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Category: judiciary

Ratio decidendi and Obiter dicta

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Ratio decidendi and Obiter dicta Ratio decidendi Ratio decidendi is a Latin term that means “the reason for the decision.” It refers to the legal principle or rule that is the basis for a court’s decision in a case. This principle is what future courts will follow when deciding similar cases. These are binding on future cases. Ratio Decidendi Example The ratio decidendi of the Kesavananda Bharati v State of Kerala 1973 SC case is the establishment of the basic structure doctrine. The Supreme Court held that while the Parliament has wide powers to amend the Constitution under Article 368, it does not have the power to alter or destroy the basic structure or framework of the Constitution. This principle is binding and has been followed in numerous subsequent cases. For example in Indira Nehru Gandhi v. Raj Narain, 1975 SC Context: This case challenged the election of Prime Minister Indira Gandhi. Application: The Supreme Court applied the basic structure doctrine to strike down the 39th Amendment, which sought to place the election of the Prime Minister beyond judicial review. The court held that judicial review is part of the basic structure of the Constitution. Obiter dicta Obiter dicta is a Latin term that means “things said by the way.” In simple terms, it refers to comments or observations made by a judge in a court’s decision that are not essential to the outcome of the case. These remarks are not binding in future cases but can be persuasive. Obiter Dicta Example In Kesavananda Bharati v State of Kerala 1973 SC judges observed that while the Constitution must be flexible to adapt to changing times, this flexibility should not extend to altering its basic structure. They emphasized the need for a balance between allowing amendments and preserving the core principles of the Constitution. Besides this court also discussed about the concept of secularism, and discussed about preamble, fundamental rights in this case. Judges also commented on the role of the judiciary in safeguarding the Constitution. These discussions and observations of the court was not essential for the outcome of the case, hence it was an obiter dicta.    

Indian Constitution, Interview, judiciary, Law, Legal

Ad-Interim Injunctions

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Why in News? A division bench of Justice Pushpendra Singh Bhati and Justice Munnuri Laxman of the Rajasthan High Court granted an ad-interim stay on the impugned order dated 08-10-2024, issued by the Commercial Court, Jodhpur, which had earlier placed an ad-interim injunction against the release of the movie “Jigra” citing trademark violation. The Court allowed the release of the movie while safeguarding the respondent’s right to claim damages if a trademark violation is later proven. What is Ad-Interim Injunction? Purpose: The primary aim of an ad-interim injunction under ORDER XXXIX CPC is to maintain the status quo until the court thoroughly examines the merits of the case. It ensures that no party suffers irreparable damage during ongoing litigation. Applicability: An ad-interim injunction is typically issued when there is a prima facie case indicating potential harm to the plaintiff. It is a temporary measure applied while the main dispute is under consideration. Such injunctions can be modified or revoked as the case progresses, depending on new facts or legal arguments. Notice by the Court: Generally, a notice is issued to the opposite party before granting an ad-interim injunction. In urgent cases, ex-parte injunctions may be granted temporarily, even without prior notice, under Order XXXIX Rule 3 of the CPC. Time-Limit: Ad-interim injunctions are temporary and usually apply for a specified period. The court may extend or modify these injunctions as necessary based on the evolving circumstances of the case. Violation: As per Rule 2A of the ORDER XXXIX of CPC, if a party disobeys the terms of an ad-interim injunction, the court may: Attach the property of the guilty party. Detain the person in civil prison for up to three months, unless directed otherwise by the court. Essentials to Avail Ad-Interim Injunction: The plaintiff must demonstrate a prima facie case in their favor. The plaintiff must show potential for irreparable injury if the injunction is not granted. The court assesses the balance of convenience to determine if the injunction is justified. The plaintiff must prove that there is no other adequate remedy available, such as monetary compensation.

