Eve and the Serpent

(T.G. John, Advocate, Trichur)

Dr. Naema Sultana Begum, M.B.B.S. was a very brilliant student of the King George Medical College, Lucknow. She had secured the coveted Express Victoria Readership (Research Scholarship) of the College for three years and was doing research work in forensic medicines and toxicology under the guidance of Dr. Gautam, Professor of the same College. She was extremely beautiful and vivacious and had even figured as a Beauty Queen in many of the beauty contests in the hill stations of Northern India, like Mussorie, Nainital and Simla, combining in herself western beauty and oriental charm. She hailed from a highly cultured and aristocratic Muslim family of Lucknow. Her father Mirza Afzal Beg was an I.C.S. Official who met with a motor accident and was killed on the spot. Since then Naema, who was about 23, her widowed mother Salima, who was about 40 years old and her brother Mirzafar who was studying for B.A. in the local college had been living in their ancestral house, Mir Manzil, in Lucknow.

Dr. Mohanlal Gautam, M.D., F.R.C.S. (Edinburgh), Naema's guide in research, was one of the brilliant men on the staff of King George's Medical College, Lucknow. Though his special subject was Pathology, he was supreme in other fields also. His reputation as a general practitioner was great and he had a large number of rich patients who paid him enormous fees. He used to attend to his students and their family members and also genuinely poor people at their homes without any fees at all. He was a tall and extremely handsome man with glistering eyes and a sharp aquiline nose and was about 38 years old. All his students liked him. His family consisted of his wife and two small children. A loving husband, he lived with his family in a fine bungalow attached to the college.

And then things began to happen! It is strange that young attractive and talented girls are drawn towards elderly men despite the handicap of their being already married and having children. Gradually Naema got enamoured of the tall and handsome Dr. Gautam nearly twice her age and father of two children with a pretty and devoted wife. She was being irrevocably drawn towards the cold lustre and invisible magnetism of his brilliant and superb manhood. She also wondered why she who could stun an young man with a mere twinkle of her eye, could not move this stolid Adonis of a man who was utterly insensate to her charms.

She was determined for her catch. She took every opportunity to talk to him about her studies, the social conditions of the city and finally a probe into his family life. But Dr. Gautam never exceeded his limits as a guide and Professor in his talks to her. And then one day on her request he took Naema to his residence and introduced her to his wife and children. Naema begged Dr. Gautam to make a return visit to her residence which Dr. Gautam did out of sheer courtesy. He was introduced to Naema's mother and thereafter Dr. Gautam made frequent visits to Naema's residence. Meanwhile, Naema's nerves were getting frittered and she was almost on the brink of insanity consumed by unrequited love. And one day casting aside all decency and decorum, Naema asked her mother whether she would mind if Naema married Dr. Gautam. Her mother replied that she would have her blessings but added that it was impossible and unthinkable as he was a family man and a Brahmin and treated her only as a grown up daughter. "That is my business mother, you may leave it to me", she replied.

And then on the next visit of Dr. Gautam, when Naema's mother was absent in the house, things got hot. Dr. Gautam was on the point of going away when he found her mother was not present. And then Naema went into a sudden outburst of passion.' Don't you think that I am far more beautiful than your wife - would you marry me? Naema burst into tears and was sobbing heavily.

Dr. Gautam was so stunned by this sudden and unexpected outburst of passion. However, he slowly gathered his wits and mumbled that it was utterly unthinkable, he being a married man with a devoted wife and a Brahmin too and his feelings towards her could be no more than that of a father or brother.

Naema was frantic and persistent and then put her second alternative. 'You are a rich man, Dr. Gautam, you can hire out another bungalow and keep me there; hundreds of big people are doing it nowadays'. Upon this Dr. Gautam flared up like gunpowder and retorted, 'I thought that with all your faults you were a good girl. But now I find that you area strumpet'!

Strumpet! The words had an electrifying effect on Naema. She flushed crimson and with a snarling and disdainful gesture she got up and disappeared. Dr. Gautam stepped out of Mir Manzil into broad daylight and thereon into his car.

Next day and for many other days Naema was absent in the college for her research work. One evening Dr. Gautam had a special messenger from Naema, to make a visit to her and diagnose her illness and treat her. Dr. Gautam went to Naema's house after finishing his work in the college and that night Dr. Gautam did not return to his residence.

