Anti-dowry laws being abused in India: Supreme Court

That laws for the protection of women in the society and particular those in their marital home are many. Most of these laws come with severe enforcement mechanism and harsh punishment for the offenders. However along follows the possibilities of their abuse and the Supreme Court in a recent decision [Preeti Gupta v. State of Jharkhand] specifically observed that anti-dowry laws are being abused in India. 

Particularly noting the offence carved out under Section 498A of the Indian Penal Code relating to the demand of dowry by husband or his relatives from the wife or her family, the Supreme Court observed that the complaints towards such offence were being filed in a routine manner to exact revenge or to humiliate the family of the husband and requested the Ministry of Law, Government of India to examine the matter such that the grim situation could be discontinued.

The Supreme Court, woefully noting the factual situation in the country, observed inter alia as under;

26. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.

27. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:-

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 

Explanation.—For the purposes of this section, ‘cruelty’ means:-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of  amicable settlement altogether. The process of suffering is extremely long and painful.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.

36. When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants.

Have a look at the decision.

No 'public interest petition' for entry into temple: High Court

In a recently reported decision [Lalitha Vasudevan v. State of Kerala, AIR 2010 NOC 867] a Division Bench of the Kerala High Court declared that no public interest petition could be entered by a court by a person seeking entry of another into a temple. The petitioner had approached the High Court seeking a writ of mandamus directing Guruvayoor Devaswom Board not to prohibit another named person from entering Guruvayoor Temple to worship observing Hindu religious rites contending that he "is a devout Hindu and that there is no law prohibiting such a person from entering Guruvayoor Temple observing all rites of Hindu religion and that there is no law made by the second respondent Government of Kerala preventing those who believe in Hinduism from entering Guruvayoor Temple and worshiping according to Hindu religious rites". 

The High Court, dismissing the petition with costs, observed inter alia as under;

3.Article 25(1) of the Constitution provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. The right to profess religion is the freedom to have one's belief and the right to even avow publicly; to make an open declaration of one's belief. See Punjab Rao v. Dr.D.P.Meshram [AIR 1965 SC 1179]. The right 'freely to profess' is akin to the freedom of thought which emanates out of freedom of conscience. A survey of the constitutional provisions would show that no restriction whatsoever is placed on the freedom of conscience and freedom of thought. For, conscience and mind which generate thoughts, ideas and beliefs are essentially elements over which no law could be made. The society would be invaded by the conscience or thought of an individual only when ideas generated by them get transformed into words or actions. The Constitution and the laws can regulate only what may flow out of the conscience or mind, as words or deeds. When one has the freedom of conscience and in exercise of that, he has a particular belief, he will have the right to profess that as a religion, provided, by professing such religion, he shall not act in any manner violating public order, morality and health or any other provisions of Part III of the Constitution. Practice of religion proceeds from such right t profess religion. Religion is a matter of faith. The right to propagate religion is one's right to spread; to disseminate or diffuse; from person to person or from place to place; a statement, belief, practice etc. This meaning of the word 'propagate' was adopted by the Apex Court in Rev. Stainislaus v. State of Madhya Pradesh [AIR 1977 SC 908] to enunciate the scope of the word 'propagate' in Article 25(1) of the Constitution. The Apex Court clearly stated that this right is to transmit or spread one's religion by an exposition of its tenets and does not amount to granting a right to convert a person to one's own religion.

