Kerala High Court on Christian Law - Recent Trends

 

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

 

The Full Bench decision of the Kerala High Court in George Sebastian [1] assumes much importance, for it touches upon a matter of great significance to a large number of Indian citizens belonging to the Christian community. In order to have a proper appreciation of the judgment, a short survey of the decisions of the High Court of Kerala from the year 1986 and that of the Supreme Court having a bearing on the subject seems to be appropriate.

 

To begin with, in Kurian v. Alphonsa,[2] the question that arose for decision was whether a Christian woman, whose marriage was declared null and void by Eparchial Tribunal [3], was entitled to get maintenance under S.125 of Cr. P.C. The court answered in the affirmative saying that the dissolution was not valid. It reasoned thus:—

 

"When Parliament has enacted a law [4] providing for dissolution and for decree of nullity of Christian marriage, Eparchial Tribunals cannot adjudicate upon those matters so as to affect the civil rights of parties to the marriage" [5].

 

As regards the authority of the Eparchial Tribunal to annul a marriage the court observed:—

 

"Whatever be the jurisdiction of the Eparchial Tribunal in ecclesiastical matters, it cannot affect the civil rights of the parties. Rights flowing out of a legal marriage cannot be interfered with by the Eparchial Tribunal." [6]

 

It may be noted that the court granted maintenance to the wife on the ground that the decree of nullity granted by the Eparchial Tribunal would not affect the marriage.

 

In fact there was no necessity for the Court to express any opinion as to the validity of the decree of nullity in view of the content of S. 125 of Cr. P.C. and the provisions of Canon Law which explicitly provide for the civil effects of marriage to be regulated by the civil law. So according to Canon Law maintenance should have been decided under S.125 Cr. P.C. This is evident from Canon 1672 of the Code of Canon Law. It provides:

 

"Cases concerning the merely civil effects of marriage pertain to the civil courts, unless particular law lays down that, if such cases are raised as incidental and accessory matters, they may be heard and decided by an ecclesiastical Judge".

 

The parties to the marriage in Kurian v. Alphonsa [7] were Syrian Catholics. So the provisions of Oriental Canon Law, contained in the Pius XII, Motu Proprio Crebrae allate. 1949 which was the personal law of the parties should have been made applicable. It's Canon 5 is specific:—

 

"The marriage of baptised persons is ruled not only by Divine Law but also by Canon Law, save for the competency of the civil authority in regard to the merely civil effects of marriage [8].

 

This position of Canon Law was however not brought to the notice of the court.

 

The ratio in Kurian was reiterated by a Division Bench of the High Court of Kerala in Jose v. Alice [9], wherein the Court held:—

 

"a Christian marriage can be declared null and void only by a decree of Court as provided for in Ss.18 and 19 of the Indian Divorce Act....." [10]

 

And it also held:—

 

"Marriage between the parties creates civil rights and the Ecclesiastical Tribunals have no jurisdiction to annul marriages involving the civil rights of parties" [11]

 

It may be pertinent to note that the court in this case built up the entire edifice of its thesis on the ground that the marriage was solemnised in accordance with S.5 of the Indian Christian Marriage Act, 1872. [12] But tins is not correct. The Indian Christian Marriage Act, 1872, has been specifically excluded from application to the erstwhile

 

Travancore-Cochin States.[13]Therefore, the very foundation of the Court's reasoning is non est. That apart, as has already been pointed out,[14] Canon Law has specifically left the civil effects of marriage like maintenance to be administered by the civil law. Therefore there was no need or necessity for the Courts to have looked into the validity of the dissolution of marriage.

 

In this context, it appears that the Division Bench did not correctly apply the ratio of the decision of the Supreme Court which was rendered as far back as 1972. The Supreme Court ruled that the Canon Law was applicable to Christians in certain respects. It observed:—

 

"The question of capacity to marry and impediments in the way of marriage, would have to be resolved by referring to their personal law. That, for the purpose of deciding the validity of marriage, would be the law of the Roman Catholic Church, namely the Canon Law of that Church." [15]

 

Thus, when the Apex Court accepted Canon Law as the personal 1 aw of Catholics and relied upon it to supplement the civil law, the attitude of the High Court of Kerala to the contrary appears to be inappropriate. In fact the High Court should have been liberal in its interpretation as the Supreme Court in Reynold Rajamani [16] held that the Courts must adopt a liberal approach in the areas of marriages and divorce.

