30 Aug 2010

Minor's marriage legally valid: High Court

Dispensing away the doubts as to its legal status, a division bench of the Delhi High Court in a recent decision has explained the legal position of marriage between minor couples. Holding that traditionally the valid between minors has been taken as neither void or voidable and on the contrary a legally valid marriage, the law was changed in 2006 by the Parliament with the enactment of the Prohibition of Child marriage Act, 2006 wherein under such marriages were made voidable at the option of the minor spouse. The High Court declaring the law in Jitender Kumar Sharma v. State observed as under;
8. It was argued on behalf of Poonam‘s father that the marriage between Jitender and Poonam, who are hindus, is invalid because it is in violation of section 5(iii) of the Hindu Marriage Act, 1955 (hereinafter referred to as ―the HMA), inasmuch as Poonam is below 18 years of age and Jitender is below the age of 21 years. Section 5 sets out the conditions for a hindu marriage, one of them [clause (iii)] being the stipulation as to ages of the bridegroom and bride. It reads as under:-
5. Conditions for a Hindu marriage.—A marriage may solemnized between any two Hindus, if the following conditions are fulfilled, namely :— (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
It is true that one of the conditions of a hindu marriage is that the bride should have completed 18 years age and the bridegroom, 21 years. But, does this mean that a marriage where this twin condition as to ages is not satisfied is, ipso facto, invalid or void? An examination of section 11 of the HMA would seem to suggest otherwise. The said provision is as under:- 
“11. Void marriages.—Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
Though five conditions have been stipulated in section 5, only the contravention of three of them, namely, clauses (i), (iv) and (v) would render the marriage to be null and void. Clause (iii) of section 5, which is the condition with regard to the minimum ages of the bride and bridegroom, is conspicuous by its absence. As a result, a hindu marriage solemnized in contravention of clause (iii) of section 5 of the HMA cannot be regarded as a void or invalid marriage.
But, the fact that punishment has been provided for contravention of the condition specified in section 5(iii) of the HMA does not mean that the marriage itself is void or invalid. If the legislature had intended that such a marriage would be void or invalid, it could have easily included clause (iii) of section 5 in Section 11 itself. Only clauses (i), (iv) and (v) of section 5 are specifically mentioned in section 11. The only conclusion is that the legislature consciously left out marriages in contravention of the age stipulation in clause (iii) of section 5 from the category of void or invalid marriages.
9. This view is well supported by several division bench decisions of this court. In Neetu Singh v. State: 77 (1999) DLT 601 (DB), after considering two decisions, one of the Allahabad High Court [Mrs Kalyani Chaudhary v. The State of U.P.: 1978 CrLJ 1003] and the other of the Himachal Pradesh High Court [Seema Devi alias Simaran Kaur v. State of H.P.: 1998 (2) Crime 168], it was held that a marriage in contravention of clause (iii) of section 5 of the HMA is ―neither void nor voidable although it may be punishable under section 18 of the HMA. This view has been reinforced in Ravi Kumar v. The State: 124 (2005) DLT 1 (DB) and Manish Singh v. State Govt of NCT: AIR 2006 Del 37= 126 DLT 28 (DB). While the decisions in Neetu Singh (supra) and Ravi Kumar (supra) did not refer to the provisions of the Child Marriage Restraint Act, 1929, the said provisions were specifically noticed in Manish Singh (supra). In that case the division bench held that the ―Act aims to restrain performances of child marriages but the ―Act does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act. After referring to the penal provisions in the HMA and the Child Marriage Restraint Act, 1929, the division bench observed marriages solemnized in contravention of the age prescription in section 5(iii) of the HMA were neither void nor voidable but were ... only punishable under section 18 of the Hindu marriage Act with imprisonment of 15 days and a fine of Rs 1000/- as also under the provisions of Child marriage Restraint Act.
10. Before we proceed further, under Hindu law there are essentially two kinds of marriages – void marriages or valid marriages. The latter category has a sub-category of voidable marriages. A marriage in contravention of clause (iii) of section 5, as we have seen above, does not fall in the category of void marriages specified in section 11 of the HMA nor does it fall in the category of voidable marriages specified in section12. Consequently, by the process of elimination, it would be a valid marriage. Of course, the marriage may be dissolved through a decree of divorce, but, that would have to be on the grounds specified in section 13 of the HMA.
11. Coming back to the division bench decisions mentioned above, it is pertinent to note that they were rendered prior to the enactment and enforcement of The Prohibition of Child Marriage Act, 2006 which replaced the Child Marriage Restraint Act, 1929. The latter act did not contain any provisions impinging upon the validity of a marriage. However, the Prohibition of Child Marriage Act, 2006 contains specific provisions which deal with void and voidable marriages.
12. The validity of a marriage is primarily to be adjudged from the stand point of the personal law applicable to the parties to the marriage. The validity of a marriage between Hindus is to be considered in the context of the HMA and the validity of a marriage between Muslims is to be viewed in the light of Muslim personal law and so on. We have already seen that a Hindu marriage in contravention of clause (iii) of section 5 of the HMA is not void. But, by virtue of section 12 of the Prohibition of Child Marriage Act, 2006, which is a secular provision cutting across all religious barriers, a marriage which is not void under the personal laws of the parties to the marriage may yet be void if the circumstances specified therein are attracted. However, the other side of the coin is that where the circumstances listed in section 12 do not arise, the marriage of a ―minor child would still be valid unless it is a void marriage under the applicable personal law. So, a Hindu marriage which is not a void marriage under the HMA would continue to be such provided the provisions of section 12 of the Prohibition of Child marriage Act, 2006 are not attracted. In the case at hand, none of the circumstances specified in the said section 12 arise. Consequently, the position as obtaining under the HMA, that the marriage between Jitender and Poonam is not void or invalid, would be unaffected by the Prohibition of Child marriage Act, 2006.
13. We shall now consider the issue of voidable marriages. We have seen that the division bench decisions of this court referred to above, consistently held that a marriage in contravention of clause (iii) of section 5 of the HMA was neither void nor voidable. We have discussed the aspect of void marriages and found that a marriage which is not void under the HMA may yet be void in any one or more of the circumstances specified in section 12 of the Prohibition of Child marriage Act, 2006. The latter act has, unlike its precursor – the Child Marriage Restraint Act, 1929, also introduced the concept of a voidable marriage. Section 3 of the Prohibition of Child marriage Act, 2006 reads as under:-
3. Child marriages to be voidable at the option of contracting party being a child.
(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage: Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage. 
(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer. 
(3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority.
(4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money: Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.
This provision, irrespective of whether a child marriage is or is not voidable under personal law, makes every child marriage voidable at the option of a party to the marriage, who was a child at the time of marriage. Another important aspect of this provision is that a petition for annulling a child marriage by a decree of nullity can be filed only by a party to the marriage, who was a child at the time of marriage. It is therefore clear that where, earlier, a child marriage may not have been voidable under personal law, as in the case of the HMA, by virtue of the 'secular‘ provisions of section 3 of the Prohibition of Child marriage Act, 2006 it has explicitly been made voidable at the option of the 'child‘ spouse. But, nobody other than a party to the marriage can petition for annulment of the marriage.
14. It is clear that because of the change in law brought about by the enactment of the Prohibition of Child marriage Act, 2006 and repeal of the Child Marriage Restraint Act, 1929, the statement of law with regard to the validity of a child marriage has to be modified. The legal principle that a marriage in contravention of clause (iii) of section 5 of the HMA was ―neither void nor voidable, was established prior to the enactment and enforcement of the Prohibition of Child marriage Act, 2006. The principle which is now applicable is that a marriage in contravention of clause (iii) of section 5 of the HMA is not ipso facto void but could be void if any of the circumstances enumerated in section 12 of the Prohibition of Child marriage Act, 2006 is triggered and that, in any event, all such marriages would be voidable at the option of the 'child‘ spouse in terms of section 3 of the Prohibition of Child marriage Act, 2006.

