Are Separation Agirts Between Spouses Valid?

(J. Duncan M. Derrett, D. C. L., Professor of Oriental Laws in the University of London)

In a decision of far-reaching significance (if it is correct) the Madras High Court has opined that not only ante-nuptial but also post-nuptial agree­ments to separate are void. Mulla’s Hindu Law, 13th edn.,p. 645 is cited for the view that present agreements to separate are valid, and we are now told in Thirumal Naidu v. Rajammal(1967) 2 MLJ. 484 that Mulla is wrong.

The wife sued for restitution of conjugal rights under the Hindu Marriage Act, 1955. The husband put forward an agreement between them that they should live separately. If the agreement was valid and binding the husband could not have left the wife without her consent and he could not have “with­drawn from the society of the (wife)” without reasonable excuse within the meaning of S. 9(1) of that Act. The wife argued that the agreement was extorted from her by unfair means, but in view of other arguments the learned judge did not pursue that aspect of the matter. He was satisfied that, even if the agree­ment had been freely consented to by her in full knowledge of her rights, it would have been void and would not have bound her.

This, it is submitted, is a matter of the greatest importance, to be taken very seriously. The basis of the judgment of the learned judge is one to which this writer would be inclined at first sight to give every possible support. It is an Indian judgment, based on Indian ideas and Indian cases, and’it rejectsas inapplicable the modern trend of English case law as not providing a proper precedent in the conditions of India, particularly in the background of the Hindu society. This is the sort of approach we have always wanted. But is it correct in this instance? The present writer started off with a hope that it would turn out to be correct, for the persistence of Hindu traditional ideas about marriage, Hindu norms even in the midst of non-Hindu practices, is a fact of life and deserves to be recognised adequately.

The learned judge notices English cases which, long ago, viewed seperation agreements with suspicion, and so considered many of them against public policy and so void: See Wilson v. Wilson 0848) 1 H L. Cases 538, H. L. It is manifest that this particular point of view is obsolete in England and countries u taking a similar view of the spouses’ contractual powers. Does it survive in India? The only cases to which the learned judge refers are ones to which, to start with, we must give particular attention. In the antiquated case of Tekait- Mon Mohini Jemadai v. Basanta ‘Kumtr Singh (1901) ILR. 28 Cal. 751 it was decided that a Hindu wife must reside, as a matter of Hindu law, with her hus­band wherever he chooses to reside-a proposition which, though not judicially declared not to be good law, is surely one which by no means everybody- would accept as the last word on that subject. The judgment of Mr. Justice Ghose goes into texts and case-law, both Indian and English, and concludes that an ante-nuptial agreement on the part of the husband that he will never be at liberty to remove the wife from her parental abode is invalid as inconsistent with the Hindu law and against public policy. With respect, this must be right, for under Indian conditions many a son-in-law would be victimised were the contrary to be the law. Readers can call upon their own personal knowledge to confirm this aspect of the matter. It is evident that what was rejected by the learned judge was the ante-nuptial character of the alleged agreement and its tendency to place the husband himself within the power of the wife’s parents- a situation which seemed evidently contrary to public policy. But we may mark his words (p. 765):

“There is a fundamental difference between a case where an agreement for separate living for a time is entered into during the continuance of marriage and an agree­ment before or at the time of marriage controlling the rights of the parties which the law confers upon them after the marriage and which, if enforced, might make the marriage itself nugatory or infructuous. Such an agreement would seem to be opposed to public policy.”

Such an agreement was struck down in Tekait case.

In Krishna Aiyar v. Balammal (1911) ILR. 34 Mad. 398 a Brahmin, after refusal by his wife B to return, brought a suit for restitution in 1903. The suit terminated in a compromise between A and B in July 1904, by which it was agreed that B should return and live with A and that if at*any time thereafter she should desire to live apart from A, she was to be paid Rs. 350 by A. B never returned to live with A, who in July 1907 brought a suit for restitution alleging a demand and refusal in February 1907. It was held, following the Tekait case (1901) ILR. 28 Cal. 751 that the agreement, providing for a future separation, was invalid, it was forbidden by the Hindu law. Such agreements must be considered as opposed to public policy and unenforceable. Their Lordships, Sankaran Nair and Krishnaswami Ayyar, JJ , were fortified by the fact that the English law (at that time, 1910) was the same. The only other case referred to was that of Meherally v. Sakerkhanoobhai (1905) 7 Bom. L. R. 602 a similar case between Khojas.