Next morning there was a banner headlines in Lucknow newspapers "Dr. Gautam shot dead by a girl student! Assailant arrested!' The student was none other than Naema, his research student. The post-mortem examination of the dead body revealed that Dr. Gautam had been killed by a shot fired at point blank range from a 12 bore shot-gun using buckshot (LG) ammunition. Five of the six LG catridges were recovered from inside the dead body. The sixth was recovered from near the place where the dead body was lying. Death must have been practically instantaneous.

In the police station Naema made a confession — that she loved Dr. Gautam with all her heart; but atleast on one occasion he scorned her as a strumpet which overwhelmed her feelings so that she wanted to end her life. But before that she wanted to finish Dr. Gautam who rejected her in such a contemptuous way. Later on when she was produced before the Magistrate, she resiled 'on advice'. She made a statement that she was innocent and that she did not know to use a fire-arm and the gun in her house was used by her father before his death. And also that the dead body was planted in her house by some of the enemies of Dr. Gautam who had done the crime. That Dr. Gautam wanted to marry her and she was not willing for such an alliance!

In the Sessions Court the prosecution proved that contrary to the allegations of Naema, She was an expert in handling firearms. In fact, the licence for the Westley Richards Shot gun had been transferred to her by her father before his death and that prior to the incident she had bought 20 Eley-Kynoch Buck-Shot catridges for the gun from the local ammunition shop. But why did she kill him? The defence made a suggestion that perhaps Naema was showing her gun to Dr. Gautam when an accidental discharge might have killed him. This hypothesis was negatived by the fact that the gun had barrels 33 inches long and it was quite impossible for Dr. Gautam to receive the discharge from the barrel on his chest due to an accidental tripping of the trigger. Two of the neighbours of Naema testified that at about 11 p.m. on that fateful night they had heard the report of a gun shot from her house and the piercing cry of a man in agony. One of them had informed the police by telephone.

Naema was convicted by the Sessions Judge for the murder of Dr. Gautam but instead of awarding the capital sentence, sentenced her to life imprisonment. The High Court on Appeal confirmed the convictions but reduced it to 10 years as in its opinion, the motive for the murder could not be clearly proved by the prosecution.

Christian Marriage Laws — Response to the Proposed Amendments

(By Sebastian Champappilly, M.A., LL.M., Advocate, High Court of Kerala)

There have been various proposals from different quarters for amendment of the laws relating to marriage and divorce among Christians in India. It appears that the Catholic Bishops Conference of India and the Standing Committee appointed by it to deal with the subject approved a set of proposals suggesting amendments of the Indian Christian Marriage Act, 1872 by incorporating Chapters V, VI and VII of the Special Marriage Act, 1954 and at the same time repealing the Indian Divorce Act, 1969. These proposals might with profit, be reviewed for the following reasons:—

1. The proposal for incorporation of Chapters V, VI and VII of the Special Marriage Act, 1954 into the Indian Christian Marriage Act, though attractive, may add to the woes of the Christians rather than solving them. This could be explained by an example. Incorporation of Chapter VI of the Special Marriage Act means incorporation of S.28 of that Act also. And S.28 provides for divorce by mutual consent. In other words there would be divorce by mutual consent among Christians after this amendment. But the concept of divorce is alien to Catholic faith. And divorce by mutual consent is again unheard of among Catholics. It is therefore such a matter of great concern for the community that one cannot simply accept this concept without proper consultation and deliberation. [1]

2. It may also not be a sound proposition to allow divorce by mutual consent among Christians for other reasons. Even to appease the progressive point of view, I do not think that such a provision should be explicitly incorporated. For, even at this juncture Christian spouses who mutually agree to seek divorce can get their marriage registered under Ss.15 and 16 of the Special Marriage Act and thus get the benefit of S.18 which provides that from the date of registration, the marriage shall be deemed to be a marriage solemnised under that Act. And such spouses can invoke this ground of divorce provided for in the Special Marriage Act. Thus Christian spouses who mutually agree to seek divorce can still adopt that path if they need divorce. [2] Yet in my opinion, a direct provision for divorce by mutual consent may give the impression that the Church approves of divorce. Incorporation of such a ground in. a law on Christian Marriage could perhaps be avoided. For this may send out the message that the Church still does not approve of divorce, not to speak of divorce by mutual consent. And hopefully the followers may not develop a tendency to fall back upon this provision.