29 Aug 2010

No maintenance by non-working husband: High Court

In a judgment which can bring relief to a number of unemployed husbands from the liability to pay maintenance to their wives, the Delhi High Court recently has declared that the law relating to maintenance to be paid to wives under Section 125 of the Code of Criminal Procedure does not apply in a situation where the husband is unemployed and isn't himself earning. Deciding in Sanjay Bhardwaj v. State, the Justice Shiv Narayan Dhingra reversed the decision of the lower court fixing maintenance in such circumstances.

The High Court inter alia observed;

4. ... Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C - a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was BSc. and Masters in Marketing Management from Pondicherry University, the wife was MA (English) & MBA. If the husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India. Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act.
5. We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree. Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed. As far as dependency on parents is concerned, I consider that once a person is grown up, educated he cannot be asked to beg and borrow from the parents and maintain wife. The parents had done their duty of educating them and now they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves. 
6. It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence. Marriages do fail for various other reasons. The difficulty is that real causes of failure of marriage are rarely admitted in Courts. Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts.

27 Aug 2010

SEBI can investigate and debar auditors: High Court

In a decision which carrying with it the vigor to set the trend and extend the ambit of powers being exercised by the securities market regulator in India, the Bombay High Court in a recent decision has declared that the Securities and Exchange Board of India (SEBI) has power to issue show cause notices to the Chartered Accountants in connection with the work which they have undertaken for a listed Company in the matter of maintaining accounts and balance-sheets. The matter can actually be counted as a fall-out of the Raju-Satyam scam which rocked the Indian markets not long back. 

SEBI, investigating the scam, has issued notices to the auditor firm Price Waterhouse & Co. alleging various irregularities by the audit firm in and in essence non-compliance with the auditing standards prescribed by the Institute of Chartered Accountants (ICAI). Notices were also issued to the auditor firm requiring them to show cause as to why action not be taken against them "which may include prohibiting the petitioners firm, directly or indirectly, from in any manner issuing any certificate with respect to compliance of obligations of listed companies and intermediaries registered with SEBI and requirements" under various laws. The auditor firm had challenged the jurisdiction of SEBI to propose such action before the High Court contending that only the ICAI "was specially authorized to take proposed action against the Chartered Accountants and it is not open to SEBI to regulate the profession of Chartered Accountants".

The High Court, however, was not impressed with the challenge. Examining the provisions of the SEBI Act, 1992 the High Court observed that they were "of wide amplitude and would therefore take within its sweep a Chartered Accountant if his activities are detrimental to the interest of the investors or the securities market". In particular, the division bench of Justice P.B. Majmudar and Justice R.M. Sawant noted as under;
25. So far as the question as to whether the SEBI has jurisdiction to issue such show cause notices to the petitioners are concerned, we have already pointed out various provisions contained in the SEBI Act and the Regulations. Section 11 (1) of the SEBI Act, which we have incorporated earlier, provides that it is the duty of the Board to protect the interests of investors in securities and to promote the development and to regulate the securities market by such measures as it thinks fit. It is true, as argued by the learned counsel for the petitioners, that while exercising powers under the Act, it is not open to the SEBI to encroach upon the powers vested with the Institute under the CA Act. However, it is required to be examined as to whether in substance by initiating the proceedings under the SEBI Act, the SEBI is trying to overreach or encroach upon the powers conferred under the CA Act. In this connection, it is required to be noted that the the SEBI has powers under the Act and the Regulation to take remedial measures in connection with safeguarding the interest of investors and regulate the securities market. Under Section 11 of the SEBI Act, the SEBI has power to prohibit fraudulent and unfair trade practices relating to securities market. Under Section 11 (4) of the SEBI Act, the SEBI is entitled to pass appropriate orders in the interest of investors or securities market and is entitled to take measures as prescribed in the said Section. Under Section 11 B, powers have been conferred on the SEBI to give appropriate directions even to any person or class of persons referred to in Section 12 or associated with the securities market. The powers available to the SEBI under the Act are to be exercised in the interest of investors and interest of securities market. In order to safeguard the interest of investors or interest of securities market, SEBI is entitled to take all ancillary steps and measures to see that the interest of the investors is protected. Looking to the provisions of the SEBI Act and the Regulations framed thereunder, in our view, it cannot be said that in a given case if there is material against any Chartered Accountant to the effect that he was instrumental in preparing false and fabricated accounts, the SEBI has absolutely no power to take any remedial or preventive measures in such a case. It cannot be said that the SEBI cannot give appropriate directions in safeguarding the interest of the investors of a listed Company. Whether such directions and orders are required to be issued or not is a matter of inquiry. In our view, the jurisdiction of SEBI would also depend upon the evidence which is available during such inquiry. It is true, as argued by the learned counsel for the petitioners, that the SEBI cannot regulate the profession of Chartered Accountants. This proposition cannot be disputed in any manner. It is required to be noted that by taking remedial and preventive measures in the interest of investors and for regulating the securities market, if any steps are taken by the SEBI, it can never be said that it is regulating the profession of the Chartered Accountants. So far as listed Companies are concerned, the SEBI has all the powers under the Act and the Regulations to take all remedial and protective measures to safeguard the interest of investors and securities market. So far as the role of Auditors is concerned, it is a very important role under the Companies Act. As posited in Section 227 of the Companies Act, every auditor of a company shall have a right of access at all times to the books and accounts and vouchers of the Company, whether kept at the head office of the company or elsewhere, and shall be entitled to require from the officers of the Company such information and explanations as the auditor may think necessary for the performance of his duties. The auditors in the Company are functioning as statutory auditors. They have been appointed by the shareholders by majority. They owe a duty to the shareholders and are required to give a correct picture of the financial affairs of the Company. It is not uncommon nowadays that for financial gains even small investors are investing money in the share market. Mr. Ravi Kadam has rightly pointed out that there are cases where even retired persons are investing their retiral dues in the purchase of shares and ultimately if such a person is defrauded, he will be totally ruined and may be put in a situation where his life savings are wiped out. With a view to safeguard the interests of such investors, in our view, it is the duty of the SEBI to see that maximum care is required to be taken to protect the interest of such investors so that they  may not be subjected to any fraud or cheating in the matter of their investments in the securities market. Normally, an investor invests his money by considering the financial health of the Company and in order to find out the same, one will naturally would bank upon the accounts and balance-sheets of the Company. If it is unearthed during inquiry before SEBI that a particular Chartered Accountant in connivance and in collusion with the Officers/Directors of the Company has concocted false accounts, in our view, there is no reason as to why to protect the interests of investors and regulate the securities market, such a person cannot be prevented from dealing with the auditing of such a public listed Company. In our view, the SEBI has got inherent powers to take all ancillary steps to safeguard the interest of investors and securities market. questions The powers conferred under various provisions of the Act are wide enough to cover such an eventuality and it cannot be given any restrictive meaning as suggested by the learned counsel for the petitioners. It is the statutory duty of the SEBI to see that the interests of the investors are protected and remedial and preventive measures are required to be taken in this behalf. It is required to be noted that in the instant case the inquiry is still pending and ultimately the decision is required to be taken by SEBI on the basis of available evidence on record. However, in order to determine the jurisdiction of SEBI, the contents of the show cause notice which is the first step of initiating proceedings are required to be seen. Reading the contents of the show cause notices and the relevant statutory provisions, it cannot be said that the SEBI has no jurisdiction at all to enquire into the affairs of the petitioners in so far as it relate to Satyam. In the case of Government contracts, the Government is entitled to blacklist a particular tenderer with a view to see that such a tenderer is not allowed to participate in the future tenders the same is done by following appropriate procedure in that behalf. In our view, it cannot be said that the show cause notices issued by SEBI are, on the face of it, not sustainable on the ground that the SEBI has no jurisdiction to enter into the affairs of the petitioners or that it lacks jurisdiction to go into such.
28. As regards the contention of Mr. Dwarkadas that except the Institute, no other body has any power to regulate the profession, it is required to be noted that SEBI’s powers are restricted only in connection with taking care of the interest of the investors and safeguarding the interest of the investors and also to regulate the share market. SEBI has, therefore, all the powers to give appropriate directions in the aforesaid field. By initiating the proceedings, it cannot be said that the SEBI is encroaching upon the rights of the Institute or prohibiting a Chartered Accountant from practicing as a Chartered Accountant. It is natural that SEBI has no power to pass an order prohibiting a particular Chartered Accountant from practicing as a Chartered Accountant or cannot debar a Chartered Accountant from practicing as Chartered Accountant but SEBI can definitely take regulatory measures under the SEBI Act in the matter of safeguarding the interest of the investors and securities market and in order to achieve the same, it can take appropriate remedial steps which may include keeping a person including a Chartered Accountant at a safe distance from the securities market. SEBI can always take preventive as well as remedial measures in this behalf. Exercising such powers, therefore, cannot be said to be in any way in conflict with the powers of the Institute under the CA Act. If ultimately any decision is taken by debarring any particular person from auditing the books of a listed company, such direction can always be said to be within the powers of SEBI and that is in the aid of regulating the affairs in connection with the investors interests and the interest of the securities market. By exercising such powers, it cannot be said that the SEBI is trying to regulate the profession of Chartered Accountants in any manner and in that view of the matter, in  our view, it can never be said that it is in conflict with Section 24 of the CA Act.
Have a look at the decision and our curious readers may also like to read the comment on the issue.

