adverb. Common Law Courts which developed the judicial meaning […]
Read more "Prima Facie"Manoj Kumar Sharma, serving in the Indian Air Force at the relevant time, got married to one Nandini on 27.04.1999. On 20.09.1999, Nandini Sharma committed suicide at her matrimonial home. Ambala Police closed the case after fulfilling the requirements of Section 174 of The Code of Criminal Procedure, 1973 holding, there was no foul play […]
Read more "First Information Report I"The ‘statutory period of waiting’ has been waived again in Wadhera v. Wadhera, [Transfer Petition (Civil) No. 569 of 2014]. SC held, “having regard to the background of the several litigations between the parties over a period of 5 years, background of the parties living separately for more than 5 years, submission of the Husband […]
Read more "Section 13B of The Hindu Marriage Act II"“Principles of Natural Justice, it is well settled, are not codified rules of procedure. Courts have repeatedly declined to lay down in a strait jacket, their scope and extent. The extent, the manner and the application of these Principles depends so much on the nature of jurisdiction exercised by Court or Tribunal, the nature of […]
Read more "Principles of Natural Justice II"“It is not open either to parties to a lis or to any third parties, to determine at their own, that an Order passed by a Court is valid or void. A party to the lis or a third party, who considers an Order passed by a Court as void or non est, must approach […]
Read more "Setting Aside Orders"My Lord, What is the Doctrine of Mutuality? “The said Doctrine is predicated on the principle enunciated in Styles v. New York Life Insurance Company, (1889) 2 TC 460, 471 (HL) by Lord Watson in the following words: “When a number of individuals agree to contribute funds for a common purpose, such as the payment […]
Read more "The Doctrine of Mutuality I"“Since the inception of mankind, many lacs have suffered from different types of physical handicaps (today about 600 million people suffer from such handicaps). But, many of them overcame all kinds of handicaps and achieved distinctions in various fields. Sarah Bernhardt – French actress was disabled by a knee injury. Her leg was amputated in […]
Read more "Able Disable All People Together I"“The entire basis of this Doctrine of Promissory Estoppel has been well put in a Judgment of Australian High Court reported in Commonwealth of Australia v. Verwayen, 170 C.L.R. 394, by Deane, J. The statement, based on various earlier English authorities, correctly encapsulates the law of Promissory Estoppel with one difference under our law – […]
Read more "Promissory Estoppel IV"Any attempt at interpretation of a long line of cases proves to be tiresome. Modern Dental College and Research Centre v. State of Madhya Pradesh, [Civil Appeal No. 4060 of 2009], delivered on 02.05.2016, provides a brave summary. Accept it with abundant caution. 5 Judges have no jurisdiction to interpret 7 or 11 erstwhile Lords. The […]
Read more "Look, T.M.A. Pai Again"Section 13B of The Hindu Marriage Act, 1955 reads as: “Divorce by mutual consent – (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before […]
Read more "Section 13B of The Hindu Marriage Act I"‘Res judicata’ literally means a ‘thing adjudicated‘ or ‘an issue that has been definitively settled by judicial decision‘. The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the […]
Read more "Res Judicata – Cause of Action"History will not forget Hon’ble Justice Pratibha Rani at the crossroad of Kanhaiya Kumar v. State of NCT of Delhi, Writ Petition (Crl.) 558 of 2016. “While dealing with the Bail Application of the Petitioner it has to be kept in mind, by all concerned, they are enjoying this freedom only because our borders are […]
Read more "The Country Without a Post Office"Though the Rule of Casus Omissus i.e. “what has not been provided for in the statute cannot be supplied by Courts” is a strict rule of interpretation there are certain well known exceptions thereto. The following opinion of Lord Denning in Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155 should be taken […]
Read more "Casus Omissus"Thank You, Chief. “Halsbury’s Laws of England, Fourth Edition, Volume I(I) 151 explains the meaning of ‘legitimate expectation’ in the following words: A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The […]
Read more "The Doctrine of Legitimate Expectation III"“In Monnet Ispat v. Union of India, (2012) 11 SCC 1 this Court while enumerating principles relating to Doctrine of Promissory Estoppel and Legitimate Expectation has clearly held, protection of legitimate expectation does not require fulfillment of expectation where an overriding public interest requires otherwise. In other words, personal benefit must give way to public […]
Read more "The Doctrine of Legitimate Expectation II"In Aurobindo Ashram v. R. Ramanathan, [Civil Appeal No. 12 of 2016] Respondents alleged, Appellant Ashram failed to take any positive action to prohibit the availability of The Lives of Sri Aurobindo. They even assisted Peter Hees in getting a visa for his continued stay in India. Whether or not ‘The Lives of Sri Aurobindo‘ is […]
Read more "The Lives of Sri Aurobindo"
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