4.The aforesaid concepts of 'professing' and 'propagating' religion clearly show that the right of a person to profess and propagate religion does not include the right to insist that a third person be permitted to act in terms of a particular religion and its tenets. The right of the petitioner to freedom of conscience and her right freely to profess, practise and propagate religion in connection with her faith in religion, attendant to Guruvayoor Temple, cannot be mixed up with any similar right that Sri.K.J.Yesudas may claim, if he needs. We are clear in our mind that the petitioner cannot make the question of entry of Sri.K.J.Yesudas into Guruvayoor Temple as a justiciable one as part of the petitioner's right to propagate religion. By filing this writ petition, the petitioner is trying to extend to Sri.K.J.Yesudas an unsolicited aid, which even he may not relish, since belief is one that is purely personal and cannot be foisted on another and anyone aggrieved by any encroachment into the freedom to freely profess, practise and propagate religion has the guaranteed fundamental right to protection of such entitlements and hence to remedy in case of violation. Sri.K.J.Yesudas may profess or practise a religion, belief or faith. But, his doing so or his inability to do so cannot be referable to an issue falling within any right of the petitioner to propagate a religion of her choice. We do not, therefore, find any shred of right in the petitioner to sustain this writ petition. 

Have a look at the decision.

Compensation for death by police firing: High Court

In a recently reported decision [Arjun Mishra v. State of Bihar, AIR 2010 NOC 869] the Patna High Court has declared that the State was accountable and liable to pay compensation for death of a citizen in police firing. The High Court was dealing with the death of a person in police firing which was ordered to scare away an unruly mob. In this context, noting the precedents on the issue, the High Court directed that payment of compensation in the circumstance was in order.

The High Court speaking on the context inter alia observed as under;

10. Thus, there cannot be any iota of doubt that the death has occurred by the police firing and the father was paid compensation by the State Government. As is evident from the report of the C.B.I., the deceased was a young man aged about 18 years. The question which emanates for consideration is whether his death is warrantable in the circumstances of the case. The report is vivid that the firing was made in the air and due to misfire, a young man got serious injuries and breathed his last.

11. The importance of a life and that too the life of a young man has to be realised. Nobel Prize winner Poetess Gabriela Mistral of Chile, while speaking about the faults committed by society as regards children, spoke thus :-

“We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait, the child cannot. Right now is the time his bones are being formed, his blood is being made and his senses are being developed.” To him we cannot answer Tomorrow. His name is Today.” 

12. The Apex Court in the case of M.C.Mehta v. State of Tamil Nadu, (1996) 6 SCC 756: AIR 1997 SC 699, while speaking about the obligation of the State and society towards children in the Indian ethos, quoted a stanza which reads thus :-

“I am the child. All the world waits for my coming. All the earth watches with interest to see what. I shall become. Civilization hangs in the balance. For what I am, the world of tomorrow will be I am the child. You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail; Give me, I pray you, these things that make for happiness. Train me, I beg you, that I may be a blessing to the world.”  (Mamie Gene Cole)

Long back, John Ruskin had expressed his view as under :

“ I hold it to indisputable, that the first duty of a State is to see that every child born therein shall be well housed, clothed, fed and educated, till it attains year of discretion.”

13. The aforesaid thoughts of great poets, jurists and thinkers have conveyed the concept of a child and the collective responsibility towards the child as a child fundamentally is the treasure of the future and has the potentiality to shine despite the antagonism of such clouds which derails the civilization. If a child dies, the possibility of a good future gets extinct. Therefore, the State, the society and the collective at large have the sacrosanct obligation to inject the kinetic dynamics to a child to make him grow, to live, to erode the clouds, ostracize the antagonism, develop empathy and usher in the laser-beam of culture and civilization in a well organized society. In the name of control of law and order situation, it cannot exceed its power by taking recourse to uncalled for and unwarranted acts to unceremoniously crush the tolerance capacity of the collective. The State cannot take advantage of the poor strata of the society who are not well equipped to fight against the City Halls. The State cannot afford to nasalize and choke the voice of the unknown because they cannot articulate their grievance adequately. The State cannot afford to bid good bye to the young children for such farewell frenzy would not only jettison the conception of accountability but also compel and constrain the nation to go for a constant mourning in the silence and stillness of shock. It is likely to cause a tremor and tribulations in a democratic body polity. The life span of a young man cannot be extinguished on the garb that there was a law and order situation and more so when there was an order only to fire in the air. The pivotal question is should the State’s conception and vision of handling a law and order situation allowing to blow the unkind wind of winter bringing a cataclysm and catastrophe to the families go unnoticed and un-remedied and the parents of a young man who lost their child remain in silence simply because they have got compensation of Rs.50,000/-. The stand in the counter affidavit is not correct on the basis of investigation by the C.B.I. that nobody has been identified. There might have been a law and order situation and a young man who was not even armed and a spectator to the incident would not have invited bullets on his body. Thus, we have no hesitation in placing reliance on the report of the CBI.