18 Aug 2010

Right to be defended by lawyer of choice not absolute: Supreme Court

While the Constitution of India guarantees every citizen to be defended by a lawyer of his choice, the Supreme Court in a recent decision [Dinesh Chandra Pandey v. High Court of Madhya Pradesh] has declared that since in terms of the M.P. Civil Services the right to take assistance of a legal practitioner was subject to a precondition and such precondition was not met in his case, he could not be allowed to be represented by a lawyer of his choice.
The Supreme Court declared the law in the following terms;
6. The challenge to the impugned order is, primarily, on two grounds. Firstly, the appellant had asked for assistance of a legal practitioner which had been unfairly denied to him. Denial of assistance of a legal practitioner tantamount to violation of principles of natural justice as well as M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short “1966 Rules”), and, as such, the entire departmental proceedings as well as the impugned order of punishment are vitiated. Secondly, the enquiry officer as well as the High Court have not appreciated the evidence in its proper perspective and has failed to accept plausible defence raised by the appellant in regard to deposit of money in the bank. The order of removal from service, thus, is based on no evidence and is required to be set aside. In support of this contention learned counsel referred to Rule 14(8) of the 1966 Rules as well as Judgment of this Court in the case of J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd. [(1991) 2 SCC 283] and Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, [(1983) 1 SCR 828]. The 1966 rules are applicable to the member of judicial services of the State of Madhya Pradesh as the Government, in consultation with the High Court, has only framed one set of Rules i.e. M.P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 (which primarily deal with the eligibility, methodology relating to appointment to the judicial services of the States and its cadre etc. As far as the disciplinary rules are concerned, it is a common case of the parties that the above 1966 Rules are the Rules applicable to the members of judicial services. These Rules came into force from the date of their publication. They deal with power to suspend, conduct departmental enquiry, the procedure which is to be adopted in a departmental enquiry and punishments which can be inflicted upon an officer by the Competent Disciplinary Authority. While Rule 10 deals with the punishment and penalties which can be imposed on the member of the service, Rules 12 and Rule 13 deal with the Disciplinary Authority and the authority who can institute the proceedings. While Rule 14 deals not only with imposition of punishment but also gives the entire procedure which is required to be followed by the Enquiry Officer as well as the Disciplinary Authority before inflicting any punishment upon the charged officer, Rule 14(8) deals with providing of legal assistance or engagement of a legal practitioner during the course of a departmental enquiry. As the reliance has been placed by both the parties on this Rule, it will be useful to reproduce the same here: 
“Rule 14(8): The Government servant may take the assistance of any other Government servant to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits.”
7. The bare reading of this Rule shows that the Government servant may take the assistance of any other Government servant to represent his case but may not engage a legal practitioner for the purpose unless the presenting officer appointed by the authority is a ‘legal practitioner’ or the disciplinary authority, having regard to the circumstances of the case, so permits. The expression ‘may’ cannot be read as ‘shall’. The normal Rule is that a delinquent officer would be entitled to engage another officer to present his case. But if the presenting officer is a ‘legal practitioner’, he may normally be permitted to engage a legal practitioner. The third category is where the disciplinary authority having regard to the circumstances of the case so permits. It is, therefore, not absolutely mandatory that the disciplinary authority should permit the engagement of a legal practitioner irrespective of the facts and circumstances of the case. There is some element of discretion vested with the authority which, of course, has to be exercised properly and in accordance with the settled principles of service jurisprudence. The Courts have taken a view that where expression ‘shall’ has been used it would not necessarily mean that it is mandatory. It will always depend upon the facts of a given case, the conjunctive reading of the relevant provisions along with other provisions of the Rules, the purpose sought to be achieved and the object behind implementation of such a provision. This Court in the case of Sarla Goel v. Kishan Chand [(2009) 7 SCC 658], took the view that where the word ‘may’ shall be read as ‘shall’ would depend upon the intention of the legislature and it is not to be taken that once the word ‘may’ is used, it per se would be directory. In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in light of the settled principles, and while ensuring that intent of the Rule is not frustrated. Further, in the case of Malaysian Airlines Systems BHD (II) v. Stic Travels (P.) Ltd., [(2001) 1 SCC 509], this Court took the view that word ‘may’ in Section 11(1) of the Arbitration and Conciliation Act, 1996 is not to be construed as ‘must’ or ‘shall’, as the word ‘may’ has not been used in the sense of ‘shall’, the provision is not mandatory. In the light of these principles, we are of the considered view that the expression ‘may’, used in Rule 14(8) of 1966 Rules would have to be construed as directory and not absolutely mandatory with reference to the facts and circumstances of a given case. Of course, it would be desirable that wherever the presenting officer is a legal practitioner, the delinquent officer should be given the option and may be permitted to engage a legal practitioner if he so opts. But this Rule is hardly of any assistance and help to the appellant in the present case. The Presenting Officer was an Additional District Judge. He was possessed of similar qualification, professionally or otherwise, as was the appellant himself. The appellant could have asked for permission to engage and take assistance of any other judicial officer of that rank or of any rank that he wanted which request ought to have been considered by the Disciplinary Authority. It will be entirely uncalled for that an Additional Judge should be termed as a legal practitioner and, therefore, vesting in the appellant a right to engage a legal practitioner or an advocate for defending him in the departmental proceedings. It will be rather appropriate to apply the principles of contextual interpretation in the facts and circumstances of the case. In the case of Muddada Chayanna vs. K. Narayana [AIR 1979 SC 1320], it was held by this Court that interpretation of statute, contextual or otherwise, must further and not frustrate the object of the statute. In other words, the expression ‘medical practitioner’ appearing in the Maharashtra Nurses Act, 1966 should be given a meaning in the context in which it is sought to be applied to achieve the real object of the statute. It is also to be kept in mind that while dealing with the provisions of the statute, the Court would not adopt an approach or give meaning to an expression which would produce unintelligible, absurd and unreasonable result and would render the legislative intent unworkable or totally irreconcilable with the provisions of the statute (Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd. [AIR 2003 SC 511]). The learned counsel for the appellant referred to P. Ramanatha Aiyar’s Law Lexicon to emphasise that the expression ‘legal practitioner’ appearing in Rule 14(8) would cover even a judicial officer. He relied upon the following explanations given to this expression:
“Legal practitioner” defined (See also Advocate of a High Court; Barrister; Government pleader; Pleader; Public Prosecutor; Recognized agent) Act 18, 1879, S. 3; Act 18, 1881, S. 4(2); Act 16, 1887, S.4(16); Act 17, 1889, S 3(13); Act 23, 1923, S.2; Act 21, 1926, S.2 ‘Legal Practitioner’ means an advocate vakil or attorney of any High Court, a pleader, mukhtaro revenue agent. Act XVIII of 1879 (Legal Practitioners), S.3]” 
8. The above referred explanations clearly show that a judge in service cannot be termed as a legal practitioner, as it will mean and include only an Advocate or a vakil of Court practicing in a Court, may even be a Barrister, Special Pleader, solicitors depending on the facts of a given case. Rule 2 (e) of the Central Administrative Rules, 1987 also defines the word ‘legal practitioner’. However, it, in turn, requires that this expression shall have the same meaning as is assigned to it under the Advocates Act, 1961. In that Act the word ‘legal practitioner’ has been defined under Section 2(i) to mean an advocate or vakil of any High Court, a pleader mukhtar or revenue agent. In other words, this is an expression of definite connotation and cannot be granted an extended or inclusive meaning, so as to include what is not specifically covered. A Judge may be law graduate holding a Bachelor Degree in Law from any University established by law in India but this by itself would not render him as a ‘legal practitioner’. On the contrary, there is a definite restriction upon the Judge from practicing law. Such an implied inclusion, as argued by the appellant, would not lead to absurdity but would even offend the laws in force in India. John Indermaur, Principles of the Common Law 169 (Edmund H. Bennett ed., 1st Am.ed. 1878 explains the term as follows : 
“Legal practitioners may be either barristers, special pleaders not at the bar, certified conveyancers, or solicitors. The three latter may recover their fees, but the first may not, their acting being deemed of a voluntary nature, and their fees merely in the light of honorary payments; and it follows from this, that no action lies against them for negligence or unskilfulness.” 
9. Thus, the expression ‘legal practitioner’ is a well defined and explained term. It, by any stretch of imagination, cannot include a serving Judge who might have been appointed as a presenting officer in the departmental proceedings. Besides this legal aspect of the matter, even on principle of fairness we do not think that the order has caused any prejudice to the appellant. The appellant could have asked for appointment of any colleague whose assistance he wanted to take and who would have been as well qualified and experienced as the presenting officer. The request of the appellant has been rightly rejected by the disciplinary authority. Furthermore, the application was made on 7th December, 1988 itself and thereafter the appellant took no steps whatsoever to challenge the order of the Disciplinary Authority declining assistance of an advocate. On the contrary, he participated without any further protest in the entire departmental enquiry and raised no objections. The Enquiry Officer conducted the proceedings in a just, fair manner and in accordance with rules. In fact, there is no challenge to that aspect of the matter. In the application, the appellant had stated “that the complainant neither has necessary experience nor the required skill to handle his defence in such circumstances.” This statement ex facie is not correct. The appellant must have dealt with variety of cases during his tenure as a Judge. He was fully capable of defending himself in the departmental enquiry. In the alternative he could easily ask for assistance of any senior colleague from the service if he was under pressure of any kind that the Presenting Officer was senior to him and belonged to Higher Judicial Service. He did not exercise this choice, at any stage, for reasons best known to him. However, he made an application praying for permission to engage an advocate and nothing else. Charge against the appellant was not of a very complicated nature, which a person having qualification and experience of the appellant would not be able to defend. In these circumstances, we are of the considered view that no prejudice whatsoever has been caused to the interest of the delinquent officer. These are the rules primarily of procedure, an element of prejudice would be one of the necessary features, before departmental proceedings can be held to be vitiated on that ground. The reliance placed upon the case of J.K. Aggarwal (supra) is totally unwarranted. In that case, the Court came to the conclusion that refusal to sanction the service of lawyer in the inquiry proceedings was not a proper exercise of discretion under the Rule resulting in failure of justice. The Court held that the discretion was vested in the disciplinary authority in terms of Rule 7(5) of the relevant Rules. The language of that Rule was entirely different and permission to engage a legal practitioner was relatable to the nature of the punishment which could be imposed upon the delinquent officer in the departmental proceedings. If the charges were likely to result in dismissal of the person from service, in that event, that officer may with the sanction of the Enquiry Officer be permitted to be represented through a counsel. Language of this Rule is entirely different from the language of the Rule in question in the present case. On the basis of the facts of that case and Rule 7(5) of the said Rules the Court held: 
“The right of representative by a lawyer may not in all cases be held to be a part of natural justice. No general principle valid in all cases can be enunciated. In non-statutory domestic tribunals, Lord Denning in the Court of Appeal in England favoured such a right where a serious charge had been made which affected the livelihood or the right of a person to pursue an avocation and observed:
“I should have thought, therefore, that when a man’s reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by counsel or solicitor.”

