LAW FOR ALL

Saturday, October 3, 2020

refund of air fare during the lockdown period, when domestic and international flights’

refund of air fare during the lockdown period, when domestic and international flights’

operation was suspended.the passengers who, with the hope of travel, have booked their tickets by spending their own money.

For these reasons we are not inclined to delve any further on any of the contentions and deem it appropriate to dispose of this batch of cases with the following directions: 1. If a passenger has booked a ticket during the lockdown period (from 25th March, 2020 to 24th May, 2020) for travel during lockdown period and the airline has received payment for booking of air ticket for travel during the same period, for both domestic and international air travel and the refund is sought by the passenger against that booking being cancelled, the airline shall refund the full amount collected without any cancellation charges. The refund shall be made within a period of three weeks from the date of cancellation. 2. If the tickets have been booked during the lockdown period through a travel agent for a travel within the lockdown period, in all such cases full refund shall be given by the airlines immediately. On such refund, the amount shall be passed on immediately by the agent to the passengers. 32 W.P.(C)D.No.10966 of 2020 etc. 3. Passengers who booked tickets at any period of time but for travel after 24th May, 2020 – refund of fares to the passengers covered under this category shall be governed by the provisions of Civil Aviation Requirements (CAR). 4. Even for international travel, when the tickets have been booked on an Indian carrier and the booking is exIndia, if the tickets have been booked during the lockdown period for travel within the lockdown period, immediate refund shall be made. 5. If the tickets are booked for international travel on a foreign carrier and the booking is exIndia during the lockdown period for travel within the lockdown period, full refund shall be given by the airlines and said amount shall be passed on immediately by the agent to the passengers, wherever such tickets are booked through agents. In all other cases airline shall refund the collected amount to the passenger within a period of three weeks. 6. In all other cases, the airlines shall make all endeavours to refund the collected amount to the passenger within 15 days from today. If on account of financial distress, any airline / airlines are not able to do so, they shall provide credit shell, equal to the amount of fare collected, in the name of passenger when the booking is done either directly by the passenger or through travel agent so as to consume the same on or before 31st March, 2021. It is open to the passenger either to utilize such credit shell upto 31st March, 2021 on any route of his choice or the passenger can transfer the credit shell to any person including the travel agent through whom he / she has booked the ticket and the airlines shall honour such a transfer. 6.1. The credit shell issued in the name of the passenger shall be transferable which can be utilized upto 31st March, 2021 and the concerned airline shall honour such a transfer by devising a mechanism to facilitate such a transfer. It is also made clear that such credit shell can be utilized by the concerned agent through whom the ticket is booked, for third party use. It is also made clear that even in cases where credit shell is transferred to third party, same is to be utilized only through the agent who has booked the ticket at the first instance. 7. In cases where passengers have purchased the ticket through an agent, and credit shell is issued in the name of passenger, such credit shell is to be utilized only through the agent who has booked the ticket. In cases where tickets are booked through agent, credit shell as issued in the name of the passenger which is not utilized by 31st March, 2021, refund of the fare collected shall be made to the same account from which account amount was received by the airline. 8. In all cases where credit shell is issued there shall be an incentive to compensate the passenger from the date of cancellation upto 30th June, 2020 in which event the credit shell shall be enhanced by 34 W.P.(C)D.No.10966 of 2020 etc. 0.5% of the face value (the amount of fare collected) for every month or part thereof between the date of cancellation and 30th June, 2020. Thereafter the value of the credit shell shall be enhanced by 0.75% of the face value per month upto 31st March, 2021.

W.P.(C)D.No.10966 of 2020 etc.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. OF 2020

[DIARY NO.10966/2020]

Pravasi Legal Cell & Ors. …..Petitioners

Versus

Union of India & Ors. …..Respondents

W I T H

WRIT PETITION (C) NO.570 OF 2020;

WRIT PETITION (C) NO.595 OF 2020;

AND

WRIT PETITION (C) NO.952 OF 2020

J U D G M E N T

R. Subhash Reddy, J.

1. Background facts, and relief sought for, in this batch of

cases is similar, as such all these cases are heard together and

are being disposed of by this common judgment.

2. The pandemic situation of COVID19, has adversely

affected the economy globally, in several sectors. Our country –

India – and civil aviation sector is not an exception to the same.

W.P.(C)D.No.10966 of 2020 etc.

To contain the pandemic situation of COVID19, first lockdown

was imposed by the Government of India, from 25th March 2020

to 14th April 2020. In view of such lockdown, a ban on operation

of all domestic and international flights was imposed. The

lockdown period was further extended upto 03rd May 2020, with

the ban continuing on operation of all domestic and international

flights. There was an issue of refund of air fare during the

lockdown period, when domestic and international flights’

operation was suspended. The Ministry of Civil Aviation (MoCA),

while acknowledging the unusual situation that has arisen due

to the lockdown imposed, to contain further spread of COVID19

and its consequential effect on the air passengers and airlines, by

examining the grievances received from various quarters, issued

an advisory to all stake holders in civil aviation sector in the

shape of Office Memorandum dated 16th April 2020. The

advisory issued read as under:

“3. … … … …

(i) If a passenger has booked a ticket during

the first lockdown period (from 25th of

March to 14 of April, 2020) and the airline

has received payment for booking of the air

ticket during the first lockdown period for

travel during the same period, for both

domestic and international air travel and

refund is sought by the passenger against

that booking being cancelled, the Airline

shall refund the full amount collected

without levy of cancellation charge. The

refund shall be made within a period of

W.P.(C)D.No.10966 of 2020 etc.

three weeks from the date of request of

cancellation.

(ii) If a passenger has booked a ticket during

the first lockdown period and the airline

has received the payment for booking of air

ticket during first lockdown period (from

25th of March to 14th of April 2020) for travel

during the second lockdown period (from

15th of April to 3rd of May, 2020) for both

domestic and international air travel and

the passenger seeks refund on cancellation

of the ticket, the Airline shall refund the full

amount collected without levy of

cancellation charge. The refund shall be

made within a period of three weeks from

the date of request of cancellation.”

In the same Memorandum, Government has issued directions to

Directorate General of Civil Aviation to monitor the compliance of

such advisories referred above.

3. Writ Petition(C) being Diary No.10966 of 2020 is filed by a

society registered under Societies Registration Act, 1860 by way

of public interest litigation, to declare the action on the part of

the respondentairlines, operating domestic as well as

international flights in India, in not refunding the full amount

collected for the tickets, due to the cancellation of flights in the

wake of restrictions imposed by the Government of India to

contain COVID19 as arbitrary and in violation of Civil Aviation

Requirements, issued by the Directorate General of Civil Aviation.

W.P.(C)D.No.10966 of 2020 etc.

A consequential relief is sought to direct the respondents to

refund the full amount upon such cancellations.

4. In this writ petition, it is the allegation of the petitioners

that though it is obligatory on the part of the respondentairlines,

operating domestic as well as international flights, to refund the

full amount collected for the tickets which are not utilised in view

of the cancellation of flights in the wake of restrictions imposed

by Government of India to contain COVID19, respondents are

providing a credit shell with the validity of one year, which is

contrary to Civil Aviation Requirements (CAR) of May 2008. It is

alleged that as per the CAR, the option of holding refund amount

in credit shell by the airlines shall be prerogative of the

passenger and not a default practice of the airline. While

referring to O.M. dated 16.04.2020 issued by the MoCA, it is

alleged that the said Memorandum deals only with the refund for

the tickets that were booked during the lockdown period and

leaves out the majority of passengers who had booked tickets

before the flights were banned. It is the case of the petitioners

that by issuing O.M. dated 16.04.2020, the Government has

indirectly approved the practice of airlines for providing Credit

Shell for the tickets booked before the lockdown was declared

and the same is in violation of CAR. By further alleging that the

time lines for refund as mentioned in the O.M. dated 16.04.2020

W.P.(C)D.No.10966 of 2020 etc.

runs contrary to CAR, petitioners have sought relief by way of

directions to the respondents to refund full amount collected for

the tickets booked, any time for travel.

5. W.P.(C)No.570 of 2020 is filed by Air Passengers

Association of India, which is also in the nature of public interest

litigation under Article 32 of the Constitution of India, seeking

directions to various airlines operating both – domestic and

international flights – to refund the ticket amounts collected from

the passengers of the flights which are cancelled on account of

lockdown, with a consequential direction to the respondents to

refund the same without levying any charges on account of

cancellation etc. In this writ petition also, it is the allegation of

the petitionerAssociation that, the CARs have been issued in

exercise of powers under provisions of Aircrafts Act, 1934, to

implement the Convention relating to International Civil Aviation

standards and recommended practices but same is not being

followed to refund the fare amount in view of the cancellation of

flights. By further detailing the dates of lockdown declared by

the Government, it is alleged that the action on the part of the

airlines in providing ‘Credit Shell’ instead of refunding the full

amount collected for the tickets cancelled on account of

cancellation of flights, is in clear violation of CARs. The

petitioner also alleges that the option of holding the refund

W.P.(C)D.No.10966 of 2020 etc.

amount in ‘Credit Shell’ by the airline shall be the prerogative of

passenger not a default practice of the airline. While referring to

the representation filed by it on 24.05.2020, and various

complaints received from the numerous passengers regarding the

actions of the airlines in not refunding the amounts spent by

them on air tickets, it is alleged that the action of the

respondents in withholding the amounts spent by them on air

tickets is illegal and contrary to CAR. In this writ petition it is

alleged that the several airlines are not acting as per the O.M.

dated 16.04.2020 in refunding the amounts as directed and

issuing ‘Credit Shell’ instead of refund. With the aforesaid

allegations, petitioner also seeks directions by way of declaration

that the actions on the part of the airlines, which are operating

domestic as well as international flights, in not refunding the full

amount for the tickets due to cancellation of flights in the wake

of restrictions imposed by the Government of India to contain

COVID19 is arbitrary and illegal with a consequential direction

to refund the same.

6. W.P.(C)No.952 of 2020 is filed by Col. Ashok Prehar (Retd.)

and another seeking quashing of O.M. dated 16.04.2020 issued

by the Ministry of Civil Aviation and also seeking a declaration

that the denial of refund by the third respondent – Air India Ltd.

– for tickets booked by them on 18.12.2019 to travel to United

W.P.(C)D.No.10966 of 2020 etc.

States of America on 08.05.2020 with a return ticket to India on

05.06.2020, as illegal, arbitrary and contrary to CARs. They seek

directions to refund the full amount of Rs.1,66,434/ collected by

respondent no.3 for the tickets booked by them on 18.12.2019.