14. In this context, we may refer with profit the decision rendered in the case of Nilabati Behera V. State of Orissa (1993) 2 SCC 746 : AIR 1993 SC 1960 wherein it has been ruled thus:

“ A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a Constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right.”

15. In the said case, Justice A.S.Anand (as his Lordship then was) in his concurring opinion expressed the view in the following terms :-

“The public law proceedings serve a different purpose than the private law proceedings. The relief for monetary compensation, as exemplary damages, in proceedings under Article 32 by or under Article 226, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interest as and preserve their rights. Therefore, when the Court moulds the relief by granting compensation in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrong-doer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction or/and prosecute the offender under the penal law.”

16. In the said case, their Lordships have clearly held that the High Court is the protector of civil liberties of the citizen and has the jurisdiction under Article 226 of the Constitution of India to grant relief to the victim or the heirs of the victim whose fundamental rights under Article 21 of the Constitution have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen notwithstanding the rights of the citizen to remedy by way of a civil suit or criminal proceedings. The interest of the public as a whole has to be taken into account to ensure that the public bodies or officials do not act unlawfully and do perform public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Their Lordships have emphasized that the legal heirs of the victim have a right to get compensation and the officials have to perform their public duties properly.

17. In the case of D.K.Basu v. State of West Bengal, (1997) 1 SCC 416: (AIR 1997 SC 610), it has been held as under:- 

“ 9. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens………”

18. In the said case, it was further held as under:-

“44. The claim in public law for compensation for unconstitutional deprivation of fundamental rights to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interest shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalizing the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.”

19. Again, in paragraph 54, their Lordships have ruled thus :-

“Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence(irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizens, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.” 

20. Regard being had to the obtaining factual matrix and keeping in view the aforesaid pronouncement of law, we would proceed to quantify the quantum. The young man was innocent. Death came in a most unexpected manner. The State Government has paid a sum of Rs.50,000/- only. Having regard to the age of the deceased victim, the strata from which he comes, the mental pain and sufferings the parents have suffered, the silence that would remain in his house for years and the deprivation of aid and assistance, we think that the cause of justice would be best sub-served if a further sum of Rs.2,00,000/-(Rupees two lacs) only is paid to the parents of the deceased, Sarvajeet Mishra.

21. In this regard, we may fruitfully refer to para 24 of the case of Nilabati Behera (supra): 

“24. Accordingly, we direct the respondent State of Orissa to pay the sum of Rs.1,50,000 to the petitioner and a further sum of Rs.10,000 as costs to be paid to the Supreme Court Legal Aid Committee. The mode of payment of Rs.1,50,000 to the petitioner would be, by making a term deposit of that amount in a scheduled bank in the petitioner’s name for a period of three years, during which she would receive only the interest payable thereon, the principle amount being payable to her on expiry of the term. The Collector of the District will take the necessary steps in this behalf and, report compliance to the Registrar (Judicial) of this Court within three months.”

22.. In view of the aforesaid, we direct that the District Magistrate, Sitamarhi shall identify the parents of the deceased and handover the amount to be made available to the parents within a period of three months from the date of receipt of a copy of this order. The amount of compensation should be deposited in a nationalised Bank and/or post office in a fixed deposit in the name of the parents of the deceased and in absence of the parents, in the name of the surviving parent for a period of five years during which they would receive the interest payable therein. The principal amount would be paid only after the expiry of the term.