But this was not followed by Lyell, J. in Pett case (No.2) It would appear that in the inquiry, the respondent-Corporation was represented by its Personnel and Administration Manager who is stated to be a man of law. The rule itself recognizes that where the charges are so serious as to entail a dismissal from service the inquiry authority may permit the services of a lawyer. This rule vests a discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reasons of the appellant being pitted against a presenting officer who is trained in law. Legal Adviser and a lawyer are for this purpose somewhat liberally construed and must include “whosoever assists or advises on facts and in law must be deemed to be in the position of a legal adviser”. In the last analysis, a decision has to be reached on a case to case basis on the situational particularities and the special requirements of justice of the case. It is unnecessary, therefore, to go into the larger question “whether as a sequel to an adverse verdict in a domestic enquiry serious civil and pecuniary consequences are likely to ensue, in order to enable the person so likely to suffer such consequences with a view to giving him a reasonable opportunity to defend himself, on his request, should be permitted to appear through a legal practitioner” which was kept open in Board of Trustees of the Port of Bombay v. Dilip Kumar. However, it was held in that case (SCC p. 132, para 12) 
“…In our view we have reached a stage in our onward march to fair play in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated….”
On a consideration of the matter, we are persuaded to the view that the refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rule resulting in a failure of natural justice; particularly, in view of the fact that the Presenting Officer was a person with legal attainments and experience. It was said that the appellant was no less adept having been in the position of a Senior Executive and could have defended, and did defend, himself competently; but as was observed by the learned Master of Rolls in Pett case that in defending himself one may tend to become “nervous” or “tongue-tied”. Moreover, appellant, it is claimed, has had no legal background. The refusal of the service of a lawyer, in the facts of this case, results in denial of natural justice.”
10. Thus, the appellant can hardly take any help from that case. Even in the case of Dilipkumar Raghavendranath Nadkarni (supra), the Board of Trustees had appointed its law officer as a presenting officer. The Presenting Officer was legally trained and experienced in handling departmental enquiries, it was in those circumstances that this Court found, as a matter of fact, that there was violation of principles of natural justice and that a legally expert person has been permitted to be engaged by the delinquent worker. In that case the provisions similar to the present provisions also came into force during the pendency of the departmental proceedings. The Court remanded the matter and directed re-conducting of the departmental enquiry with specific liberty to the workman to cross-examine all the witnesses afresh in accordance with law. The facts of that case are thus entirely different from the case in hand wherein no such ground is made out. Firstly, the petitioner himself was equally qualified and trained as the presenting officer and/or he could even ask for assistance for a fellow colleague with similar experience and status as that of the presenting officer which he choose not to do. Having given up the right, he cannot now be permitted to turn back and raise a grievance in that regard. This contention of the appellant is without any merit.

16 Aug 2010

Live-in relationships do not create legal bond: High Court

Holding that live-in relationships come with their own consequences and the law would not go on to provide for the fall-outs of such relationships, in a recent decision [Alok Kumar v. State] the Delhi High Court quashed an FIR alleging rape against a person in a live-in relationship holding that no such case was made out and the allegation of rape was clearly evident to have been motiavted against the male partner in the relationship without any offence having been committed. The High Court made interesting observations about live-in relationships to this effect holding that it was like a contract and did not lead to creation of any legal relationship.

The High Court observed inter alia as under;
6. From the allegations made by the complainant, it is apparent that when the complainant started ‘live-in relationship’ with the petitioner, the petitioner had not even divorced his previous wife though it seems was living separate from her. The complainant was having a child while the petitioner was also having a child. ‘Live-in relationship’ is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time. Those, who do not want to enter into this kind of relationship of walk-in and walk-out, they enter into a relationship of marriage, where the bond between the parties has legal implications and obligations and cannot be broken by either party at will. Thus, people who chose to have ‘live-in relationship’ cannot complain of infidelity or immorality as live-in relationships are also known to have been between married man and unmarried woman or between a married woman and an unmarried man.
9. In the present case, motive of the complainant is writ large in her two complaints. She had entered into live-in relationship knowing fully well that the petitioner was not even divorced at that time. She being an educated lady, already once married, was not a naïve as not to know the realty of live-in relationship. It cannot be thought that she was not aware that live-in relationship was not a marriage but it was a relationship of convenience where two parties decide to enjoy company of each other at will and may leave each other at will. However, despite entering into ‘live-in relationship’ with the petitioner, she could not tolerate that petitioner should marry someone else and when the petitioner was about to leave India with his fiancée and was at the airport, she went to the airport with the sole motive, which is clear from the sequence of events, to prevent petitioner from flying out from India and to teach him a lesson. She had been lived with the petitioner in London. She knew that the petitioner was working in London. She enacted the events in such a manner that the petitioner could not get hold of his passport for considerable long time and could not leave India for that period. She made allegations of rape against the petitioner.
12. Keeping in view the above circumstances, I consider that it is a fit case where FIR should be quashed to prevent the misuse of criminal justice system for personal vengeance of a partner of ‘live-in relationship’. The petition is allowed.
Have a look at the decision.

See also

1. Live-in relationships: Supreme Court reflects

Exemplary Costs justified for misconceived petitions: High Court

While we had earlier written on the principles for grant of exemplary costs, we find that in a recent decision [VHCPL-ADCC Pingalai Infrastructure Pvt. Ltd. v. Union of India] a Division Bench of the Delhi High Court invoked a Chinese proverb to describe the matter at hand: “A mans greed is like a snake that wants to swallow an elephant” to hold similarly. With various legal luminaries at the bar appearing in the matter and the Government being defended by no less than the Attorney General of India, in the decision running into 121 pages on various issues relating to construction and operation of projects, the High Court imposed heavy costs  (of Rupees Six Lakhs) against the petitioner for raising stale claims before the High Court.

The Bench in this regard took inspiration from the decisions of the Supreme Court cautioning against interference in public projects by the Courts to inter alia observe as under;
210. The Supreme Court has reiterated the undesirability of intervention in contractual transactions by the Government bodies in matters relating to public projects. In Raunaq International vs. IVR Construction Ltd.(supra), it was emphasized that a high cost project for which loans from international bodies have been obtained should not be inteferred with, being detrimental to public interest. So far as interim orders are concerned, reliance was placed on earlier pronouncements and in para 24, the court held that in granting an injunction or stay against the award of a contract by the Government or a Government agency, the court has to  satisfy itself that the public interest in holding up the project far outweighs the public interest in carrying it out within a reasonable time. The Supreme Court clearly stated that the court must also take into account the cost involved in staying the project and whether the public would stand the benefit of incurring such a cost.
211. In para 25 of Raunaq International Ltd. (supra), the Supreme Court laid down the principle that any interim order which stops a public project from proceeding further must provide for reimbursement of cost to the public in case the litigation ultimately fails. It was clearly laid down that the public must be compensated by them for the delay in implementation of the project and the cost escalation resulting from such delay. It was held that unless an adequate provision is made for this in the interim order, the interim order may prove counter productive.
212. In (2000) 2 SCC 617 Air India Ltd. vs. Cochin Int. Airport Ltd. & Ors., the above principles were restated and it was further observed in para 15 that : 
“Even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere.”
These principles were reiterated in a later judgment of the Supreme Court reported at (2005) 6 SCC 138 Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd. & Anr.
213. It is not possible to arrive at an actual figurative computation of the damages which which would have resulted on account of delay in the execution of the project in hand taken in public interest. The petitioner has sat by and waited for the entire tendering process to be over and the contract awarded before it has mouthed its objections or approached this court. Delay in the completion of the project would have an inevitable and obvious impact on the interest of the users of this stretch of the NH-6 for whose benefit the project is being undertaken.
215. The backlog and existence of arrears is the single and largest criticism which is levelled against severely overburdened courts. The issue of costs for misconceived and unwarranted litigation is, therefore, extremely important. This very issue had arisen for consideration in the judgment reported at 138 (2007) DLT 62 in CCPO No. 130/2005 in OMP No. 361/2004 decided on 19 th October, 2006 entitled Goyal MG Gases Pvt. Ltd. vs. Air Liquide Deutschland Gmbh and Ors. wherein on the issue of the impact of insufficient costs, it was observed as follows :-
“60. Vexatious and frivolous litigation poses a number of threats to the efficient operation of any civil justice system. Those threats stem from the manner in which the vexatious and frivolous litigant conducts litigation before the courts. Such proceedings, apart, from the oppression and the harassment inflicted on the adversary, are extremely damaging to public interest. Judicial resources are valuable and scarce. The resources of the court are not infinite, especially in terms of judicial time. Therefore, administration of justice and interests of equity and fair play mandate that a party which succeeds is compensated by award of costs in respect of false or vexatious claims or defences. A faulting party may be required to pay to the other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date and payment of such costs on the next date following the date of such order if unreasonable adjournments are taken by the parties. However, many unscrupulous parties take advantage of the fact that either costs are not awarded or nominal costs alone are awarded against the unsuccessful party.”
220. Valuable court time has been expended on a wholly misconceived claim raised by the petitioner. The project of 2004 is stated to be valued at around 14 to 15 crores of rupees whereas the 2009 project is valued at over rupees 567 crores. The petitioner and respondent no. 3 are both located in Maharashtra as per the memo of parties. The record and several order sheets are testimony to the seriousness and weight of the contest. We have had the valuable assistance of the learned Attorney General of India as well as the learned Additional Solicitor General of India, Standing counsels for the Government of India, learned senior counsels for all the parties and several learned counsels who have assisted them and appeared before us during the protracted hearings. Judicial notice can, therefore, be taken of the fact that every hearing in the matter may have caused parties to incur prohibitive costs. The respondent nos. 1 and 2 have been compelled to utilise public money for defending this misconceived petition. The loss to public interest could not be assessed or computed.
221. We are, therefore, of the view that the petitioner deserves to be burdened with exemplary costs in the matter. 
The Bench also quoted the words of Rabindra Nath Tagore in this regard;