 

It was in this background that the High Court of Kerala got another occasion to examine the question afresh. In Leelamma v. Dilip Kumar,[17] Justice Chettoor Sankaran Nair emphatically stated that the personal law of Syrian Catholics is Canon Law and that their marriages are governed by Canon Law.[18]

 

While matters remained thus, a Full Bench of the Kerala High Court re-examined and revised the position in George Sebastian v. Molly Joseph [1]. The question that arose for consideration in this case was whether the dissolution of the first marriage of the respondent, effected by the Eparchial Tribunal on the ground of nullity-the marriage being null and void ab initio was to be recognised by the civil court as valid so as to deem her free with capacity to effect a valid marriage subsequently. It was after obtaining the decree of nullity from the Eparchial Tribunal, the wife in the instant case contracted the subsequent marriage with the petitioner in accordance with the personal law (Canon Law) of the parties. After some time the relations between them got strained and the husband moved the District Court for a decree of nullity of the marriage under Ss.18 and 19 of the Indian Divorce Act, 1869, on the ground that her (wife's) first marriage still subsisted, in as much as the dissolution effected by the Eparchial Tribunal was not valid. Even without taking evidence the District Court accepting husband's plea granted a decree of nullity and forwarded it for confirmation to the High Court.

 

The High Court remanded the case directing the District Judge to conduct an enquiry into the allegation relating to the subsistence of the former marriage. While doing so it thought it proper and necessary to review the position of the law that got reestablished in Leelamma.

 

At the outset, it may be noted that the Full Bench of the High Court was convinced that the decree of the District Court was in violation of the procedural requirements under S.47 read with S.45 of the Indian Divorce Act, in as much as the District Court without conducting an inquiry granted the decree of nullity merely on the admission, made by the parties in their pleadings. The Court noted:—

 

"All those would suggest that the District Judge is not to pass a decree of nullity of marriage just after reading the pleadings of the parties. At any rate, S.45 of the Divorce Act is not a carte blanche for dispensing with any enquiry as to the existence of a ground for nullity of marriage merely because no dispute regarding mat ground has been raised by the other party".[19]

 

Having come to such a conclusion and having finally remanded the case for taking evidence, one wonders whether there was any necessity at all for the High Court to lay down any principle on the binding nature of a decree of nullity of marriage granted by the Eparchial Tribunal especially when the case came up before the High Court for confirmation under S.20 of the Act and it being no reference under S.9 for the decision of the High Court. Yet, the Court went on to express its opinion which was not necessary for the decision of the case, especially when the Court came to the conclusion that for obvious procedural irregularity no confirmation could be given under S.20 of the Act. It is significant in this context to refer to the mandate under S. 9 of the Act which provides for a decision on a reference by the District Court to the High Court. Therefore, the opinion in the case may be considered per incuriam.

 

Be that as it may, let us examine the opinion of the Full Bench. It ruled:—

 

"Our conclusion is the legal position laid down by the Division Bench in Jose v. Alice (1988 (2) KLT 890) vis-a-vis the Canon Law is the correct position and requires no change". [20]

 

This conclusion was made on reasoning thus:—

 

"When there is a statute governing the area, the statute has primacy over any personal law in that regard.[21] after the Divorce Act came into force dissolution or annulment granted under such personal law cannot have any legal impact as statute has provided a different Code for divorce or annulment.. ,[22] In other words, personal law stands clipped to the extent statutory law has stepped". [23]

 

It may be pointed out that the entire edifice of the judgment in Jose v. Alice [24] was built on a foundation that there is a statutory law applicable to the parties for solemnisation of marriage. This is evident from the judgment. The Court began to weave out its thesis thus:—

 

"It is not disputed that the minister had received episcopal ordination and was competent to solemnise the marriage under sub-section (1) of S.5 of the Indian Christian Marriage Act,1872". [25]

 

It proceeded further:—

 

"There is no dispute that the marriage in the present case was solemnised in accordance with the personal law applicable to the parties. The minister who had received episcopal ordination and had solemnized the marriage in accordance with the sub-s.(1) of S.5 of the Indian Christian Marriage Act of 1872 should be presumed to have ensured that the parties had given free consent for the marriage and such presumption will hold the field until the High Court passes a decree of nullity of marriage on the ground of force or fraud in obtaining the consent". [26]

 

In this context it is to be noted that in Jose v. A lice, the Division Bench went wrong on a fundamental assumption, and it is that there is a statutory law applicable for solemnisation of Christian marriages in the concerned area. This is simply a misconception.[27] The Indian Christian Marriage Act is not made applicable in these areas as it is specifically excluded from application to Travancore-Cochin areas. This vital fact which largely influenced the decision in Jose v. Alice was obviously omitted to be taken note of by the Full Bench. And it is this decision of the Division Bench that is affirmed by the Full Bench in George Sebastian. (supra)

 

The Indian Christian Marriages Act which the Full Bench seems to think applicable is not at all applicable in the areas which formed part of Travancore or Cochin. If what the Court speaks of ("the statutory law has stepped") is the Indian Divorce Act, it may be noted that it deals mainly with divorce and nullity of marriages. > And solemnisation of Christian marriages in these areas is regulated by the personal law, the Canon Law and customs.[28] Therefore, the Court should not have decided the question as to whether there was a validly solemnised marriage without recourse to the personal law. At any rate, this question could not be examined by looking into the provisions of the Divorce Act alone. This is especially so when the Supreme Court has held:—

 

"The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled". [29]

 

Thus the relevance of personal law was brought home by the Supreme Court even in a maintenance case. Therefore, whether it is in the case of maintenance or for other reliefs, a wife or husband must establish her/his civil status as a wife or husband with reference to the personal law applicable to the parties.

