Round the Wheel

(D. Vijayaraghavan, Judicial Magistrate)

'Your Honour," the defence counsel pleaded, "this is not that cruel and cold-blooded murder, but a case of inheritance; he has inherited that extra 'Y' chromosome from his father's abnormal sperm."

The Judge calmly pronounced "The accused be institutionalised!"

Such is the progress achieved by western lawyers and courts in the trial and verdict on a criminal. And, then as I was collecting a packet of insecticide to eradicate the evil of bug-bite from my chair in the Court hall, the figure of that Pw-6 just shadowed in my vision. He was put in the box by the prosecution at a time when I by virtue of inherent power was using criminal force in the table fan, the origin of which is unknown, but peeping into my left ear and crying like a Municipal Siren. Majestic as it was, an antique art it rotates with the earth but no revolution since the coming into force of the Medical termination of Pregnancy Act. The clock on the wall, a similar celestial object with a recalcitrant tongue strikes always twelve when it was one or six. Once it was remanded for repair. On its return it became so arrogant that its striking became a terror to the poor widowed destitutes flocked at the windows under S. 125 CrI. PC. Applying the doctrine of eclipse in constitutional law a further remand was granted. On its reappearance the dial letters turned Babiloniyan script and at present to read it the following rules of interpretation applied. Obvious and popular sense of the letter should be followed as a general rule. The letter should be construed in a manner which would suppress the mischief, advance the remedy, promote its object and prevent its subtle evasion and foil its artful circumvention.

Taking in the air around the courthall pure to breathe, an admixture of smoke and dust supplied free of cost by the adjacent tea shop and the Government bus stand, Pw6 was to prove a mahazar in a case of carnal intercourse against the order of nature. A towel worn by the child at the time when she was molested by the accused was seized by police under a recovery mahazar attested by Pw-6 It was smeared with semen was the case of the police. Although several elders were present at the time of recovery, Pw6, a Pre Degree student was chosen to be the attestor. "Your honour, that is investigating wisdom! Noneelse could be the apt witness to identify semen and this the police knew," the prosecutor would have argued. But Pw-6 facing the Lady Medical Officer sitting by the side proclaimed" “alÊÀ FgpXnb tXmÀ¯n Rm³ IIp”. Asked the inquisitive prosecutor “F´p IIp?” “AXv IIp” “GXv?” The pressing demand. “{]Xn-bpsS _oPw” was the answer. The Medical Officer astonished, reflected over her certificate whether she went wrong. The prosecutor hearing the cracking noise of the back rest of the wooden bench caused accidentally by the pressure exerted by an advocate clerk calmly resumed his seat.

The Supreme Court in Kunju Kunju Janardanan's case (1979 Crl. L. J. S. C. 820) had occasion to comment upon this extra 'Y' chromosome. Perhaps the first in Indian Judgments! His Lordship appears to have suggested willing castration as a mode of punishment. The great literary genius Oscar Wilde in Prison was quoted by the Supreme Court in 1978 Crl. LJ. SC. 1762, viewing cellular isolation from a human angle.

Wilde must now be considered as a Pathological case study "There is the question of heredity and early environment. He was the child of parents of marked eccentricity as well as of exceptional ability. Sir William Wilde was a man of abnormal sexual drive. He was a notorious runner after women, by whom he had sundry illegitimate offspring, and he figured in a sensational “trial in Dublin in which he was accused of having violated a woman patient in his surgery, having first put her under the influence of Chloroform. Have Lock Ellis has expressed the opinion that homosexual germs were latent in Wilde's constitution by descent: While an under-graduate at Oxford he contracted syphilis probably with a prostitute. Besides the professional prostitute at Oxford he had connections of this kind in Paris, New York and London. Before proposing to his wife, Wilde consulted a doctor who had assured him complete cure of his youthful malady. On the strength of this assurance he got married. But about two years later he discovered that all traces of Syphilis had not been eradicated; on the contrary, the spirochetes were quite active. It was this unpleasant discovery which obliged him to discontinue physical relations with his wife. In the result, inter alia, he turned towards homosexuality. Prominent homosexual characters in history began to attract him. If Wilde had been content to confine his homosexual relations to Robert Ross, and even to Lord Alfred Doughlas, it is extremely unlikely that his conduct in this respect would ever have come to the notice of the Director of Public Prosecutions Unfortunately for him, he made the fatal mistake of extending the range of his homosexual acquaintances to such individuals as a groom, an unemployed clerk, a newspaper boy, also a youth who worked in his publisher's office.

Voluntary castration was then not in the contemplation of English Judges and so Wilde was sent to prison to sing 'A great river of Life flows between me and a date so distant-----For us there is only one Season, the Season of Sorrow-----"

Transcendental meditation was suggested as a curative process in the case of such pathological criminals. (1977 Crl.L.J. S.C. 1927 and 1980 Crl.L J. S.C. 9) What then will be the reaction of the extra 'Y' chromosome to this remedial (ideal?) brain therapy?