In this writ petition it is the case of the petitioners that, petitioner

no.1 is a senior citizen who has served in Indian Army for 27

years and retired as a Colonel and the petitioner no.2 is his wife

and on 18.12.2019 they have booked tickets to Air India Flight

No.AI173 to travel to San Francisco, United States of America

from New Delhi on 08.05.2020 with a return flight AI102 from

New York to New Delhi on 05.06.2020 for an amount of

Rs.1,66,434/. While referring to the advisory issued by the

United States of America, by way of Advisory dated 19.03.2020

recommending to avoid any travel and the proceedings issued by

the Director General of Civil Aviation, Government of India for

banning flights during the lockdown period, it is alleged that in

view of cancellation of flights they had no option but to cancel

their tickets by seeking refund of the amount. In this writ

petition it is the specific case of the petitioners that the O.M.

dated 16.04.2020 issued by the Ministry of Civil Aviation, which

directs all airlines to pay full refund without levying any

cancellation charges for the bookings made and payment

received only, during the lockdown period from 25.03.2020 to

W.P.(C)D.No.10966 of 2020 etc.

03.05.2020, as illegal. It is alleged that the said Memorandum

leaves out a majority of passengers including the petitioners who

had booked their tickets to travel to United States of America,

much earlier to restrictions imposed to control the spread of

CORONA virus. Pleading discrimination for the passengers who

had booked tickets during the lockdown period, and the

passengers who had booked tickets earlier, petitioners seek

quashing of O.M. dated 16.04.2020 by further declaration that

denial of legitimate refund to the petitioners by the airlines is

patently unfair and also states that the action of the third

respondent in offering ‘Credit Shell’ instead of refund is

unreasonable and unjustified. It is also pleaded that in view of

their age and the pandemic situation in the world, the travel for

leisure is likely to remain restricted in the foreseeable future.

Petitioners, while pleading that giving ‘Credit Shell’ vouchers

without refunding the full fare to the petitioners, as sought by

them, runs contrary to CAR, allege that the denial of refund by

third respondent amounts to unjust enrichment at the expense

of the petitioners and similarly placed persons. With the

aforesaid allegations, petitioners seek quashing of O.M. dated

16.04.2020, with a consequential direction to refund the full

amount of Rs.1,66,434/ collected by the third respondent for

the flights booked by them on 18.12.2019.

W.P.(C)D.No.10966 of 2020 etc.

7. W.P.(C)No.595 of 2020 is filed by Travel Agents Federation

of India, a society registered under the Societies Registration Act,

1860 seeking declaration that the action on the part of the

airlines operating domestic as well as international flights in

India, in refusing to refund the full amount collected for tickets to

travel during the period of ban on air travel, as illegal and

arbitrary with a consequential direction to the respondents to

facilitate refunds of the amounts received by the airlines towards

the booking of tickets during the period of ban on air travel. In

this writ petition, petitionerFederation seeks directions against

the Ministry of Civil Aviation and Directorate General of Civil

Aviation, for issuance of appropriate directions to airlines for full

refund on tickets booked for travel during the lockdown on

account of their cancellation. It is the allegation of the

petitioners that there are certain ambiguities in the O.M. dated

16.04.2020 and 19.04.2020, which are being used by the airlines

to avoid payment of refund, as sought by the passengers towards

the cancellation of flights. In writ petition, it is stated that there

are many passengers who had booked their flights through travel

agents who are the members of the present petitioner. While

stating that the flight booking process through travel agents is

distinct from passengers who have booked the tickets directly

from the airline. It is the allegation of the petitioner that instead

W.P.(C)D.No.10966 of 2020 etc.

of refunding the amount deposited by the travel agents with the

airlines they are compelling the travel agents/passengers to

accept the facility of ‘Credit Shell’, which compels the bookings to

be rescheduled instead of cancellation. While pleading that there

is no certainty in rescheduling the travel plans, petitionerFederation has questioned the action of the respondents in

offering ‘Credit Shell’ and seeks directions for refund of full

amount in lieu of cancellation of tickets. In the writ petition, by

giving details of various orders passed by the Government and

also the Directorate General of Civil Aviation banning the flights

during the lockdown period and ban imposed on operation of

domestic as well as international flights, it is the case of the

petitioner that nonrefund of the amount by airlines for the

tickets due to cancellation, is illegal and contrary to CAR. While

referring to the CARs issued by DGCA and Rule 133A of the

Aircraft Rules, it is alleged that holding the refund amount in

credit shell by the airlines is the prerogative of the passenger and

not a default practice of the airline. With reference to O.M. dated

16.04.2020 issued by the MoCA, it is the case of the petitioner

that the said Memorandum directs the airlines to refund value of

only those tickets that were booked during the lockdown period

by leaving vast majority of passengers who had booked tickets

before the flights were banned and also on the tickets which are

W.P.(C)D.No.10966 of 2020 etc.

booked by the travel agents. It is the case of the petitioner that

as per the practice in vogue there are several travel agents who

have booked tickets to passengers even before receipt of fare

amount from the passengers and if the refunds are not made to

them, they will suffer undue hardship. While referring to the

situation of pandemic COVID19 globally, it is stated that

tourism industry is suffering from great financial losses and it is

further unlikely that people will travel for leisure activities in

near future, until the spread of COVID19 is contained fully. It is

the case of the petitioner that where the tickets are booked by

travel agents from their account, refund should be made in the

same manner and channel through which payments for tickets

have been received by the airline. It is alleged that such

directions would secure fair and expedient justice by avoiding

locking up of funds of the passengers as well as the members of

the petitionerFederation.

8. The first Writ Petition (C) being Diary No.10966 of 2020 is

filed by the Pravasi Legal Cell and other subsequent writ

petitions are also tagged with the same. Pursuant to order of this

Court, Airlines were impleaded as the party respondents, and

some Airlines and others have filed applications on their own for

intervening in the matter which were allowed by this Court.

Common affidavit was filed on behalf of respondents nos.1 and 2

W.P.(C)D.No.10966 of 2020 etc.

– Union of India and Directorate General of Civil Aviation in the

abovementioned writ petition. Individual affidavits were filed by

the impleaded respondents on behalf of the Airlines; Travel

Agents Federation of India and others who are allowed to be

impleaded as party respondents.

9. In the affidavit filed on behalf of respondent nos.1 and 2

while denying the various allegations made by the petitioners,

they have explained the existing legal regime with respect to

refund of fares and clarified the circumstances which led to

issuance of O.M. dated 16.04.2020. While referring to the

meetings held by the Ministry of Civil Aviation with the

representatives of Airlines, the affidavit discloses the concerns

highlighted during such meetings and indicated the proposed

workable solutions keeping in view the interests of passengers as

well as the airlines. The Ministry of Civil Aviation after

consulting all the stake holders arrived at certain formulations,

which were referred to in the affidavit and deals with various

situations, such as, for domestic airlines where tickets were

booked by the passengers directly with the airline; for domestic

airlines when the ticket had been booked through a travel agent,

by the passenger with the airlines; for international travel when

the ticket had been booked on an Indian carrier, when the

booking is for exIndia; and for international travel when the

W.P.(C)D.No.10966 of 2020 etc.

tickets have been booked on a foreign carrier and the booking is

exIndia. The supplementary affidavit filed on behalf of

respondent nos.1 and 2 further clarified on categories of

passengers who are proposed to be covered and clarified the

period of booking of tickets and also with regard to the credit

shell. Further additional affidavit is also filed on behalf of the

said respondents further clarifying with regard to credit shell

proposals as proposed by the Government which were referred to

in the earlier affidavits. Detailed affidavits are filed on behalf of

the airlines and other stake holders who are impleaded as party

respondents.

10. We have heard Sri Sanjay Hegde, learned senior counsel

appearing for the petitionerPravasi Legal Cell in W.P.(C).Diary

No.10966 of 2020; Sri C.A. Sundaram, learned senior counsel

appearing for the petitioner in W.P.(C)No.570 of 2020; Ms. Sonal

Jain, learned counsel appearing for the petitioners in W.P.

(C)No.952 of 2020 and Sri Harshwardhan Bhende, learned

counsel appearing for the Travel Agents Federation of India; Sri

Tushar Mehta, learned Solicitor General appearing for the Union

of India; Sri Arvind P. Datar, learned senior counsel appearing for

Go Airlines (India) Ltd.; Sri Harish N. Salve, learned senior

counsel appearing for Spicejet Ltd.; Sri Mukul Rohtagi, learned

senior counsel appearing for Interglobe Aviation Ltd. (Indigo

W.P.(C)D.No.10966 of 2020 etc.

Airline); Sri Pinaki Misra, learned senior counsel appearing for

Tata SIA Airlines Ltd. (Vistara Airlines) and Air Asia India Ltd.

and Sri Pallav Shishodia, learned senior counsel appearing for

the Indian Association of Tour Operators.

11. By considering the grievances amongst the airline

passengers on the issue of refund of tickets by airlines, the

Directorate General of Civil Aviation has issued Civil Aviation

Requirements by proceedings dated 22nd May 2008. As indicated

in the said requirements when the tickets are purchased by

means of credit card payments, refund shall be made by airlines

within seven days of cancellation; in case of cash transactions

refund shall be made immediately; in case of purchase of tickets

through travel agents airline shall ensure that the refund process

is completed within 30 working days. Further directions were

issued to the airlines to refund all statutory taxes and User

Development Fee/Airport Development Fee/Passenger Service

Fee to the passengers in case of cancellation/nonutilisation of

tickets. Similar such Requirements are also issued by

proceedings dated 06.08.2010 which were revised on 27.02.2019

and clause 3.3 of the said Requirements deals with the issue

relating to ‘cancellation of flight’ and the obligations on the

airliner either to offer an alternate flight or refund the ticket as

acceptable to the passenger. In ordinary course the said

W.P.(C)D.No.10966 of 2020 etc.

requirements are to be followed by the airliner whenever there is

a cancellation of tickets.

12. In view of peculiar situation which has arisen on account of

pandemic COVID19, to resolve the issues raised by the various

stake holders, while issuing notice this Court vide order dated

12.06.2020 has passed the following order :

“… … … …

WRIT PETITION(CIVIL) .. Diary No.(s).10966/2020

Issue notice. Mr. Rajat Nair, learned counsel

accepts notice on behalf of the Union of India.

Let notice be issued to the other respondents.

Mr. Tushar Mehta, learned Solicitor General

appearing for the Union of India may file counter

affidavit to the writ petition within two weeks from

today.

Learned Solicitor General submits that a

suggestion given by Mr. Harish Salve, learned

senior counsel that the Ministry of Aviation shall

call for a meeting with the airlines and sort out all

the issues is a welcome suggestion and steps shall

be taken by the Ministry of Aviation to do the

needful.

Liberty is given to the airlines to file counter

affidavit within three weeks.

