Bombay High Court Monthly Digest: April 2023 [Citations 176 - 222]

The Iffco Tokio General Insurance Company Ltd. v. Bhagyashri Ganesh Gaikwad 2023 LiveLaw (Bom) 176

A v. B 2023 LiveLaw (Bom) 177

X v. Y 2023 LiveLaw (Bom) 178

Anil Jaisinghani and Anr. v. State of Maharashtra 2023 LiveLaw (Bom) 179

Sameer Amrut Kondekar v. State of Maharashtra 2023 LiveLaw (Bom) 180

M/s Omanand Industries & Anr. vs The Secretary to the Government of India, Ministry of Road Transport and Highways 2023 LiveLaw (Bom) 181

PhonePe Private Limited v. Resilient Innovations Private Limited 2023 LiveLaw (Bom) 182

Gunratan Sadavarte v. Registrar/Secretary Disciplinary Committee & Ors 2023 LiveLaw (Bom) 183

Avijit Michael v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 184

 Dr. Shivaraj Pataria v. State of Maharashtra 2023 LiveLaw (Bom) 185

VJ Jindal Cocoa Pvt Lt v. Union of India & Ors. 2023 LiveLaw (Bom) 186

Ramnagesh Srinivas Akubathini v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 187

Ashok Ratnapal Narwade v. Maharashtra State Electricity Distribution Co. Ltd. 2023 LiveLaw (Bom) 188

Ashu Dutt v. Aneesha Dutt 2023 LiveLaw (Bom) 189

Kirti Kumar Jayantilal Patel v. State of Maharashtra 2023 LiveLaw (Bom) 190

Rochem Separation Systems (India) Pvt. Ltd. v. Nirtech Private Limited & Ors. 2023 LiveLaw (Bom) 191

Shabnamjahan & Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 192

Mahatarba alias Madhvkar Bhikaji Janrao v. State of Maharashtra & Ors 2023 LiveLaw (Bom) 193

Mansi Bhavin Dharani v. Bhavin Jagdish Dharani 2023 LiveLaw (Bom) 194

Javed Ahmed Hajam v. State of Maharashtra 2023 LiveLaw (Bom) 195

Nishant s/o Pradeep Aggrawal v. State of Uttar Pradesh 2023 LiveLaw (Bom) 196

Raju Pednekar v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 197

Sardar s/o Shahvali Khan v. State of Maharashtra 2023 LiveLaw (Bom) 198

Satish s/o Ramesh Nandre v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 199

Sudha wd/o Bhagirath Meshram v. Zilla Parishad and Ors. 2023 LiveLaw (Bom) 200

Mukta Dabholkar & Anr. v. Central Bureau of Investigation & Ors. 2023 LiveLaw (Bom) 201

Shobha w/o Sanjay Tidke v. Kishanrao S/o. Ramrao Tidke and Anr. 2023 LiveLaw (Bom) 202

R v. S 2023 LiveLaw (Bom) 203

Assistant Conservator of Forest & Anr. v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 204

Akash Kanwarlal Kamal v. Himani Akash Kamal 2023 LiveLaw (Bom) 205

Rahul S/o Omprakash Gandhi v. Akola Janta Commercial Co-Operative Bank Ltd. 2023 LiveLaw (Bom) 206

S v. H 2023 LiveLaw (Bom) 207

Sandoz Private Limited v. Bhartiya Kamgar Karmachari 2023 LiveLaw (Bom) 208

Dharmendra M. Jani v. UOI 2023 LiveLaw (Bom) 209

Rohan Lobo v. State Of Goa 2023 LiveLaw (Bom) 210

Sharad S/o. Shankarrao Bonde v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 211

Sub-Area Manager, Western Coal Fields Ltd., Padmapur, Chandrapur. v. Anjutai Wd/o Rajkumar Tiple 2023 LiveLaw (Bom) 212

Chandrabhaga Kolhe v. Suryabhan S/o Champatra Shende 2023 LiveLaw (Bom) 213

Archana W/o. Ananda Shembalwad v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 214

Paromita Puthran v. Municipal Corporation of Gr. Mumbai & Ors. 2023 LiveLaw (Bom)

Vijay Arjun Bhagat v. Kisan Lahanu Bhagat (deceased) and Ors. 2023 LiveLaw (Bom) 216

X v. The Dean & Anr 2023 LiveLaw (Bom) 217

R Mall Developers Pvt. Ltd. & Anr. v. Municipal Corporation of Greater Mumbai 2023 LiveLaw (Bom) 218

Prasanna Laxmikant Joshi and Anr. v. State of Maharastra and Ors. 2023 LiveLaw (Bom) 219

Reliance General Insurance Co. Ltd. v. Manjula Kabiraj Das and Ors. 2023 LiveLaw (Bom) 220

Anurag Gupta v. ITO 2023 LiveLaw (Bom) 221

HSBC PI Holdings (Mauritius) Ltd v. Avitel Post Studioz Ltd and Ors. 2023 LiveLaw (Bom) 222

Reports/Judgments

Motor Accident | Remarriage Not A Taboo Against Compensation To Widow Of Deceased: Bombay High Court

Case Title: The Iffco Tokio General Insurance Company Ltd. v. Bhagyashri Ganesh Gaikwad

Citation: 2023 LiveLaw (Bom) 176

The Bombay High Court held that remarriage will not disentitle the widow of a deceased in a motor accident from receiving compensation.