Now it happens that shortly thereafter the English law took a turn. The proposition upheld in Krishna’s case is no longer accepted since MacMahon v. MacMahon: Purser v. Purser (1913) 11. R. 428 in Ireland in 1913, being followed in Meyrick’s Settlement: In re Meyrick v. Meyrick (1921) 1 Ch. 311 in 1921, itself followed in Lurie v. Luric (1938) 3 All E. R. 156 in 1938.

Our question now is whether post-nuptial agreements to separate are void ab initio because they are contrary to the Hindu law. The English law by no means strikes such contracts down unless they contain some other unlawful element: P. M. Bromley, Family Law, 3rd edn. (1966), p.188; Derrett, Intro­duction to Modern Hindu Law (1963), § 312. If such contracts are void thousands of arrangements now in operation throughout India fall to the ground. From where did the notion come that spouses could separate by agreements if the Hindu law was so opposed to them? The answer, one regrets to say, is simply this that the Hindu norm was that the wife should never leave her hus­band, but that practice has enabled the wife to live apart with her husband’s consent. That this can happen even in the eye of the law is plain from the wording of the Hindu Marriage Act itself, S. 10(1) Explanation.

“...In this section, the expression ‘‘desertion’, with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party...”

What “consent” would this be if agreements to live apart could not be entered into?

The range of cases dealing with this question is enormous. Wives are coming before the courts and praying for an enhancement of their allowance under separation agreements, and if the latter come within S. 25 of the Hindu Adoptions and Maintenance Act, 1956, as they most frequently do, the prayer is granted. Would the courts be doing this if such agreements were void and against public policy?

One may suppose that it did not occur to the learned judge in Madras that agreements for the wife’s separate maintenance were separation agreements! The style of the usual textbooks on Hindu law is such that separation agree­ments do not form a chapter (the present writer’s is the exception). Neverthe­less it is clear that when a husband goes to the length of formally agreeing that he shall pay maintenance to his wife he is consenting to her living apart from him permanently or indefinitely, and her consent to accept this allowance makes the agreement a separation agreement even though it may not contain the non-molestation clause which is a frequent (but not invariable) ingredient in English separation agreements.

Mulla, in his commentary on the Hindu Marriage Act (Hindu Law, 13th edn.,p. 645) rightly points out that the Tekait case(\90\) 1LR. 28 Cal. 751 made a careful distinction between ante-nuptial and post-nuptial agreements. Mulla (i. e. the editor, Sri S. T. Desai) adds

“...There seems no reason why a valid agreement for immediate and not future separation bona fide entered into during the continuance of marriage with a view to enable the parties to live in peace should not be treated as empowering the court to refuse a decree for restitution.” In the present writer’s submission this is correct.

Further, if the remedy of judicial separation has been made available, as it has, to spouses under the Hindu Marriage Act, how can it be said that volun­tary separation is impossible? Can it seriously be argued that what can be obtained through the court could not be arrived at validity by the parties by way of settlement or compromise? If such a notion should be upheld there would be an anomaly of a most curious kind, unknown to Indian law. No one will seek to uphold the Madras judgment under discussion on the ground that it will give extra work to the Bar.

Finally, the present writer invites readers to look at a few sample cases where actual separations had taken place by agreement between the spouses, in not one of which separation was disputed on the-ground that it contravened the Hindu Law or public policy: Darasikrishnayya v. Darisi Hanumayamma (1955J AIR. N.U.C. 671 (Madras) (January 27,1954) (where the terms of the agreement are set out fully); Subbayyan v. Ponnuchami Chettiar (1941) AIR. Mad. 727; Sivagnana thammalv. Sankarapandian Pillai (1955) AIR. N.U.C. 1453 (Trav. Co.) (Feb. 26, 1954); Purshottamdasv. Rukshamani (1936) 39 Bom. L.R. 458, SC. (1938) Bom. 1, (1937) AIR. Bom. 358 (a particularly strong case); Seshi Ammal v. Thaiya Ammal (1964) AIR. Mad. 217 (cf. Pathuri Veer annas. P. Setthamma (1967) 2 An. W. R. 475) on the subject of the right to an enhancement); Mussammat Sham Devi v. Mohan Lai (1933) ILR. 15 Lah. 591 (where separate living by consent is parti­cularly adverted to at p. 595).