23. Before parting with the case, we are reminded of a few lines from Regum Ultimo Ratio, a poem written about the death of a small child in 1939 by Stephen Spender :

“Consider : only one bullet in ten thousand kills a man. Ask : was so much expenditure justified On the death of one so young and so silly Stretched under the olive trees, Oh , world, Oh, death ?”

24. After reproducing the aforesaid sensitive lines, we say no more.

Have a look at the decision.

Landlord's needs to be duly considered: Supreme Court

Traditionally the inclination of the Indian laws as well as the judicial attitude has been influenced by a socialist setup in stark contrast to capitalism. Most of the laws as well the decisions of the Supreme Court in the 1950, 60 and 70s clearly illustrate this inclination in no uncertain terms. Rent control legislations are a pointer to this understanding where the State came to protect the tenant against the landlord both in terms of the rent levels as well as the eviction of the tenant. It has been incumbent upon the landlord to establish the need to use his own premises in order to evict the tenant from such let out premises. The trend, it seems, is reversing. 

The Supreme Court in a recently reported decision [Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679] has declared that the needs of the landlord requiring the eviction of the tenant need to be considered in the correct perspective. The Court emphasised upon the need to allow the landlord to live in the manner as desired unless being vindictive against the tenant. The decision inter alia notes;

8. In Prativa Devi Vs. T.V. Krishnan (1996) 5 SCC 353, this Court held that the landlord is the best judge of his requirement and courts have no concern to dictate the landlord as to how and in what manner he should live.

9. However, in Ram Dass Vs. Ishwar Chander & Ors. AIR 1988 SC 1422, this Court held that ‘bona fide need’ should be genuine, honest and conceived in good faith. Landlord’s desire for possession, however honest it might otherwise be, has, inevitably, a subjective element in it. The “desire” to become “requirement” must have the objective element of a “need” which can be  decided only by taking all relevant circumstances into consideration so that the protection afforded to tenant is not rendered illusory or whittled down. The tenant cannot be evicted on a false plea of requirement or “feigned requirement”. (See also Rahabhar Productions Pvt. Ltd. Vs. Rajendra K. Tandon AIR 1998 SC 1639; and Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta AIR 1999 SC 2507). 

10. In Malpe Vishwanath Acharya & Ors. Vs. State of Maharashtra & Anr. AIR 1998 SC 602, this Court emphasised the need for social legislations like the Rent Control Act striking a balance between rival interests so as to be just to law. “The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society.”

11. In Siddalingamma & Anr. Vs. Mamtha Shenoy AIR 2001 SC 2896, this Court held that while determining the case of eviction of the tenant, an approach either too liberal or too conservative  or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises so as to protect the tenant’s continued occupation in tenancy premises. However, the bona fide requirement of the landlord must be distinguished from a mere whim or fanciful desire. It must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire. The need should be bona fide and not arbitrary and the requirement pleaded and proved must neither be a pretext nor a ruse adopted by the landlord for evicting the tenant. Therefore, the Court must take relevant circumstances into consideration while determining the issue of bona fide need so that the protection afforded to a tenant is not rendered illusory or whittled down.

Have a look at the decision.

Abuse of trust by wife a family dispute: High Court

While in the Indian context generally the disputes arise of defrauding of the wife by the husband. However in a recently reported case [Sindhu Sidharthan v. K.K. Sidharthan, AIR 2010 Ker 130] the Kerala High Court dealt with an unusual scenario wherein the allegation was that the wife obtained an unconditional power of attorney from the husband and utilized it to act against the interests of the husband. The High Court was called upon to decide whether such a dispute be resolved an ordinary civil dispute or one being husband and wife would necessarily have to be referred to a family court. 