3. The Indian Christian Marriage Act contains various provisions that are irrelevant and inconsistent with the present day realities. Some provisions are indeed out of tune. For example S.81 of the Act might be noted. It provides that certain Certificates of Marriages of Indian Christians solemnised in India be transmitted to England. Again the punishment prescribed under Ss.70 and 73 needs a fresh look. Ss.28, 30, 32, 37 and 64 deals with maintenance of Registers and registration. They need updating in the changed context. There are inconsistencies and irrelevancies in Sections like 64 and 37, 22, 70 and 73; 32 and 5; 54 and 5; 13 and 12; 13 and 17. The definition of "minor" under the Act and the Child Marriage Restraint Act, do not signify uniformity. Ss.68 and 74; Ss.39 and 71 of the Act are all in need of revision in one way or other.

The Christian Marriage and Matrimonial Causes Bill, 1990 forwarded by certain Christian Organisations, to the Hon'ble Prime Minister of India in 1992 is an attempt in the right direction. But it needs review and revision. To begin with, the definition of "Christian" in the Bill may not have adequate acceptance inasmuch as that proposal was already considered and rejected with reasons by the Law Commission of India in its 15th and 22nd Reports. I think the reasons are still valid according to many in the community. Again Clause 31 of the proposed Bill dealing with divorce by mutual consent may have to be deleted in view of what has been explained in paragraphs 1 and 2 above.

Clause 3 of the Bill needs re-drafting and Clause 4(iv) should be enlarged to include the words "personal law" so as to bring in the provisions of Canon Law on questions of prohibited degrees of consanguinity. This is not impossible in view of the decisions of the Supreme Court in Lakshmi Sanyal v. Sachit Kumar Dhar (AIR 1972 SC 2667) and of the High Court of Kerala in Leelamma v. Dilip Kumar (AIR 1993 Ker. 57 = 1992 (1) KLT 651).

Moreover, the provision for recognition of the declaration of nullity of marriage given by the Church as given under Clauses 26 and 27 may have the tendency, I am afraid, to bring the Eparchial Tribunals under the control of the Civil Courts. I think it is our right to assert that our personal law should be got recognised by the proposed legislation. The importance of this aspect could be gauged from the observations of the House of Lords in Regina v. George Millis (10 C & F 534) which runs: "a husband demanding a right due to him as a husband by the ecclesiastical law, must prove himself a husband according to that law". Conversely, a wife demanding a right due to her as a wife by the ecclesiastical law, must prove herself a wife according to that law. [3] This is very important in the current Indian context where the Muslim Law and Hindu Law have come to be recognised as the respective personal law of Muslims and Hindus.

In short, the proposed Bill requires changes on various aspects like recognition of personal law, declaration of nullity of marriage granted by the Eparchial Tribunal and other authorities under the personal law as valid, definitions, jurisdiction, punishments and registers from the point of view of the Christian Communities. Therefore, it is desirable to have a more detailed discussion or even a workshop arranged on this subject before finally giving the green signal to the proposed new legislation on Christian Marriage and Matrimonial Causes Bill.

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Foot Note

1.  It is pertinent to point out that the Law Commission of India had already rejected the proposal for inclusion of "divorce by mutual consent" after detailed deliberations. The situation has not undergone any change for a review. See the 15th and 22nd Report of the Law Commission of India.

2.  In this context it may not be out of place for me to mention that in a survey undertaken by me, as part of my Ph.D. Programme in the Cochin University of Science and Technology, recently 77% of the respondents favour divorce by mutual consent.

3.  This view finds support in the decision of the Supreme Court of India in Anantrac's case (1988) 1 SCC 530 which held that the validity of a marriage has to be determined by the personal law applicable to the parties.

Neither Accommodation nor Control

(By Sajan Mannali, Advocate, Ernakulam)

Well, that was my first experience with the 'Accommodation Controller'. Naturally, deceived by the name, I expected atleast some control, and a little accommodation too. However at the end of my 'tryst' with the Accommodation Controller, to my dismay, I found none.

My client, a lady dentist, was residing in a rented house. She was also running a dental clinic, in the same. Her landlord, like any other 'lords' around demanded an increase in rent. She in turn requested for the long pending repair works and maintenance, before the increase of rent. Suddenly the drinking water stops, the switch to the motor removed, the gate at the outer entrance disappears arid to peak it all, her entry to the terrace brought to a stop, by locking up the gate leading to the terrace.

She walked into my office and narrated her grievances. With the assurances and promises showered by the "Kerala Buildings Lease and Rent Control Act "I confidently drafted a petition before the Accommodation Controller. There in starts my unending misery; and my client's too.

