Tuesday, July 26, 2011

Liability of an Insurance Company in Accident Claim

Claims arising out of accidents have become one of the most important issues pertaining to the litigation mechanism. Very often, notion of vicarious liability is accompanied by such claims, relationship between the driver and the owner of the disputed vehicle being the reason for the inclusion of such a liability. One such dispute has come to the light in Uttar Pradesh Road Transport Corporation v. Kusum & Ors Appeal No. 5901 of 2011 [Arising out of S.L.P. (C) No.1969 of 2008], where a significant issue has been resolved by the Supreme Court pertaining to the claims arising out of Motor Vehicles Act, 1988 w.r.t. the transfer of a vehicle, transfer of power to control its functioning to be more specific. When a vehicle is driven by a driver in line with the instructions specified by another person, it would be evident to note that responsibility would, in such a case, lies on such another person. In other terms employer of the driver or the person on whose instruction driver works.

In the instant case, appellant demanded compensation in lieu of the death of her husband along with her three children, who met with an accident caused by the bus working under Uttar Pradesh State Transportation Corporation. The main issue which should be looked into this case is the validity of the certificate of insurance executed between the owner and the insurance company, when the vehicle has been transferred to a third party. Whether the insurance, which was executed by the owner, would be transferred along with the transfer of the bus to the state transportation corporation. And, also there exist another important point which ought to be looked into i.e. the liability of the transportation corporation, as it was the corporation under whose control bus was functioning. Contentions as submitted by the counsel of the counsel on behalf of insurance company could not impress the bench, which subsequently decreed against them. It contended that insurance policy was not transferred when owner of the bus entered into a hire agreement with the corporation. When an agreement is formed between the parties, the terms mentioned therein receive utmost importance and this is what Supreme Court did in this case. It was specifically mentioned within the agreement that liability relating to insure would be of the owner, and not of the corporation, which ultimately absolved the corporation from its vicarious liability for the act of driver . When the nature of the liability has been clearly specified in the agreement, it will leave no room in concluding in relation to what has been provided in the agreement. The issue framed by the court was -

If insured vehicle is plying under an agreement of contract with the Corporation, on the route as per permit granted in favour of the Corporation, in case of an accident, whether the insurance company would be liable to pay the compensation or would it be the responsibility of the Corporation or the Owner?

In this relation it would be important to see the relevant section of the Motor Vehicles Act, 1988 which deals with the transfer of the insurance of certificate of insurance. Section 157 of the act states that -

Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.

Section 196 of the Act makes insurance of the vehicle compulsory and Section 146 along with 147 cane be read in relation to the issue of statutory insurance , else the owner along with the driver can be exposed to criminal liability. It was held by the court that if owner had transferred the vehicle, he had transferred along with the certificate of insurance and nowhere is it mentioned in the act that insurer ought to be notified in case such a transfer takes place, which ultimately clear the doubt, and in such circumstances insurer would not be able to escape from its liability to pay the compensation. Court then referred to its judgment in United India Insurance Company Limited v. Santro Devi and Ors. (2009) 1 SCC 558, where it was opined by this court that

"The provisions of compulsory insurance have been framed to advance a social object. It is in a way part of the social justice doctrine. When a certificate of insurance is issued, in law, the insurance company is bound to reimburse the owner. There cannot be any doubt whatsoever that a contract of insurance must fulfill the statutory requirements of formation of a valid contract but in case of a third- party risk, the question has to be considered from a different angle."

Court further, in this case, stated that -

"Section 146 provides for statutory insurance. An insurance is mandatorily required to be obtained by the person in charge of or in possession of the vehicle. There is no provision in the Motor Vehicles Act that unless the name(s) of the heirs of the owner of a vehicle is/are substituted on the certificate of insurance or in the certificate of registration in place of the original owner (since deceased), the motor vehicle cannot be allowed to be used in a public place. Thus, in a case where the owner of a motor vehicle has expired, although there does not exist any statutory interdict for the person in possession of the vehicle to ply the same on road; but there being a statutory injunction that the same cannot be plied unless a policy of insurance is obtained, we are of the opinion that the contract of insurance would be enforceable. It would be so in a case of this nature as for the purpose of renewal of insurance policy only the premium is to be paid. It is not in dispute that quantum of premium paid for renewal of the policy is in terms of the provisions of the Insurance Act, 193."

This case would make it easier to understand the liability of an insurance company, when the owner of a vehicle has transferred it to another part without letting insurance company know about the transaction. Even, defence ofPrivity of Contract between Insurance company and the owner cannot absolve the company from its liability because of a simple reason that it insures the vehicle and its liability is ultimately to the sufferers and not the owner. Moreover, the premium had been paid on a regular basis which makes the claim of the insurance company even weaker.