Traversing by the epics, Vasishta, Viswamitra, Kapila and Gouthama, all in the wilderness of the woods were great meditators. They brought down Brahma and all the Gods from Heaven and obtained boons. All the senses were captives before their realised wisdom But not long afterwards that the senses overpowered them and they uttered their curses. Even Indra who had direct access before Gods approached Ahalya for urgent solicitation.

Oscar, a willing party to castration! A castrated Oscar is most unwelcome in the London Society. Will the ladies in the London club exhibit that degree of regard which they had shown to him? This is not doing justice either to Oscar or the London Society. T. M or transcendental meditation is known as the science of creative intelligence. Can one say that Wilde was devoid of creative intelligence? Was it not that 'Y' chromosome which played the prominent role in his creative works acclaimed by the world? Who knows Janardanan castrated will not turn a lunatic? Who knows Janardanan in T.M. will not infatuate more fanciful lovers?

Sage Gauthama had his curse on Ahalya "Thou shall lie here unseen"! Thus she lay there under solitary confinement for a long period and she was released and purified only at the time of Rama Avathar. Even Rama, the Purushothama touched her feet as she emerged from her long term incarceration. On the other hand, after his release from prison Oscar was to resume his homosexual practice, with less discrimination than ever in the choice of associates, and, as is now generally known, they continued until the time of his final illness in the year 1900.

Punitive Philosophy, whether deterrent or reformative is the province of God. Judging the criminal with human imperfections is a dual in the Sun. After all, elimination is an inevitable concomitant of natural evolution. How horrific was the mass annihilation of fishes in that great drought? Only the fittest survived. The outcome was the evolution of the vacuum bladder into a truncated lung system resulting in the creation of amphibians. How terrific was the mass death among the monkeys in that great tempest and havoc when they were driven away from the top of the trees where they lived and slept by hanging with the tail and head downward? It was the havoc causing the death of many a monkeys that paved the way for monkeys to walk on legs and eventually to the evolution of man. The great heart of nature beats, its throbbing stimulates the pulse of life and she alone knows the purpose and meaning of both creation and" extinction. A reformist, if at all desirable is born in that pulse of life and not otherwise, once in a way as Jesus, Budha or Gandhiji. Thus we see the 'Nature' of individual elimination incidental to social evolution.

Chanting on penological justice is also a dual in the Sun. It is said that a long term sentence on a husband is hot doing justice to the wife deprived of her right to sexual intercourse. But the same sense of justice we do not even think about in the case of the wife whose husband is murdered by the former. It may be said that the later wife can remarry. Well and good, if it so happens! Janardhanan castrated is doing justice to his real wife? "Indeed, victim reparation is still the vanishing point of our criminal law" (1980 Crl. LJ. SC. 12.)

Who invented the first wheel cart? The Sumarians. It was the stepping stone to the great march towards civilization. Who now injects and interposes the Rubber Wheels? The Society in a Bandh or other agitation. The invaders of the great invention! Social justice demands their elimination. Justice individual requires their reformation based on heredity, pathology, meteorology, ecology or environment.

What is justice? "No other question has been discussed so passionately; No other question has caused so much precious blood and so many bitter tears to be shed; No other question has been the object of so much intensive thinking by the most illustrious from Plato to Kant; and yet, this question is to-day as unanswered as it ever was." 1978 Crl. L. J. SC. 1529.

And what is Social Justice? "If it could be possible for Confusius, Manu, Hammurab, and Solomon to meet together at a conference table, I doubt whether they would be able to evolve agreed formulae as to what constitutes Social Justice, which is a very controversial field—" 1979 Crl. L. J S. C. 809.

Ringing in my ears the words of H. Barnes "Society has been unfortunate in handing over criminals to Lawyers and Judges in the past as it once was in entrusting medicine to Shamans and Astrologers and Surgery to Barbers."

Judicial Overspeed v. The Art of Obtaining Maximum Adjournments

(A.R. Vijayan, Prl. Sub Judge, Alleppy)

Hats of to Sri. T.P.K. Nambiar. The learned writer had in lighter vein but in impressive style had pinpointed the evils of 'hasty' disposals by Courts. But he had not dealt with the other side of the coin, 'The Art of obtaining maximum number of adjournments in cases'. Of course that can be a matter for separate thesis. What other ingenius devices can be used to get adjournments other than the grounds such as 'Counsel out of station', engaged in another court, client present but not well enough to withstand cross-examination etc., etc., is a matter for deep study. If everything fails there is the trump card. Report that the plaintiff or the defendant as the case may be is dead. Adjournment is assured. But on the next hearing date make sure that a petition is filed on solemn affirmation that the 'submission' made on the previous hearing date was the result of a wrong instruction given by a wrong person wrongly representing himself to be the man of the plaintiff or defendant as the case may be. The list is not exhaustive but only illustrative. Prize schemes for awards for obtaining maximum number of adjournments in maximum number of cases can also be considered for the slow progress of the cases.