 

In George Sebastian, the capacity of the respondent (wife) to contract the marriage in question could be determined only by resort to the personal law applicable to the parties and if according to the personal law, the earlier marriage was void ab initio. the question of nullity of the marriage between the petitioner and the respondent would not arise as S. 19(4) of the Indian Divorce Act, 1869 will be attracted only if there was a marriage according to the personal law. If the marriage was void ab initio the marriage would be non est and it would have had no legal effect at all and since that marriage was only a simulation of marriage, that law which allowed the solemnisation of marriage (Canon Law) has the power to declare that the marriage was non est. That being so, the question of the former marriage being in force as contemplated under S.19(4) [30] would not arise.

 

Further, the Full Bench of the High Court seems to have proceeded on the assumption that the Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872 form the comprehensive legislation on the subject,[31] This does not appear to be correct as is evident from the preamble to the Indian Divorce Act, 1869 which states:—

 

"Whereas it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain courts jurisdiction in matters matrimonial".[32]

 

It is pertinent to note that it was not to 'make' or 'consolidate' the law, but to amend. That means there was some law then existing and the Divorce Act was to be part of that law. The concept of amendment in law postulates an antecedent law in force and in some cases the bulk of that antecedent law is kept alive and only the dead wood removed. Whenever there was no law, the legislature specifically noted the position. For example the Preamble of Divorce Act may be read in contra distinction with that of the Indian Christian Marriage Act, 1872 which reads:—

 

"An Act to consolidate and amend the law relating to the solemnisation in India of the marriages of persons professing the Christian religion".[33]

 

Now, therefore, it becomes evident that the Indian Divorce Act does not consolidate the law of divorce, but it only amends [34] the law and aims only at a limited intervention in the law by conferring jurisdiction on the Courts to exercise the same in these matters. And in the exercise of that jurisdiction the court has to act on the principles of English Divorce Courts as is made mandatory under S.7 of the Act.

 

The Indian Christian Marriage Act, 1872 consolidated the law relating to 'solemnisation' of Christian marriages rather than the substantive law of marriage such as capacity to marry and impediments. This is abundantly evident from the various provisions of the enactments. This position was correctly appreciated by the Bombay [35] Madras [36] and Allahabad [37] High Courts.

 

The Supreme Court appears to have approved of the finding of the Bombay High Court to the effect that the whole of the Indian Christian Marriage Act 1872 deals only with the ceremony of marriage.[38] and repelled the contention that it was not open to the courts to travel beyond S. 19 or the provisions of the Divorce Act to discover whether an impediment which renders the marriage null and void ab initio existed. And then the Supreme Court held that the question of capacity to marry and impediments in the way of marriage would have to be resolved by referring to their personal law, i.e., Canon Law.[39] In fact the Supreme Court travelled beyond the provisions of the Statutory Law to decide the validity or otherwise of a Christian marriage. This was made possible by the Legislature by enacting S.88 of the Indian Christian Marriage Act, 1872. It provides:—

 

"Nothing in this Act shall be deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into".[40]

 

Thus it was not intended to make any infraction on personal law which was to be held as substantive law. It was by resort to S.88 that the Supreme Court in Lakshmi Sanyal [41] recognised and applied the Canon Law as personal law of Catholics in deciding upon the validity of a marriage solemnised under the Indian Christian Marriage Act, 1872. It was a case where the statutory law, i.e. the Indian Christian Marriage Act, was made specifically applicable and yet the Supreme Court gave effect to personal law by resort to S.88 of the Act. In George Sebastian, there is no statutory law relating to solemnisation of marriages [42]. The Full Bench failed to note the importance of personal law in the light of the decisions of the Supreme Court

 

The British Indian Courts had taken a balanced view in those matters as is evident from the decision of the Bombay High Court which held:—

 

"any marriage which should for any reason be invalid in the eyes of that law (Canon Law) must also be held invalid in a civil court".[43]

 

The above reasoning of the court appears to stand fortified as the Court would get jurisdiction in a case of nullity of marriage only if the parties approach it under Sections 18 and 19 of the Act. And nowhere in the entire Act, it is stated that a declaration of nullity of marriage rendered under the personal law of the parties can have no legal effect.

