1.

'Crisis Of Credibility' Is The Challenge Faced By Indian Judiciary At

Present: Justice Abhay Oka

 Justice Abhay S Oka, who was recently appointed judge of the Supreme Court, has
said "crisis of credibility is a challenge being faced by the judiciary at present and
members of the legal profession should ensure the backlog of cases because of the
COVID-19 pandemic is cleared."

 He was speaking at a function organised by the Thane District Courts Bar Association
here in Maharashtra to felicitate him on his appointment as the judge of the country's top
court.

 On the occasion, Justice Oka said "crisis of credibility" was the challenge being faced by
the judiciary and even if the third wave of COVID-19 strikes, judicial officers and
lawyers should ensure the legal work goes on uninterrupted and people get justice.

 Members of the legal profession should work towards restoring faith of the country's
citizens in the judiciary, he said.

 He gave an example of the Karnataka High Court, where judges decided to work for 11
Saturdays during the pandemic to clear the backlog of cases, and said such ways should
be found in other courts as well.

 Noting that the judge to population ratio in the country currently stood at 17 or 18 judges
per million people, he said the issue of shortage of judges in courts needs to be addressed
and this ratio needs to be improved.

 In his speech, Justice Oka also recalled his journey from a practising advocate in a Thane
court in 1983 to becoming the judge of the Supreme Court.

 Justice Oka enrolled as an advocate in 1983 and was elevated as the additional judge of
the Bombay High Court in 2003.
  He became the Chief Justice of the Karnataka High Court in 2019. In August this
year, he was elevated to the SC.

2. Relief Against Third Party Can't Be Claimed In Proceedings Between

Husband & Wife Under Hindu Marriage Act : Supreme Court

 The Supreme Court has held that in a proceedings under the Hindu Marriage Act between
a husband and a wife, a relief against a third party cannot be claimed.

 The Court held so while rejecting a wife's plea to seek a declaration that the alleged
marriage between her husband and another woman was void.

 "Under the provisions of the Hindu Marriage Act, the relief of divorce, judicial separation
etc. can be between the husband and the wife only and cannot extend to the third party.
Therefore, by virtue of Section 23A of the Hindu Marriage Act, it is not open for the
appellant herein – original defendant to seek declaration to the effect that the marriage
between the respondent – original plaintiff and the third party is void. No relief can be
prayed by way of counter claim even against the son born out of the alleged wedlock
between the respondent – original plaintiff and the third party", the Court stated.

A bench of Justices M.R.Shah and A.S.Bopanna made the observation in a

judgement Nitaben Dinesh Patel vs Dinesh Dahyabhai Patel. The judgement authored
by Justice M.R.Shah further held that if some facts have come to the knowledge
subsequent to the commencement of trial an application for amendment of written
statement can be allowed even after the trial has commenced.

 Factual Background

 The question regarding the amendment of pleas and the nature of reliefs that can be
pleaded arose in a divorce suit between the appellant-wife and respondent-husband. The
respondent-husband filed a petition seeking dissolution of marriage. The appellant-wife
 sought amendments to her written statements seeking, inter alia (i) that respondent-
husband is living in adultery and (ii) that a subsequent marriage between respondent-
husband and third party be declared void and that child born of that wedlock be declared
an illegitimate child.

 The Bench further observes that the only remedy available to the appellant would be to
file a substantive suit and/or initiate independent proceedings claiming such reliefs. The
Court set aside the impugned judgement and order passed by the High Court and restored
the Family Court order partially permitting the appellant-wife to amend her written
statement.

 The judgement set aside the impugned judgement and order passed by the High Court
and restored the Family Court order partially permitting the appellant-wife to amend her
written statement.

3. Retrial Can Be Directed Only In 'Exceptional' Circumstances To Avert

Miscarriage Of Justice: Supreme Court Formulates Principles

 In a judgment delivered recently, the Supreme Court formulated principles regarding the
power of a court to order retrial in a criminal case.

 The court observed that retrial can be directed only in 'exceptional' circumstances to avert
a miscarriage of justice. If a matter is directed for re-trial, the evidence and record of the
previous trial is completely wiped out, the bench of Justices DY Chandrachud, Vikram
Nath and BV Nagarathna observed.

 Section 386 CrPC, Section 386 of the CrPC defines the powers of the Appellate Court.
An Appellate Court is empowered inter alia in an appeal from an order of acquittal:

(i) To reverse such order and direct that a further inquiry be made; or

(ii) That the accused be re-tried or committed for retrial; or

(iii) Find him guilty and pass sentence on him according to law.
The Appellate Court is also empowered to order a retrial in the context of an appeal from a
conviction and in clause (c)(i) in an appeal for enhancement of sentence.

 The following are the principles formulated by the Court by referring to earlier
judgments:

(i) The Appellate Court may direct a retrial only in 'exceptional' circumstances to avert a
miscarriage of justice;

(ii) Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the
lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;

(iii) A determination of whether a 'shoddy' investigation/trial has prejudiced the party, must be
based on the facts of each case pursuant to a thorough reading of the evidence;

(iv) It is not sufficient if the accused/ prosecution makes a facial argument that there has been a
miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a
retrial to provide a reasoned order on the nature of the miscarriage of justice caused with
reference to the evidence and investigatory process;

(v) If a matter is directed for re-trial, the evidence and record of the previous trial is completely
wiped out;

(vi) The following are some instances, not intended to be exhaustive, of when the Court could
order a retrial on the ground of miscarriage of justice :
a) The trial court has proceeded with the trial in the absence of jurisdiction;
b) The trial has been vitiated by an illegality or irregularity based on a misconception of the
nature of the proceedings; and
c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature
of the charge, resulting in the trial being rendered a farce, sham or charade.