… … … …”

13. In the affidavit filed on behalf of respondent nos.1 and 2 in

compliance of order dated 12.06.2020, filed by Director General

of Civil Aviation it is stated that after the order dated 12.06.2020

passed by this Court, a meeting was held on 02.07.2020 at 17:00

Hrs. under the Chairmanship of Secretary, Civil Aviation through

W.P.(C)D.No.10966 of 2020 etc.

video conferencing, to discuss issues relating to refund of air

fares by airlines. As referred in the affidavit, the meeting was

attended by the following participants:

Name and Designation

MoCA:

Shri Pradeep Singh Kharola, Secretary

Smt. Usha Padhee, Joint Secretary

Shri Amit Kumar Jha, SO

4. Shri Avinav Tiwari, ASO

DGCA:

Shri Arun Kumar, DG

Airlines:

Shri Vinay Dubey, CEO, Go Air

Shri Rajiv Bansal, CMD, Air India

Shri K. Shyam Sundar, CEO, Air India Express

Shri V. Hejmadi, Director Finance, Air India

10.

Shri Melwin D’Silva, ED (Commercial), Air India

11.

Shri Bhaskar Bhat, Chairman, Vistara

12. Shri Leslie Thng, CEO, Vistara

13.

Shri Moin Wasil, Head (Regulations), Vistara

W.P.(C)D.No.10966 of 2020 etc.

14.

Shri Ankur Garg, CCO, Air Asia

15.

Ms. Priya Mehra, Head (Legal), IndiGo

16.

Shri Sanjay Gupta, Head (Commercial), IndiGo

17.

Shri Chandan Sand, Spicejet

A copy of the Minutes of the meeting dated 02.07.2020 is also

placed on record. Thereafter further followup meeting was held

on 08.07.2020. By referring to two more meetings held by the

Ministry on 11.07.2020 – one with Online Travel Agents and

other with TAAI/TAFI representatives, minutes of such meeting

are also placed on record. While explaining the existing legal

regime relating to refund of fares, it is stated that same is

governed by Civil Aviation Requirements, which recognise the

rights of air passengers to seek refund of their air tickets. While

referring to relevant provisions of the CARs of 22.05.2008 and

06.08.2010 as revised on 27.02.2019, it is stated that for

cancellation of flights due to force majeure (extraordinary

circumstances beyond the control of airline), though airline is not

obligated to pay any compensation but it is obligated to refund

the fare to the passengers. At the same time while referring to

the meetings held by the respondent nos.1 and 2 concerning the

issues which are raised by the passengers as well as the airlines,

W.P.(C)D.No.10966 of 2020 etc.

and other stake holders it is stated if any enforcement action is

initiated by the DGCA for violations of CARs mentioned above,

same may result in reduction/suspension of approved schedule

of airline, who have already started operating their flights with

limited capacity. It is stated that any such strict enforcement

action against airline would further restrict/reduce their

operation and any such strict enforcement action may further

jeopardise the possibility of generation of cash by the airline

which can further adversely affect/delay the refund cycle. As

suggested by the respondents, the workable solutions keeping in

view the interests of both passengers as well as airlines the

following formulations are arrived at to harmonise the interests of

passengers and the viability of airlines to an extent. The said

formulations read as under:

“Formulations based on the discussions with

scheduled domestic airlines on refund of air fare

A. For domestic airlines when the ticket has been

booked directly by the passenger with the airline.

1. If the tickets have been booked during the first

lockdown period, i.e. 25th of March, 2020 to

14th of April, 2020 for the journeys to be

undertaken in both first and second lockdown

period i.e. from 25th of March, 2020 to 3rd of

May, 2020, in all such cases, full refund shall

be given by the airlines immediately (this is

being mandated vide MoCA’s OM dated 16TH

April, 2020 as the airlines were not supposed

to book such tickets).

W.P.(C)D.No.10966 of 2020 etc.

2. For all other cases, the airlines shall make all

endeavours to refund the collected amount to

the passenger within 15 days.

3. If on account of financial distress, if the airlines

are not able to do so they shall provide a credit

shell equal to the amount of fare collected.

This credit shell shall be issued in the name of

the passenger who has booked the ticket.

a. The passenger shall be able to consume the

credit shell up to 31st March, 2021 on any

route of his choice. If the passenger wants

to buy a ticket of value more than the credit

shell, then he can use cash to top it up. If

he wants to buy a ticket of value less than

the credit shell, he/she can do so and the

balance amount of credit shell shall be

available to him/her.

b. There shall be an incentive mechanism to

compensate the passenger if there is a delay

in consuming the credit shell – from the date

of cancellation upto 30th June, 2020 the

value of credit shell shall be enhanced by

0.5% of the face value (the amount of fare

collected) for every month or part thereof

between the date of cancellation and 30th

June, 2020. Thereafter, the value of credit

shell shall be enhanced by 0.75% of the face

value per month, up to March 2021.

c. The credit shell shall be transferable. The

passenger can transfer the credit shell to

any person, and the airlines shall honour

such a transfer. The airlines shall devise a

mechanism to facilitate such a transfer.

d. By the end of March, 2021, the Airlines shall

refund cash to the holder of the credit shell.

4. Notwithstanding what is stated above, the

airlines shall refund the full amount in case of

travellers who have since expired to the

W.P.(C)D.No.10966 of 2020 etc.

account of the passenger or to his

representative.

B. For domestic airlines when the ticket has been

booked through a travel agent (including OTA) by

the passenger with the airline.

1. If the tickets have been booked during the

lockdown period for travel within the lockdown

period, in all such cases full refund shall be

given by the airlines immediately (this is being

mandated vide MoCA’s OM dated 16th April,

2020 as the airlines were not supposed to book

such tickets). This amount shall be passed on

immediately by the Agent to the passengers.

2. For all other cases, the airlines shall make all

endeavours to refund the collected amount

within 15 days. This amount shall be passed

on immediately by the Agent to the passengers.

3. If on account of financial distress, if the airlines

are not able to do so they shall provide a credit

shell equal to the amount of fare collected.

This credit shell shall be issued in the name of

the passenger who has booked the ticket. The

credit shell shall be transferred by the Agent to

the passengers (if booking is through an agent).

a. The passenger shall be able to consume the

credit shell up to 31st March, 2021 on any

route of his choice. If the passenger wants

to buy a ticket of value more than the credit

shell, then he can use cash to top it up. If

he wants to buy a ticket of value less than

the credit shell, he/she can do so and the

balance amount of credit shell shall be

available to him/her.

b. There shall be an incentive mechanism to

compensate the passenger if there is a delay

in consuming the credit shell – from the date

W.P.(C)D.No.10966 of 2020 etc.

of cancellation up to 30th June, 2020 the

value of credit shell shall be enhanced by

0.5% of the face value (the amount of fare

collected) for every month or part thereof

between the date of cancellation and 30th

June, 2020. Thereafter, the value of credit

shell shall be enhanced by 0.75% of the face

value per month, up to March 2021.

c. The credit shell shall be transferable. The

passenger can transfer the credit shell to

any person, and the airlines shall honour

such a transfer. The airlines shall devise a

mechanism to facilitate such a transfer.

d. By the end of March, 2021, the Airlines shall

refund cash to the holder of the credit shell.

e. The travel agents shall be entitled for their

usual fees/service charges/commission.

4. Notwithstanding what is stated above, the

airlines shall refund the full amount in case of

persons who have since expired. This amount

shall be passed on immediately by the Agent to

the passengers.

C. For international travel when the ticket has been

booked on an Indian carrier and the booking is

exIndia

1. If the tickets have been booked during the

lockdown period for travel within the lockdown

period, in all such cases full refund shall be

given by the airlines immediately (this is being

mandated vide MoCA’s OM dated 16th April,

2020 as the airlines were not supposed to book

such tickets). This amount shall be passed on

immediately by the Agent to the passengers, as

the case may be.

W.P.(C)D.No.10966 of 2020 etc.

2. For all other cases, the airlines shall make all

endeavours to refund the collected amount

within 15 days. This amount shall be passed

on immediately by the Agent to the passengers,

as the case may be.

3. If on account of financial distress, if the airlines

are not able to do so they shall provide a credit

shell equal to the amount of fare collected.

This credit shell shall be issued in the name of

the passenger who has booked the ticket. The

credit shell shall be transferred by the Agent to

the passengers (if booking is through an agent).

a. The passenger shall be able to consume the

credit shell up to 31st March, 2021 on any

route of his choice. If the passenger wants

to buy a ticket of value more than the credit

shell, then he can use cash to top it up. If

he wants to buy a ticket of value less than

the credit shell, he/she can do so and the

balance amount of credit shell shall be

available to him/her.

b. There shall be an incentive mechanism to

compensate the passenger if there is a delay

in consuming the credit shell – from the date

of cancellation up to 30th June, 2020 the

value of credit shell shall be enhanced by

0.5% of the face value (the amount of fare

collected) for every month or part thereof

between the date of cancellation and 30th

June, 2020. Thereafter, the value of credit

shell shall be enhanced by 0.75% of the face

value per month, up to March 2021.

c. The credit shell shall be transferable. The

passenger can transfer the credit shell to

any person, and the airlines shall honour

such a transfer. The airlines shall devise a

mechanism to facilitate such a transfer.

W.P.(C)D.No.10966 of 2020 etc.

d. By the end of March, 2021, the Airlines shall

refund cash to the holder of the credit shell.

e. Notwithstanding what is stated above, the

airlines shall refund the full amount in case

of persons who have since expired. This

amount shall be passed on immediately by

the Agent to the passenger’s representative.

D. For international travel when the ticket has been

booked on a foreign carrier and the booking is exIndia

1. If the tickets have been booked during the

lockdown period for travel within the lockdown

period, in all such cases full refund shall be

given by the airlines immediately (this is being

mandated vide MoCA’s OM dated 16th April,

2020 as the airlines were not supposed to book

such tickets). This amount shall be passed on

immediately by the Agent to the passengers, as

the case may be.

2. For all other cases, the airlines shall refund the

collected amount to the passenger within 15

days. This amount shall be passed on

immediately by the Agent to the passengers. (If

the booking is through an agent).”

14. Further affidavit in the form of supplementary affidavit is

filed on behalf of respondent nos.1 and 2 which is more in the

nature of a clarificatory one on certain doubts expressed by the

learned counsel for the petitioners. While clarifying the category

of passengers who are proposed to be covered under the

proposed formulations mentioned in the earlier affidavit, it is

clarified that the following categories are covered:

W.P.(C)D.No.10966 of 2020 etc.

“(i) Passengers who had booked their tickets

directly from the domestic airline for domestic

travel;

(ii) Passengers who had booked their tickets

through a travel agent (including OTA) for

domestic airline for domestic travel;

(iii) International travel passengers who had

booked their ticket on an Indian carrier and

the booking is exIndia;

(iv) International travel passengers who had

booked their ticket on a foreign carrier and

the booking is exIndia.