Justice SG Dige observed that remarriage cannot be a taboo against motor accident compensation

The court noted that at the time of accident, the wife of the deceased was only 19 years old. She remarried during the pendency of the claim petition.

The court said that a widow cannot be expected to remain a widow for life or till getting compensation.

Bombay High Court Criticizes Sessions Judge For Giving "Single-Line" Reasoning While Setting Aside Magistrate's Detailed Order

Case Title: A v. B

Citation: 2023 LiveLaw (Bom) 177

The Bombay High Court criticized a sessions judge for giving a single line reasoning to set aside a well-reasoned order passed by the judicial magistrate.

Justice SG Mehare of the Aurangabad bench said that while writing a judgement in appeal, the court has to appreciate the case as if it is a trial before it.

The court set aside the finding of Additional Sessions Judge, Aurangabad that the petitioner was liable to pay maintenance to his wife under the Protection of Women From Domestic Violence Act, 2005.

The court noted that the Judge did not assign any reason for disagreeing with the reasoned order passed by the JMFC except a single line reason that there is sufficient evidence to established domestic violence.

Father Cannot Avoid Paying Maintenance To Child By Seeking Frivolous Paternity Test: Bombay High Court

Case Title: X v. Y

Citation: 2023 LiveLaw (Bom) 178

The Bombay High Court held that a child can be ordered to undergo paternity test only in exceptional cases and father's attempt to avoid paying maintenance to son by seeking DNA testing should be thwarted at the very inception.

Justice GA Sanap of the Nagpur bench dismissed a man's plea seeking paternity test of a child born during cohabitation with his wife. The man did not allege infidelity on his wife's part.

[Amruta Fadnavis Complaint] Bombay High Court Dismisses Bookie Anil Jaisinghani's Plea Alleging Illegal Arrest

Case Title: Anil Jaisinghani and Anr. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 179

The Bombay High Court dismissed bookie Anil Jaisinghani's plea alleging illegal arrest in the case filed by deputy chief minister Devendra Fadnavis's wife - Amruta Fadnavis.

The bench of Justice AS Gadkari and PK Naik held that the Petitioners were produced before the court within the stipulated period and there is no breach of Article 22(2) of Constitution of India and/or Section 57 of the Cr.P.C. is committed by the State.

[False Promise To Marry] One Person Can't Be Prosecuted For Rape Merely Because Mutual Relationship Turned Sour: Bombay High Court

Case Title: Sameer Amrut Kondekar v. State of Maharashtra 

Citation: 2023 LiveLaw (Bom) 180

When two people invest in a relationship, one of them cannot be blamed merely because the other alleged rape after things went south and the relationship didn't culminate into a marriage, the Bombay High Court observed while discharging a man accused of raping his girlfriend of eight years.

Justice Bharati Dangre set aside the trial court's order refusing to discharge the man under sections 376, 323 of the IPC on a complaint filed by his 27-year-old girlfriend in 2016.

Limited Remedy Available Under S. 34 Of A&C Act Against Award Of Compensation Under NHA, Is Not A Ground To Invoke HC's Writ Jurisdiction: Bombay High Court

Case Title: M/s Omanand Industries & Anr. vs The Secretary to the Government of India, Ministry of Road Transport and Highways

Citation: 2023 LiveLaw (Bom) 181

The Bombay High Court ruled that though the scope for challenging the compensation awarded by the Arbitrator to the landowners under Section 3-G (5) of the National Highways Act, 1956 (NHA) is limited to the parameters provided under Section 34 of the Arbitration and Conciliation Act, 1996 (A & C Act), the same cannot be a ground to invoke the High Court's writ jurisdiction under Article 226 of the Constitution of India.

Justice Avinash G. Gharote dismissed the contention of the landowners that since the Court under Section 34 of A&C Act has no power to modify the award or substitute a new award for further enhancement of the compensation than what was awarded by the Arbitrator, the petitioners were rendered remediless.

Bombay High Court, Interim Relief, PhonePe, Trademark Infringement

Case Title: PhonePe Private Limited v. Resilient Innovations Private Limited

Citation: 2023 LiveLaw (Bom) 182

The Bombay High Court refused to grant interim relief to PhonePe for alleged infringement of its trademark “PhonePe” by Resilient Innovations' trademark “postpe”.

Justice Manish Pitale cited contradictions between PhonePe's stand taken before the Delhi High Court and the Bombay High Court regarding the meaning of the term “Pe”.