Click Here for the Full Judgment.

Monday, July 25, 2011

CBI - An Important Agency to administer an Impartial Inquiry

Demand of CBI enquiry in cases has become rampant, and it would not be astonishing to notice this. May be due to political influence, or may be due to the fear in the mind of the victim not to get a fair deal, such petitions are filed. One such situation has come into light in the case of Disha v. State of Gujarat and Others Writ Petition (Criminal) No. 33 of 2011, where court rejected the request made by the petition so as to transfer the case pending against her along with her deceased husband and his partners, court could not find ground which, in court's opinion, were substantial to order a CBI inquiry. CBI inquiry should be ordered only in exceptional cases, which do not leave any room to conclude that it would be highly unfair and unjustified for the victim to be investigated by the state police, or any other state agency. While ordering a CBI probe, court very often looks into the credibility of the agency which is investing the matter, and it would be an obligation on the part of the person demanding such probe to make court convinced. Also, it would be an obligation on the part of the Court to actively participate in such matters so as to arrive at a conclusion decorously.

This issue has in fact become one of the most controversial topics in the recent times, when it was opined by the Supreme Court bench headed by the then Chief Justice of India, Justice K.G. Balakrishnan in State of West Bengal & Ors v. Committee for Protection of Democratic Rights, West Bengal W.P. (CRL.) 24 OF 2008

“47. An order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency”

Supreme Court clearly rejected the appeal made by the petitioner who contended that police officials, working under the directions of the State government, would not be able to discharge an impartial probe and that it would be unjust for her to get her case investigated by them. Husband of the petitioner allegedly committed suicide as he had been owing debt to several clients, who were assured by the deceased to receive a considerable amount of profit within a short period of time. He had various agencies in different cities, Pune and Ahemdabad being two of them. One agency was registered in the name of the petitioner, and court had already ordered a probe to be done in the matter relating to fraud. It has been found by the police officials that death of the petitioner’s husband was a clear cut case of suicide which, in all probability, would have been committed by him because of the pressure put over him by his clients, and the same finding was affirmed by the High Court.

Further, court was of the opinion that a CBI inquiry can only be ordered in the cases which are exceptional, and it can only be ordered when court becomes satisfied that an impartial probe would not be possible, if done by the police officials working under the state government because of the involvement of various politicians, influential persons etc. It is only under these circumstances that a court would order a CBI probe, and very often it would be remain reluctant to order such probe. Also, the burden would lie on the petitioner to prove that such an impartial probe cannot be supervised by the police officials. Bearing in mind all these points, court dismissed the petitioner and denied to order CBI to proceed with the investigation. It would be quite interesting to have a glance over the ratio of this court in Vineet Narain & Ors v. Union of India AIR 1996 SC 3386, which will certainly make it easier to understand the situation as to when can a CBI probe be ordered by the High Court, if state fails to do so. Usually speaking, it would be the power of the state to request CBI to conduct an inquiry. But, there have been many instances when state has failed to discharge its duty because of various intervening factors, politics being most significant. This is a landmark case pertaining to CBI inquiry, and Supreme Court, in this case, was of the view that

“The gist of the allegations in the writ petition are that Government agencies, like the CBI and the revenue authorities, have failed to perform their duties and legal obligations inasmuch as they have failed to properly investigate matters arising out of the seizure of the so called "Jain Diaries" in certain raids conducted by CBI. It is alleged that the apprehending of certain terrorists led to the discovery of financial support to them by clandestine and illegal means, by use of tainted funds obtained through 'hawala' transactions; that this also disclosed a nexus between several important politicians, bureaucrats and criminals, who are all recipients of money from unlawful sources given for unlawful considerations; that the CBI and other Government agencies have failed to fully investigate into the matter and take it to the logical and point of the trial and to prosecute all persons who have committed any crime; that this is being done with a view to protect the persons involved, who are very influential and powerful in the present set up; that the matter discloses a definite nexus between crime and corruption in public life at high places in the country which poses a serious threat to the integrity, security and economy of the nation; that probity in public life, to prevent erosion of the rule of law and the preservation of democracy in the country, requires that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against each and every person involved, irrespective of the height at which he is placed in the power set up.”

It further referred to the rule of law and stated that

“the basic tenet of rule of law : "Be you ever so high, the law is above you". Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the Government agencies.”

Above few precedents will make it quite clear as to how and when can a CBI probe be ordered by the High Court.