Though the term exIndia is not defined in the

Aircraft Act, 1934 and the Aircraft Rules, 1937, but

in aviation industry this term denotes the flights

which are originating from India.”

Further clarification is also made on period of booking of tickets.

It is stated that the formulations suggested will cover category of

cases where passengers who have booked the tickets prior to

lockdown for travel upto 24th May 2020 and refund of fares to

passengers covered under this category shall be governed by the

proposed formulation relating to credit shell and incentive

scheme. Further, passengers who have booked tickets during

lockdown for travel during lockdown, such category of

passengers are entitled for immediate refund of fares by the

airline as the airlines were not supposed to book such tickets.

With regard to passengers who have booked tickets at any period

W.P.(C)D.No.10966 of 2020 etc.

of time but for travel after 24th May 2020 it is stated that the

passengers covered under this category shall be governed by the

provisions of CAR. While clarifying the issue raised by the tour

operators with regard to credit shell, it is stated that in this

category there are two types of purchase of ticket by the agents.

The first mode is that when initially passengers pay the money to

agent and agent purchases ticket for the passenger and the

second mode is the one where agent purchases the ticket for the

passengers through its advance deposit with the airline and the

passengers pay the money either at the time of consumption of

ticket or may be even after consumption of ticket. In the affidavit

it is made clear that even in cases where tickets are purchased

by tour operator, who has paid the money to the airline for

purchasing the ticket for the client but the client is yet to pay

that money to the agent, then on cancellation of ticket and

converting it into a credit shell, the ticket will remain in the name

of passenger and in case passenger utilises the credit shell he

will have to pay to the agent and not to the airline. However, in

case the passenger does not utilise the credit shell till 31st March

2021, then airline will have to refund the amount as per

proposed formulation and money will go back to the same

account of the agent from which the ticket amount was paid to

the airline. It is also clarified that in case passenger in whose

W.P.(C)D.No.10966 of 2020 etc.

name the ticket is booked does not utilise the credit shell till 31st

March 2021, then the airline will have to refund with interest

prescribed in the formulation to the agent from whose account

the ticket was booked.

15. Referring to supplementary affidavit filed on behalf of

respondent nos.1 and 2 learned counsel appearing for the agents

have submitted that when the tickets are purchased by the agent

for the passenger by paying their money which is yet to be

received from the passenger, there should not be any difficulty

for giving the credit shell in the name of the agent himself who

has purchased the ticket. When it was pointed out that as per

the supplementary affidavit filed by the respondent nos.1 and 2 it

was made clear that in cases where tickets were purchased by

agents for passengers, where credit shell is given in the name of

passenger, if it is not utilised before 31st March 2021 money will

be returned to the account of agent from whose account money

was paid to the airline, there should not be any difficulty in

issuing credit shell in the name of agent, the learned Solicitor

General obtained instructions in this regard and filed additional

affidavit on 24th September 2020 on behalf of respondent nos.1

and 2. In this affidavit, it is stated that the existing regulatory

mechanism recognises the contract between the passenger and

the airlines only, for a ticket which is purchased and for which a

W.P.(C)D.No.10966 of 2020 etc.

named passenger only can be accounted for in the ‘passenger

manifest’ of a schedule flight which is to be maintained as per

the best international practices and regulations. The travel

agent, if any, involved in the purchase of any ticket on behalf of

any passenger remains only a viamedia, leaving the principal

contract between the airline and the passenger only. Therefore,

the proposed formulation suggested earlier, only recognises the

contract between the airline and the passenger of a purchased

ticket. As such it is stated that credit shell is proposed to be

issued in the name of passengers only who have booked their

tickets through agents and it is not feasible to issue a credit shell

in the name of agent, as much as ticket was purchased in the

name of passenger but at the same time it is clearly stated that if

such voucher is not used before 31st March 2021 as per the

formulation, money has to be paid back by the airliner through

the same account from which they have received money.

16. In view of such formulations which are arrived at during

the course of meetings held by the respondent nos.1 and 2 with

other stake holders, airlines etc., it is submitted that

substantially their grievances stand resolved but at the same

time certain issues were raised during the course of hearing.

17. Sri Sanjay Hegde, learned senior advocate appearing for the

Pravasi Legal Cell has submitted that in view of the proposals as

W.P.(C)D.No.10966 of 2020 etc.

mentioned in the affidavit filed by the respondent nos.1 and 2,

their grievances are substantially redressed but at the same time

he has submitted that for the bookings made for foreign air travel

through Indian carriers outside the country, same formulation as

proposed by the respondent nos.1 and 2 can be applied. Sri C.A.

Sundaram, learned senior counsel appearing for the Air

Passengers Association of India has submitted that whatever the

mode they have booked, all passengers are entitled for refund

immediately. It is submitted that the problems faced by the

airlines is no ground for not refunding the money which is paid

by the passengers. Sri Harshwardhan Bhende, learned counsel

appearing for the Travel Agents Federation of India has

submitted that when the tickets are booked by travel agents by

investing their money on behalf of the passengers there is no

reason for not issuing credit shell in the name of agents. Sri

Pallav Shishodia, learned senior counsel appearing for Indian

Association of Tour Operators has contended that, when tickets

are booked by agents, there is no reason for not issuing credit

shell in the name of agents. It is further submitted that in case

credit shell is not utilised by 31st of March 2021, refund has to

come back to the same account of the agent, from which account

money is paid for bookings.

W.P.(C)D.No.10966 of 2020 etc.

18. Shri Harish Salve, learned senior counsel appearing for

Spicejet Ltd., in view of the stand of respondent nos.1 and 2 in

their first affidavit, has stated that the formulations arrived at as

mentioned in the affidavit are by and large acceptable to his

client. Sri Rohtagi, learned senior counsel appearing for Indigo

Airlines, also has submitted that the suggestions/ formulations

as suggested in the affidavit filed on behalf of respondent nos.1

and 2 are acceptable. Shri Pinaki Misra, learned senior counsel

appearing for Tata SIA Airlines Ltd. (Vistara Airlines) and Air Asia

India Ltd. has submitted that the incentive mechanism suggested

for enhancing the face value of the credit shell, in the affidavit

filed by respondent nos.1 and 2 itself is reasonable and no higher

amount of interest may be considered on the refund. Sri Arvind

Datar, learned senior counsel appearing for Go Airlines India Ltd.

by drawing our attention to the detailed affidavit filed on its

behalf has submitted that COVID19 is an existential threat to

commerce generally, and to airlines in particular. It is submitted

that in developed countries airline industry has been able to

secure itself more broadbased State relief (whether by bailout or

otherwise, including dispensations from refunds). However, no

comparable measures have yet been introduced in India. By

referring to facts and figures as mentioned in the affidavit,

learned senior counsel has submitted that airlines is one of the

W.P.(C)D.No.10966 of 2020 etc.

worst affected sectors on account of pandemic COVID19.

Learned counsel drew our attention to the Report dated 09th June

2020, of IATA (the worldwide Aviation Industry Association) on

the economic performance of the airline industry. In its report,

after predicting a worldwide US$ 434 billion drop in airline

revenue and related indirect tax receipts and a 50.6% fall in

passenger demand it further states that GDP growth is likely to

contract by 5.0% in 2020; COVID19 will have a significant

impact on international trade (a 13% decline); 2020 will be the

worst year in the history of airlines with net losses of $84.3

billion; and 32 million jobs supported by aviation are at risk etc.

Referring to the severe liquidity crunch faced by airlines it is

submitted that if the credit shells are not utilised by 31st March

2021, it is not possible to refund the money as ordered and

learned counsel has requested to extend the time to encash

credit shell at least upto 31st March 2022 to balance the equities.

19. Though the various contentious issues are raised on both

sides and at the same time the suggestions/formulations as

suggested by respondent nos.1 and 2 in the affidavits filed before

this Court are by and large acceptable to the majority of stake

holders. In ordinary course modalities and timelines for refund

on cancellation of tickets are governed by, the Civil Aviation

Requirements, i.e. CAR dated 22nd May 2008; 06th August 2010

W.P.(C)D.No.10966 of 2020 etc.

as revised on 27th February 2019, and the said Requirements are

issued by the competent authority in exercise of powers under

the provisions of Aircrafts Act, 1934 and the Rules made

thereunder. But at the same time we cannot lose sight of the

present situation prevailing in the country and across the globe,

i.e. the effect of pandemic COVID19. It cannot be disputed that

the civil aviation sector, which is one of the important sectors, is

seriously affected in view of the ban imposed for operating flights.

Added to the same, air passenger traffic has come down heavily

and which is gradually being restored. At this moment any strict

enforcement action of the CARs would further restrict/reduce

their operations and such enforcement action may further

jeopardise the possibilities of generation of cash by airlines which

can further adversely affect/delay the refund cycle. Strict

enforcement of Civil Aviation Requirements at this moment may

not yield any meaningful result for any stake holder. In view of

the suggestions and formulations arrived at in the meetings held

by respondent nos.1 and 2, which are acceptable to the majority

of stake holders, have to be implemented in letter and spirit. We

also feel that such formulations are workable solutions in these

peculiar circumstances which are prevailing in the country. The

grievances which are raised on behalf of agents can be taken care

by this Court by issuing appropriate directions wherever

W.P.(C)D.No.10966 of 2020 etc.

bookings are made by them, so as to see that their interest is

safeguarded. Sri Arvind Datar, learned senior counsel, though

has argued to extend the timelines for encashment of credit shell

at least up to 31st March 2022 or any other shorter period but we

are not inclined to accept the same, keeping in mind that the

passengers who, with the hope of travel, have booked their

tickets by spending their own money. For these reasons we are

not inclined to delve any further on any of the contentions and

deem it appropriate to dispose of this batch of cases with the

following directions:

1. If a passenger has booked a ticket during the

lockdown period (from 25th March, 2020 to 24th May,

2020) for travel during lockdown period and the

airline has received payment for booking of air ticket

for travel during the same period, for both domestic

and international air travel and the refund is sought

by the passenger against that booking being

cancelled, the airline shall refund the full amount

collected without any cancellation charges. The

refund shall be made within a period of three weeks

from the date of cancellation.

2. If the tickets have been booked during the

lockdown period through a travel agent for a travel

within the lockdown period, in all such cases full

refund shall be given by the airlines immediately.

On such refund, the amount shall be passed on

immediately by the agent to the passengers.

W.P.(C)D.No.10966 of 2020 etc.

3. Passengers who booked tickets at any period

of time but for travel after 24th May, 2020 – refund of

fares to the passengers covered under this category

shall be governed by the provisions of Civil Aviation

Requirements (CAR).