judiciary, Law

Mehr (Dower) Muslim Law

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Mehr (Dower) Definition, Nature and Importance of Dower (Mahr) “Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage” Mulla. According to K.P. Saxena “Dower is a sum of money or any property promised by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person after the marriage contract but generally said to be consideration for marriage.” Further, In Saburannessa v. Sabdur Sheikh, [(1934) Justice Mitter remarked: The marriage under Muslim law is a civil contract and it is like a contract of sale. But the notion of dower given above is not correct. Fitzgerald says: “It would be incorrect to describe the Muslim dower purely as the bride’s price.” Baillie says, under Muslim Law ‘dower is an obligation imposed upon the husband as a mark of respect to the wife.’ Abdur Rahim rightly says, “It is not a consideration proceeding from the husband for the contract of marriage, but is an obligation imposed by the law on the husband as a mark of respect for the wife as is evident from the fact that the non-specification of dower at the time of marriage does not affect the validity of marriage.” (Muhammadan Jurisprudence, p. 334). Hedaya says that “the payment of dower is enjoined by the law as a token of respect for its object, the woman.” Further unlike sale, dower is not given to anyone except to the women herself. Object of Dower The object of dower is three-fold: to impose an obligation on the husband as a mark of respect of the wife; to place a check on the capricious use of divorce on the part of husband; and to provide for her subsistence after the dissolution of her marriage, so that she may not become helpless after the death of the husband or termination of marriage by divorce. Subject matter of dower A handful of dates (Abu Daud). A pair of shoes (Tirmizi). If the husband is a slave, his services to his wife (Mohit Sarkhsee). The services of the husband’s slaves to the wife (Fatawa-i-Alamgiri). Husband’s services rendered to the guardian of a minor wife (Durrul Muktar). Teaching Koran to the wife (Tradition). In fact, the main contention of the Muslim jurists is that anything which comes within the definition of property can be the subject-matter of dower. Minimum and Maximum Amounts of dower Minimum – Hanafis 10 dirhams Malikis – 3 dirhams. Shafiis No minimum. Shias. No minimum. Maximum amount can be any amount without any upper limit. Among some of the sects of Shias, however, there is a tendency “not to stipulate for a sum higher than the minimum fixed by the Prophet for his favourite daughter Fatima, the wife of Ali, namely 500 dirhams. Amounts of dower and conditions of payment. If the marriage is consummated, and is dissolved by death: (a) whole of the specified dower or in case of regular marriage. (b) proper dower if unspecified, (c) specified or proper dower, which is less, in the case of irregular marriage. if the marriage is not consummated, and is dissolved by the act of party. (i) When divorced by the husband– (a) half of the specified dower, or (b) a present of three articles, if unspecified – in case of regular marriage (ii) When divorced by the wife: No dower, (iii) If the marriage is irregular: No dower   Kinds of dower Broadly, there are two kinds of dower: specified (Mahr i Musamma) and unspecified (proper or Mahr i Misl). The specified dower has been further divided into: (a) Prompt (Mahr Muajjal) and (b) Deferred (Mahr e Muwajjal) (i) Specified dower.- An amount settled by the parties at the time of marriage or after, is called specified dower. If the bridegroom is minor, his father may settle the amount of dower, Hanafi Law says that the father is not personally liable for the dower, but according to Shia Law, he will be so liable. Prompt and Deferred dower.-Prompt dower is payable on demand, and deferred dower is payable on the dissolution of marriage by death or divorce. The prompt portion of the dower may be realised by the wife at any time before or after consummation, but the deferred dower could not be so demanded. In the case where it is not settled how much of the dower is prompt and what part of it is deferred, the Shia Law holds that the whole of dower is prompt; the Sunni Law, however, holds that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of the parties, and (iii) the amount of settled dower. Unspecified dower.-In such cases where dower has not been settled at the time of the marriage or after, it is fixed with reference to the social position of the wife’s family and her own personal qualifications. Help would be taken by taking into account the amounts of dower fixed in case of wife’s sisters, paternal aunts, etc., and according to the Hedaya, the wife’s age, beauty, intellect and virtue will also be considered. Such dowers are called mahr-ul-misl. One aspect of dower beneficial to the Muslim woman is that even where the parties to the marriage have not stipulated any dower, the husband remains under an obligation to pay it.   Remedies in case of non-payment of Dower The rights which dower confers on the wife are threefold : Refusal to cohabit. Right to dower as a debt. Retention of husband’s property. Refusal to cohabit. Before consummation, the wife is entitled to refuse to live with her husband and refuse to him sexual intercourse so long as prompt dower is not paid to her. In a suit for restitution of conjugal rights by the husband, the non-payment of prompt dower is a complete defence if the marriage is not consummated. If the wife…