“Law enforcement officers are never 'off duty.' They are dedicated public servants who are sworn to protect public safety at any time and place that the peace is threatened. They need all the help that they can get." - Barbara Boxer

Sunday, July 24, 2011

Increase in the amount of Maintenance by the Supreme Court

Recent Supreme Court decision in Vinay Paramvir Parmar v. Paramvir Parmar Civil Appeal Nos. 5831-5833 of 2011, a issue has come out pertaining to divorce decree and thereafter demand of maintenance by the wife. Governed by Hindu Law, divorce was decreed in relation to Section 13-B of Hindu Marriage Act, 1955. Family Court fixed 20,000/- as the amount of maintenance to be provided to the wife, and this was followed by an appeal in the High Court which affirmed the Family Court decision. Altering the judgments of both High Court and Family Court, Supreme Court increased the amount of maintenance from 20,000/- to 40,000/- per monthafter bearing in mind the facts and circumstances of the case. In addition to the decision of Family Court, High Court (Bombay) asked husband to pay up a permanent alimony of Rs. 20 lakhs to the wife referring to Section 25 of the Hindu Marriage Act. It was alleged by the appellant, i.e. wife that the income of respondent is much higher in comparison to the maintenance amount fixed by the court, and hence it should be increased. Contrary to this, it was contended by the respondent that the income as alleged by the appellant was not his actual income, and it would amount to what has been alleged only after accumulating the allowances and other benefits, and the contention of the respondent was acknowledged by the court.

Court, referred to its judgement in Shri Bhagwan Dutt vs. Smt. Kamla Devi and Anr. (1975) 2 SCC 386, where it was held by the court, while referring to section 488 of Code of Criminal Procedure, 1898 that

“The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.”

Another judgment which was referred by the Supreme Court was of Chaturbhuj vs. Sita Bai, (2008) 2 SCC 316, where it referred to Section 125 of the Code of Criminal Procedure, 1973, and opined that

“Where the personal income of the wife is insufficient she can claim maintenance under Section 125 CrPC. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt v. Kamla Devi it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 CrPC."

Returning to the judgment of this particular case, it would be interesting to note that while ascertaining the property so as to determine the amount to be paid as maintenance/alimony, income, property along with other sources of incomes ought to be taken into account before decreeing in favour of anyone. Amount which should be provided has not been provided in any of the acts, and amount would depend on the facts and circumstances of each case. It would be obligatory on the part of the court to look into the state which wife was living in before divorce as a married woman. And the amount needed to maintain her would certainly be such, as would be sufficient for her to maintain herself by living under habitual conditions. There would be no mandate on the part of the husband to provide her a luxurious life once divorce has been decreed. Notion of equity has to be kept in mind, and it would certainly be necessary to see whether husband would be able to provide the amount which wife is demanding, and court would not force him to live in an abysmal state after devoting a major part of his income to his former wife. Here in this case, it was husband which had to provide maintenance but it is not mandatory that a husband cannot receive maintenance in case his wife’s condition is much better than that of him, and without her assistance it would not be possible for him to maintain himself. So, the wording should be read as “either husband and wife” and the same has been provided under Hindu Marriage Act.

But, in this case wife had been working in Cathay Pacific Airlines and was also earning some additional amount before marriage. Subsequently after marriage, she resigned from the post after her husband asked her to do so. Thereafter, she had no source of income and was living with her husband before divorce and with her sister after divorce. Considering all these circumstances, it was held by the Supreme Court that the amount of maintenance should be increased from Rs. 20,000/ to Rs. 40,000/- per month.

Enforceability of an unregistered Arbitration Agreement between the parties

Recent Supreme Judgment in M/S Sms Tea Estates P.Ltd. vs M/S Chandmari Tea Co.P.Ltd. CIVIL APPEAL NO. 5820 OF 2011 addressed two significant uncertainties pertaining to Arbitration Law. The issues framed by the court are as follows –

(i) Whether an arbitration agreement contained in an unregistered (but compulsorily registrable) instrument is valid and enforceable?

(ii) (ii) Whether an arbitration agreement in an unregistered instrument which is not duly stamped, is valid and enforceable?