The High Court holding that the law relating to matrimonial disputes, for which the jurisdiction vested exclusively with Family Courts, was wide enough to cover a dispute of such nature and thus had to be decided by a Family Court. The Division Bench of the High Court, disposing off the contentions, inter alia observed as under;

6. We shall first of all refer to explanation (c) to Section 7(1) of the Family Courts Act. It reads as follows: 

Section 7: Jurisdiction:-(1) Subject to the other provisions of this Act, a Family Court shall-

(a) Have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and

(b) ..............................

Explanation: The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:

a) .................................

b) ....................................

c) A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them."

7. This is a proceedings between parties to marriage and the bone of contention is the property of one of them. We are in complete agreement with the learned counsel for the respondent that going by the plain language employed by the legislature, this dispute between the spouses regarding property of the husband (claimed by the wife under the document dated 08.02.2007 executed by her in favour of herself as the power of attorney holder of the husband after alleged cancellation/revocation of the instrument of power of attorney) would squarely come within clause (c).

8. It will be quite apposite in this context to refer to the decision of the Supreme Court in Abdul Jaleel v. Sahida [2003 (2) KLT 403(SC)] as to how the law relating to jurisdiction of a Court, created specially for resolution of disputes of a specified nature should be construed. In para.14, it is clearly stated that "it is now a well settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally".

9. Even without pressing into service this cannon relating to liberal interpretation, a plain understanding of the language in the light of the semantics employed in explanation (c) clearly brings the case within the sweep of the said clause. 

10. The learned counsel for the appellant submits that not mere language but the legislative objects, reasons and intention will have to be understood. We have gone through the statement of objects and reasons of Act 66 of the Family Courts Act, 1984. We do not think it necessary to extract the same. It is true that the purpose, objects and reasons is to constitute a court for settlement of family disputes. But as to what family disputes are one has to go by the language of Sec.7. Subjective concepts of what a family dispute is are not to be imported and in Sec.7 where jurisdiction of a Family Court is defined and powers conferred, it is clearly revealed as to what sort of disputes are to be comprehended by the Family Courts true to the objects and reasons which prompted the legislature to enact this piece of legislation.

11. The learned counsel for the appellant heavily relies on the decision of a Division Bench of this Court in Abdul Jaleel v. Sahida [1997(1) KLT 734]. The counsel contends that a reading of para-7 of the decision in Abdul Jaleel v. Sahida [1997(1) KLT 734] must convey to the court that the instant one cannot be reckoned as a family dispute as to clothe the Family Courts with jurisdiction to deal with the same. Since heavy reliance is placed on para-7, we extract the same in extenso below: 

"7. Section 7 of the Family Court Act gives the various types of proceedings over which the Family Court has jurisdiction to try. 

S.7(1) ) is one such proceedings which reads as follows:

"A suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them". 

We are unable to accept the contention of the appellant that the parties to a marriage referred to therein shall only confine to the parties to the subsisting marriage. The object of the Family Courts Act is to settle the family disputes. The disputes relating to family may be there even after the dissolution of the marriage. In the instant case, the allegation of the respondent is that the property for which she seeks declaration and partition was purchased by the appellant using the money belonged to her. Such a dispute arose between the parties consequent on the dissolution of the marriage. This dispute between them is closely connected with family dispute. If the declaration or partition was sought in respect of an item of property independently acquired by one of the parties after the dissolution of the marriage, certainly the Family Court may not have the jurisdiction. If the dispute relating to the properties which were jointly acquired at the time when they were husband and wife, any dispute relating to such properties could be decided only a forum like the Family Court. The expression `parties to a marriage' used under S.7(1)c) of the Family Courts Act is to be construed having due regard to the Objects and Reasons of the Family Courts Act. 

12. The learned counsel relies on the decision in Abdul Jaleel v. Shahida [2003 (2) KLT 403 (SC)] also to drive home his contention that the dispute in order to be a cognizable by the Family Court must be a family dispute. Reliance is placed on paras-10 to 13 of the said decision. We have been taken through these passages in detail. We do not think it necessary to extract the said passages.