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Human Rights, judiciary, Law, Legal, Uncategorized
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WRITS The state and its instrumentalities, such as the police, universities, and other government bodies, exist to serve the nation and fulfil public duties. However, there are times when these very entities violate our rights, leaving us with no other option. In such instances, we can seek help and assistance from the court by applying for special orders known as writs. Thus, writs are special orders issued by superior courts to protect people’s rights and ensure that justice is done. These writs are five in number. These writs serve as an effective mechanism through which the judiciary can uphold the rights of individuals when those rights are violated, particularly by the state or public authorities, and in some cases even by private individuals.  In India, two courts have the authority to issue writs: Supreme Court (Article 32): Writs only for fundamental rights. High Courts (Article 226):  Writs for fundamental rights and other legal rights.   Habeas Corpus Habeas Corpus is a Latin term which literally means “you may have the body”.  The writ is issued in the form of an order calling upon a person by whom another person is detained to bring that person before the Court and to let the Court know by what authority he has detained that person. Who can apply for the writ: The general rule is that an application can be made by a person who is illegally detained, But in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e., a friend or a relation. Burden of proof The burden of proof to justify detention has always been placed on the detaining authority. Writ against private individual The Supreme Court of India clarified this in the case of Kanu Sanyal v. District Magistrate, Darjeeling (1973). In this landmark judgment, the Court emphasized that the writ of habeas corpus can be issued not only against public authorities but also against private individuals if it is proven that they are unlawfully detaining someone. Case Law and Example: Mohd. Ikram Hussain v. State of U.P. (1964) All  Facts: Mohd. Ikram Hussain was arrested and detained by the police under the suspicion of having committed a crime. His family believed that the detention was illegal, as he was not produced before a magistrate within the stipulated time, and there was no legal basis for his continued detention. The family filed a petition in the Allahabad High Court, seeking a writ of habeas corpus to challenge the illegal detention and secure his release.  Judgement: The Allahabad High Court issued the writ of habeas corpus and ordered the police to bring Mohd. Ikram Hussain before the court to justify his detention. Upon reviewing the facts, the court found that: The detention was illegal, as the police had not followed due process, including presenting him before a magistrate within the required time. The court directed his immediate release, as there was no valid reason for his continued detention. Similarly, the detention becomes unlawful if a person who is arrested is not produced before the Magistrate within 24 hours of his arrest and he will be entitled to be released on the writ of habeas corpus.  It can also be issued in case of child’s custody cases by one parent against the other.   Mandamus The word “mandamus” means “the order” or “we command”. When it is used: If a government officer or body is not performing its duty, you can approach the court for a mandamus writ to compel them to act. For instance, a licensing officer is under a duty to issue a licence to an applicant who fulfils all the conditions laid down for the issue of such Licence. But despite the fulfilment of such conditions if the officer or the authority concerned refuses or fails to issue the licence the aggrieved person has a right to seek the remedy through a writ of mandamus. Allahabad High Court issued a writ of mandamus to direct the Regional Passport Officer to issue a passport to the petitioner. (Basoo Yadav v. Union of India, 2022 All) When it will not lie. —A writ of mandamus will not be granted in the following circumstances: (1) When the duty is merely discretionary in nature the writ of mandamus will not lie. State of M. P. v. Mandawara,’ the M. P. Government made a rule making it discretionary to grant dearness allowance to its employees at a particular rate. The Supreme Court held that the writ of mandamus could not be issued to compel the Government to exercise its power. (2) A writ of mandamus does not lie against a private individual or any private organisation because they are not entrusted with a public duty.’ (3) A writ of mandamus cannot be granted to enforce an obligation arising out of contract.’   Prohibition A writ of prohibition literally means “to forbid”. It is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. It is issued by a superior Court to inferior courts for the purpose of preventing inferior Courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction. Hari Vishnu Kamath v. Syed Ahmad Ishaque (1955) Facts: This case involved an election dispute where the Election Tribunal’s decision was challenged. Reasoning: The Supreme Court issued a writ of prohibition to prevent the Tribunal from proceeding further, as it had acted beyond its jurisdiction. East India Commercial Co. Ltd. v. Collector of Customs (1962) Facts: This case involved the seizure of goods by customs authorities without proper jurisdiction. Reasoning: The Supreme Court issued a writ of prohibition to prevent the customs authorities from proceeding further, as they had acted beyond their jurisdiction….

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Indian Constitution, judiciary, Law