4. Even for international travel, when the tickets

have been booked on an Indian carrier and the

booking is exIndia, if the tickets have been booked

during the lockdown period for travel within the

lockdown period, immediate refund shall be made.

5. If the tickets are booked for international

travel on a foreign carrier and the booking is exIndia

during the lockdown period for travel within the

lockdown period, full refund shall be given by the

airlines and said amount shall be passed on

immediately by the agent to the passengers,

wherever such tickets are booked through agents. In

all other cases airline shall refund the collected

amount to the passenger within a period of three

weeks.

6. In all other cases, the airlines shall make all

endeavours to refund the collected amount to the

passenger within 15 days from today. If on account

of financial distress, any airline / airlines are not

able to do so, they shall provide credit shell, equal to

the amount of fare collected, in the name of

passenger when the booking is done either directly

by the passenger or through travel agent so as to

consume the same on or before 31st March, 2021. It

is open to the passenger either to utilize such credit

W.P.(C)D.No.10966 of 2020 etc.

shell upto 31st March, 2021 on any route of his

choice or the passenger can transfer the credit shell

to any person including the travel agent through

whom he / she has booked the ticket and the

airlines shall honour such a transfer.

6.1. The credit shell issued in the name of the

passenger shall be transferable which can be utilized

upto 31st March, 2021 and the concerned airline

shall honour such a transfer by devising a

mechanism to facilitate such a transfer. It is also

made clear that such credit shell can be utilized by

the concerned agent through whom the ticket is

booked, for third party use. It is also made clear

that even in cases where credit shell is transferred to

third party, same is to be utilized only through the

agent who has booked the ticket at the first instance.

7. In cases where passengers have purchased

the ticket through an agent, and credit shell is

issued in the name of passenger, such credit shell is

to be utilized only through the agent who has booked

the ticket. In cases where tickets are booked

through agent, credit shell as issued in the name of

the passenger which is not utilized by 31st March,

2021, refund of the fare collected shall be made to

the same account from which account amount was

received by the airline.

8. In all cases where credit shell is issued there

shall be an incentive to compensate the passenger

from the date of cancellation upto 30th June, 2020 in

which event the credit shell shall be enhanced by

W.P.(C)D.No.10966 of 2020 etc.

0.5% of the face value (the amount of fare collected)

for every month or part thereof between the date of

cancellation and 30th June, 2020. Thereafter the

value of the credit shell shall be enhanced by 0.75%

of the face value per month upto 31st March, 2021.

Further, the second respondentDirectorate, shall ensure strict

compliance of the directions referred above, by issuing necessary

instructions to the all concerned.

20. With the above directions, these writ petitions are disposed

of.

………….………………………………...J.

[ASHOK BHUSHAN]

….…………………………………………J.

[R. SUBHASH REDDY]

….…………………………………………J.

[M.R. SHAH]

New Delhi.

October 01, 2020.

No conviction be imposed basing on wrong inference without any materials

The appellant along with his parents was charged under sections 304B and 498A read with section 34 of the IPC. The learned Trial Court ordered acquittal of the appellant’s parents Dulla Singh and Karnail Kaur. However, even while declaring that there is insufficient material to convict anyone under section 304B & 498A IPC, the trial Court opined that although no charge of abetment was framed against the husband Gurcharan Singh, he can be convicted for abetting suicide of his wife, under section 306 IPC.

The Trial Court then posed a question to itself as to why a young lady with two small children would commit suicide unless she has been pushed to do so, by the circumstances in the matrimonial home. It was then observed that the expectation of a married woman will be love and affection and financial security at the hands of her husband and if her hopes are frustrated by the act or by wilful negligence of the husband, it would constitute abetment within the meaning of section 107 IPC, warranting conviction under section 306 IPC.

Apex court held that

no overt act or illegal omission is seen from the appellant’s side, in taking due care of his deceased wife. The evidence also does not indicate that the deceased faced persistent harassment from her husband. Nothing to this effect is testified by the parents or any of the other prosecution witnesses. The Trial Court and the High Court speculated on the unnatural death and without any evidence concluded only through conjectures, that the appellant is guilty of abetting the suicide of his wife. In such circumstances, we have no hesitation in declaring that the Trial Court and the High Court erred in concluding that the deceased was driven to commit suicide, by the circumstances or atmosphere in the matrimonial home. This is nothing more than an inference, without any material support. Therefore, the same cannot be the basis for sustaining conviction of the appellant, under section 306 of the IPC.

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.40 OF 2011

Gurcharan Singh Appellant

Versus

The State of Punjab Respondent

JUDGMENT

Hrishikesh Roy, J.

1. This Appeal challenges the judgment and order dated

4.3.2010 of the High Court of Punjab and Haryana

whereunder, the Criminal Appeal No. 408-SB of 1999 of

the convicted appellant was dismissed and the judgment

of conviction under section 306 of the Indian Penal

Code, 1860 (for short “the IPC”) and the consequential

sentence of 4 years RI and fine of Rs. 5000/-

imposed by the Learned Additional Sessions Judge,

Barnala, was upheld.

Page 1 of 17

2. The appellant along with his parents was charged

under sections 304B and 498A read with section 34 of

the IPC. The learned Trial Court ordered acquittal of

the appellant’s parents Dulla Singh and Karnail Kaur.

However, even while declaring that there is

insufficient material to convict anyone under section

304B & 498A IPC, the trial Court opined that although

no charge of abetment was framed against the husband

Gurcharan Singh, he can be convicted for abetting

suicide of his wife, under section 306 IPC.

3. The criminal process was set in motion with

registration of FIR No. 177 dated 13.8.1997 at P.S.

Kotwali, Barnala, under section 304B/34 IPC and under

section 498A IPC. The case was registered on the basis

of statement made by Jail Singh, father of Shinder

Kaur(deceased). The appellant was married to Shinder

Kaur and they had a son (21/4 years) and a daughter (8/9

months), when the mother committed suicide on

12.8.1997. According to the prosecution case, Shinder

Kaur was harassed after marriage, for insufficient

Page 2 of 17

dowry. A few days prior to the occurrence, Shinder

Kaur was beaten and was turned out from her matrimonial

home by the accused to bring Rs.20,000/- from her

parents for purchase of a plot. Then the Complainant

had escorted back his daughter to her matrimonial home

by pleading with the accused that he was unable to meet

their cash demand. On 13.8.1997, the father received a

message that Shinder Kaur had died in her matrimonial

house. On hearing this, the Complainant Jail Singh

along with his wife Surjit Kaur and Chand Singh

(brother of Surjit Kaur), rushed to Barnala and saw the

dead body of Shinder Kaur in the matrimonial home who

had died at about 5 P.M. on 12.8.1997. Since, it was an

unnatural death, the Complainant alleged that either

the accused had caused the death of his daughter by

giving her some poisonous substance or she had ingested

such substance, due to harassment by the accused.

4. The post mortem report disclosed that death was due

to consumption of aluminium phosphide. The husband and

the parents-in-law of the deceased were charged and

Page 3 of 17

after the case was committed on 28.10.1997, the trial

commenced before the Court of Additional Sessions

Judge, Barnala.

5. Adverting to the evidence of Jail Singh(PW2), Chand

Singh(PW3) and Surjit Kaur(PW4), who were the father,

maternal uncle and mother of the deceased respectively,

the Court proceeded to determine whether the unnatural

death was the result of Dowry demand. The witnesses

testified that Rs. 20,000/- was demanded by the accused

from the deceased’s family as they wanted to purchase a

plot and since this demand could not be met, Shinder

Kaur committed suicide. The evidence of PW2, the father

of the deceased shows that “cash loan” of 20,000/- was

asked. It is also seen from the evidence that the

appellant Gurcharan Singh is the only son of his

parents and they are the owner of a big house with a

vegetable garden. The appellant and his father were

drivers with Punjab police. What is also of relevance

is that during delivery time, the deceased was admitted

in the hospital for 10/12 days in November 1996 and her

Page 4 of 17

medical treatment was arranged by the husband and the

father-in-law. No evidence of any dispute relating to

dowry demand or maltreatment of the deceased, during

three years of marriage was seen. On this basis, the

Trial Court concluded even if Rs. 20,000/- was asked

for purchase of plot three years after marriage and few

days later the unnatural death takes place, the death

cannot be related to demand of dowry.

6. The Trial Court then posed a question to itself as

to why a young lady with two small children would

commit suicide unless she has been pushed to do so, by

the circumstances in the matrimonial home. It was then

observed that the expectation of a married woman will

be love and affection and financial security at the

hands of her husband and if her hopes are frustrated by

the act or by wilful negligence of the husband, it

would constitute abetment within the meaning of section

107 IPC, warranting conviction under section 306 IPC.

With such reasoning, the Trial Court concluded that

Shinder Kaur committed suicide when her hopes were

Page 5 of 17

frustrated by the act of her husband or alternatively,

by his wilful neglect. Thus, the Court itself was

uncertain on the nature of the act to be attributed to

the appellant. Moreover, even while noting that no

direct evidence of cruelty against the husband and the

in-laws is available, the learned Court assumed that

section 306 IPC can be applied against the appellant.

With such conjecture, while acquitting all three

accused of the charged crime under section 304B and

498A of IPC, the husband was convicted under section

306 IPC.

7. In the resultant Criminal Appeal, the appellant

contended that the conviction cannot be justified

unless evidence disclosed some positive act or conduct

of the accused, which might have compelled the deceased

to commit suicide. On the plea of cordial relationship

of the deceased with her husband, the appellate Judge

conjectured that if such be the situation, the family

members (PW2,PW3,PW4) of the deceased, would not have

deposed against the husband. The suggestion that the

Page 6 of 17

deceased accidentally consumed pesticide kept for the

vegetable garden was brushed aside by the learned

Judge. Accordingly, the High Court endorsed the Trial

Court’s view that deceased was pushed to commit suicide

by the circumstances and the atmosphere in the

matrimonial home. The appeal was accordingly dismissed

by the impugned judgment leading to the present appeal.

8. For the appellant, the learned Counsel Mr R K

Kapoor focused on the findings of the Trial Court that

there is no direct evidence of cruelty towards the

deceased, by the husband or parents-in-law. It is then

submitted that there is nothing to conclude that the

husband had wilfully neglected his wife or had

frustrated her, to bring the case within the ambit of

abetment. The Counsel argues that the court’s

conclusion is entirely based on conjectures and not

upon any substantial evidence. Since no evidence of

dowry harassment was found and the demand of Rs.