PhonePe Private Ltd. in the present case claimed that the suffix “Pe” after the word “Phone” in its trademark has the colloquial Hindi meaning “On”. Therefore, PhonePe means services on the phone, it said.

However, in a 2019 suit pending before the Delhi High Court for alleged infringement of “PhonePe” through defendant's mark “BharatPe”, the plaintiff has claimed that the term “Pe” means the action of payment and it was a misspelling of the word “Pay”.

“Such contrary pleas do indicate that the plaintiff has dis-entitled itself for grant of discretionary reliefs under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC),” the court said.

Bombay High Court Refuses Immediate Relief To Advocate Gunratan Sadavarte Over License Suspension, Asks Him To File Appeal Before BCI

Case Title: Gunratan Sadavarte v. Registrar/Secretary Disciplinary Committee & Ors

Citation: 2023 LiveLaw (Bom) 183

Observing that an alternate statutory remedy was available, the Bombay High Court on Thursday refused to immediately intervene in the plea filed by controversial Advocate - Gunratan Sadavarte - against the Bar Council of Maharashtra and Goa's order suspending his license to practice for two years.

However, the bench led by Justice Gautam Patel said it was “not completely shutting its doors” to Sadavarte and would keep his plea pending in case he was denied relief in appeal.

'Democratic Right Of Citizens To Protest & Persuade': Bombay HC Quashes FIR Against Green Activist Who Sent Messages To Metro Director To Save Aarey Forest

Case Title: Avijit Michael v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 184

In a significant judgement on the use of technology to protest, the Bombay High Court rapped the Mumbai police for booking a green activist alleging harassment over messages sent to IAS officer Ashwini Bhide in 2018 against felling of trees at Aarey Colony for the Metro III car shed.

A division bench of Justices Sunil Shukre and MM Sathaye quashed the FIR registered at the Bandra-Kurla Complex police station against Avijit Michael, a resident of Bangalore and observed that there was nothing “offensive” in the messages and the accused was only trying to assert his democratic rights.

Bombay High Court Grants Bail To Hospital Owners, Doctor In Fake COVID Vaccination Camp Case

Case Title:  Dr. Shivaraj Pataria v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 185

The Bombay Court granted bail to hospital owners and a doctor accused of giving fake COVID vaccines in various vaccination camps across Mumbai observing that the alleged fake vaccines did not cause death or any adverse effect to any patient. Justice Bharati Dangre opined that the material shows Mahendra Singh of the Malad Medical Assocation as kingpin of the entire scam.

Bombay High Court Refuses To Interfere With RBI Circular Permitting Only One Active Current Account If Total Credit Facilities Availed Exceed ₹50 Crore

Case Title: VJ Jindal Cocoa Pvt Lt v. Union of India & Ors.

Citation: 2023 LiveLaw (Bom) 186

The Bombay High Court has upheld HDFC Bank's email that led to the freezing of current accounts held by cocoa manufacturer VJ Jindal Cocoa in various banks observing that since its “exposure” was over Rs. 50 crore it wasn't permitted multiple active current accounts.

'Exposure' in the present context means the total credit facilities availed by a borrower.

A division bench of Justices Gautam Patel and Neela Gokhale dismissed VJ Jindal's petition to undo HDFC's action on the ground that it was exempted from the relevant RBI circular since its current accounts with other banks pre-dated the HDFC account.

Virat Kohli, Anushka Sharma Consent To Quash FIR Against Man Who Allegedly Tweeted Rape Threat To Their Daughter After T20 Loss In 2021

Case Title: Ramnagesh Srinivas Akubathini v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 187

The Bombay High Court quashed the FIR and charge sheet against a student accused of giving a rape threat to the 11-month-old infant of former Indian Cricket Team Captain Virat Kohli and actor Anushka Sharma, after a no-objection from the couple.

A division bench of Justices AS Gadkari and PK Naik quashed the FIR against Hyderabad techie Ramnagesh Srinivas Akubathini registered by the Cyber Police under Section 354A (sexual harassment), 506 (criminal intimidation), 500 (defamation) of the IPC and Sections 67 & 67B of the IT Act 2000.

Selection Committee Bound To Reconsider Employee For Promotion Based On Upgraded Performance Grade: Bombay High Court

Case Title: Ashok Ratnapal Narwade v. Maharashtra State Electricity Distribution Co. Ltd.

Citation: 2023 LiveLaw (Bom) 188

The Bombay High Court recently held that when the grade of an employee is upgraded in his performance report, the selection committee has to reconsider him for promotion taking into account his upgraded grade.

A division bench of acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne allowed an employee's writ petition seeking promotion once his performance grade was upgraded.

The selection committee had reconsidered his case for promotion after upgradation of his grade, but still considered his non-upgraded grade and rejected him.