If, it is asked, how then do wives who have accepted maintenance as part of a separation agreement come forward later as plaintiffs suing for restitution, and why should not the court allow them to attempt to effectuate a reconcilia­tion j because they after all remain wives in the eye of the law, the _ answer is simply this: not that they want a reconciliation and want to live with their hus­bands again, but that they want mors money out of them. The case is the same in reverse with the husbands who sue for restitution when their wives have applied for maintenance from them under S. 488 of the Criminal Procedure Code: the husbands do not want a reconciliation-all they want is to avoid paying the money. A simple solution, and unworthy of the highfaluting appeals to the spirit of the Hindu law and spouses’ duty to remain ever faithful, like birds in a nest. Let us by all means remain aware of the traditional factors which make Hindus ‘Hindus’: but let appeals to them not be mainfestations of dissimulation.

Is it sufficient to implead the Receiver alone in an application

under S. 31 of the Kerala Land Reforms Act, 1964

(M.N. Ganapathy Iyer, Advocate, Palghat)

S. 31 (2) of the KLR. Act enjoins that “on receipt of an application under sub-section (1) the Land Tribunal shall issue notices to all persons inter­ested, and after inquiry determine” etc. The requirement as to impleading all persons interested is based on the principle that a person whose interest is not represented in an adjudication cannot be bound by it.

2. It has been held by the Kerala High Court in 1960 KLT. 68 (73) that the Receiver appointed by a Court is only a caretaker and he has no interest in a legal sense, in the estate under his charge.

3. Even assuming that the Receiver has any interest in the estate, the requirement under S. 31 (2) is that all persons interested’ have to be impleaded.

The parties to the suit have thus to be impleaded, so that the adjudication can affect and bind their interests.

4. S. 104 of the same Act, however, provides in Sub-S. (1) “Where in any proceeding under this Act etc.” and then in sub-section (2) “Where any such proceeding relates to any property or part thereof under the management of a Receiver appointed by a Court, it shall be sufficient to implead the Receiver as party to the proceeding”.

5. S. 104 of the KLR. Act is thus seen to be a general provision appli­cable “to any proceeding under this Act”, directed, inter alia, against an estate managed by a Receiver. S. 31, however, is a section specifically providing for an application for determination of Fair Rent.

6. An application for determination of Fair Rent is one affecting radi­cally the interest of the parties concerned, by altering the quantum of rent which’ reflects the value of such interest. All applications, however, do not affect such interest to the same extent. For instance, an application under S. 26 for recovery of arrears of rent payable by the estate; and again, an application under S. 46 (2) accompanying a deposit of rent due to the estate. In such applications, the impleadment of the Receiver appears to be sufficient, because they have only a bearing on the caretaking aspect which sits squarely on the shoulders of the Receiver.

7. There is thus a conflict between S. 31 (relating to determination of Fair Rent) which enjoins that all persons interested shall be impleaded and S.104 which provides that “in any proceeding under this Act” relating inter alia to an estate managed by a Receiver, it shall be sufficient to implead the Receiver. In such cases, where there is a conflict or incompatibility between two provisions in the same enactment, the rule of construction to be followed is to reconcile” the two by treating the specific provision as an exception to the general provision and implementing the specific provision (AIR. 1928 Lahore 609 FB.)

8. There is also the further question whether a Receiver who is a creature of common law and Central statute (Act V of 1908) and who, as held in 1960 KIT. 68 is a mere caretaker, can be clothed with interest in property by a State enactment. Unless the Receiver is considered as being so clothed with such interest, the Receiver cannot commit the interests of the various parties to the adjudication. Hence, the relevant provision in S. 104 must be regarded as unavailing for this purpose, in a Constitutional sense.

9. For the above reasons, it appears to be fairly obvious, that for an adjudication of Fair Rent under S. 31 of the KLR. Act to be binding on the estate managed by a Receiver, and on the parties to the action, all the parties interested should be impleaded, besides the Receiver himself, who can only be a technical or proforma party.

TAKE COGNIZANCE OF

(P.S. John, Advocate, Kottayam)

The expression “take cognizance of” is not defined in the Code, civil or criminal, and the absence of a precise definition seems to have led to conflicting decisions by the various High Courts. The dictionary meaning of cognizance is, “judicial hearing of a matter; the power given by law to hear and decide controversies” (Webster’s New International Dictionary). Wharton’s Law Lexicon defines the term as “the hearing of a thing judicially” and according to the Centuary Dictionary the meaning is “to hear and determine”.