 

The dissent from Leelamma's ratio or for that matter the non-application of the Supreme Court's decision in Lakshmi Sanyal hy way of distinguishing it was unwarranted. It is felt that having said in Moore v. Valsa that suppressing the fact of vasectomy [44] would amount to 'fraud', it is difficult to understand as to how their Lordships were able to take a different view disagreeing with Justice Chettoor Sankaran Nair, on the content of fraud in S.19 of the Indian Divorce Act as held in Leelamma's case. One fails to understand this stand particularly when the reasoning in George Sebastian is examined in the light of the following observation in Moore:—

 

"The pristine view that scope of fraud in matrimonial law has a narrow radius need not rigidly be adhered to in modem times .....In a way more liberal out look was adopted by the Courts in recent years".[45]

 

It appears that the view taken by Justice Chettoor Sankaran Nair in Leelamma's case, even apart from Canon Law is impeccable because a false representation as to caste has been held to be cheating [46] and further a consent signified by a woman has been held to be no consent at all, if the consent was given under a deception.[47]

 

In this context, it is worthwhile to notice the welcome received by Leelamma among academic lawyers.[48] The response of the Canonists was also not different. [49]

 

It appears that their Lordships of the Full Bench has ignored a vital aspect in upholding Civil Law against canon law, that they were dealing with a situation where there was no civil law but only Canon Law. The Full Bench relied on the Indian Divorce Act to find out the principles governing marriage, while doing so it failed to appreciate that the law relied on was not the Indian Christian Marriage Act or for that matter any other Marriage Act but the Indian Divorce Act which deals with post marriage status only.

 

In this context it may be mentioned that if a certificate of marriage issued under the authority of Canon Law is sufficient for the civil court to accept the marriage as valid, there is no reason why the civil court should not accept and act upon a certificate or decree granted under the authority of the same Canon Law, which provides for the grounds and a machinery to declare that no such valid marriage has taken place. Therefore any such declaration to the effect that a marriage is non est which should for any reason be valid in the eyes of that law (Canon Law) must also be held valid in a civil court.

 

Certain writers have opined that when personal law has the right to celibrate a marriage between Catholics, the right to declare nullity of marriage is implied. [50] Jurists go even beyond this. For example:—

 

"Since the Christians in these parts constitute a separate class for the purposes of marriage and divorce having regard to the tight grip of the church on them it would be in the fitness of things if Ss.18 & 19 of the Divorce Act are not made applicable to them. The Eparchial Court being the custodian of Canon Law may be conferred with the jurisdiction to decide the question concerning dissolution of Christian marriages".[51]

 

The recognition of personal law in Leelamma's case, following the Supreme Court decision in Lakshmi Sanyal for deciding the validity of marriages seems to be correct especially when there is no comprehensive statutory law in the field. This is particularly so when the personal law of Muslims has been recognised as a valid defence even against prosecution for bigamy.[52] Hence there is no rhyme or reason for the non-recognition, by the civil court, of a decree of nullity of marriage granted by the Eparchial Tribunals.[53] This is all the more so as laws exist for the sake of man [54] and not for the law. Further laws exist for the sake of life [55] and courts for the sake of enforcing them for the citizens.

 

Viewed from the context of the Constitution of India, it appears that Canon Law and its forums and procedure can claim protection under Art. 13(3)(b) of the Constitution as personal law was also a law in force at the commencement of the Constitution. Certainly the legislature has not thought it necessary to enact a zonal law to govern. Therefore, it is felt that it would have been better had the court refrained itself from rendering the opinion in George Sebastian.

________________________________________________________________

Foot Notes:

1. George Sebastian v. Molly Joseph, 1994 (2) KLT 387 (FB). (CM. Ref.No.5 of 1994 of the High Court of Kerala).

2. Kurian v. Alphonsa, 1986 KLT 731. (The marriage of the parties in this case was solemnised at the Sacred Heart Syrian Catholic Church, Erumapetty in Thrissur District).

3.Following the directive of St. Paul, the Catholic Church has a long tradition to settle disputes through its own tribunals. Such tribunals exist at the Eparchial (Diocesan), Metropolitan and even at a higher level. These tribunals can decide apart from other issues, the validity or otherwise of a Catholic marriage in case of dispute, in accordance" with then-personal law, i.e., in the present case Canon Law.

4. The law is the Indian Divorce Act, 1869.

5.Kurian v. Alphonsa, 1986 KLT 731 at 733. It may be noted that the Indian Divorce Act, 1869 was not enacted by Parliament, it was enacted by the Viceroy's Council-See: Gazette of India, 1869, Supplement, page 291. See: Infra Note: 31 also.

6. Ibid at para.9.

7. See: Code of Canon Law: English translation: Theological Publications in India. Bangalore: 1983. This Code is applicable to Latin Catholics.

8. See: Pius XII, Motu Proprio Crebrae allate, 1949. It was repealed by the Code of Canons of the Eastern Churches. 1990. which entered into force with effect from 1-10-1991. This Code also provides for the civil effects of marriage to be regulated by civil law as is evidenced by Canons 780 and 1358.

9. Jose v. Alice, 1988 (2) KLT 890. Here the marriage between the parties was solemnised at the Syrian Catholic Church, Santhipuram in Trichur District.

10. Ibid at page 896.

11.Ibid at page 893.

12. See: Ibid at page 891 and 897

13.See: The Schedule to the Part B States (Laws) Act, 1951.

14. Supra Notes 7 and 8.

15. Lakshmi Sanyal v. S.K. Dhar: (1972) 2 SCC 647 = AIR 1972 SC 2667, para.10

.16. Reynold Rajamani v. Union of India (1982) 2 SCC 474 = AIR 1982 SC 1261.