Children Not Property, Parents Don't Have Absolute Rights Over Their Destiny: Bombay High Court

Case Title: Ashu Dutt v. Aneesha Dutt

Citation: 2023 LiveLaw (Bom) 189

“In India, matrimonial disputes constitute the most bitterly fought adversarial litigations and a stage comes when warring couples stop seeing reasons…In such cases, court's must exercise the parent patriae jurisdiction,” the Bombay High Court observed while making visitation arrangements in a bitterly fought, long drawn matrimonial dispute.

A division bench comprising Justices RD Dhanuka and Gauri Godse added that parents don't have an absolute right over their child's destiny and the most important consideration would be a child's welfare and not the parent's legal rights.

Drug Manufacturer Can't Be Held Liable For Not Meeting Standards Prescribed After Date Of Manufacture: Bombay High Court

Case Title: Kirti Kumar Jayantilal Patel v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 190

The Bombay High Court recently held that manufacturer of a drug cannot be prosecuted for manufacturing drugs which do not fulfil such standards that were notified by the government after the date of manufacture.

Justice Kishore C Sant of the Aurangabad bench set aside order of process against the manufacturer of Mediplus Scalp Vein Set, a device used for intravenous injections or taking blood samples observing –

The court noted that scalp vein set was notified as a "Drug" and standards were prescribed for it by the government in 2005 while the sample collected by the Drug Inspector was manufactured in 2004.

Plaintiff Alleging Breach Of Confidentiality Must Produce Confidential Info Before Court In Sealed Cover: Bombay High Court

Case Title: Rochem Separation Systems (India) Pvt. Ltd. v. Nirtech Private Limited & Ors.

Citation: 2023 LiveLaw (Bom) 191

The Bombay High Court recently held that if a plaintiff is alleging breach of confidentiality by the defendants, it has to produce the confidential information before the court in a sealed cover.

Justice Manish Pitale observed that the High Court cannot verify the allegations of breach of confidentiality without perusing the confidential information.

The court vacated its ex-parte interim order in favour of Rochem Separation Systems in a copyright infringement suit against Nirtech Private Limited.

Single Working Woman Can Adopt Child Under Juvenile Justice Act: Bombay High Court

Case Title: Shabnamjahan & Ors. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 192

The Bombay High Court has set aside an order disallowing a woman from adopting her sister's child on the ground that she was a single working woman and wouldn't be able to give personal attention to the child. The judge's views displayed a medieval conservative mindset on family, the High Court said.

Justice Gauri Godse observed that a divorcee or a single parent was eligible to adopt as per the Juvenile Justice (Care and Protection of Children) Act, 2015 and the district court's job was merely to ascertain, if all necessary criteria were fulfilled.

"Can't Let Govt Pleaders Be Compromised": Bombay High Court Issues Bailable Warrant Against Education Officer For Unresponsiveness In Service Matter

Case Title: Mahatarba alias Madhvkar Bhikaji Janrao v. State of Maharashtra & Ors

Citation: 2023 LiveLaw (Bom) 193

Taking strong exception to an education officer's un-responsiveness towards a government pleader in an education matter, the Bombay High Court issued a bailable warrant against the Education Officer, Secondary, Zilla Parishad, Nashik. The court set the bail amount at Rs. 15,000 payable by the officer personally.

A division bench of Justices Gautam Patel and Neela Gokhale noted that the AGP had written several emails seeking instructions to file an affidavit in the matter but the officer failed to acknowledge the email, let alone respond.

“We refuse to let the Additional Government Pleaders at our Bar or the Government Pleader's office be compromised in this manner by serving employees of the State Government. It is not possible to accept that the AGP who appears or that the Government Pleader himself or his office can be continuously embarrassed before the Court. They have been seeking instructions since July 2022 and we are now in April 2023.”

Family Court Cannot Grant Divorce Without A Trial Assuming Marriage Is Dissolved In Parties' Hearts And Minds: Bombay High Court

Case Title: Mansi Bhavin Dharani v. Bhavin Jagdish Dharani

Citation: 2023 LiveLaw (Bom) 194

The Bombay High Court held that a family court cannot pass a divorce decree on admission assuming that the marriage is dissolved in the hearts and minds of the parties when the parties have not led any evidence or withdrawn their allegations against each other.

A division bench of Justice RD Dhanuka and Justice Gauri Godse set aside a divorce decree on admission passed by the family court.

Message Has The Tendency To Play With Emotions Of Different Groups: Bombay High Court Refuses To Quash FIR Against Kashmiri Professor Booked For WhatsApp Status Calling Abrogation Of Article 370 "Black Day For J&K"

Case Title: Javed Ahmed Hajam v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 195

The Bombay High Court refused to quash an FIR against a young Kashmiri professor booked for his WhatsApp status terming the abrogation of Article 370 a “black day” for Jammu and Kashmir.