While addressing the first issue, court aptly figured out that a clause in a lease deed citing Arbitration agreement between the parties work only as a collateral transaction. Collateral transaction, in its essence, can only be testified as agreement in addition to the original contract between the parties, which survives in its own distinctiveness. Not depending on the nature of the original lease agreement between the parties, arbitration clause will remain intact. In the instant case, it has been alleged by the respondent that unregistered lease deed cannot make him obliged to comply with the agreement formed between him and the appellant. Stout reliance was placed on Section 49 of Registration Act, 1908 which states that a document which is compulsorily registrable, if not registered, will not affect the immovable property comprised therein in any manner, and also it would not be received as an evidence. Albeit this, there exists certain proviso to this particular section, which on construction denote that if there exists a collateral transaction, then it could be used as an evidence because of its individuality. Another connotation which can be drawn is the use of the agreement in matters linked to specific performance, which had no relevance in this case. Furthering the discussion, it is critical to understand as to how an arbitration clause is not integrated to the central agreement. Arbitration clause, which is present in a majority of commercial documents, is essentially an agreement between the parties irrespective of the nature of the contract formulated between them. Even if a contract turns out to be void at a later stage, it would not in any way affect the very nature of the arbitration clause.

This is primarily because of the reason that central agreement and Arbitration agreement, each having its own identity, assimilated into a single document so as to avoid inconvenience. Just because both agreements have been incorporated into a single doesn’t change their individuality. It can be easily understood after reading out the relevant provisions of the Arbitration and Conciliation Act, 1996. Section 16(1)(a) reads as an arbitration clause which forms part of a contract shall be treated as an agreement independent of theother terms of the contract; and Section 16(1)(b) as a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

Despite all these provisions, there survive certain scenarios when contract along with its arbitration clause can be avoided in wholesome. One of them is the voidability of the agreement i.e. they very basis on which the agreement has been formed is not genuine, and one of the parties was not attentive. Voidability can find its basis on several grounds, coercion and fraud among few of them. It would be undoubtedly evident, removing every kind of ambiguity, from this dictum of the Supreme Court that an arbitration clause would not in any way affected just because of the reason that the core contract was not registered, and hence it would render arbitration clause void along with it.

Addressing the second issue, it was held by the Supreme Court that an instrument must be duly registered, if law entails so, before admitting it as evidence in the court of law and its admissibility cannot be justified in the same manner as in last issue. Discreteness of Registration Act and Indian Stamp Act was pointed out by the court. Section 33 of the Indian Stamp Act requires a document to be duly registered, and if it is not duly registered, the same should be impounded by the court or any competent authority before which the document is being presented. Section 35 of the same act forbids admissibility of such a document, with a proviso which affirms that the same document, which has not been duly registered, can be made admissible after reimbursing the required amount to the competent authority. Following this, court promulgated certain tenets on the issue here the arbitration clause is contained in a document which is not registered (but compulsorily registrable) and which is not duly stamped, which can be read as follows:

“(i) The court should, before admitting any document into evidence or acting upon such document, examine whether the instrument/document is duly stamped and whether it is an instrument which is compulsorily registrable.

(ii) If the document is found to be not duly stamped, Section 35 of Stamp Act bars the said document being acted upon. Consequently, even the arbitration clause therein cannot be acted upon. The court should then proceed to impound the document under section 33 of the Stamp Act and follow the procedure under section 35 and 38 of the Stamp Act.

(iii) If the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid, either before the Court or before the Collector (as contemplated in section 35 or 40 of the Stamp Act), and the defect with reference to deficit stamp is cured, the court may treat the document as duly stamped.

(iv)Once the document is found to be duly stamped, the court shall proceed to consider whether the document is compulsorily registrable. If the document is found to be not compulsorily registrable, the court can act upon the arbitration agreement, without any impediment.

(v) If the document is not registered, but is compulsorily registrable, having regard to section 16(1)(a) of the Act, the court can de-link the arbitration agreement from the main document, as an agreement independent of the other terms of the document, even if the document itself cannot in any way affect the property or cannot be received as evidence of any transaction affecting such property. The only exception is where the respondent in the application demonstrates that the arbitration agreement is also void and unenforceable, as pointed out in para 8 above. If the respondent raises any objection that the arbitration agreement was invalid, the court will consider the said objection before proceeding to appoint an arbitrator.

(vi) Where the document is compulsorily registrable, but is not registered, but the arbitration agreement is valid and separable, what is required to be borne in mind is that the Arbitrator appointed in such a matter cannot rely upon the unregistered instrument except for two purposes, that is

(a) as evidence of contract in a claim for specific performance and

(b) as evidence of any collateral transaction which does not require registration.”

“On the contrary, all the world would point to that nation as violating a treaty, by going to war with a country with whom they had engaged to enter into arbitration” - Richard Cobden


Click Here for the Supreme Court Judgment in this case.