17.Leelamma v. Dilip Kumar, AIR 1993 Ker. 57 = 1992 (1) KLT 651.

18. On this, a reputed author*opined:-

"What is surprising is that it took Kerala twenty years to follow up and fall in line with a sentence of the Supreme Court of India given in 1972, which had recognised Canon Law as the personal law governing Catholics. Perhaps the responsibility for this delay has to be shared by the legal profession both civil and canonical".

* Professor George Nedungatt of the Pontifical Oriental Institute. Rome, in his forward to Marriage Laws in Canon Law and Civil Law by Dr. Joseph Vadakumcherry.

19. See: Paragraph 6 of the Judgment.

20. See: Paragraph 27.

21. See: Paragraph 16 of the Judgment.

22. See Paragraph 18 of the Judgment.

23. See Paragraph 18 of the Judgment.

24. Jose v. Alice, 1988 (2) KLT 890.

25. Ibid at page 891.

26. Ibid at page 897.

27. See: Supa Notes 12, 24-26. It can be noted that, the marriage in this case was solemnised in the former state of Cochin. The Indian Christian Marriage Act is specifically excluded from its application to this area by the Schedule to the Part B States (Laws) Act, 1951.

28. See: Cheriya Varkey v. Ouseph Thresia: AIR 1955 T.C. 225 and also Leelamma v. Dilip Kumar, AIR 1993 Ker. 57 = 1992 (1) KLT 651.

29. Yamunabai Anantrao Adhav v. Anantrao ShivaramAdhav. (1988) 1 SCC 530 at page 536. This decision was rendered in the context of S. 125 Cr. P.C. as was the case in Jose v. Alice.

30.Section 19(4) provides that a decree or nullity may be made on the ground; "that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force".

31.In this context the view taken in Mary Zoniz Zacharia v. Union of India, 1990(1) KLT 130 might be noted. His Lordship has stated that the Indian Divorce Act, 1869 was enacted by the British Parliament. It is not correct. It was enacted in India. This is evident from the despatch of the Secretary of State transmitting the Letters Patent (Letter from Secretary of Suite Judicial No.24 dated 14-5-1862,33rd para.) as is quoted in the Statement of Objects and reasons of the Indian Divorce Act, 1869 as published in Calcutta Gazette, 1863. page 173. It is pertinent to note that the view taken in Mary Zoniz, Zacharia v. Union of India, that S.10 of the Indian Divorce Act, 1869 as violative of Art. 14 of the Constitution has been disapproved by the Supreme Court in Anil Kumar Mahasi v. Union of India, J.T. 1994 (4) SC 409 = 1994 (2) KLT 399, (This decision of the Supreme Court requires further examination).

32. Preamble to the Indian Divorce Act, 1869. (Act No.4 of 1869).

33. Preamble to the Indian Christian Marriage Act, 1872. It is interesting to note that S .88 of this Act recognizes personal law applicable to the parties. It is thus a balanced piece of legislation to that extent.

34. See: Lakshmi Sanyal v. S.K. Dhar (1972) 2 SCC 647 para.6.

35. Peter Philip Saldanha v. Anne Grace Saldanha: ILR 54 Bom. 288.

36. In re Kolandaivelu (1917) 40 MAD. 1030 (FB).

37. Alfred v. Titili, AIR 1933 All. 122.

38. Lakshmi Sanyal v. S.K. Dhar (1972) 2 SCC 647 page 654.

39. Ibid at Paragraph 10.

40. See: The Indian Christian Marriage Act, 1872. (Act No.15 of 1872).

41. See: Supra Note 38.

42.See: Supra Note 13 and 27.

43.Peter Philip Saldanha v. Anne Grace Saldanha: (1929) ILR 54 Bom. 288 at page 313 = (AIR 1930 Bom. 105). It is pertinent to note that this decision was rendered in the context of the Indian Christian Marriage Act, 1872 and the Indian Divorce Act, 1869.

44. It may be noted that the fact (vasectomy) is amenable to correctional measures like re-canalisation. Further such a concealment has never been brought within the field of Penal law.

45.Moore v. Valsa, 1991 (2) KLT 504, para.7.

46. Mohim Chuder Sil (1871) 16 W.R. (C.R.) 12.

47. See:S.375 of the Indian Penal Code which deals with consent of a woman in a rape case.

48.Prof. K.N. Chandrasckharan Pillai: A comment on Leelamma v. Dilip Kumar alias Kochaniyan, 1992 (1) KLT 651 in 1992 (1) KLT Journal page 53.

49. Rev.Dr. Joseph Vadakkumcherry: Reflections on Leelamma v. Dilip Kumar, 1992 (1) KLT 651 in 1992(1) KLT Journal 73.

50. M.I. Joseph: Conflict between personal law and civil laws: Though the author had also thought that the Indian Christian Marriage Act, 1872 was applicable to that case, i.e., Kurian v. Alphonsa.