The Empress vs Gonesh Dooley And Gopi Dooley 1879 Cal

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The Empress vs Gonesh Dooley And Gopi Dooley 1879 Cal (Snake Charmer’s Case) JUDGMENT by McDonell, J. Case Facts: Gonesh Dooley was accused of causing the death of a boy by placing a snake on him by exhibiting in public a venomous snake, whose fangs he knew had not been extracted, and to show his own skill, but without any intention to cause harm to anyone, placed the snake on the head of one of the spectators. The spectator in trying to push off the snake was bitten, and died in consequence. Issues Involved Prosecution’s Argument: The prosecution argued that Gonesh intentionally caused the boy’s death by placing the snake on him, knowing it was dangerous. They also argued that Gopi abetted Gonesh by encouraging or assisting him in the act. Defense’s Argument: The defense argued that Gonesh did not have the intention to kill the boy. They claimed it was a reckless act without the knowledge that it would result in death. They also argued that Gopi did not actively participate in the act and should not be held responsible. Court’s Reasoning: Courts Analysis: The court found that Gonesh did not intentionally cause the boy’s death. It was determined that he did not know the act was “so imminently dangerous that it must, in all probability, cause death” (the last clause of murder) Comparison with Previous Case: The court compared this case with another case The Queen v. Poonai Fattemah 1869, where the accused had intentionally caused a snake to bite the victim. The court noted that in Gonesh’s case, there was no such clear intention or knowledge of imminent danger. Without intention but knowledge: Court observed that in this case “that Gonesh did not think that the snake would bite the boy. But we think that the act was done with the knowledge that it was likely to cause death, but without the intention of causing death.” Conclusion: Sentencing: The court found that Gonesh did not have the intention to cause death but acted with the knowledge that his actions were likely to cause death. Therefore, he was sentenced under Section 304 Part II. Gonesh Dooley was sentenced to three years of rigorous imprisonment. Gopi Dooley, who abetted Gonesh, was sentenced to one year of rigorous imprisonment under Sections 114 and 304 of the IPC.

Criminal Law, Indian Penal Code, judiciary, Law

How Asiya Farooq cleared her J&K Prosecuting Officer Exam in 1st attempt ?

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Question 1 When did you complete your LLB, was it 3 years or 5 years? Ans. It was 3 year LLB course and completed in 2017. Question 2 When do you start your preparation for PO? Did you start your preparation while doing law or after completion of law? Ans. After completion of the law. I started my preparation in 2021- When the advertisement was out for the post of Prosecuting officer. Question 3 Did you prepare for other states’ PO or judiciary? Ans. I was interested in Jammu and Kashmir judiciary-related exams only There were no posts advertised after 2018 till 2021 so I completed my LLM first when posts came out I Started preparing Question 4 How did you prepare for pre- and mains? Ans. I prepared for mains directly as there was little difference in syllabus like few subjects that were in mains were not in pre and vice versa that I did separately Question 5 Kindly throw some light on main answer writing, how often do you practice answer writing while doing your preparation? Ans. My answer writing skills are strong Alhamdulillah, preparing for mains was not a big deal, still, I will let you all know that this was my first attempt so I started practicing answer writing after I qualified pre, every weekend I solved one paper of previous year mains. Question 6 If GS is a part of the J&K PO exam, how did you prepare for that? Ans. Yes, we had CSAT (Civil Services Aptitude Test) as a qualifying paper in Preliminary for that I didn’t prepare separately. I did that side by side. Every day I used to study 3 hours for that before pre. Question 7 Can you recall some questions which were asked in an interview? Ans. I was asked about Provisions of arrest related to Female Charges, Joinder of Charge, Alteration of Charge, Bail Provisions, National Security Act, and Domestic Violence Act, and the last question was why am I interested in becoming a Prosecuting officer and how will I be dealing with people who don’t know about the law. Question 8 How did you prepare for an interview? Ans. I appeared in a mock interview cum guidance program in Jammu and Kashmir Question 9 Anything else you would like to share with students, especially for Judiciary Aspirants? Ans. The thing that I noticed was that aspirants used to write long answers that is what is not needed. The answer should be precise and directly relevant no other references are needed. Flow charts are scoring. Test series for pre and mains is most needed that I did myself as well. While preparing for this exam I was very focused on my goal, sometimes I lost patience but then I prayed and asked Allah to grant me patience. Consistency is very important. Basics should be very clear and strong, Yes I started preparing for it very late and prepared for one and a half years but my basics were very clear initially. What asiya farooq Say About TOA. I watched videos on TOA, read books, and collected the best material, and I prepared my notes after watching videos and reading books. I took help from everyone who was known to me. • I didn’t just mention the language of law but I also referred to leading cases in every answer Question 10 How does TOA help you in your preparation? Ans. Najeeb sir’s videos have been very helpful as concepts that were earlier not clear became clear to me Honestly speaking I always watched his videos whenever I found myself in difficulty understanding anything. I hope you guys will find it useful, for more such interesting updates, go check out our YouTube channel and social media pages, the links are down below. And don’t forget to drop your feedback in the comments section. Now you can start your preparation for Judicial Services and Prosecution Officer at home with our membership plan for details drop us a message on WhatsApp on this number 8840961324 or visit the link below

Interview, judiciary, Recruitment