In 1955 KLT 553 Justice T.K. Joseph has sought to distinguish the expression “take cognizance” from “entertainment”. There the question arose whether a suit regarding service Inam land which under S. 8 of the Travancore CPC. had to be filed with government sanction could be taken cognizance of, with­out such sanction. The plaint was not accompanied by government sanction as required by S. 7 (a) of the Code. The question arose whether it could be said that the court had taken cognizance of the suit the moment it was instituted or whether ‘taking cognizance” would come only after the sanction was obtained. The learned Judge has referred to the decision in 28 TLR. 250 on this point. In that decision the learned Judges observed:

On the second point, we are disposed to follow the ruling in 8 Cal. 422 and hold! that the original defect did not prevent the suit from proceeding, after the government sanction required under S.7 of the CPC. was received. See also 17 Bom. 169 where it was held that a suit filed without a certificate could not be treated as bad ab initio. To ‘cognize’ is to hear and determine and not simply to entertain”.

So, until the sanction is obtained the court does not take cognizance of the matter. The plaint filed without sanction is nevertheless entertained by the court. So also, where a complaint is filed before a Magistrate in respect of a cognizable offence and the Magistrate forwards it under S. 156 (3) Cr. PC. to the police for investigation, the court may be said to take cognizance of the offence, only after the police report is received. Until that is done, it could be said that the Magistrate has entertained the complaint but has not taken cognizance of. This position has been upheld by the Supreme Court in Abhinandan Jha v. Dinesh Mishra ( (1967) 3 S. C R. 668). There, a complaint regarding a cognizable offence was forwarded by the Magistrate to the police for report. The learned Judes observed:-

“If the report is a charge sheet under S.170 it is open to the Magistrate to agree with it, and take cognizance of the offence under S.190(1)(b); or to take the view that the facts disclosed do not make out an offence and decline to take cognizance.”

So, taking cognizance or hearing of the thing judicially takes place only after the police report is received Before that it could be said that the complaint had been entertained; but not taken cognizance of.

A Division Bench of the Allahabad High Court in Badri Prasad Gupta v. Kripa Shankar (AIR 1967 All. 468) has further clarified this position using a figurative expression which is interesting reading. According to them as soon as a complaint is filed the case is ‘conceived’ and the case so conceived remains in the womb till the police report is received and it is brought forth either alive or still-born after the receipt of the police report. Just as in the Supreme Court decision quoted above, if the Magistrate agrees with the police report he can take cognizance of the offence; if he disagrees he can decline to take cognizance. So, from the mere fact that the Magistrate has entertained a complaint it cannot be said that he has taken cognizance of it. It is open to the Magistrate to postpone taking cognizance to a later date, i. e., after the police report is received.

Basing on the above Division Bench ruling of the Allahabad High Court, a Single Bench of the Kerala High court in 1968 KLT 57 has held that the Magistrate can be said to have taken cognizance, in a proceeding under S.156(3) of the Code of Criminal Procedure, only after the Police report is received. This decision as well as the decision of the Allahabad High court (cited supra) have been severely criticised and dissented from by a later Single Bench of this court in Madhavan Nair v. Gopala Panicker(1968 KLT. 547) following an earlier decis­ion of the Supreme Court, Jamuna Singh v. Bhadai Shah(ATR 1964 SC 1541). But that decision of the Supreme Court does not take us anywhere. That decision only says that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. This is simply begging the ques­tion. When does a court take cognizance of an offence? Is it when a complaint is filed or only when the Magistrate passes a judicial order on a complaint after the police report is received? In deciding this point the 1964 Supreme Court case cited supra, does not help us. A Magistrate can be said to take cognizance of an offence in the case of a private complaint, only when he hears the thing judicially and passes a judicial order; and when the complaint is forwarded to the police this can happen only after the police report is received. He applies his judicial mind and takes cognizance of the matter, only after the police report is received. As observed in 1968 KLT 57:

“When a complaint is sent by the Magistrate to the police it must be presumed that such a step was resorted to by the Magistrate for a further assurance about the truth of the complaint. Putting it differently, the Magistrate is not prepared to proceed on the complaint alone; but thinks it necessary that a police report also should be obtained.”