51. See: Supra 48 at pages 56-57.

52. Abdulla v. Noorjahan: 1987 (1) KLT 885. The right of Muslim husband to make a unilateral "Talaq" is recognised by the Civil Courts without any reservation whatsoever.

53. It is common knowledge that the church does not allow dissolution of marriage except on valid grounds. It is in fact very difficult to get a decree of nullity under the Canon Law.

54. And man includes woman also.

55. Here life should be given the meaning as given under Art.21 of the Constitution, where life does not mean mere animal existence.

The Story of a Maharaja

 

(T.G. John, Advocate, Trichur)

 

Once upon a time, when British Raj reigned supreme over our motherland, the country was strewn over with a number of princely States ruled over by Maharajas. The State of Gidore was one such princely state and like all States, it was also ruled by a Maharaja-Maharaja Vikaji Rao Bolkar. Like all Maharajas, he had a Prime Minister also - Rao Bahadur Dewan Chaman Lal. The Maharaja lived in great splendour, was very rich and loved his subjects. The ruler however had a partiality for womenfolk among his subjects. Some of the fortunate women entered the palace as Court musicians and many became his concubines according to his will and pleasure.

 

Prime Minister Chaman Lal had a mistress, a Punjabi Muslim woman called Jahnara who was an adept in Indian classical music and in Jehnara the Prime Minister had a daughter, Mumtaz, who was very beautiful with an extremely melodious voice and accomplished in western dancing and Egyptian 'Belly dancing'. Mumtaz used to give dance recitals in the palace and the last part of some of these dances ended in her becoming completely or almost nude. The Maharaja cast his covetous eyes on this eighteen year old girl and a faithful minister as ChamanLal was,he surrendered Mumtaz to his master. Mumtaz entered the palace and accepted to the ruler's embrace under the name Kamala Bai. Mumtaz was depressed and she did not like her life in the palace as the Maharaja's concubine. The Raja was fifty-two years old and herself only eighteen.

 

Captain Osman, a handsome young and Sandhurst-educated man was stationed as the Commandant of the Gidore Palace Guards consisting of a platoon of 250 riflemen. He had a strong, athletic figure and one day by sheer chance, at the palace he had a fleeting glimpse of Mumtaz. He was powerfully attracted by her. Mumtaz also felt the same for Osman and thereafter clandestine meeting followed. The scandal reached the Maharaja's ears who transferred him to another post very distant from the Palace. Osman therefore resigned his post under the Maharaja to join the Indian Army under the British. Meanwhile, Osman openly declared his engagement to Mumtaz and hisdecision to marry her according to Muslim rites. The Maharaja's fury knew no bounds. A few days later while Osman and Mumtaz were having a clandestine meeting, three masked villains appeared. One lifted Mumtaz bodily and dragged her away. Osman was unarmed but he dealt a heavy blow with a large piece of stone that one of the ruffians fell down dead. But meanwhile the other ruffians dealt a blow on Osman's head with a heavy lathi which cracked his skull. Osman's wounded unconscious body was carried away and thereafter nobody heard anything about Osman! The Maharaja chuckled.

 

From that day onwards Mumtaz and her mother Jehnara were virtually captives in the palace. Their applications to the Commissioner of Amritsar Division and the Governor of Punjab to grant them passages to their place of Amritsar went unheeded. Mumtaz became pregnant. She was admitted to the Gidore State Hospital for delivery. A still-born child was delivered but in the throes of the childbirth Mumtaz went out of her mind. She was taken to the Government Mental Hospital at Suri where she regained her senses. Thereafter the mother and daughter decided not to return to Gidore, to escape from the Maharaja's clutches and took up residence in a posh hotel in Bombay on the Marine Drive. There they got associated with a millionaire businessman Abdul Kadir Chawla. Romance developed between Chawla and Mumtaz and one fine day Mumtaz became his mistress and her mother Jehnara Ms house-keeper. But he still followed Mumtaz.

 

The Maharaja, as said before, loved all his subjects and had partiality for womenfolk! Somehow, he heard about Chawla's escapades and the jilting by Mumtaz. Chawla began to receive anonymous letters. Systematic attempts were made on his life. One day in January 1925, while Chawla and Mumtaz were going together in a spacious convertible of Chawla, with a liveried chauffelur driving it and as the car was approaching the Malabar Hill, another car coming from the opposite direction suddenly way laid Chawla's car. It was dusk. There was a fusilade of gunshots from the new car. The driver and Chawla fell in the car itself wounded. Mumtaz though wounded was taken bodily into the other car. At tins critical juncture, some British military officers were returning to their barracks after a game of golf. Hearing the commotion and shrieks, they took charge of the scene. There was a regular fight and Captain Seagart held one of the ruffiains in an iron grip, even though he himself was wounded. Tire other ruffians ran away leaving Mumtaz in the car. On the police arriving at the scene, the wounded were rushed to the hospital. But Chawla and his driver succumbed to their injuries. Mumtaz and Captain Seagart recovered. From the scene of occurrence, the police recovered a pistol which showed marks of the Gidore Army. Investigation revealed that the five assailants included top officers of the Gidore State Force, Mounted Police and Air Force. They were arrested on a charge of murder.