Viva La the Art of obtaining Maximum Adjournments. Let Justice progress, slow but steady, avoiding 'the wrath of all'.

A Dozen Adjournments

(Without Malice. In Lighter Vein)

(T.M. Abdullah, Advocate Rtd. Asst. Judge, City Civil Court, Madras)

1. "He is actually on his legs" a pause "in the Dt. Court, your honour". Court within 'cant over-ride Dt. Court; cant wait indefinitely'       Adjd.

He is actually at home discussing a possible son-in-law with an emergent visitor.

An Engagement

x          x          x

2. "Ready your honour, but"........."feel a little tummy trouble"pause "an urge........."

"Please go home quickly".      Adjd.

He went to another court and urged a point.

A Conservancy risk

x          x          x

3. "Both sides ready, your honour" knowing full well that the court is jam-packed with earlier cases.       Adjd.

A Pre-emption

x          x          x

4. "Ready, your honour" feels pocket and "I am sorry, your honour I mislaid my spets somewhere". Court within 'nothing is possible without glasses'.          Adjd.

On the way to another court the spets perched on the nose from another pocket.

Sympathy

x          x          x

5. "15th may not suit me, your honour, I am in Ernakularm that day".

"20th I am in Delhi for a small matter in the Supreme Court".

Greatly Busy

x          x          x

6. "My client not reached, your honour. Students defleted his bus tyres on the way."      Adjd.

An Accident.

x          x          x

7. "My Client's mother died, your honour."   Adjd. Yes, last month.

A Longstanding Affection.

x          x          x

8. "Client not come, your honour. His whole village is under water."          Adjd.

True, but he was in his father-in-law's village that day.

A Vis-Major.

x          x          x

9. "My client suddenly left for Trivandrum last night on urgent call from PKV to discuss poll strategy, your honour".          Adjd.

Yes, his cousin P. K. Veeraswami, a ward candidate for Panchayat election wanted him to canvass votes.

Politics.

x          x          x

10. "My client is suffering from Schizophrenia and advised 3 month's rest. MC is produced, your honour."          Adjd.

Yes, it is an epidemic these days.

A Disease.

x          x          x

11. "Mistook the date, your honour. Not brought records."           Adjd.

No mistake of date, but records not readily available; or records brought, but date mistaken.

A Mogrel Truth.

x          x          x

12. "Likely to be settled, your honour."           Adjd.

A glad tiding and a possible relief.

A Strategy.

x          x          x

(The other side of the coin, in my next)

Maintenance to Muslim Divorcees

(T.M. Abdullah, Advocate, Tellicherry)

The Supreme Court after Bai Thahira's case (AIR. 1979 SC. 1362) ruling that if the amount of 'mahar' paid is insufficient to serve as the money equivalent to post-divorce maintenance till death or remarriage, it is no answer to the liability for such maintenance, has reiterated the same principle in another case. The implication is that if it is sufficient, the ex-husband gets absolved from the said liability under S. 127(3)(b) Cr. P. C.

It is submitted with respect that the Supreme Court misses the cardinal differences between mahar and maintenance in their concept and incidence. Mahar is consideration for acquisition of the wife while maintenance is consideration for continuance of wifely duties to the husband. 'Mahar' in pre-Islamic days was a sale price for the chattel of a girl which her male parent was entitled to receive. Islam transformed it as an ex-gratia present for the companion which the girl herself was entitled to receive. Its incidence is at the inception of the contract of marriage though it is payable at any time during coverture or at the time of or after divorce. 'Mahar' is contractual; maintenance during covertures is sociological; maintenance after divorce is humanitarian in concept. 'Mahar' is not one necessarily payable on divorce; it does not arise on divorce either.

What S. 127(3) (b) provides is a sum which, under customary or personal law is payable on divorce What the provision envisages is some sort of alimony or compensation which is payable on divorce as Khalid J. of the Kerala High Court bad held in 1976 KLT. 87 (Kunhji Moyin v. Pathumma). The full Bench of the Kerala High Court in 1979 KLT. 5 Vasantha Kumari v. Sadasivan, it is submitted, errs in over-ruling Justice Khalid's decision as the Full Bench dealt with a case of Ezhavas under the Travancore Ezhava Act which provides compensation payable on dissolution of marriage, unlike 'mahar' which is payable not necessarily on divorce.

The idea underlying 'idda' maintenance is subsistence for a testing period for pregnancy; it is not a compensation for destitution. Ch. II, Verse 241 of the Holy Quran enjoins a handsome provision of means for wife while separating. This is different from 'mahar' and 'idda' maintenance. This salutory quranic command is not generally followed by Muslims. This provision can be pressed into service while interpreting what is payable on divorce in S. 127(3)(b) Cr. P. C.

A view that projects from Bai Thahira's case that whatever the nomenclature of the payment, whether 'mahar' or maintenance, the amount must be sufficient to serve to support the post-divorce life of the ex-wife may be a pragmatic one; but the two are different rights and one cannot replace the other, nor strictly accord with S. 127(3)(b) Cr. P. C.