To me it appears on the strength of the authorities quoted above, that the Magistrate can be said to take cognizance of the offence complained of, only when he passes a judicial order on the complaint and proceeds to “hear and determine” and not when he gives an executive direction to the police for investigation and report. The decision reported in 1967-3 SCR 668 is a clear exposition of the law on this point and the Division Bench of the Allahabad High Court has only given expression to the same principles though in a figurative language. 1968 KLT 57, in the circumstances, must be held to have laid down the correct law.

TASK OF ATTORNEY-GENERAL

(From the address of Britian’s Attorney General, Rt. Hon. Sir Elwyn Jones

in Indian Law Institute at New Delhi on 13.1.69)

I do not know how you fare as Attorney-General, but I assure you that the Attorney-General of the United Kingdom has not always been greatly loved. Francis Bacon, my great predecessor came - as you will remember - to a rather sticky end when he was Lord Chancellor because he accepted bribes from both sides: bad thing for any judge to do; bad enough to accept from one, worse still to -accept from two. And he described the task of Attorney-General as the painfullest task in the realm. A more recent Attorney, Sir Patrick Hastings, said that to be an Attorney-General was to be in hell. I do not entirely agree with that; for instance, it has brought me to India.

And the great commentator on the law and its practices, Matthew, was once asked to state what is the difference between Attorney-General and Solicitor-General. And he said broadly speaking it is the difference between the crocodile and the alligator. That is our reputation, and I hope that you fare better in your standing.

x                                            x                                   x                                   x

And I fear that our institutions owe more to historical development than to any principles of constitutional tidiness. Their only virtue, if I may say so, is that they seem to have passed the critical test-they work. But it is a picture of some confusion. The Lord Chancellor, for instance, defies all the laws of separation of powers. He is a member of the Cabinet, and therefore at the heart of the executive. Ha is a Speaker of the House of Lords and there­fore an important part of the legislature. And, finally, he is head of the judi­ciary, and what more terrible animal could there be than the head of the judiciary who is also in the heart of the executive and a legislator at the same time.

I myself as Attorney also wear a number of hats and T sometimes feel lam a kind of universal joint in the machinery of government-sometimes feel out of joint, I fear, too from time to time. I am a Minister of the Crown and a Member of Parliament but when 1 perform duties like deciding whether to prosecute in a given case or not or to enter a nolle prosequi, I of course act in a quasi-judicial capacity and must have no regard to party political considera­tions at all. And heaven knows the Attorneys in my country had a very stern warning in this field in the first Labour Government which was brought down because it’was alleged that Sir Patrick Hastings, having decided to prosecute Mr. Campbell, the editor of the Workers’ Voice, was, it was said, told by the Cabinet not to do so. The prosecution was withdrawn and in the ensuing pro­test about this alleged interference by the executive with the administration of justice the Labour Government fell. Well, I would not like to have that res­ponsibility on my shoulders. We are in enough difficulty as it is         x   x    x.

ATTEMPT TO MURDER

K. Sadasivan, Judge

The law of attempt is an important branch of criminal law. A crime has several stages; “first it must occur to the mind; it must then be considered and determined upon, preparation more or less extensive must, inmost cases be made for it and it must be carried into execution. The execution may either be prevented or may be fully carried out, in which case it may either accomplish or fail to accomplish, the full object which the criminal proposed to himself.” Attempt to commit any crime is not indictable; attempt to assault, for instance, is not actionable. In an attempt to stab or beat, a person might raise his hand, but if he be withheld by another from behind and no assault takes place, no crime is committed. But attempt to coin money, to commit burglary, or poison or murder is punishable, even if only a part of the process in the commission of the offence, is performed. In the case of counterfeiting or burglary or dacoity sometimes, even preparation is punished; for instance, purchase of instruments in the case of counterfeiting, intending to be used for counterfeiting (S. 233 IPC.) and making preparation in the case of dacoity (S. 399). This is not enough in the case of attempt to murder. In a case of attempt to murder by poisoning, mere purchase of poison with that intent is not actionable. The poison should be mixed with the food intended for the victim, or if death is intended by firing a loaded gun the trigger atleast should be drawn; then only the stage would be reached to call it an actionable or indictable attempt. In cases of attempt to murder the most significant aspect to be remembered is that the will of the offender is taken for the deed, when it is accompanied by an overt act clearly indicating the intention of the offender. In other words, the person is punished not for the act actually committed by him, but, for the act which would have resulted if not prevented by any intervening circumstance, i. e., to say, he is punished for the act intended by him. Intention, therefore, is the guiding factor.