After a number of 'No Sittings', finally we - the Accommodation Controller and myself-face, face to face. I pray for an interim order, atleast in the case of drinking water. She flatly denies. I point out to the Section. She is unmoved. She tells me she is not in the habit of passing interim orders, whatever the section may say. I approach the High Court, and atleast atlast, the drinking water once again flows through the taps.

Now begins the second chapter of my unending misery. I foolishly pursue the other reliefs before the Controller of Accommodation. Once again, after a series of 'no sittings', at the end of which l am told that the Accommodation Controller is transferred. 'He' comes to take the place of 'She'. Hoping against hope, I hope for a change in attitude. But I find the boat still at Thirunakkara, as goes the old saying.

Evidence begins with great pomp and show. There, then once again interrupted by number of 'no sittings'. We are repeatedly told that the Accommodation Controller has again gone out to act out of his dual role as the Revenue Officer, in the field. Meanwhile two years pass by. I see the same suffering faces, with the same miserable cases, flitting in and out of the court.

Meanwhile, I witness bench clerks ordering Counsels. Counsels complaining to the Accommodation Controller. Accommodation Controller expressing his helplessness, indicating the 'Trade Union Mafia' and its (mal) practices. I listen to telephone calls attended amidst 'sittings' by the Controller, as well as the bench clerk, (for that matter even the peon), unbothered and unconcerned, right in front of the numbed clients and poor counsels. Evidence 'once upon a time' started continues, side by side, never to come to a close or finale.

Once again I am told that the Accommodation Controller is about to be transferred. Before I could think whether I should weep or mourn, I am told that there is an amendment in legislation, and that the churches, mosques etc. are brought outside the purview of the 'Kerala Building Lease and Rent Control Act'. Now for a change I decide to laugh, atleast to celebrate the end of the long pending - never ending tyranny. Amenities or not, my client beams and heaves a sigh of relief.

I am now told that six months have passed by; However orders are yet to be passed, dismissing the petition; based on the new amendments.

Well, it is high time that something is done in this regard, atleast by somebody. Why this waste of energy, time and money before a Controller, who never accommodates nor ever sits. And if at all 'sits* has neither learned, preaches nor practices LAW.

Inadequacy of Provision on Bouncing of Cheque

(P. Sreedharan, Dy. Director of Prosecution and Senior A.P.P., Kollam (Retd.))

It is fortunate to apprehend that the Legislature is pleaded to incorporate the new Section 138 of "The Negotiable Instruments Act, 1881" and the ancillary provisions in Chapter XVII of the Act. Prior to the commencement of this new section the only remedy on a post dated cheque was to approach Civil Courts and had no redressal of grievances through Criminal Courts. Really this section and this new chapter is a gift for the legal practitioners and to the public at large.

It is obvious that the ultimate object of this section and it's magnitude is averted with large omissions and anomalies which is hard to say as harmless or meagre. A legal practitioner who thinks about the pros and cons of this section can point out several precarious legal fictions, requests additional provisos to this section to fill the loopholes.

Points for consideration

Whether the second presentation of cheque is valid?

In a dictum of his Lordship Justice Balakrishnan reported in Sunil Kumar v. Bhadran (1991 (1) KLT 651 = 1991 (1) KLJ 335) it is enlightened that "The Payee or holder in due course can make a second presentation of the cheque and he can launch a complaint on this second presentation as the cheque would remain valid for a period of six months".

A Madras High Court decision reported in 1993 (1) KLT 1 (Sivasankar v. Santhakumari) came in support of the above decision which states as a cheque can be presented on different occasions constituting separate cause of actions and hence a complaint on second presentation of cheque if made within the period of its validity is maintainable.

This was negatived by a Division Bench of the Kerala High Court, reported in 1991 (1) KLT 893 (Kumaresan v. Ameerappa). The gist is that more than one cause of action on the same cheque is not contemplated. Cause of action arises on issue of notice after the first presentation of cheque. So a prosecution on second presentation and second notice is not tenable.

This question of law is now under the active consideration of the Supreme Court on an appeal pending. The section is ambiguous in this position.

Insufficient funds: It is offence if cheque is dishonoured on ground that the amount of money standing in that account is insufficient.

Stop Memo: When cheque is dishonoured on "Stop Memo" given to the Bank by the drawer while having sufficient funds in his credit to honour the cheque is not an offence as laid down by High Court of Punjab and Haryana reported in 1992 (1) KLT 765. (Rama Gupta v. Bakeman's Home Products).

Account Closed: In a case where the cheque is dishonoured on ground of "ACCOUNT CLOSED" is held no offence by Madras High Court reported in 1992 (2) KLT 417 (Prasanna v. Vijayalakshmi).

