In this edition of Court Judgements review, we look at the Kerala HC’s directions for carrying capacity assessment of all hill stations, Supreme Court’s order that regular civil/family courts are in a better position to decide the matters of custody of minors, Rajasthan HC’s directions that regardless of nature of work, all working women are entitled to 180 days of maternity leave, among others.
Kerala HC: Orders for Carrying Capacity Assessment of all Hill Stations
In a suo motu case relating to the Landslides catastrophe witnessed in Wayanad district, the Kerala High Court (HC) noted that there is an emergent need to regulate the unbridled inflow of tourists which has resulted in a spate of natural disasters in the hill stations. The increasing number of tourists and the corresponding unscientific infrastructure development in response to the same, pose a grave danger to the hill stations.
Accordingly, it ordered for carrying capacity assessment of all hill stations to be undertaken by the State government, covering the details such as:
- Footfall of tourists per day during peak and non-peak season
- Number of all types of vehicles entering the district during peak and non-peak season
- Available accommodation facilities determined from only the facilities that have all legal permits, together with parking space, to assess whether it is commensurate with the accommodation facilities.
- Assess the water availability in the district and determine the water that is available to tourist facilities after accounting for and preserving water resources for local use including agricultural and other needs
- Waste collection and management infrastructure.
- Availability and capacity of effluent treatment facilities.
- Determine the protected areas and reserve forests in the various Districts and carry out separate carrying capacity studies, as areas with forests and wildlife are less tolerant to higher tourist intrusion such as pollution, littering and behavioural changes in animals.
- List out the popular tourist destinations and calculate the individual physical carrying capacity of each location.
SC: Regular Civil/Family Courts are in a better position to decide the matters of Custody of Minors
In Somprabha Rana & Ors vs. State of Madhya Pradesh Ors, the Supreme Court (SC) held that regular civil and family courts are in a better position to deal with the cases of custodianship of minor children.
The facts of the case were that dispute a arose between the Father and his relatives, and the grandparents of a minor girl, whose mother died an unnatural death, allegedly by hanging, while she was 11 months old. On the day of the mother’s death, the maternal relatives of the minor took custody of her without the consent of her father and paternal family. Subsequently, her father was arrested under sections 304-B and 498-A of the Indian Penal Code (IPC) and Sections 3 and 4 of the Dowry Prohibition Act (DPA) and was later released on bail. A Habeas Corpus petition under Article 226 was filed before the Madhya Pradesh (M.P) HC by the father and his family, seeking the custody of the child. In an order in July 2023, by which time the minor was about one year and five months, the HC passed an order directing the maternal family to hand over the custody of the minor to her father and his family within 15 days. This was appealed against before the SC, which granted an interim stay on HC’s order.
In its final judgment, the SC held that in directing the handover of the minor to the father and his family, the HC had not considered the issue of the safety of the child, while dealing with the father’s natural right as a natural guardian. It held that that a child cannot be treated as movable property and their custody cannot be permitted without considering the impact of the disturbance of the custody on the child. Therefore, the SC set aside the order of HC and held that in such cases, the regular civil/family courts are in a better position than the higher courts. Accordingly, it directed that the maternal family bring the child every alternate Saturday to the office of the District Legal Services Authority (DLSA) and allow the father and his family to meet the minor child. The DLSA will monitor the process through the assistance of a child psychologist/psychiatrist. Further, the competent court shall decide regarding the grant of access and/or overnight custody to the husband and his family under the Guardianship and Wards Act.
Rajasthan HC: Regardless of nature of work, all working women are entitled to 180 days of maternity leave
In Minakshi Chaudhary (Petitioner) vs. Rajasthan State Road Transport Corporation (RSRTC) (Respondent), the Rajasthan HC held that regardless of the nature of work, all working women are entitled to 180 days of maternity leave.
The facts of the case were that the Appellant is working as a conductor with RSRTC. Since she is pregnant, she applied for maternity leave for a period of 180 days under the provisions of the Maternity Benefit Act (MBA). However, she was only granted 90 days’ leave, as per the provisions of RSRTC Employees Service Regulations. Aggrieved by this, the petitioner approached HC praying for a grant of 180 days of maternity leave.
The HC held that the SC in a catena of cases has categorically held that the provisions of MBA are applicable to working women in all types of employment, including the unorganized sector. Additionally, since the enactment of MBA in 1961, numerous state and national laws have recognized the importance of having sufficient days of maternity leave for women as a matter of dignity. Accordingly, the court held that the petitioner is entitled to 180 days maternity leave as per the provisions of MBA. Additionally, the court has also recommended the RSRTC to amend the provisions of 90 days maternity leave period in RSRTC Employees Service Regulations to 180 days, as the 90 days period is discriminatory and in contravention to MBA. The court also issued mandamus to central and state governments to issue necessary directions to all Unrecognized and Private Sectors to make suitable amendments in their provisions for the grant of 180 days of Maternity Leave to the female employees working under such sectors.
Bombay HC: Even the proceedings seeking the registration of FIR under SC/ST Prevention of Atrocities Act should be video recorded
In an interim application between Vijay Pundlik Sapkale & Anr. vs. Varsha Aadesh Pradhan & Ors., the Bombay HC held that every proceeding, including even seeking of registration of First Information Report (FIR), under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (SC/ST Act) should be video recorded.
The court held that as decided in Hema Suresh Ahuja And Ors vs. The State Of Maharashtra and Anr, any proceedings under SC/ST Act should be recorded. The expression ‘any proceedings’ includes even the proceedings seeking the registration of FIR. Accordingly, the court ordered a video recording of the proceedings under the SC/ST Act.
Assam HC: Lack of proper medical facilities for Transgender community are a matter of serious concern
In Swati Bidan Baruch (Petitioner) vs. State of Assam and Ors, the petitioner alleged that there is apathy by the state administration in extending medical facilities, particularly extending reconstructive surgery, to the Transgender community. Despite the central government scheme, extending the facility of reconstructive surgery to the transgender community, neither the central nor state governments are coming forward to implement it, due to the lack of clear instructions and guidelines. This goes against the rights assured to the transgender community under Transgender Persons (Protection of Rights) Act, 2019, and also the Fundamental Right to Life (Article 21) guaranteed under the Constitution of India.
The court noted that these issues are of serious concern and called for immediate action. Accordingly, the court directed the state government to respond to these issues in the next hearing, so as to find ways to address the grievances of transgender community.