A division bench comprising Justices Sunil Shukre and MM Sathaye observed that the status was posted “without giving any reason and without making any critical analysis of the step taken by the Central Government towards abrogation of Article 370 of the Constitution.”

Therefore prima-facie the professor had committed an offence punishable under Section 153A of the IPC (promotion of enmity between two groups), the bench observed.

Bombay High Court Grants Bail To Ex-BrahMos Engineer Booked For Spying For ISI

Case Title: Nishant s/o Pradeep Aggrawal v. State of Uttar Pradesh

Citation: 2023 LiveLaw (Bom) 196

The Bombay High Court granted bail to Nishant Aggrawal, a former BrahMos engineer accused of spying for Pakistan's ISI.

Justice Anil S Kilor of the Nagpur bench held that prima facie, there is nothing to suggest that Aggrawal committed the alleged acts with intention.

The court noted that Aggrawal has been in jail for more than 4 years and 6 months and the maximum punishment in this case would be 14 years.

The court said that the trial is not likely to begin in the near future.

Bombay High Court Dismisses Former BMC Corporator's Plea Challenging Civic Ward Count Reversal By Eknath Shinde Led Maharashtra Govt

Case Title: Raju Pednekar v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 197

The Bombay High Court dismissed pleas against an Ordinance issued by the CM Eknath Shinde led Maharashtra government and subsequent Act to reduce the number of civic wards back from 236 to 227.

“(impugned legislations) cannot be found to be manifestly arbitrary, irrational and unconstitutional, nor could they be found to be actuated by any political consideration or motive," the division bench comprising Justice SS Shukre and Justice MW Chandwani held.

1993 Bombay Blasts | Bombay High Court Rejects Convict Sardar Shahvali Khan's Plea For Transfer To Open Prison

Case Title: Sardar s/o Shahvali Khan v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 198

The Bombay High Court denied 1993 Bombay blasts convict Sardar Shahvali Khan's request to be transferred to an open prison.

A division bench of Justice Mangesh Patil and Justice Abhay S Waghwase sitting at Aurangabad held that the convicts under the Terrorist and Disruptive Activities (Prevention) Act, 1987 can fall under the category of prisoners ineligible for confinement in an open prison as per Maharashtra Open Prison Rules, 1971.

Six-Year-Old Not Expected To Know Culprit's Full Name: Bombay High Court Upholds Rape Conviction

Case Title: Satish s/o Ramesh Nandre v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 199

Observing that a 6-year-old child is not expected to know the full name of the person who raped her, the Bombay High Court upheld the conviction of a 38-year-old man who was booked after the child provided his nickname to the police.

A division bench of Justice Vibha Kankanwadi and Justice YG Khobragade sitting at Aurangabad held the fact that the child's mother provided the full name from the nickname given by the child does not mean that the accused is being implicated in the crime.

'Iniquitous And Harsh': Bombay High Court Refuses Recovery Of Excess Amount From High School Lecturer's Widow Despite Deceased's Undertaking

Case Title: Sudha wd/o Bhagirath Meshram v. Zilla Parishad and Ors.

Citation: 2023 LiveLaw (Bom) 200

Despite the employee's undertaking at the time of pay fixation to refund any excess amount paid to him, the Bombay High Court quashed an order to recover excess amount of over two lakhs from the widow of a high school lecturer.

A division bench of Justice AS Chandurkar and Justice MW Chandwani noted that the widow and her children are completely dependent on the pension of Rs. 14,250/- per month and held that it would be harsh and iniquitous to recover the amount.

After 9 Yrs Bombay High Court Discontinues Monitoring Anti-Superstition Crusader Narendra Dabholkar's Murder Probe; Kin Say Masterminds Yet To Be Nabbed

Case Title: Mukta Dabholkar & Anr. v. Central Bureau of Investigation & Ors.

Citation: 2023 LiveLaw (Bom) 201

The Bombay High Court refused to continue monitoring the murder probe of anti-superstition crusader Narendra Dabholkar, who was shot dead for ideological reasons on his morning walk in 2013.

The division bench of Justices Ajay S Gadkari and Prakash Naik disposing of two petitions, one filed by Dabholkar's kin for court monitored probe observing that the investigation is complete.

Widow Not Liable To Maintain In-Laws Under Section 125 CrPC: Bombay High Court

Case Title: Shobha w/o Sanjay Tidke v. Kishanrao S/o. Ramrao Tidke and Anr.

Citation: 2023 LiveLaw (Bom) 202

The Bombay High Court held that parents-in-law are not entitled to maintenance from their widowed daughter-in-law under section 125 of CrPC.

Justice Kishore C Sant sitting at Aurangabad noted that the list of relatives entitled to claim maintenance under the section is exhaustive and does not include father-in-law and mother-in-law.

Trial Court Had Duty To Interview 10 Yrs Old Child & Understand His Desire: Bombay High Court Sets Aside Order Granting Custody To Father

Case Title: R v. S

Citation: 2023 LiveLaw (Bom) 203

The Bombay High Court set aside a custody order citing the trial court's failure to interview the child to ascertain his wish.