 

When the matter came upon-for trial before the Bombay High Court (having original jurisdiction at that time) the array of the accused included Ananda Rao Phanse, Adjutant General of the Gidore State Forces, Captain Sham Rao of Gidore Air Force and Shall Ahamad, a Risaldar of the Mounted Police of Gidore. The Maharaja provided the best defence for the accused. The leading counsel for the defence was late Mr. Jinnah, assisted by the advocate General of Gidore. The Bombay High Court sentenced Phanse and Sham Rao to death. The appeal of the accused to the Privy Council also failed.

 

The great sequel was that after this episode, the Maharaja of Gidore was notified by the Viceroy of India under the Government of India Act either to abdicate or face a Commission of Inquiry. The Maharaja who loved all his subjects, especially the womenfolk among them, chose to abdicate because he shivered at the idea of facing a commission and also because he had heard that the wages of sin is death!

About Jurisdiction and Compensation in

Cheque Cases — the Need for Amendment

 

(A comment, on- Jaya Baby v. Vijayan, 1993 (2) KLT 679 )

 

(Joseph Thattacherry, Advocate, Changanacherry)

 

In Jaya Baby v. Vijayan reported in 1993 (2) KLT 769, the only contention raised was whether the offence under S.138 of the Negotiable Instruments Act (for short "the Act") can be tried only by a Chief Judicial Magistrate or a Chief Metropolitan Magistrate, when the cheque amount exceeds Rs.2500/- It being a long agiatated question of law, an authentic judicial pronouncement on that question was long awaited. But in all humility and with utmost respect to His Lordship it is submitted that it is doubtful whether the question of law involved, is properly considered in the decision. The contention was repelled for various reasons, which seem not sustainable.

 

The first reason advanced was that "if the above argument gains acceptance the Chief Judicial Magistrate Courts would be Inundated with spate of complaints, since most of the cheques would be for amounts far in excess of half the figure upto which a Judicial Magistrate of First Class can impose the fine sentence. The Parliament would not have intended to create such a situation when it provided S.142 of the Act that no Court inferior to that of a Judicial' Magistrate of First Class shall try such offence". Such a situation (inundation with spate of complaints) is not a creation of the Parliament but a creation of unscrupulous persons who issue cheques that bounce. The intention of the Parliament in passing the new Act was with a view to enhance (lie acceptability and credibility of the cheques by punishing the guilty and also by compensating the loss of the complainant out of the fine realised. After the coming into force of the Act, people will think twice before they draw a cheque and the number of cases of dishonour of cheques would naturally diminish. Whatever it be,' the feat about ^inundation' may not be a ground for interpreting the provision in such a way as to confer jurisdiction to First Class Magistrate to try offences regarding cheques the amount of which exceed Rs.2500/-. Instead the Court should have considered at depth the legal aspects involved in the question. Such hardship or difficulty could very easily be overcome by the High Court invoking S. J 2(2) Cr. P.C. Under that provision the High Court could very well appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under the Code or any oilier laws for the time being in force as the High Court may direct. Thus by appointing sufficient number of Additional Chief Judicial Magistrates the problem of "inundation" could be solved.

 

Again if the First Class Magistrate are by the 'Act' invested with enhanced powers to impose sentence of fine, the problem 'inundation' could be solved much easily and the complainants could be adequately compensated. Such investment of enhanced powers we find in several Central Acts. For example, S.21 of Prevention of Food Adulteration Act, 1954, enjoins that "notwithstanding anything containedinS.29 of the Code of Criminal Procedure it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the First Class to pass any sentence authorised by this Act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his powers under the said section". Almost identifiable provision is contained in S. 36 of the Drugs and Cosmetics Act 1940 by which First Class Magistrates are empowered to impose any sentence authorised by that Act in excess of his powers under S. 29 of the Criminal Procedure Code. Similar provisions enhancing the powers of the Court are provided in oilier Acts also. If such a provision is inserted in the 'Act' enhancing the powers of imposition of fine by First Class Magistrates, they could have imposed fine which may extend to twice the amount of cheque and out of the fine realised adequate payment could have been made to the complainant.