20,000/- was ruled out as the cause for suicide, the

learned Counsel submits that both Courts erred in

Page 7 of 17

concluding that the deceased was pushed to commit

suicide, on account of the circumstances or atmosphere

created by the appellant. The contrary evidence of

care and attention of the deceased by her husband and

in-laws is highlighted by the appellant’s lawyer to

argue that in the matrimonial home, the deceased was

treated well. In any case, the degree of love and

affection expected of a husband, cannot be measured to

base the conviction of abetment. Accordingly, it is

contended that the inference without any evidence of

vitiating circumstances in the matrimonial home

purportedly created by the appellant, is nothing but an

inference and conviction cannot be sustained on that

basis alone. The Counsel then points out that both

children born to the deceased are residing with the

appellant and this would also indicate that appellant

is a caring and responsible person. The Counsel further

submits that the appellant has already undergone

sentence for about two years.

Page 8 of 17

9. On the other hand, Ms Jaspreet Gogia, learned

counsel for the State of Punjab refers to the evidence

of Jail Singh(PW2) and Surjit Kaur (PW4), the parents

of deceased, who stated that a week before the

incident, the deceased was beaten and was sent to her

parental home to bring cash for purchase of a plot. As

the parents were unable to pay the demanded sum, the

deceased was driven to commit suicide in her

matrimonial home on the very day, when her father

dropped her back. The Counsel then argues that if not

for the circumstances or atmosphere in the matrimonial

home, why should a young mother of two children commit

suicide, by consuming pesticide.

10. The submissions of the learned Counsel have been

considered. In order to give the finding of abetment

under section 107 IPC, the accused should instigate a

person either by act of omission or commission and only

then, a case of abetment is made out. In the present

case however, there is no direct evidence of cruelty

against the husband or the in-laws. There is nothing

Page 9 of 17

on record to show which particular hope or expectation

of the deceased was frustrated by the husband.

Evidence is also lacking on wilful neglect of the

appellant, which led to the suicidal death. Whereas

contrary evidence is available to suggest that care and

treatment was given to the deceased in the matrimonial

home and in the hospital, and during the three years of

marriage, there was no instance of maltreatment,

attributable to dowry demand. The demand of Rs.

20,000/- for purchase of a plot (in front of the

residence which might have incidentally become

available for sale just at that time), after three

years of marriage, was ruled out by the trial Court as

the possible cause for the suicidal death. In any case,

PW2 stated that this sum was a “cash loan” asked for

buying the plot. Thus, a loan may have been sought by

the accused which could not be given. But there is

nothing to show that the deceased was harassed on this

count, in the matrimonial home. In the face of such

material, it is difficult to conclude that Shinder Kaur

Page 10 of 17

was pushed to commit suicide by the circumstances or

atmosphere created by the appellant.

11. Insofar as the possible reason for a young married

lady with two minor children committing suicide, in the

absence of evidence, conjectures cannot be drawn that

she was pushed to take her life, by the circumstances

and atmosphere in the matrimonial home. What might have

been the level of expectation of the deceased from her

husband and in-laws and the degree of her frustration,

if any, is not found through any evidence on record.

More significantly, wilful negligence by the husband

could not be shown by the prosecution.

12. It must also be noted that both children born to

deceased are being brought up by the appellant’s family

ever since the death of the mother on 12.8.1997. The

maternal grandparents, even while pointing fingers

against the accused, never raised any issue on their

grandchildren being brought up in the home where their

daughter died an unnatural death.

Page 11 of 17

13. Section 107 IPC defines “abetment” and in this

case, the following part of the section will bear

consideration: -

“107. Abetment of a thing – A person

abets the doing of a thing, who –

First-Instigates any person to do that

thing; or

**** **** **** **** ****

Thirdly – Intentionally aids, by any act

or illegal omission, the doing of that

thing.”

14. The definition quoted above makes it clear that

whenever a person instigates or intentionally aids by

any act or illegal omission, the doing of a thing, a

person can be said to have abetted in doing that thing.

15. As in all crimes, mens rea has to be established.

To prove the offence of abetment, as specified under

Sec 107 of the IPC, the state of mind to commit a

particular crime must be visible, to determine the

culpability. In order to prove mens rea, there has to

be something on record to establish or show that the

appellant herein had a guilty mind and in furtherance

of that state of mind, abetted the suicide of the

Page 12 of 17

deceased. The ingredient of mens rea cannot be assumed

to be ostensibly present but has to be visible and

conspicuous. However, what transpires in the present

matter is that both the Trial Court as well as the High

Court never examined whether appellant had the mens rea

for the crime, he is held to have committed. The

conviction of Appellant by the Trial Court as well as

the High Court on the theory that the woman with two

young kids might have committed suicide, possibly

because of the harassment faced by her in the

matrimonial house, is not at all borne out by the

evidence in the case. Testimonies of the PWs do not

show that the wife was unhappy because of the appellant

and she was forced to take such a step on his account.

16. The necessary ingredients for the offence under

section 306 IPC was considered in the case SS Chheena

Vs. Vijay Kumar Mahajan1 where explaining the concept

of abetment, Justice Dalveer Bhandari wrote as under:-

“25. Abetment involves a mental process of

instigating a person or intentionally aiding a

1 (2010) 12 SCC 190

Page 13 of 17

person in doing of a thing. Without a positive

act on the part of the accused to instigate or

aid in committing suicide, conviction cannot be

sustained. The intention of the legislature and

the ratio of the cases decided by this Court is

clear that in order to convict a person under

Section 306 IPC there has to be a clear mens rea

to commit the offence. It also requires an

active act or direct act which led the deceased

to commit suicide seeing no option and that act

must have been intended to push the deceased

into such a position that he committed suicide.”

17. While dealing with a case of abetment of suicide in

Amalendu Pal alias Jhantu vs. State of West

Bengal2, Dr. Justice M.K. Sharma writing for the

Division Bench explained the parameters of Section 306

IPC in the following terms:

“12. Thus, this Court has consistently taken the

view that before holding an accused guilty of an

offence under Section 306 IPC, the court must

scrupulously examine the facts and circumstances

of the case and also assess the evidence adduced

before it in order to find out whether the

cruelty and harassment meted out to the victim

had left the victim with no other alternative but

to put an end to her life. It is also to be borne

in mind that in cases of alleged abetment of

suicide there must be proof of direct or indirect

acts of incitement to the commission of suicide.

Merely on the allegation of harassment without

there being any positive action proximate to the

2 (2010) 1 SCC 707

Page 14 of 17

time of occurrence on the part of the accused

which led or compelled the person to commit

suicide, conviction in terms of Section 306 IPC

is not sustainable.

13. In order to bring a case within the purview

of Section 306 IPC there must be a case of

suicide and in the commission of the said

offence, the person who is said to have abetted

the commission of suicide must have played an

active role by an act of instigation or by doing

certain act to facilitate the commission of

suicide. Therefore, the act of abetment by the

person charged with the said offence must be

proved and established by the prosecution before

he could be convicted under Section 306 IPC.

18. In the case Mangat Ram Vs. State of Haryana3, which

again was a case of wife’s unnatural death, speaking

for the Division Bench, Justice K.S.P. Radhakrishnanan

rightly observed as under:-

“24. We find it difficult to comprehend the

reasoning of the High Court that “no prudent

man is to commit suicide unless abetted to do

so”. A woman may attempt to commit suicide due

to various reasons, such as, depression,

financial difficulties, disappointment in love,

tired of domestic worries, acute or chronic

ailments and so on and need not be due to

abetment. The reasoning of the High Court that

no prudent man will commit suicide unless

abetted to do so by someone else, is a perverse

reasoning.”

3 (2014) 12 SCC 595

Page 15 of 17

19. Proceeding with the above understanding of the law

and applying the ratios to the facts in the present

case, what is apparent is that no overt act or illegal

omission is seen from the appellant’s side, in taking

due care of his deceased wife. The evidence also does

not indicate that the deceased faced persistent

harassment from her husband. Nothing to this effect is

testified by the parents or any of the other

prosecution witnesses. The Trial Court and the High

Court speculated on the unnatural death and without any

evidence concluded only through conjectures, that the

appellant is guilty of abetting the suicide of his

wife.

20. In such circumstances, we have no hesitation in

declaring that the Trial Court and the High Court erred

in concluding that the deceased was driven to commit

suicide, by the circumstances or atmosphere in the

matrimonial home. This is nothing more than an

inference, without any material support. Therefore, the

Page 16 of 17

same cannot be the basis for sustaining conviction of

the appellant, under section 306 of the IPC.

21. In view of the foregoing, we are persuaded to

conclude that the decisions under challenge cannot be

legally sustained. Consequently, interfering with the

impugned judgment of the High Court and the Trial

Court, the appellant’s conviction under Section 306 IPC

is set aside and quashed. The appeal is accordingly,

allowed.

……………………………………………J.

[N.V. RAMANA]

……………………………………………J.

[SURYA KANT]

……………………………………………J.

[HRISHIKESH ROY]

NEW DELHI

OCTOBER 1, 2020

Page 17 of 17

Wednesday, September 30, 2020

Section 375 IPC = whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. ?

Section 375 IPC = whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. ?

If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out. It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eyes of law. In the facts of the present case 10 we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury.

Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.

We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deepseated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday (supra) are considered relevant: “25…It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 635 OF 2020

(Arising out of SLP (Crl.) No.393 of 2020)

MAHESHWAR TIGGA ...APPELLANT(S)

VERSUS

THE STATE OF JHARKHAND ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellant assails his conviction under sections 376, 323

and 341 of the Indian Penal Code (in short, “IPC”) sentencing him

to seven years, one year and one month respectively with fine and

a default stipulation.

3. The prosecutrix, PW9 lodged FIR No. 25 of 1999 on

13.04.1999 alleging that four years ago the appellant had

outraged her modesty at the point of a knife. He had since been

promising to marry her and on that pretext continued to

establish physical relations with her as husband and wife. She

had also stayed at his house for fifteen days during which also he

established physical relations with her. Five days prior to the

lodging of the F.I.R, the appellant had established physical

relations with her on 09.04.1999. The appellant had cheated her

as now he was going to solemnise his marriage with another girl

on 20.04.1999. All efforts at a compromise had failed.

4. The Additional Judicial Commissioner, Ranchi on

consideration of the evidence convicted the appellant holding that

the prosecutrix was 14 years of age when the appellant had first

committed rape upon her at the point of a knife. He did not

abide by his promise to marry her. The High Court dismissing

the appeal opined that the letters written by the appellant to the

prosecutrix, their photographs together, and the statement of the

appellant recorded under Section 313 Cr.P.C. were sufficient to

sustain the conviction.

5. Learned senior counsel, Mrs. V. Mohana on behalf of the

appellant, submits that the F.I.R lodged belatedly after four years

was clearly an afterthought. The entire genesis of the allegations

is highly doubtful and suspect as the prosecutrix in her crossexamination admitted that the appellant had not committed rape

with her on 09.04.1999. The letters written by the appellant to

the prosecutrix as also those written by her to the appellant

marked as Exhibits during trial, more than sufficiently

established a deep love affair between them over a period of time.