Justice Urmila Joshi Phalke of the Nagpur bench sent the case back to the trial court for fresh consideration observing that the trial court should have conducted an in-camera interview of the child before deciding the matter.

The trial court was bound to make thorough enquiry to ascertain the welfare of the child, the court held.

Prima Facie Forest Officials Want Tribal Near Tadoba Tiger Reserve Evicted Without Following Due Process: Bombay High Court

Case Title: Assistant Conservator of Forest & Anr. v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 204

Observing that prima facie officials of the forest department wanted to evict a tribal living on the borders of the famous Tadoba Tiger Reserve in Maharashtra without following due process, the Bombay High Court rejected a Civil Revision Application filed by the State.

Justice MS Jawalkar noted that without giving the tribal a hearing, his claim to four hectares of land was rejected and the order wasn't even communicated to him.

Bombay High Court Refuses Relief To Divorced Woman Who Remarried During Appeal Period

Case Title: Akash Kanwarlal Kamal v. Himani Akash Kamal

Citation: 2023 LiveLaw (Bom) 205

The Bombay High Court rejected a woman's interim application seeking dismissal of her husband's appeal against their divorce decree on the ground that she had already married someone else.

The court observed that the “Family Court Appeal filed by the husband within the appeal period (of 90 days) would not be rendered infructuous upon the Applicant (wife) having contracted second marriage and that also during the appeal period.”

Whether A Signed Copy Or Certified Copy Of The Award, Purpose Of S. 31(5) of A&C Act Is To Inform The Party: Bombay High Court

Case Title: Rahul S/o Omprakash Gandhi v. Akola Janta Commercial Co-Operative Bank Ltd.

Citation: 2023 LiveLaw (Bom) 206

The Bombay High Court ruled that the purpose of Section 31(5) of the Arbitration and Conciliation Act, 1996 (A&C Act), which provides for delivery of the signed copy of the arbitral award, is of imparting knowledge to the party regarding the contents of the award, and to make the party aware that the limitation to raise a challenge has started to run.

Justice Avinash G Gharote court held that the said knowledge/information is equally available to the party, when it receives the certified copy of the award signed by the Arbitrator. Thus, the Court remarked that the purpose of Section 31(5) is achieved whether a signed copy is delivered or a certified copy of the signed award is obtained by the party.

Indian Court Can Entertain Complaint Against Domestic Violence Committed Abroad: Bombay High Court

Case Title: S v. H

Citation: 2023 LiveLaw (Bom) 207

The Bombay High Court held that judicial magistrate in India can take cognizance of domestic violence committed in foreign soil under the Protection of Women From Domestic Violence Act, 2005 (DV Act).

Justice GA Sanap of the Nagpur bench observed that the Act is a social beneficial legislation and the lawmakers worded section 27 of the Act keeping in mind possible domestic violence outside India.

Bombay High Court Upholds Industrial Tribunal's Interim Order Directing Global Pharma Leader Sandoz To Re-Employ/ Pay Security To Retrenched Workers

Case Title: Sandoz Private Limited v. Bhartiya Kamgar Karmachari

Citation: 2023 LiveLaw (Bom) 208

The Bombay High Court upheld an interim order against Sandoz Private Limited, a global leader in generic pharmaceuticals and biosimilars, directing it to re-employ workers it retrenched or provide security over applicable wages till pendency of the industrial complaint.

Justice NJ Jamadar took strong exception to the manner in which Sandoz retrenched its employees a night before their matter was heard by the Industrial Court for interim reliefs.

Constitutionality Of Taxing Intermediary Services Under GST: Bombay High Court Upholds Validity Of Section 13(8)(b) Of IGST Act

Case Title: Dharmendra M. Jani v. UOI

Citation: 2023 LiveLaw (Bom) 209

The Bombay High Court upheld the constitutionality of taxing intermediary services under the IGST Act.

"The provisions of Section 13(8)(b) and Section 8(2) of the IGST Act are legal, valid, and constitutional, provided that the provisions of Section 13(8)(b) and Section 8(2) are confined in their operation to the provisions of the IGST Act only, and the same cannot be made applicable for the levy of tax on services under the CGST and MGST Acts," the bench of Justice G.S. Kulkarni observed.

Goa Value Added Tax (12th Amendment) Act, 2020 Defies The Doctrine Of Separation Of Powers: Bombay High Court

Case Title: Rohan Lobo v. State Of Goa

Citation: 2023 LiveLaw (Bom) 210

The Bombay High Court held that the Goa Value Added Tax (12th Amendment) Act, 2020, is an impermissible judicial override defying the doctrine of separation of powers.

The bench of Justice M. S. Sonak and Justice Bharat P. Deshpande observed that by simply not issuing sanction orders or delaying the issue of sanctions indefinitely or unreasonably, the state cannot arbitrarily deprive the parties' interests by way of compensation. A deprivation would fall foul of Articles 14, 265, and 300-A of the Constitution of India.