It is necessary that the intention existed in the mind of the prisoner from the very beginning, i. e„ he must have planned the act in his mind before starting for its fulfillment. For finding the prisoner guilty of this offence, the question is often asked whether it is essential that the prosecution should prove that the prisoner had the intention right through, or is it enough that the prosecution succeeds in showing that it would have been a case of murder had death ensued? In the words of Patterson, J., proof of the latter element is not sufficient to find the accused guilty of attempt to murder. In R. v. Crusewhere a man was indicted for inflicting an injury dangerous to life on a child with intent to murder it, the learned Judge in summing up observed, “Before you can find the prisoner guilty of this felony (attempt to murder) you must be satisfied that when he inflicted this violence on the child he had in his mind a positive intention of murdering the child. Even if he did it under circumstances which would have amo­unted to murder if death had ensued, that will not be sufficient unless he actually intended to commit murder.” From this statement of the law, it follows that the offence of attempt to murder is to be culled out, not from the gravity of the act committed, but from the intention with which it was committed. A misguided youth finding a girl in a lonely forest-all alone-made overtures to her and his attempt having been foiled, got exasperated and fired at her a sporting gun and escaped from the place, (Moidu v. State of Kerala-1967 KLT. 223). Here the first and the foremost element viz., intention to kill is absent; because the accused could never have formed in his mind the intention to kill when he sighted the girl, neither at the time he made his amorous approach to her. When his attempt was frustrated could he have formed the intention? This, even if Patterson’s theory-is not accepted has to be inferred from the nature and extent of the violence and injurious means employed to effect his object. Is the shot from a sporting gun likely in the natural and ordinary course of things to cause death? The evidence was that it was a sporting gun used for the purpose of scaring away birds and cattle from the cultivation. The gun itself was not recovered and there was no previous instance brought out in evidence of any human being or for that matter, any bird or animal having been killed by shooting with it. Thus the other element viz., that the act should be such as to cause death in the natural and .ordinary course of events was also absent. The accused was, therefore, liable only for the act actually committed viz., hurt by dangerous weapon falling under S. 324 IPC.

Elucidating the latter aspect further, the intention should be coupled with an act sufficient in the natural and ordinary course of events to cause death. If a man attempts to commit a crime in a manner in which success is physically impossible, say shooting at a figure which he falsely supposes to be a man, with intent to murder, could it be said that he has committed the offence? He has not committed any offence at all though he had the criminal intent (intent to kill) strong in him In 4 B. H. C. R. (Cr. Ca) 17, quoted by Mayne in his book on Criminal Law, the prisoner pointed a rifle at his oTicer. but it was stuck up before he had drawn the trigger and the rifle was found to be loaded but not capped. On the same line of reasoning he was also found not guilty though he had a guilty mind. In the same category could be clas-sed a recent case of the Allahabad High Court, Bhagavan Din v. State(AIR. 1967 All. 580) where a body of persons armed with guns, revolvers and lathis emerged from a retreat and attacked the two victims who were proceeding along a field in the early hours of the morning. They approached the victims crying “maro” meaning “kill”. Three of the accused who were armed with firearms (two with guns and one with revolver) fired from a short distance of 18 or 20 paces, causing injuries to both the victims. Pellets, a good number of them, got stuck up on the body of the victims. The conviction was entered by the High Court, only under S. 324 IPC. and not under S. 307. Death did not ensue because the pellets due to their inherent defect, were incapable of piercing further into the body and cause death. That the assailants had the intention to kill can, on no account, be denied in the case but a shot from such a gun discharging such pellets was impassible to kill. The act must synchronise with the intention; then only could it be said that an indictable attempt is committed. In these cases, unlike in R v. Cruse the requisite intention was pre&nt;but the act committed fell short of the type of act necessary to create the oSence viz., the act sufficient in the natural and ordinary course of events to cause death. In the absence of intention to kill, the accused can be punished if at all, only for the act actually committed by him as was done in Moidu v. State of Keralaand Bhagavan Din v. State and a series of other cases; like Emperor v. M. V. Prabhu(15 B D. R. 991) where the Bombay High Court held that “although the hatchet is a deadly weapon, a blow with it is not, in our opinion, an act ordinarily capable Of causing death in the natural and ordinary course of events”; Sarju Prasad v. State of Bihar (AIR. 1965 SC 843) where the Supreme court observed, ‘it is true that the injury was inflicted on a vital part of the body but the fact remains that no vital organ of the body was injured thereby......We are therefore unable to say with anything near certainty that the appellant had such intention or knowledge. In this state of evidence we must hold that the prosecution has not established that the offence committed by the appellant falls squarely under S.307 IPC. In our opinion it amounts to an offence under S.324 IPC”; and in Rekha Mandal v. The State of Bihar (1968-1 S. C. W. R. 14) the Supreme Court held:-