The prosecutrix was aged approximately 25 years as opined by

P.W.10, the Doctor who medically examined her on 14.04.1999.

The physical relations between the appellant and the prosecutrix

were consensual in nature occasioned by their love affair. No

offence under Section 375 IPC is therefore, made out. The

questions put to the appellant under Section 313 Cr.P.C. were

very casual and perfunctory, leading to denial of proper

opportunity of defence causing serious prejudice to him by denial

of the right to a fair trial. The marriage between them could not

materialise due to societal reasons as the appellant belonged to

the Scheduled Tribe, while the prosecutrix was a Christian.

Reliance was placed on Parkash Chand vs. State of Himachal

Pradesh, (2019) 5 SCC 628, Vijayan vs. State of Kerala,

(2008) 4 SCC 763, Kaini Rajan vs. State of Kerala, (2013) 9

SCC 113, Deepak Gulati vs. State of Haryana, (2013) 7 SCC

675 and Uday vs. State of Karnataka, (2003) 4 SCC 46.

6. Ms. Pragya Baghel, learned counsel for the State, submitted

that the prosecutrix stood by the allegations during trial. The

delay in lodging the FIR has been sufficiently explained by reason

of the compromise efforts which failed to materialise. P.W. 7,

the sister of the prosecutrix had also confirmed that the latter

was sexually assaulted by the appellant at the point of a knife

and had come home crying. The appellant had told the

prosecutrix to keep quiet in his absence, revealing that his

intentions were not bonafide. The defence of a consensual

relationship is irrelevant considering that the prosecutrix was

fourteen years of age. The appellant had held out a false promise

of marriage only to establish physical relations with the

prosecutrix. He never had any such intentions from the very

inception, and he obtained the consent of the appellant by a false

misrepresentation, which is no consent in the eyes of the law.

The evidence of the prosecutrix is reliable.

7. We have considered the submissions on behalf of the

parties. The prosecutrix in her deposition dithered with regard to

her age by first stating she was sixteen years on the date of

occurrence and then corrected herself to state she was thirteen.

Though she alleged that the appellant outraged her modesty at

the point of a knife while she was on way to school, no name of

the school has been disclosed either by the prosecutrix or her

parents P.W.5 and 6. If the prosecutrix was studying in a school

there is no explanation why proof of age was not furnished on

basis of documentary evidence such as school register etc.

P.W.10, in cross examination assessed the age of the prosecutrix

to be approximately twentyfive years. P.W.2, the cousin (brother)

of the prosecutrix aged about 30 years deposed that she was six

years younger to him. There is thus wide variation in the

evidence with regard to the age of the prosecutrix. The Additional

Judicial Commissioner held the prosecutrix to be fourteen years

of age applying the rule of the thumb on basis of the age

disclosed by her in deposition on 18.08.2001 as 20 years. In

absence of positive evidence being led by the prosecution with

regard to the age of the prosecutrix on the date of occurrence, the

possibility of her being above the age of eighteen years on the

date cannot be ruled out. The benefit of doubt therefore has to be

given to the appellant.

8. A bare perusal of the examination of the accused under

Section 313 Cr.P.C. reveals it to be extremely casual and

perfunctory in nature. Three capsuled questions only were asked

to the appellant as follows which he denied:

“Question1. There is a witness against you that when the

informant V. Anshumala Tigga was going to school you

were hiding near Tomra canal and after finding the

informant in isolation you forced her to strip naked on

knifepoint and raped her.

Question 2. After the rape when the informant ran to her

home crying to inform her parents about the incident and

when the parents of the informant came to you to inquire

about the incident, you told them that “if I have

committed rape then I will keep her as my wife”.

Question3. On your instruction, the informant’s parents

performed the “Lota Paani” ceremony of the informant, in

which the informant as well as your parents were

present, also in the said ceremony your parents had

gifted the informant a Saree and a blouse and the

informant’s parents had also gifted you some clothes”

9. It stands well settled that circumstances not put to an

accused under Section 313 Cr.P.C. cannot be used against him,

and must be excluded from consideration. In a criminal trial, the

importance of the questions put to an accused are basic to the

principles of natural justice as it provides him the opportunity

not only to furnish his defence, but also to explain the

incriminating circumstances against him. A probable defence

raised by an accused is sufficient to rebut the accusation without

the requirement of proof beyond reasonable doubt. This Court,

time and again, has emphasised the importance of putting all

relevant questions to an accused under Section 313 Cr.P.C. In

Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it

was held to an essential part of a fair trial observing as follows :

“5……The questioning of the accused under Section 313

CrPC was done in the most unsatisfactory manner.

Under Section 313 CrPC the accused should have been

given opportunity to explain any of the circumstances

appearing in the evidence against him. At least, the

various items of evidence, which had been produced by

the prosecution, should have been put to the accused in

the form of questions and he should have been given

opportunity to give his explanation. No such opportunity

was given to the accused in the instant case. We

deprecate the practice of putting the entire evidence

against the accused put together in a single question and

giving an opportunity to explain the same, as the accused

may not be in a position to give a rational and intelligent

explanation. The trial Judge should have kept in mind

the importance of giving an opportunity to the accused to

explain the adverse circumstances in the evidence and

the Section 313 examination shall not be carried out as

an empty formality. It is only after the entire evidence is

unfurled the accused would be in a position to articulate

his defence and to give explanation to the circumstances

appearing in evidence against him. Such an opportunity

being given to the accused is part of a fair trial and if it is

done in a slipshod manner, it may result in imperfect

appreciation of evidence…”

10. The appellant belonged to the Scheduled Tribe while the

prosecutrix belonged to the Christian community. They professed

different religious beliefs in a traditional society. They both

resided in the same village Basjadi and were known to each

other. The nature and manner of allegations, coupled with the

letters exchanged between them, marked as Exhibits during the

trial, make it apparent that their love for each other grew and

matured over a sufficient period of time. They were both smitten

by each other and passions of youth ruled over their minds and

emotions. The physical relations that followed was not isolated

or sporadic in nature, but regular over the years. The

prosecutrix had even gone and resided in the house of the

appellant. In our opinion, the delay of four years in lodgement of

the FIR, at an opportune time of seven days prior to the appellant

solemnising his marriage with another girl, on the pretext of a

promise to the prosecutrix raises serious doubts about the truth

and veracity of the allegations levelled by the prosecutrix. The

entire genesis of the case is in serious doubt in view of the

admission of the prosecutrix in cross examination that no

incident had occurred on 09.04.1999.

11. The parents of the prosecutrix, P.Ws. 5 and 6 both

acknowledged awareness of the relationship between appellant

and the prosecutrix and that they were informed after the first

occurrence itself but offer no explanation why they did not report

the matter to the police immediately. On the contrary, P.W. 5

acknowledges that the appellant insisted on marrying in the

Temple to which they were not agreeable and wanted the

marriage to be solemnised in the Church. They further

acknowledged that the appellant and the prosecutrix were in love

with each other. Contrary to the claim of the prosecutrix, P.W. 6

stated that the prosecutrix was sexually assaulted in her own

house.

12. The prosecutrix acknowledged that an engagement

ceremony had also been performed. She further deposed that the

marriage between them could not be solemnised because they

belonged to different religions. She was therefore conscious of

this obstacle all along, even while she continued to establish

physical relations with the appellant. If the appellant had

married her, she would not have lodged the case. She denied

having written any letters to the appellant, contrary to the

evidence placed on record by the defence. The amorous language

used by both in the letters exchanged reflect that the appellant

was serious about the relationship desiring to culminate the

same into marriage. But unfortunately for societal reasons, the

marriage could not materialise as they belonged to different

communities.

13. The question for our consideration is whether the

prosecutrix consented to the physical relationship under any

misconception of fact with regard to the promise of marriage by

the appellant or was her consent based on a fraudulent

misrepresentation of marriage which the appellant never

intended to keep since the very inception of the relationship. If

we reach the conclusion that he intentionally made a fraudulent

misrepresentation from the very inception and the prosecutrix

gave her consent on a misconception of fact, the offence of rape

under Section 375 IPC is clearly made out. It is not possible to

hold in the nature of evidence on record that the appellant

obtained her consent at the inception by putting her under any

fear. Under Section 90 IPC a consent given under fear of injury is

not a consent in the eyes of law. In the facts of the present case

we are not persuaded to accept the solitary statement of the

prosecutrix that at the time of the first alleged offence her

consent was obtained under fear of injury.

14. Under Section 90 IPC, a consent given under a

misconception of fact is no consent in the eyes of law. But the

misconception of fact has to be in proximity of time to the

occurrence and cannot be spread over a period of four years. It

hardly needs any elaboration that the consent by the appellant

was a conscious and informed choice made by her after due

deliberation, it being spread over a long period of time coupled

with a conscious positive action not to protest. The prosecutrix in

her letters to the appellant also mentions that there would often

be quarrels at her home with her family members with regard to

the relationship, and beatings given to her.

15. In Uday (supra), the appellant and the prosecutrix resided

in the same neighbourhood. As they belonged to different castes,

a matrimonial relationship could not fructify even while physical

relations continued between them on the understanding and

assurance of marriage. This Court observed as follows:

“21. It therefore appears that the consensus of

judicial opinion is in favour of the view that the

consent given by the prosecutrix to sexual

intercourse with a person with whom she is deeply

in love on a promise that he would marry her on a

later date, cannot be said to be given under a

misconception of fact. A false promise is not a fact

within the meaning of the Code. We are inclined to

agree with this view, but we must add that there is

no straitjacket formula for determining whether

consent given by the prosecutrix to sexual

intercourse is voluntary, or whether it is given

under a misconception of fact. In the ultimate

analysis, the tests laid down by the courts provide

at best guidance to the judicial mind while

considering a question of consent, but the court

must, in each case, consider the evidence before it

and the surrounding circumstances, before reaching

a conclusion, because each case has its own

peculiar facts which may have a bearing on the

question whether the consent was voluntary, or was

given under a misconception of fact. It must also

weigh the evidence keeping in view the fact that the

burden is on the prosecution to prove each and

every ingredient of the offence, absence of consent

being one of them.”

16. The appellant, before the High Court, relied upon Kaini

Rajan (supra) in his defence. The facts were akin to the present

case. The physical relationship between the parties was

established on the foundation of a promise to marry. This Court

set aside the conviction under Section 376 IPC also noticing K.P.