Friday, July 22, 2011

2nd Annual Women and Justice Conference, New Delhi

Conference on Gender Based Violence – October 2011

Organised by – Avon Global Centre for Women and Justice at Cornell Law School in cooperation with Jindal Global Law School.

Theme – “Gender Based Violence and Justice in South Asia”

Date – 22nd – 23rd October, 2011

Venue – New Delhi

Objectives of the Conference –


1. Foster discussion and collaboration between and among justice system actors, civil society advocates, health professionals, and academics from South Asia and other regions to develop solutions for eradicating gender-based violence.

2. Share best practices emerging from within South Asia to address violence against women and girls.

3. Examine opportunities for using international human rights frameworks and mechanisms to analyze gender-based violence and design solutions to it.

4. Engage academia and scholarly works to inform the development of advocacy tools and strategies to combat gender-based violence, including designing laws and monitoring their effectiveness.

5. Enhance international collaboration and networks of stakeholders addressing gender-based violence.


Some Confirmed Speakers – Indira Jaisingh (Additional Solicitor General of India), Justice Imman Ali (Bangladesh Supreme Court), Justice Desiree Bernard (Caribbean Court of Justice) etc.


Paper Proposal Submission – A publication on conference theme will be co-published by Cornell Law School and Jindal Global Law School. Paper should comprise Title, an Abstract of fewer than 2000 words, Biographical Information and A brief explanation of how your research fits with following session topics –

- Gender Violence in South Asia: Framing the Issues

- Beyond the Law: Strategies to Eradicate Gender-based Violence

- Comparative Legal Perspectives on Eradicating Gender-Based Violence in South Asia

- Access to Justice for Survivors of Gender-Based Violence in the Courtroom

- Economic Empowerment and Gender-based Violence

- Gender-Based Violence and International Public Health

- Gender-Based Violence in Conflict and Crisis Situations

- Drafting and Enacting Laws to Combat Gender-Based Violence: A Focus on Acid

Violence

Deadline - 15th August, 2011


Paper proposal should be submitted to womenandjustice@lawschool.cornell.edu

For more Details of the event, Click Here

For Publication Details, Click Here

Thursday, July 21, 2011

Adultery as a ground for Divorce under Hindu Law

Adultery can be defined, according to Black’s Law Dictionary, as the unlawful voluntary sexual intercourse of a married person with another person of opposite sex. Indian law treats adultery as an offence under Section 497 of Indian Penal Code, punishable with imprisonment which can be extended for a period of 5 years. At the outset, this provision was introduced so as to preserve the notion of a family, where a married person was not allowed to have illicit relationship once married. Under Hindu Marriage Act, adultery is one of the grounds on the basis of which a person can file a petition in order to procure decree of divorce. Very often, Courts are reluctant in awarding a decree of divorce, and put a great burden over the parties before separating them. Marriage, according to Hindus, is a sacred and impeccable bond, which if broken would lead to severe consequences. However sacred it may be, there have always existed some grounds on which marriage can be broken, and sometimes couples find themselves in a subjugating state that divorce seems to them the last resort to entreat.

Section 13 of Hindu Marriage Act, 1955 states the circumstances enabling a person to file a petition for the decree of divorce, and for our purpose clause (3) of the aforesaid section is significant which can be read as –

“has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse”

So as to avoid a plethora of divorce petitions, and to save the knot of marriage, petitioner cannot as a matter of fact get the petition decreed in his favour just because of the reason that respondent had illicit relationship with some other person in past. Instead, court would be hesitant in providing such decree if respondent had abstained from indulging in such an activity for a substantial period of time, and thereafter practicing a good moral behaviour. Continuing the tradition, the onus remains on the party which files a petition to get relief on the basis of this particular ground, and courts do not make it an easier task for the petitioner, and require them to prove it stoutly, which can persuade the judges. Accusing someone of adultery means questioning the moral character of that person, and this is the reason why burden on the petitioner becomes even higher. There can certain circumstances when a person becomes perplexed whether his spouse is engaged in the act of adultery, and mere qualm can never be allowed as a strong reason to believe that the other spouse has in fact committed adultery, and courts have always remained cautious so as not to opine any erroneous decision. In addition to this, courts, very often, remain reluctant to admit the direct evidence pointing towards the act of adultery. Highly probable circumstances proving the act of adultery are relied upon by the courts while hearing this discourse.