Bombay High Court Upholds Acquittal In Forgery Case, Says Investigation Defective As No Handwriting Report On Author Or Signatories Of Document

Case Title: Sharad S/o. Shankarrao Bonde v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 211

The Bombay High Court upheld acquittal of five persons in a forgery case citing defective investigation as there was no handwriting expert report regarding the authors of the signature on the forged document.

Justice GA Sanap observed that the possibility of the complainant himself having forged the signatures cannot be ruled out in the absence of a handwriting report.

MV Act | Crane Used Within Coal Mine Premises Falls Under Definition Of Motor Vehicle: Bombay High Court

Case Title: Sub-Area Manager, Western Coal Fields Ltd., Padmapur, Chandrapur. v. Anjutai Wd/o Rajkumar Tiple

Citation: 2023 LiveLaw (Bom) 212

The Bombay High Court held that a crane used within coal mine premises falls within the definition of “motor vehicle” under Motor Vehicles Act, 1988 (MVA).

Justice Urmila Joshi Phalke of the Nagpur bench upheld a compensation order for the family of a Western Coalfields Ltd. (WCL) employee who died after colliding with a crane being operated by another employee.

Unregistered Relinquishment Deed Inadmissible As Evidence: Bombay High Court

Case Title: Chandrabhaga Kolhe v. Suryabhan S/o Champatra Shende

Citation: 2023 LiveLaw (Bom) 213

Maharashtra Panchayat Act | Collector Has Exclusive Jurisdiction To Determine If Election Candidate Disqualified Due To False Caste Claim: High Court

Case Title: Archana W/o. Ananda Shembalwad v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 214

The Bombay High Court held that the Collector has exclusive jurisdiction to determine whether an electoral candidate is disqualified from Panchayat membership due to submission of false caste certificate under the Maharashtra Village Panchayat Act, 1958.

Justice Arun R Pedneker of the Aurangabad bench, while dismissing a woman's writ petition challenging her disqualification from Panchayat membership due to false caste certificate, held –

“Disqualification of a membership is determined under section 16 by the Collector and not by an election petition under section 15. The Collector under section 16 of the Maharashtra Village Panchayat Act has exclusive jurisdiction to deal with the issue of submission of a false claim or a false caste certificate at the time of nomination or non submission of caste validity certificate within the period contemplated in section 10-1A of the Village Panchayat Act.”

Society Residents Obligated To Provide Adequate Water To Animals, Particularly Considering Onset Of Summer Season: Bombay High Court

Case Title: Paromita Puthran v. Municipal Corporation of Gr. Mumbai & Ors.

Citation: 2023 LiveLaw (Bom)

In a dispute between a housing society and its members over feeding stray dogs and feeding points, the Bombay High Court said that it would be an obligation of the residents of the society to always make provision for adequate water to be made available to the animals more particularly considering the onset of the summer season.

A division bench of Justices Girish Kulkarni and R N Laddha, while disposing of the case on Monday, accepted the contention raised by the petitioner, an animal lover, that she would like to provide drinking water to the dogs. “…the parties need to amicably resolve the dispute as it should not be that drinking water is not provided to the dogs,” the court observed.

"Considerable Inflow Of Public Income To Deity": Bombay High Court Dismisses Pleas Claiming Jagdamba Tuljapurchi Temple Is 'Private Temple'

Case Title: Vijay Arjun Bhagat v. Kisan Lahanu Bhagat (deceased) and Ors.

Citation: 2023 LiveLaw (Bom) 216

The Bombay High Court declared that the Jagdamba Tuljapurchi Devi Temple in Burhannagar of Ahmednagar District is a place of public religious worship as historically the public has had free access to it.

Justice Sharmila U Deshmukh of Aurangabad bench dismissed three writ petitions by the heirs of the original trustee of the Temple claiming it is a private temple and seeking de-registration of the temple trust.

The court noted that there was a substantial flow of public money to Palkhi and there is no mention of any other source of income for the Bhagats' ancestors apart from the offerings made to the temple and the Palkhi. This strongly indicates that the temple was constructed out of public funds, the court said. The court further noted that the expenses of maintaining the temple are met out of the public funds.

The court opined that the proceedings were of 1954 and hence it cannot be said with certainty that there was no separate order of registration. It has to be presumed that the required procedure was duly followed, and it is not open for the Bhagats (family of the original trustee) to contend that there was no enquiry and separate order after a lapse of almost 54 years, the court held and concluded that all essential procedure was followed in the registration of the trust.

Breaking: Bombay High Court Orders Maha Govt To Direct Educational Institutions To Enable Retrospective Name & Gender Change For Transgender Persons

Case Title: X v. The Dean & Anr

Citation: 2023 LiveLaw (Bom) 217

The Bombay High Court asked the Maharashtra Government to issue directions to all educational institutions in the state to enable retrospective name and gender change for transgender persons in their records.