Refer to drawer: Cheque returned with an endorsement "REFER TO DRAWER" cannot be inferred that the cheque was returned on account of insufficiency of funds in account and hence no offence as per decision of High Court of Andhra Pradesh reported in 1992 (1) KLT 684 (Union Roadways (P) Ltd. v. Shah Ramanlal).

These are interpretations of courts came very late and because of absence of inhibition in clear terms in the section so many prosecutions are defeated in the initial stages. The above are single Bench decisions which may come otherwise later.

Date of drawal of cheque: There are inconsistent decisions regarding the date on which it is drawn to calculate six months. In a decision of Punjab and Haryana High Court reported in 1992 (1) KLT 686 (Gulshan Rai v. Anil Kumar) it is held that the actual day on which the cheque was drawn and delivered is the date of draw and not the date shown in a post dated cheque.

But in a Kerala High Court Division Bench decision reported in 1991 (2) KLT 65 (Manoj K. Seth v. Fernandez), it is decided that "Post dated cheques for the purpose of Clause (a) of the proviso has to be considered to have been drawn on the date it bears and not on the date it is delivered."

This is repugnant to the first decision. The section is silent in this issue also.

Give notice in writing.

S.27 of "The General Clauses Act" gives the benefit of an assumption to the sender of a registered post as it is delivered to the addressee in the ordinary course if it is properly addressed and pre-paid. But this section is silent about the DATE of service of such letter to calculate the period of fifteen days next to.

No date of receipt in acknowledgment

From which date the payee should calculate the fifteen days from a postal acknowledgment received back without entry of date of delivery of notice?

Letter or acknowledgement not come back

In a case where neither notice nor the postal acknowledgement come back and in such an incident what is the basis for calculation of fifteen days from the date of service?

If these uncertainties and anomalies are left uninterfered and if S.138 is not made exhaustive with more provisos these inconsistencies will continue till it gets final verdicts from Supreme Court and to that extent of time it will facilitate to refute the section negatively while carrying out in the practical field.

Boycott of Court by Lawyers

(P.K. Jose, Advocate, Ernakulam)

1. I am of opinion that boycotting a court of law by lawyers cannot be justified legally and morally. I believe that boycotting the court, will amount to an illegal act, even contempt of court.

2. For the said reason, I believe that in no circumstances shall lawyers boycott the court.

3. Let us first analyse what is meant by boycott. Boycott means "abstention from buying, abstention from using, avoidance, ban, banning, black-listing, debarring, embargo, exclusion, ostracism, proscription, refusal to do business, rejection, shunning, strike, with holding of patronage".

4. We have adopted a constitution under which the institution of court or judiciary is independent and impartial. All disputes are ultimately decided by court, and nobody can disobey or violate a decree or decision of a court of law. If one does so, one is guilty of an offence.

5. Lawyers are part of this institution and our profession is noble and learned. We have joined this profession because we have faith in rule of law.

6. If we believe in rule of law and accept judiciary as the final arbiter of all disputes, what is the justification for boycotting the court.

7. When we boycott the court, we are breaking the promise with our client, and more important, expressing our lack of faith in court and rule of law.

8. Lawyers should not behave like industrial labourers or employees, or businessmen. When industrial employees boycott or strike work, observing the rules, they are doing an act which is permitted by Industrial Law. When public resort to strike or boycott they are protected under Art.19 of the constitution. The above said actions are not directed against an institution, nor can it be said that there is breach of contract in such cases. But in the case of lawyers, for the reasons mentioned above, boycotting the court will amount to an illegal act and even contempt of court.

9. Lawyers are not a weaker section in society. Lawyers are a powerful section of the society because they know law and they have learning and knowledge which are the source of their power. For this reason citizens seek advice and guidance from lawyers.

10. By boycotting the court, we are tarnishing the good image of judiciary and profession of law.

11. We have other methods and means to express our protest and make the concerned authorities act according to law. Lawyers know how to set law in motion and bring violators of law to justice.

12. It is time that we lawyers think about the issue of boycotting the court by lawyers, its legality and justification. What else, short of boycotting the court, can be done by Lawyers' Association to express their protest against injustice done to lawyers themselves or others in our society.

13. It is advisable to have a debate on this issue, to have an in-depth study in its legal, professional and social aspects. Bar Association can call for a meeting of lawyers for a debate on this issue, as has been done by Kerala High Court Bar Association in other cases.