There are certain other evidences which can, if reliable, be admitted and accepted by the court of law while pronouncing its decision for the act of adultery. A series of act, if called upon by the courts to prove this act, forms one of the most important substantiation which if proven can lead to the decree of divorce efficacious. Denying accusation of adultery by the respondent, even if he did it, can be carried out by him because of various reasons, and can plead those reasons which can form substantial ground for refuting the divorce decree. Being faulty, a petitioner cannot ask for divorce. It is as simple as it can be, one cannot ask for a relief for which he was at fault. A person, who himself engages in the act of adultery, cannot ask for a divorce decree, which if asked would be precluded by the court promptly. Eventually, it would be the discretion and satisfaction of the court which would be the deciding component in these cases.

Criminal charges cannot be framed in a suit filed in a civil court, even if such charges proven. This is because of a minimal reason that the degree of proof in a criminal court is highly sophisticated in comparison to a civil court, which shall be proven beyond all reasonable doubts disparate to what one requires to prove in a civil court. A separate suit can be filed in the criminal court under Section 497 of Indian Penal court, which would consequently lead to the engrossment of the criminal procedure while framing charges and thereby proving it. Another important point which ought to be taken into account while dealing with such cases is the naissance of a child during the period when couple had been living apart because of some differences between them, and the period between the birth of the child and last marital intercourse should be long enough in order to prove that no child, if conceived during such period, would be a legitimate child of the petitioner. It would be unproblematic to understand that petitioner in such cases would be a man. But, it would be an obligation on the part of the husband to prove that no access was feasible at the time when child was born. The period relied upon the English Court is that of 360 days after the last martial intercourse between the couple. Once proven, such a ground would leave no room for the court to believe that adultery was in fact committed by the wife. There have been certain instances when a man had requested the court to conduct blood test in order to spot whether the child born is in fact his child. But, a court cannot compel, in such cases, a wife to undergo blood test so as to make the petitioner satisfy and this shall be proven by means of facts and circumstances. Only wholesome facts and circumstances can prove such a charge. It would not be mandatory for the petitioner to name the person with whom the respondent had committed adultery, and it would not in any way affect the decision of the court. Interestingly, courts do not rely upon the confession churned out by the respondent in front of the bench. As an alternative, court will rely on the evidences presented before it with verve. It would be quite clear to understand some of the basic principles on which a divorce decree could be granted to the petitioner if demanded.

“Christ and The Church: If he were to apply for a divorce on the grounds of cruelty, adultery and desertion, he would probably get one. - Samuel Butler

Sunday, July 17, 2011

Few Limitations and Scope of Criminal Procedural Code

Substantive laws are of no use without existence of a procedure so as to apply it, and would act only as a cadaver. This makes it necessary for us to have a procedure in order to make substantive laws pragmatic. Criminal Procedure or Code of Criminal Procedure, 1973 (hereinafter Code) being one such procedural law provides a track on which laws relating to crimes can scamper smoothly. It was year 1973 when aged Code of Criminal Procedure, 1898 was overhauled by Indian legislature with some objectives, relaxed access by poorer section being one such objective and among others were fair trail and expeditious justice. But, like most of the other laws, this act is not applicable in Jammu and Kashmir along with Nagaland and tribal areas which can be framed out from Section 1 of the code. But, it would also be equally important to note that Chapter VIII, X and XI are applicable in the state of Nagaland tribal areas unlike state of Jammu & Kashmir. Despite this, it has been by Supreme Court in Mowu v. Supt, Special Jail (1971) 3 SCC 936 that this non-applicability can only mean that rules would not apply and not that the authorities cannot be governed by this code.

Interestingly, it is quite worthy to become aware of the fact that places where local procedures have been followed for a long period of time, then those procedures could prevail over the provisions mentioned under the code, and this is one of the most important reasons for keeping tribal areas out of the purview of this code. Role of this code comes into play as soon as crime is committed, and this would be the act for deciding as to what would be the jurisdiction of the court, in other words to determine the court where the case will undergo trial. Investigation and inquiry are some other procedures to be followed in accordance with the act. While ascertaining jurisdiction of a court, it is necessary to check where the offence come under the ambit of any other law, any special law to be more specific. If it does, then such procedure, as mentioned under that specific act, would be followed by special court established under the act. One such example can be Army Act, where a person convicted under the act would not be able to challenge the decree under the provisions mentioned under any other act, take for example IPC. Same in applicable in case of Navy Act, where a person cannot yield benefit of any other act, and this was the view of Madras High Court in P.P. Chandrasekaran v. Government of India and Ors. 1977 CriLJ 67.