A division bench of Justices Gautam Patel and Neela Gokhale observed that educational institutions should have a form on their websites for precisely such changes, i.e., noting a change in name and a change in gender.

The court disposed of the plea of an alumni from the Tata Institute of Social Sciences (TISS) who sought changes in their records with the institute and re-issuance of their education documents and degree certificate with their new name and gender.

Malls Can Temporarily Utilize Their Open Spaces For Visitors' Leisure: Bombay High Court Directs BMC To Allow Mall To Hold 3-Day Ice Cream Fest

Case Title: R Mall Developers Pvt. Ltd. & Anr. v. Municipal Corporation of Greater Mumbai

Citation: 2023 LiveLaw (Bom) 218

Observing that visitors of a mall get enjoyment not only from shopping but also from areas like the food area, play area, amusement/cinema etc., the Bombay High Court directed the BMC to permit to Ghatkopar's R City Mall to hold a 3-day ice cream fest in its open space.

A division bench of Justice GS Kulkarni and Justice RN Laddha held that organising a limited festival in the Mall's open space for leisure and amusement of visitors is not objectionable.

Spouse's Consent Not Necessary For Organ Donation Especially When Withheld For Extraneous Reasons: Bombay High Court

Case Title: Prasanna Laxmikant Joshi and Anr. v. State of Maharastra and Ors.

Citation: 2023 LiveLaw (Bom) 219

Spouse's consent is not a mandatory requirement for organ donation under the Transplantation of Human Organs and Tissues Act, 1994 especially if the consent it being withheld unreasonably or for extraneous reasons, the Bombay High Court held.

A division bench comprising Justices Gautam Patel and Neela Gokhale allowed a 55-year-old Pune resident to donate one of his kidneys to his sister's husband (aged 65) despite objections from his estranged wife.

Compassionate Appointment, Ex-Gratia Payment To Deceased's Wife Does Not Disentitle Her From Compensation Under Motor Vehicles Act: Bombay High Court

Case Title: Reliance General Insurance Co. Ltd. v. Manjula Kabiraj Das and Ors.

Citation: 2023 LiveLaw (Bom) 220

Compassionate appointment and ex-gratia (voluntary) payment to wife of deceased in a motor accident does not disentitle her from compensation under the Motor Vehicles Act, the Bombay High Court held.

Justice Shivkumar Dige dismissed Reliance General Insurance's appeal against compensation awarded by the Motor Accident Claim Tribunal to the family of an Assistant Technician in a telecom company, who died in a motor accident.

Material Triggering Reassessment Must Be Furnished To The Assessee: Bombay High Court

Case Title: Anurag Gupta v. ITO

Citation: 2023 LiveLaw (Bom) 221

The Bombay High Court held that providing information to the assessee without furnishing the material based upon which the information is provided would render an assessee handicapped in submitting an effective reply to the show cause notice.

The bench of Justice Dhiraj Singh Thakur and Justice Valmiki Sa Menezes observed that the reassessment proceedings initiated are unsustainable on the ground of violation of the procedure prescribed under Section 148A(b) on account of the failure of the assessing officer to provide the requisite material, which ought to have been supplied along with the information.

Arbitration-Court To Apply Reasonable Third Person Test While Considering Arbitrators' Requirement For Disclosure, If The Case Doesn't Fall Under The Lists Under IBA Guidelines: Bombay High Court

Case Title: HSBC PI Holdings (Mauritius) Ltd v. Avitel Post Studioz Ltd and Ors.

Citation: 2023 LiveLaw (Bom) 222

The Bombay High Court, while dealing with a petition seeking enforcement of a foreign arbitral award, observed that the “pro-enforcement bias” in the New York Convention has been specifically adopted in Section 48 of the Arbitration and Conciliation Act, 1996 (A&C Act).

The bench of Justice Manish Pitale was considering the guidelines issued by the International Bar Association (IBA) on 'Conflicts of Interest in International Arbitration' (IBA Guidelines), while considering the objection raised by the award debtor alleging bias attributable to the Chairman of the Arbitral Tribunal. The award debtor alleged that the arbitrator had failed to disclose relevant information indicating his identity of interest/ relationship with the award holder.

The bench observed that the IBA Guidelines have been adopted in the Vth and VIIth Schedules to the A&C Act. While perusing the 'red', 'orange', and 'green' list appended to the IBA guidelines, which set out specific situations warranting (or in the case of the green list, not warranting) disclosure, the court remarked that if the situation is not covered under any of the lists, the court would have to apply the test of a reasonable third person, and not the subjective test, as claimed by the award debtor.

Applying the reasonable third person test, the court concluded that the situation did not give rise to any requirement on the part of the arbitrator for disclosure; thus, the question of bias or likelihood of bias, did not arise at all.