13. We note that both these decisions were cases where the question that arose for consideration was the play of the expression "between the parties to a marriage". The question that the courts were called upon to decide was whether the expression "parties to the marriage" would include parties to a dissolved marriage or would apply only to a subsisting marriage. It is interpreted that Clause (c) would apply not merely to disputes between the parties to a subsisting marriage; but also to dispute between parties to a dissolved marriage - a marriage which does not subsist.

14. The learned counsel contends that though the question that arose in both those cases were not exactly identical, certain observations in the decision in Abdul Jaleel v. Sahida [1997(1) KLT 734] must suggest to this court that even disputes between the parties to a marriage regarding properties owned by one of them would not fall within the sweep of Explanation (c) if the properties were acquired without any reference to their marital status. The counsel particularly relies on the observations in para-7 extracted and emphasized above and contends that the mere fact that the parties to a marriage happen to be spouses, is not crucially relevant. The question is whether the dispute in its core is a family dispute. The counsel places heavy reliance on the following statement of law in paragraph 7 of Abdul Jaleel v. Sahida [1997(1) KLT 734].

"It has been observed in the book `Craies on Statute Law" 7th Edition at Page 102 that: `a court of justice will take into consideration the spirit and meaning of the act apart from the words; in other words, there is still, as Jessel M.R. said, in Re Bethlem Hospital, such a thing as construing an Act according to its intent, though not according to its words'."

In short the counsel argues that even a dispute which going by the mere language may fall within explanation (c) to Sec.7(1) may not be cognisable by the Family Court if the same is not a family dispute, as commonly understood. 

15. The question is whether the instant dispute which falls within the language of explanation (c) goes out of the sweep of the same for the alleged reason that it is not a family dispute. For this purpose we have scanned through the pleadings. 

16. A careful reading of the plaint clearly shows that the spouses while the matrimony was in subsistence had initially great trust and faith in each other. The wife who was more educated, competent and qualified was assisting the husband in the management of his properties. It is to facilitate such management by her that the husband placing absolute matrimonial trust and implicit faith executed the Power-of-Attorney document. It is the alleged abuse of the position and status as a spouse (on whom complete matrimonial trust and faith was placed and in whose favour the Power-of-Attorney document was executed to facilitate her to act on behalf of the other spouse) which is the foundation of the cause of action in this case. Even accepting any standards we find it impossible to construe that the dispute in the instant case is unrelated to the marital status of the parties or that it has to be reckoned as a non-family dispute.

17. To summarise, the dispute is between the spouses. It relates to an item of property of the husband. The dispute is whether the document executed by the wife in her capacity as a Power-of-Attorney Holder after the revocation of the instrument of Power-of-Attorney is valid or not. But the underlying substratum of the case is that the matrimonial trust and faith reposed had been abused. We are unable to accept the argument that the dispute is not a family dispute or that for that alleged reason it would go out of the sweep of Explanation (c) to Sec.7(1).

18. The observation in para.7 of the Abdul Jaleel v. Sahida [1997(1) KLT 734] that " If the declaration or partition was sought in respect of an item of property independently acquired by one of the parties after the dissolution of the marriage, certainly the Family Court may not have the jurisdiction" cannot be understood artificially or out of context. While interpretationally expanding the expression "parties to a marriage" to include "parties to a marriage which was not subsisting on the date of the suit" caution was administered that such interpretational expansion cannot cover all subsequent disputes between such parties independent of and unrelated to their marital status as spouses. That observation can have no effect/impact on disputes between spouses to a subsisting marriage. A dispute between parties to a subsisting marriage which answers clause (c) of explanation to Sec.7(1) cannot ever go out of the sweep of the explanation, or be out of bounds for the Family Court on the strength of that observation.

Have a look at the decision.