208. Not so long ago, Rabindra Nath Tagore has stated as follows :-
“The greed of gain has no time or limit to its capaciousness. Its one object is to produce and consume. It has pity neither for beautiful nature nor for living human beings. It is ruthlessly ready without a moment's hesitation to crush beauty and life out of them, molding them into money.”
Such aspirations of men as well as corporations created by them and their tendency to live and prosper at the expense of, and to the exclusions of all others, though unfortunate, but remain a hard reality. Such culture of uncontained selfpromotion has often led to throttling of legitimate competition and creation of monopolies in commerce as is attempted in this case. This court cannot countenance or allow effectuation of such aspirations, more so when they deviate from the larger element of public interest.

The decision of the High Court also notes substantially on the rules of interpretation of a contract. Relying upon the decisions of the Supreme Court, the High Court entailed the law in this regard inter alia as under;
118. In (2009) 5 SCC 313 Bank of India vs. K. Mohan Das, also relied upon by the petitioner, the court was concerned upon the construction of a Voluntary Retirement Scheme, 2000 made available to employees of the public sector banks. The scheme was held to be contractual. The court was concerned with issues relating to construction of the contract. The observations of the court relevant for the present consideration, read as follows :- 
“28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the parties
Xxx xxx
31. It is also a well-recognized principle of construction of a contract that it must be read as a whole in order to ascertain the true meaning of its several clauses and the words of each clause should be interpreted so as to bring them into harmony with the other provisions if that interpretation does no violence to the meaning of which they are naturally susceptible. [(The North Eastern Railway Company v. L. Hastings) 1900 AC 260]. 
32. The fundamental position is that it is the banks who were responsible for formulation of the terms in the contractual Scheme that the optees of voluntary retirement under that Scheme will be eligible to pension under Pension Regulations, 1995, and, therefore, they bear the risk of lack of clarity, if any. It is a well-known principle of construction of contract that if the terms applied by one party are unclear, an interpretation against that party is preferred. [Verba Chartarum Fortius Accipiuntur Contra Proferentum].” 
This judgment also does not lay down the absolute proposition suggested on behalf of the petitioner and it was observed that discretion is conferred on the court to construe the contract based on words used therein. 
119. The pronouncement of the Apex Court reported at AIR 1962 SC 1810 Khardah Co. Ltd. vs. Raymon & Co. (India) Pvt. Ltd. has made similar observations and laid down the following principles in para 18 :-
“18. But it is argued for the respondents that unless there is in the contract itself a specific clause prohibiting transfer, the plea that it is not transferable is not open to the appellants and that evidence allunde is not admissible to establish it and the decisions in (1951) 1 MLJ 147 Boddu Seetharamswami vs. Bhagwathi Oil Company, AIR 1954 Mad 87 Illuru Hanumanthiah vs. Umnabad Thimmaiah and Hussain Kasam Dada vs. Vijayanagaram Comm. Asson. are relied on it support of this position. We agree that when a contract has been reduced to writing we must look only to that writing for ascertaining the terms of the agreement between the parties but it does not follow from this that it is only what is set out expressly and in so many words in the document that can constitute a term of the contract between the parties. If on a reading of the document as a whole, it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term, there is nothing in law which prevents them from setting up that term. The terms of a contract can be express or implied from what has been expressed. It is in the ultimate analysis a question of construction of the contract. And again it is well established that in construing a contract it would be legitimate to take into account surrounding circumstances. Therefore on the question whether there was an agreement between the parties that the contract was to be nontransferable, the absence of a specific clause forbidding transfer is not conclusive. What has to be seen is whether it could be held on a reasonable interpretation of the contract, aided by such considerations as can legitimately be taken into account that the agreement of the parties was that it was not to be transferred. When once a conclusion is reached that such was the understanding of the parties, there is nothing in law which prevents effect from being given to it. That was the view taken in AIR 1956 Mad 110 Virjee Daya & Co. vs. Ramakrishna Rice & Oil Mills, and that in our opinion is correct.”
120. In para 5 of AIR 1965 SC 1288 Central Bank of India Ltd. vs. Hartford Fire Insurance Co. Ltd., the Supreme Court has reiterated the well settled principle that, “it is the court's duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing, the intention is to be looked for in the words used unless they are such that one may suspect that they do not convey the intention correctly”. The Supreme Court had further stated that “if those words are clear, there is very little that the court has to do. The court must give effect to the plain meaning of the words however it may dislike the result”. In para 6 of the judgment, the court held that plain and categorical language cannot be radically changed by relying upon the sorrounding circumstances. In para 7, referring to Halsbury's Laws of England (3rd Edn.) Volume II, paragraph 640, page 391, it was observed that the rule laid down therein did not permit a court to speculate and that the court must be able to say with certainty what the intention was, in order that it may add something to the language used by the parties. 

13 Aug 2010

All India Bar Examination – Facts, Reality and Law

While our readers may have been feeling a gross ignorance on our part to the highly debate issue of examination proposed by the Bar Council of India as a qualification to practice and that a lot has been written on the issue except on this blog, we have refrained for purpose to express our opinion for reasons better not revealed here. Nonetheless we have before us a recent update from SSRN wherein a paper entitled "All India Bar Examination – Facts, Reality and Law" is doing the round and having had a look at that we felt compelled to post this update on the blog.  

The paper, written by John Verghese (Assistant Professor,  Government Law College, Kozhikode, Kerala) explores the laws and controversies relating to bar examinations across the globe, in particular the United States of America, Brazil, Hungary and France and having given an overview of the Indian position also makes interesting insights on the issues and controversies surrounding the recent proposal by the Bar Council of India. The paper makes a near-exhaustive review of the Rules of the Bar Council relating to the practice of advocates in the country and the propositions of law / grounds on which the validity of such examination can be challenged. In all, an interesting read and update for all those curious to examine the legal perspectives of the issue :)
The abstract reads as under;
The Bar Council of India has proposed to go ahead with the All India Bar Examination, despite opposition from a wide section of law students and lawyers. While the objective of All India Bar Examination to bring standardisation in the quality of legal professionals is laudable, there are a lot of issues surrounding the All India Bar Examination, including the manner in which it is being conducted and the legal provisions enabling such a step. This article examines the legal position regarding the All India Bar Examination proposed to be conducted by the Bar Council of India, in the light of the previous decisions of the Honorable Supreme Court in this regard. It also attempts at a comparative analysis of the position of bar examination as it is undertaken in different countries. The earlier text has been revised considerably to include a comprehensive analysis of legal provisions and comparative position in other countries where bar examination is an essential requirement for entry into legal profession as well.