Another important provision or point which has to be kept in the mind while dealing with Criminal Procedure is the inherent power provided to High Court under section 482 of the code. But, it would be important to understand that the same powers are not provided to trial courts. The power is to review its judgment in the sense to alter that judgment itself if court is satisfied that some significant evidence or point of law was missed out in the earlier decree. Trial Courts or sub ordinate courts do not posses such kind of power and what they can do is to review its judgment by pronouncing a new decree against its original order. This position was made clear by the Supreme Court in the case of Bindeswari Prasad Singh v Kali Singh AIR 1977 SC 2432, where it was held by the court that there cannot be any question for a court to apply what has not been provided under the Code, and applying what has not been provided under the code would be to surpass its power. As High Courts have this power, they can exercise it unlike judicial officer. And even if such judicial officers or magistrates are satisfied with the fact that some substantial question is to be resolved, then he can alter his decision by means of a new degree and not by altering original decision.

I am mortified to be told that, in the United States of America, the sale of a book can become a subject of inquiry, and of criminal inquiry too." - Thomas Jefferson

Saturday, July 9, 2011

Custom as a Source of Law in Hindu Law

Hindu Law sometimes finds itself in a state of ambiguity while resolving the disputes pertaining to Hindus. At times, there arises certain situations when it becomes difficult for courts to decide whether, in a particular situation, custom would prevail or the text mentioned in the Smritis would prevail. Such problems do not arise when custom has varied over a period of time, but it arises where when it has been practiced for a long period of time uniformly by a certain community, or a religion to be more specific in present dilemma. Generally, it has been a practice which has been followed by several courts to offer primacy to the customs of texts specified in Smritis.

But, another problem crop up as to how and which customs should get primacy, or could be used as a source of law, and for that matter could be used as a law itself. Now, let us spot the points on which these customs are based, points which are not of cultural important but for legal importance. There are three kinds of customs which can be considered to be of some legal importance and above that importance in resolving critical legal disputed in determining the applicability of these customs.

1. Local Custom

2. Family Custom

3. Class Custom.

It would not be intricate to understand the meaning of these customs separately, nor would it be complex to define these customs in our own terms. “Local Custom” is a custom which is prevalent, and has been followed in a particular area or territory for a long period of time, time immemorial to be more specific, and is not against the morality and legal principles. When we converse about legal principles, we mean principles which are fundamental in governing in any society or a nation and which cannot be overlooked while dealing with any of these customs at any point of time. “Family Custom” is often followed only in a particular family, which makes it difficult for the family members to prove the existence of any such custom as required by the case. It is certainly easier to prove the existence of custom which is prevalent in a particular area or class because it is not concentrated to a particular family. In the same manner, “class custom” is the one followed by a particular class.

Before applying these customs as a source of law, it is necessary to check its authenticity. And, it becomes important to make sure whether the custom has been used for a long period of time which in a way makes it ancient, and is reasonable without arbitrariness and is not in the derogation of the general rules of law present in the society. Let us take an example in order to ascertain whether any custom can be accepted as a source of law or not, and for this purpose let us refer to the practice of “Sati”, which had been followed rampantly by Hindus in ancient period. Reasons for burning a woman with her deceased husband can be many, but none of them can justify their reasonableness by murdering a woman. Right thinking members, at that time, might be of the opinion that woman should not claim their right over the property of her husband and they found “Sati” as an easy mechanism to stub out the claim made by them. Another reason could be the maintenance of the woman after her husband’s death, i.e., who would take care of her, and for that matter who would provide her shelter to live in. These were some of the reasons provided by many of the members of the society, at that point of time, to substantiate the fairness of their act. So, it becomes necessary for the courts not to acknowledge such customs which are based merely on arbitrariness and unreasonableness. Here comes the aspect of public morality and public policy, and clear and unambiguous evidence must be there in order to prove it. It should be unambiguous because by claiming the validity of a custom, one is challenging the provision mentioned in the text, let us say Smritis. While proving its validity, another important aspect would come into light i.e. whether such custom has been followed consistently or there have been various instances when such a tradition has been ignored by the members of the society, then how can such a custom be used as an authentic source of law while delivering justice. In such instances, custom cannot be termed as proved and would not make anyone bind to consider it as an authority. This is one of the problems which have been faced by the courts while delivering right justice to the people.

Moreover, it would be a mandate that such a custom has been formed by the common consent of the society and it would always be a matter of fact while ascertaining its authenticity. It would not be possible for a person to claim anything on the basis of the theory, or by alleging that such a custom has been mentioned in some text. This is because, texts which are considered to be authentic, are already present in the form of Smritis,Vedas etc. And a custom, which is authentic, is always context driven and not theory driven. Another aspect which has to be taken into account while dealing these matters is to inquire whether it was only in recent times that the custom has been followed, and if it has been followed only in recent times, then the court decrees based on such a custom would not serve as a precedent. In the earlier part of the post, family custom has been defined and it would be important to know how and when they could be applied. Customs relating to family has been considered by the court as an authentic source for a long period of time, but proving the existence of such a custom is not only difficulty but also time consuming. But, once proven, it would become obligatory to prove any such custom. But, the burden to prove any such existence would again depend on the person alleging it.