“S.307 requires that the act must bs done with such intention or knowledge or under such circumstances that if death is caused -by that act the offence of murder will emerge. In the present case the offence though serious enough did not go beyond S. 324 IPC. (injury sustained was a cut wound with a ‘farsa’ on the head 5” length and 3/4” bone deep).”

The point, therefore, to be borne in mind is that it is not merely the seriousness of the injury or the weapon that matters; but the intention enter­tained by the prisoner before he actually embarks on the project. The blows must have been struck with that intention. When once the prosecution, is able to make out this element, the offence is proved even if no injury is caused to the victim as in the case of firing a loaded gun or placing food mixed with poison on another’s table. Here, we have the intention coupled with an act capable of causing death in the natural and ordinary course of events. The offence therefore must be taken as proved if the shot misses the mark or it is prevented by an intervening agency, or the food is not taken by the victim. It is thus the intention as observed by Patterson. J., that matters, coupled with the potentiality of the act designed, and not the mere gravity or magnitude of the assault actually made. Culling out “the intention to kill” from the seriousness of the assault or the weapon used, was ruled out by Patterson, J., in the passage quoted already wherein it was emphasised by him that for an indicatable attempt it is not enough that as a result of the act committed had death ensued it would be murder even if the prisoner had not intended it. S. 307 IPC. is so worded that even if the act is committed with the knowledge that “if he by that act caused death he would be guilty of murder” the offence of attempt to murder would be committed. But in practice, this deductive method of inferring intention from “knowledge attri­buted” is difficult and inmost cases unsuccessful as illustrated above, in the rulings cited.

In R. v, Jones(9 C & P 541) where the first court charged the prisoner with shooing at Vanghan with intent to murder him and the facts were such as only to amount to man=laughter/;whather on a court charging an intent to murder, it is essential that the jury should be satisfied that, that intent existed in the mind of the prisoner at’ the time of the offence; or whether it is sufficient that it would have been a case of murder if death had ensued........In the present case think you may dismiss the first count from your consideration as it would be very difficult to say that if Mr. Vanghan had died this would have been a case of murder.” It is always difficult in such cases where the victim of assualt does not die, to support the charge of intent to murder. Alderson B. in a similar case (R.V.. Howlett- 7 C&P274) charged the jury as follows:-

“You will have to consider in this case whether, if death had ensued, the prisoner would have been guilty of murder; and in giving your judgment on that question you will have to consider whether the instrument employed was in its ordinary use likely to cause death or though an instrument unlikely under ordinary circumstances to cause death, whether it was used in such an extraordinary manner as to make it likely to cause death either by continued blows or otherwise.”

In a case where the weapon used is so deadly and it is used persistently in such inhuman and brutal manner, an inference might justifiably be drawn that the prisoner had the requisite murderous intention; but the dividing line being so narrow and the court being called upon to gauge something which is not manifest but is hidden in the mind of the assailant, great care and circumspection would be required so as to avoid injustice being done to him.

To sum up, attempt to murder is a highly technical and hypothetical offence, delicate in concept and largely an abstraction; rarely discernible or decipherable from the act actually committed: Intention to kill when combined with a physical act capable in the ordinary and natural course of events of causing death, the offence is committed, even if the act is interrupted or foiled in the middle. The act as designed, if fully takes effect and the victim does not die the resultant offence is solely a matter of speculation’ or conjecture, and it is always advisable and proper that the prisoner is punished for the act actually committed unless from the weapon used and the persistence shown in inflicting the violence it could safely be inferred that the prisoner acted with the requisite intention. Attempt to murder is more often than not, misunderstood, misconstrued and misapplied not only by students of law, but even by lawyers and judges.