Thimmappa Gowda vs. State of Karnataka, (2011)14 SCC

475. Unfortunately, the High Court did not even consider it

necessary to deal with the same much less distinguish it, if it was

possible. It is indeed unfortunate that despite a judicial

precedent of a superior court having been cited, the High Court

after mere recitation of the facts and the respective arguments,

cryptically in one paragraph opined that in the nature of the

evidence, the letters, the photograph of the appellant with the

prosecutrix and the statement of the appellant under Section 313

Cr.P.C., his conviction and sentence required no interference.

17. This court recently in Dhruvaram Murlidhar Sonar vs.

The State of Maharashtra and Others, AIR 2019 SC 327 and

in Pramod Suryabhan Pawar vs. State of Maharashtra and

another, (2019) 9 SCC 608 arising out of an application under

Section 482 Cr.P.C. in similar circumstances where the

relationship originated in a love affair, developed over a period of

time accompanied by physical relations, consensual in nature,

but the marriage could not fructify because the parties belonged

to different castes and communities, quashed the proceedings.

18. We have given our thoughtful consideration to the facts and

circumstances of the present case and are of the considered

opinion that the appellant did not make any false promise or

intentional misrepresentation of marriage leading to

establishment of physical relationship between the parties. The

prosecutrix was herself aware of the obstacles in their

relationship because of different religious beliefs. An

engagement ceremony was also held in the solemn belief that the

societal obstacles would be overcome, but unfortunately

differences also arose whether the marriage was to solemnised in

the Church or in a Temple and ultimately failed. It is not possible

to hold on the evidence available that the appellant right from the

inception did not intend to marry the prosecutrix ever and had

fraudulently misrepresented only in order to establish physical

relation with her. The prosecutrix in her letters acknowledged

that the appellant’s family was always very nice to her.

19. The appellant has been acquitted of the charge under

Sections 420 and 504 I.P.C. No appeal has been preferred

against the acquittal. There is no medical evidence on record to

sustain the conviction under Section 323 I.P.C. No offence is

made out against the appellant under Section 341 I.P.C.

considering the statement of prosecutrix that she had gone to live

with the appellant for 15 days of her own volition.

20. We have no hesitation in concluding that the consent of the

prosecutrix was but a conscious and deliberated choice, as

distinct from an involuntary action or denial and which

opportunity was available to her, because of her deepseated love

for the appellant leading her to willingly permit him liberties with

her body, which according to normal human behaviour are

permitted only to a person with whom one is deeply in love. The

observations in this regard in Uday (supra) are considered

relevant:

“25…It usually happens in such cases, when two young

persons are madly in love, that they promise to each

other several times that come what may, they will get

married. As stated by the prosecutrix the appellant also

made such a promise on more than one occasion. In such

circumstances the promise loses all significance,

particularly when they are overcome with emotions and

passion and find themselves in situations and

circumstances where they, in a weak moment, succumb

to the temptation of having sexual relationship. This is

what appears to have happened in this case as well, and

the prosecutrix willingly consented to having sexual

intercourse with the appellant with whom she was deeply

in love, not because he promised to marry her, but

because she also desired it. In these circumstances it

would be very difficult to impute to the appellant

knowledge that the prosecutrix had consented in

consequence of a misconception of fact arising from his

promise. In any event, it was not possible for the

appellant to know what was in the mind of the

prosecutrix when she consented, because there were

more reasons than one for her to consent.”

21. In conclusion, we find the conviction of the appellant to be

unsustainable and set aside the same. The appellant is

acquitted. He is directed to be set at liberty forthwith unless

wanted in any other case. The appeal is allowed.

…………...................J.

[R.F. NARIMAN]

…………...................J.

[NAVIN SINHA]

…………...................J.

[INDIRA BANERJEE]

NEW DELHI

SEPTEMBER 28, 2020

whether the the petitioner’s brother is very influential with the local judiciary ?

whether the the petitioner’s brother is very influential with the local judiciary ?

how the pictures taken on the occasion of a cricket tournament conducted by a Bar Association and witnessed by a few judicial officers can be an indication of the influence exerted by the petitioner’s family on the entire district judiciary, merely because the judicial officers and Advocates have stood shoulder to shoulder on that occasion. It was not a private event but an event open to all lawyers of the District Bar. The fact that the petitioner’s brother who is a lawyer, has a Facebook page and that the same has lot of followers and that it attracts a lot of comments and likes cannot be the basis to conclude that the petitioner’s brother is very influential with the local judiciary.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO.455 OF 2020

NEETU YADAV ...PETITIONER(S)

Versus

SACHIN YADAV …RESPONDENT(S)

O R D E R

1. The wife has come up with the above petition seeking

transfer of a divorce petition bearing H.M.A. No.3200 of

2019 titled as “Sachin Yadav Vs. Neetu Yadav” filed by the

respondenthusband on the file of the Principal Judge,

Family Court, South West, Dwarka Courts, New Delhi, to the

Court of the Principal Judge, Family Court, Indore, Madhya

Pradesh.

2. Heard learned counsel on both sides.

3. The marriage of the petitioner with the respondent was

solemnized on 21.02.2008 at Indore, Madhya Pradesh. Two

children, a girl and a boy, were born in the wedlock. While

the girl is now aged about 11 years, the boy is aged about 8

years.

4. Admittedly, the respondenthusband filed a petition for

dissolution of marriage on the ground of cruelty in H.M.A

case No.3200 of 2019 on the file of the Principal Judge,

Family Court, South West, Dwarka Courts, New Delhi. The

wife seeks transfer of the said petition to the Court of the

Principal Judge, Family Court, Indore, Madhya Pradesh

primarily on the ground that she and her two children are

entirely dependent on her old and ailing parents and that it

would be impossible for her to travel a distance of 800 kms.

to attend to the hearing of the case in New Delhi.

5. The respondent has filed a counter affidavit contending

inter alia that the petitioner is a Post Graduate; that the

entire family of the petitioner is “influentially associated with

the judicial structure of Madhya Pradesh”; that the

petitioner’s mother retired from a senior Administrative

position from the District judiciary; that the petitioner's

mother has very good family relations with the judicial

officers who worked in the district; that the petitioner's

mother is still closely associated with the “Unionised Cadre

of District Court and their Cooperative Societies”; that several

officials of the Indore Court used to visit her home for each

and every small function in their family; that due to the

managerial skill of the petitioner's mother and her influence,

the petitioner managed to have the first notice in the divorce

petition returned unserved; that the petitioner’s brother is a

distinguished lawyer practising in the High Court of Madhya

Pradesh and the Subordinate Courts for more than twelve

years; that the petitioner’s brother has friendly relationship

with the judicial officers of the District Court, as can be

evident from his Facebook page; that the petitioner’s brother

is an associate of one Mr. Sunil Choudhary who was the

President of the District Bar Association, Indore: that he is

politically well connected and has connection with the

sitting member of the Parliament who was also a Judicial

Officer (retired); that the petitioner’s brother is an active

member of the Indore Bar Association and is a close friend

of many leaders of the Bar; that the petitioner’s younger

brother is working in the Information Technology

Department, Indore Bench of the High Court of Madhya

Pradesh and that, therefore, it is not possible for the

respondent to get justice through free and fair hearing. The

respondenthusband has stated that the petitioner is

capable of travelling alone to Delhi and that he is also

prepared to bear the expenses of her travel.

6. I have carefully considered the rival submissions.

7. It is not the case of the respondent that the petitioner

is gainfully employed. The claim of the petitioner that she is

now staying with her parents is not disputed by the

respondent. That both the children are staying with the

petitioner is also not disputed. The elder child is a girl aged

about 11 years and whenever the case is fixed for hearing,

the petitioner has to travel about 800 kms.

8. The respondent is working as Vigilance Officer in the

Airport Authority of India. He is currently posted in Delhi.

The fact that the marriage was solemnized at Indore is borne

out by the pleadings in the Divorce Petition filed by the

respondent. As per the averments contained in the Divorce

Petition, the couple lived at Indore till July2020. Thereafter

the couple lived in Delhi for some time.

9. The only reason why the respondent has chosen to file

the Divorce Petition at Dwarka is that he is now posted in

New Delhi and that the couple last resided together at New

Delhi.

10. Keeping the above mentioned admitted facts in mind, if

we look at the counter affidavit filed by the respondent, it is

seen that the request for transfer is contested mainly on the

ground that the petitioner's mother is a retired employee of

the District Court and that the petitioner's elder brother is a

practicing advocate and the younger brother is working in

the I.T. department of the Indore Bench of the Madhya

Pradesh High Court and that they wield enormous influence.

11. To prove his contention regarding the status of the

petitioner’s family and the influence that they allegedly have,

the respondent has filed print outs of a few pages from the

Facebook account of the petitioner’s brother. While one of

those print outs has photographs taken on the occasion of a

cricket tournament held under the aegis of Indore Bar

Association and another print out relates to the greetings

extended to the ExPresident of Indore Bar Association, the

print outs of all other Facebook pages contain nothing other

than the photographs of the petitioner’s brother with

comments revolving around some joyous occasions.

12. I do not know how the pictures taken on the occasion

of a cricket tournament conducted by a Bar Association and

witnessed by a few judicial officers can be an indication of

the influence exerted by the petitioner’s family on the entire

district judiciary, merely because the judicial officers and

Advocates have stood shoulder to shoulder on that occasion.

It was not a private event but an event open to all lawyers of

the District Bar. The fact that the petitioner’s brother who is

a lawyer, has a Facebook page and that the same has lot of

followers and that it attracts a lot of comments and likes

cannot be the basis to conclude that the petitioner’s brother

is very influential with the local judiciary.

13. I am not convinced that there is any real likelihood of

bias. Out of the seven print outs of the Facebook pages of

the petitioner's brother, filed by respondent as Annexures

R/1, R/2 and R/3 (colly), only one contains the photographs

of a few persons who had participated in the cricket

competition conducted by Indore Bar Association. On the

basis of this, it is not appropriate to come to the conclusion

that the respondent will not receive a fair treatment at the

hands of the Family Court.

14. Therefore, I deem it fit and proper to allow the transfer

petition. Accordingly, the Divorce Petition H.M.A. No.3200 of

2019 titled as “Sachin Yadav Vs. Neetu Yadav”, pending

before the Principal Judge, Family Court, South West,

Dwarka Courts, New Delhi is transferred to the Court of the

Principal Judge, Family Court, Indore, Madhya Pradesh.

15. Let the records of the case be transferred to the

concerned court, without delay.

16. The Transfer Petition is, accordingly, allowed.

…..………...................J.

(V. Ramasubramanian)

NEW DELHI

SEPTEMBER 30, 2020

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Saturday, October 3, 2020

refund of air fare during the lockdown period, when domestic and international flights’

No conviction be imposed basing on wrong inference without any materials

Wednesday, September 30, 2020

whether the the petitioner’s brother is very influential with the local judiciary ?