Through this post, it may become somewhat clear as to how and when custom as a source of law can be applied while dealing the cases related to Hindu Law.

"Strike an average between what a woman thinks of her husband a month before she marries him and what she thinks of him a year afterward, and you will have the truth about him. "~H.L. Mencken

Wednesday, July 6, 2011

Constitution - Fundamental Text of a Democratic Nation

Constitution, as generally called, is not an ordinary law present in any democratic country, and found itself placed above than any other law of that particular democracy. At the same time it becomes relatively important to understand the basis because of which this code has been placed at such a superior position, or at the apex position. Embodied provisions under Indian Constitution or any other constitution of a democratic nation have been incorporated by the public residing in India or any other democratic country. By public, we mean to say that the text is prepared with their consent, and this particular text is binding upon them right from the date of its enactment. Envision a society where the power is concentrated to a particular body and the laws enacted by such body binding on everyone but that body itself. Residing in such a society would led to the creation of state where public would remain alienated from their basic rights and there would be an absence of accountability of the body enacting laws and regulations for that particular society. It would not be difficulty envisage that in such a state, body which is formulating law would formulate them in accordance with their convenience. Claiming oneself supreme has always been questioned by a number of critiques at each and every point of time, contending that no one can be above god and must be accountable for his act to some authority. This can be traced from various countries which had monarchy in earlier times, which was question and led to revolutions e.g. France, Britain.

And this challenged the authority of monarch and consequently the notion “King can do no wrong”. If at all there is a presence of someone who can do no wrong, then he is certainly not present in this world. And, the formation of a constitution, modern constitution to be more specific, can be considered as a by-product of these contentions that there should be some kind of accountability of the authority governing each and every member of society, In the absence of such an authority, it would become difficult for a person find the rightful place to challenge an act or law passed by such an authority arbitrariness. Constitution is thus considered to be the fundamental law present the court which had passed it at any point of time, USA being first such country which passed its Constitution in the year 1787, though it has only Seven Articles inside it but is considered to be a permanent and fixed with approximately 17 amendments in its history of nearly 200 years. Even after coming into force, it took a long time for everyone to realize that if an act has been passed contrary to the provisions mentioned under the American Constitution, it would be rendered void. And it was only after the decision in Marbury v Madison in the year 1803 when the then Chief Justice of United States decreed that any law which is contrary to the provisions mentioned under the Constitution would stand void, that supremacy of the constitution was realized. It is fundamental law which has been enacted by all the citizens present in a country wilfully, and they have to comply with the provisions mentioned inside for the purpose of having a peaceful society. It has now become a principle that all laws enacted by the legislature must not affect the spirit of the constitution, and if they do so, they would not have any force of law. It is because of the reason that Constitution has been placed above any other codified law of the country, and the body which formulates a law in itself has been created by the Constitution and it cannot damage its spirit, in other words its creator. Now, a country having constitution as its fundamental law would not have any such authority which at one time had kept it unaccountable to anyone.

Similar situations can be seen in the India, where Constitution has been made with an aim to have a government accountable for its act, and public would be able to remove them from their position if they act contrary to what they have been elected for. And, it is quite necessary for a society to have this text called “Constitution” to make sure that rights of its citizens are respected by everyone. Fundamental Rights provided under the Indian Constitution clearly specify that a citizen or a person, as the case may be, would be able to enforce his right against the state in case it gets infringed. And any law enacted by the legislature would be void if made not in accordance with the Indian Constitution. Albeit, legislature is able to amend the constitution as and when there arises a need to do so, but there are certain provision which cannot be amended at any point of time by the legislature, to be more specific provision which form the part of the basic structure of the Indian Constitution. Role of Judiciary is of the utmost importance in these kinds of situation, because it is the one who decides what is in fact contrary to the Indian Constitution, and in way explains the correct meaning of the wordings provided under this text.

In other words, in the absence of the constitution as the fundamental law in a country, it would become very difficult for anyone to challenge the supremacy and authority of the power which enacts laws, even if it is an oral constitution. And, to ensure that there remains some kind of accountability of the government, there must be a presence of such kind of text.

Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” - Abraham Lincoln