Delayed FIR in rape cases acceptable: Supreme Court

In a recent decision [Satpal Singh v. State of Haryana] the Supreme Court has declared that where ordinarily delay in filing of First Information Report (FIR) would be looked in favour of the accused, the criteria is different in a case involving rape of a woman. Holding that the delay in filing of FIR in an offence of rape may be due to a variety of factors typical to the Indian social ethos, such delays required to be condoned if explained in due perspective. 

The Bench declared as under;
12. Both the courts below have considered this aspect at length and reached the conclusion that delay occurred because of the intervention of the Panchayat, as the Panchayat had insisted to compromise the case, rather than moving the investigating machinery. The High Court observed as under :- 
“It was a case where the life of a young child of the complainant was at stake. A tendency on the part of the villagers or the parents of a young child, who is ravished, would normally be to save the honour of the child as first priority. The respectables in the village could be expected to intervene in this matter to seek compromise, so as to avoid the stigma for a young girl. An innocent complainant, even admitted that he would not have got the case registered in case the panchayat had agreed to impose fine as suggested by him and if the panchayat had paraded the appellant with blacken face as proposed by him. This would rather reflect that the witness was truthful besides being innocent villager, who despite being subjected to intricacies of the court proceedings, did not resile from the true accounts of events that had taken place.”
13. In a rape case the prosecutrix remains worried about her future. She remains in traumatic state of mind. The family of the victim generally shows reluctance to go to the police station because of society’s attitude towards such a woman. It casts doubts and shame upon her rather than comfort and sympathise with her. Family remains concern about its honour and reputation of the prosecutrix. After only having a cool thought it is possible for the family to lodge a complaint in sexual offences. (Vide Karnel Singh Vs. State of M.P. AIR 1995 SC 2472; and State of Punjab Vs. Gurmeet Singh & Ors. AIR 1996 SC 1393). 
14. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. [vide State of Andhra Pradesh Vs. M. Madhusudhan Rao (2008) 15 SCC 582].
15. However, no straight jacket formula can be laid down in this regard. In case of sexual offences, the criteria may be different altogether. As honour of the family is involved, its members have to decide whether to take the matter to the court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that “ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon” [vide Satyapal Vs. State of Haryana AIR 2009 SC 2190].
16. In State of Himachal Pradesh Vs. Prem Singh AIR 2009 SC 1010, this Court considered the issue at length and observed as under :-
“So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR.”
17. Thus, in view of the above, the delay in lodging FIR in sexual offences has to be considered with a different yardstick. 
18. If the instant case is examined in the light of the aforesaid settled legal proposition, we are of the considered opinion that the delay in lodging the FIR has been satisfactorily explained.

Government authorities 'in' J&K liable under RTI: High Court

In its recent decision in Union of India v. Veena Kohli, the Delhi High Court has declared that it is no defence for the authorities to escape the rigours of the Right to Information Act that certain acts were committed in the State of Jammu and Kashmir and thus the related information cannot be provided under the Act on the ground that the Act does not extend to the said State. The Government had sought to deny the release of information contending that  the Court of Inquiry held in an Army Unit located at J&K. However, dismissing its petition with costs, the High Court declared that the exception applied only to authorities under the control of the State of Jammu and Kashmir and not to authorities under the Central Government acting in that State.

Explaining the provisions of the Right to Information Act to this regard, the High Court inter alia observed as under;
15. Section 1(2) of the RTI Act which states that the RTI Act does not extend to the State of J&K only means that if there are public authorities under the control of State of J&K and located exclusively within the State of J&K and they hold information, then such information cannot be accessed by filing applications under the RTI Act with such public authorities in the State of J&K. For instance, there would be no State Information Commission under the RTI Act set up in the State of J&K. The idea behind this is that there should be a separate enactment providing for the right to information in the State of J&K. This, by no stretch of imagination, can mean that where the offices and establishments of the central government, including the army, are located in the State of J&K, no application can be made under the RTI Act to such offices and establishments under the RTI Act to seek the information held by them. Further, the mere fact that army personnel are in the State of J&K, does not preclude such personnel, or their relatives as the case may be, from seeking information concerning themselves through an application made under the RTI Act to the army. 
16. The issue really is `who‟ the public authority is, which is holding the information and not `where‟ it is holding such information. The public authority here is the army. The information held by it may pertain to an event which transpired in J&K, and may even be held by it in J&K. That by itself does not insulate such information from disclosure. Even information concerning the investigation by the J&K police, if available also with the army, would not be insulated only because the RTI Act does not apply to J&K. The problem of residents of J&K accessing information held by the central government may arise if there are no PIOs appointed by the central government or the army in the departments in J&K. However, conscious of this difficulty, some of the central government departments have in fact appointed PIOs in J&K. That is on a correct understanding of the legal position. 
17. This Court concurs with the view expressed by the CIC that the Petitioner has proceeded on a misinterpretation of Section 1(2) of the RTI Act. In both these cases, it was erroneous on the part of the Petitioner to contend that the information pertaining to the son and the husband of the two Respondents respectively, cannot be provided as it pertains to events that transpired in the State of J&K.

9 Aug 2010

Dowry Death: The law revisited

In a recent decision [Ashok Kumar v. State of Haryana], the Supreme Court had the occasion to examine the law relating to death of a wife related to dowry as provided for under Section 304-B of the Indian Penal Code. Upon a perusal of the earlier cases on the issue and the statutory provision, he Court inter alia observed as under to clarify the law;
10. The appellant was charged with an offence under Section 304-B of the Code. This penal section clearly spells out the basic ingredients as well as the matters which required to be construed strictly and with significance to the cases where death is caused by burns, bodily injury or the death occurring otherwise than under normal circumstances, in any manner, within 7 years of a marriage. It is the first criteria which the prosecution must prove. Secondly, that ‘soon before her death’ she had been subjected to cruelty or harassment by the husband or any of the relatives of the  husband for, or in connection with, any demand for dowry then such a death shall be called ‘dowry death’ and the husband or the relative, as the case may be, will be deemed to have caused such a death. Explanation to this section requires that the expression ‘dowry’ shall have the same meaning as in Section 2 of the Act. The definition of dowry under Section 2 of the Act reads as under : 
“In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly--
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II.--The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).”
11. From the above definition it is clear that, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this Section are of a very wide magnitude. The expressions ‘or any time after marriage’ and ‘in connection with the marriage of the said parties’ were introduced by amending Act 63 of 1984 and Act 43 of 1986 with effect from 02.10.1985 and 19.11.1986 respectively. These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression ‘in connection with the marriage’ cannot be given a restricted or a narrower meaning. The expression ‘in connection with the marriage’ even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be ‘in connection with the marriage’ and not so customary that it would not attract, on the face of it, the provisions of this section.
12. At this stage, it will be appropriate to refer to certain examples showing what has and has not been treated by the Courts as ‘dowry’. This Court, in the case of Ram Singh v. State of Haryana [(2008) 4 SCC 70], held that the payments which are customary payments, for example, given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression ‘dowry’. Again, in the case of Satbir Singh v. State of Punjab [AIR 2001 SC 2828], this Court held that the word ‘dowry’ should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word ‘dowry’. This Court, in the case of Madhu Sudan  Malhotra v. K.C. Bhandari [(1988) Supp. 1 SCC 424], held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances etc., to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry within the meaning of Section 2 of the Act. The definition of ‘dowry’ is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands, was the dictum of this Court in the case of State of Andhra Pradesh v. Raj Gopal Asawa [(2004) 4 SCC 470].
13. The Courts have also taken the view that where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of ‘dowry’ under the Act. Section 4 of the Act is the penal Section and demanding a ‘dowry’, as defined under Section 2 of the Act, is punishable under this section. As already noticed, we need not deliberate on this aspect, as the accused before us has neither been charged nor punished for that offence. We have examined the provisions of Section 2 of the Act in a very limited sphere to deal with the contentions raised in regard to the applicability of the provisions of Section 304-B of the Code.
14. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the Section is ‘soon before her death’. In our view, the expressions ‘soon before her death’ cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other. 
15. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in the case of Tarsem Singh v. State of Punjab [AIR 2009 SC 1454], held that the legislative object in providing such a radius of time by employing the words ‘soon before her death’ is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her. Similar view was expressed by this Court in the case of Yashoda v. State of Madhya Pradesh [(2004) 3 SCC 98], where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case. 
16. The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression ‘demand for dowry’ will have to be construed ejusdem generis to the word immediately preceding this expression. Similarly, ‘in connection with the marriage’ is an expression which has to be given a wider connotation. It is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. These are penal provisions but ultimately these are the social legislations, intended to control offences relating to the society as a whole. Dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with cruelty for satisfaction of demands  in consideration and for subsistence of the marriage.
17. The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304-B. Where other ingredients of Section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304-B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code
18. Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304-B were not satisfied, rebut the same. While referring to raising of presumption under Section 304-B of the Code, this Court, in the case of Kaliyaperumal v. State of Tamil Nadu [AIR 2003 SC 3828], stated the following ingredients which should be satisfied :
“4 ... 1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B, IPC).  2) The woman was subjected to cruelty or harassment by her husband or his relatives. 3) Such cruelty or harassment was for, or in connection with, any demand for dowry. 4) Such cruelty or harassment was soon before her death.” 
19. In light of the above essential ingredients, for constituting an offence under Section 304-B of the Code, the Court has to attach specific significance to the time of alleged cruelty and harassment to which the victim was subjected to and the time of her death, as well as whether the alleged demand of dowry was in connection with the marriage. Once these ingredients are satisfied, it would be called the ‘dowry death’ and then, by deemed fiction of law, the husband or the relatives would be deemed to have committed that offence. The learned counsel appearing for the appellant, while relying upon the case of Tarsem Singh (supra), contended that the concept of ‘soon before the death’ is not attracted in relation to the alleged harassment or cruelty inflicted upon the deceased, in the facts of the present case. The oral and documentary evidence produced by the prosecution does not suggest and satisfy the essential ingredients of the offence. 
20. Similarly, reference was also made to the judgment of this Court in the case of Appasaheb v. State of Maharashtra [(2007) 9 SCC 721], to substantiate the contention that there was no co-relation between giving or taking of the property with the marriage of the parties and, as such, the essential ingredients of Section 2 of the Act were missing. Accordingly, it is argued that there was no demand of dowry by the appellant but it was merely an understanding that for his better business, at best, the amounts could be given voluntarily by the father of the deceased. This fact was further sought to be substantiated while referring to the following abstracts of the judgment in the case of Appasaheb (supra):
“6.…….The learned trial Judge then sought clarification from the witnesses by putting the following question: 
“Question: What do you mean by ‘domestic cause’?
Answer: What I meant was that there was a demand for money for defraying expenses of manure, etc. and that was the cause."
In the very next paragraph she stated as under:
“It is not true to suggest that in my statement before the police I never said that ill-treatment was as a result of demand for money from us and its fulfilment. I cannot assign any reason why police did not write about it in my statement.” xxx xxx xxx xxx
9. Two essential ingredients of Section 304-B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub-section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. xxx xxx xxx xxx
11. In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well-known social custom or practice in India. It is well-settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd. and Chemical and Fibres of India Ltd. v. Union of India[(1997) 2 SCC 664].) A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.”
Have a look at the decision.

Post Script Rejoinder

After writing this post, we came across a recent decision of the Supreme Court in Sanjay Kumar Jain v. State of Delhi [later reported as AIR 2011 SC 362] wherein the Court has made critical observations relevant for understanding the concept. Therefore we are publishing the relevant observations herein under;
44. This dowry system is a big slur and curse on our society, democracy and the country. It is incomprehensible how such unfortunate and condemnable instances of dowry deaths are frequently occurring in our society. All efforts must be made to combat and curb the increasing menace of dowry death. 
45. This court in Ashok Kumar v. State of Rajasthan (1991) 1 SCC 166 has laid down as under:
“… … …Bride burning is a shame of our society. Poor never resort to it. Rich do not need it. Obviously because it is basically an economic problem of a class which suffers both from ego and complex. Unfortunately, the high price rise and ever increasing cost of living coupled with enormous growth of consumer goods effacing difference between luxury and essential goods appear to be luring even the new generation of youth, of the best service, to be as much part of the dowry menace as their parents and the resultant evils flowing out of it. How to curb and control this evil? Dowry killing is a crime of its own kind where elimination of daughter-in-law becomes immediate necessity if she or her parents are no more able to satiate the greed and avarice of her husband and their family members, to make the boy available, once again in the marriage market. Eliminate it and much may stand resolved automatically. … … …”
46. The legislature was seriously concerned about this unfortunate reality of our society and to curb and combat increasing menace of dowry deaths with a firm hand the Dowry Prohibition Act, 1961 was enacted with the following objects and reasons:
“The object of this bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time ensures that any dowry, if given does ensure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside parliament. Hence, the present Bill. It, however, takes care to exclude presents in the form of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs. 2000. Such a provision appears to be necessary to make the law workable.”
47. In The State of Punjab v. Iqbal Singh and Others (1991) 3 SCC 1 this Court observed that crimes are generally committed in the privacy of residential homes and in secrecy and it is difficult to get independent direct evidence in such cases. That is why the legislature has, by introducing Sections 113A and 113B in the Evidence Act, tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established that the unfortunate event has taken place within seven years of the marriage.
48. On proper analysis of Section 304B of the Indian Penal Code and Section 113B of the Evidence Act, it shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution is under an obligation to rule out any possibility of natural or accidental death. Where the ingredients of Section 304B of the Indian Penal Code are satisfied, the section would apply. If death is unnatural, either homicidal or suicidal, it would be death which can be said to have taken place in unnatural circumstances and the provisions of Section 304B would be applicable.
49. The death, otherwise than under normal circumstances, under Section 304B of the Indian Penal Code would mean the death not in usual course either natural or accidental death. Section 304B creates a substantive offence. The necessity for insertion of the two provisions has been amply enumerated by the Law Commission of India in its 21st Report, dated 10.08.1988 on ‘Dowry Deaths and Law Reform’. This has been primarily done because of the pre-existing law in securing evidence to prove dowry related deaths. 
50. In order to bring home the guilty under Section 304B of  Indian Penal Code the following ingredients are necessary: 
1) The victim was subjected to cruelty or harassment by her husband or his relatives. 
2) Such cruelty or harassment was for, or in connection with any demand for dowry. 
3) Such cruelty or harassment was done within seven years of the marriage.