 

But when the Parliament which inserted the above provisions for imposing enhanced penalties in other Acts, has consciously and deliberately omitted to insert similar provision in the 'Act', it has to be construed as a conscious and purposeful omission. We cannot attribute carelessness or forgetfullness to the Parliament. It has to be remembered that S.142(c) of the Act does not say that all cases under the Act shall be tried by a First Class Magistrate or Metropolitan Magistrate. But instead it only mentions that the lowest Court that could try any offence punishable under S.138 is a Metropolitan Magistrate or a Judicial Magistrate of the First Class. It means that superior courts are also empowered to try cases under the 'Act' and that the Second Class Magistrates have no such powers. Then the question arises, which court has to try, which offences under the 'Act'. It has to be decided by the Parliament which of the respective courts are empowered to award each case. Since the Court of a Magistrate of the First Class may pass a sentence, not exceeding Rs.5000/- and the superior Court, the Chief Judicial Magistrate has unlimited powers of imposition of fine under S. 29(l) & (2) of Cr. P.C. The intention of the Parliament is clear that only those cases involving cheques the amount of which does not exceed Rs.2500/- only shall be tried by a Judicial First Class Magistrate of Metropolitan Magistrate. Had the intention of the Parliament be otherwise, it would have made adequate provision, similar to that contained in 'The Prevention of Food Adulteration Act, Drugs and Cosmetics Act' etc. S. 16(1 A) and (IB) of the Prevention of Food Adulteration Act prescribes imprisonment which may extend to term of life and S. 27(a) of the Drugs and Cosmetics Act prescribes imprisonment for a term winch may extend to ten years. S.138 of the 'Act' provides punishment with imprisonment for a term which may extend to one year and with fine which may extend to twice the amount of cheque. Nowhere in the Indian Penal Code or in any other law, the quantum of fine that may be imposed is tagged to the loss sustained by the party aggrieved. So it can reasonably be inferred that one of the main objects of the ' Act' is to provide recompense for the loss sustained to the complainant, because it is well known that the principle of penal legislation never postulates that, penalty is the sole aim of legislation. In order to pay compensation the Court has to resort to S. 357(1) of the Code of Criminal Procedure, as observed by His Lordship. But if the First Class Magistrate is not that empowered the complainant is daminified. So the intention of the Parliament is that Chief Judicial Magistrate or Additional Chief Judicial Magistrate alone should try cases u/s. 138 of the Act, cheque amount of which exceeds Rs.2500/- It has to be remembered that identical provisions as we find in S. 142(c) viz. "no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under S. 138" are-contained in S.20(2) of the Prevention of Food Adulteration Act and S.32(2) of the Drugs and Cosmetics Act and other Acts as well. Then the omission to give powers to impose enhanced penalty as we find inserted in those Acts becomes more conspicuous and significant. Hence it is submitted that First Class Magistrate and Metropolitan Magistrate have no jurisdiction to try offence u/s. 138 of the Act where the cheque amount exceeds Rs.2500/-.

 

Relying on the decision of the Calcutta High Court reported in 1977 Crl. L.J. 1503 the Allahabad High Court in 'Ravindraprakash v. Union of India' (1984 Crl. L.J. 1321) held in a case involving an offence u/s. 27(a) of the Drugs and Cosmetics Act, 1940, for winch the maximum punishment prescribed is imprisonment for a term often years, that the case should have been tried by a Court of Sessions and not be tried by a First Class Magistrate. Those rulings were distinguished and held not applicable by His Lordship on two grounds. Firstly that "No particular Court is mentioned in the Drugs and Cosmetics Act for trial of offences under that Act". That is not a correct statement because S.32(2) of that Act provides thus "No Court inferior to that of a Presidency Magistrate or of a Magistrate of the First Class shall try an offence punishable under tins chapter". S.27 falls under the very same chapter. So the very substractum of the reasoning stumble to the ground and the reasoning fails. In 'Prem Pal Varsheny v. Union of India' reported in 1990 Crl. L.J. 989 the Allahabad High Court held that where it was crystal clear that the quantum of sentence sought to be imposed was beyond the power of the Magistrate u/s.29 of the Code, he shall commit the case to the court of Session. The second ground is that "under the second division of the First Schedule to the Procedure Code such offences can be tried by a Magistrate of the First Class". That also is not correct because S.26(b) of the Procedure Code says that any offence under -any other law shall, when any Court is mentioned in tins behalf in such law, be tried by such court and only when no court is mentioned it may be tried by any other court by winch such offence is shown in the first schedule to be triable. So, as the court to try such offences is specified in that Act, second Division of First Schedule to the Procedure Code has no application. Similarly in para.5 of the order His Lordship after discussing the applicability of S.26 of the Procedure Code, observes that even if S. 142 of the Act has not mentioned specifically as to the Court which can try the offence, any Judicial Magistrate of the First Class would have got jurisdiction to try the offence under S. 138 of the Act. Since S. 142(c) of the Act specifically mentions the Court which is to try the offence under the Act, .the said observation has no relevancy and applicability.

 

Two remedies are suggested by His Lordship to alleviate the grievance of the complainant in para.6 of the order. One is that the Magistrate could resort to the steps envisaged in S.325 of the Procedure Code. If so, since most the cheques are for amounts far in excess of Rs.2500/- the Magistrate of the First Class may have to submit his proceedings in all such cases and forward the accused to the Chief Judicial Magistrate after evidence is taken and arguments heard and formation of necessary opinion, as contemplated in the section. The Magistrate in such circumstances may not be able to differentiate and select some cases and forward them and at the same time refuse to forward some others. As the nature of such cases is the same, if he so does, he may be accused of partisanship which may mar the impartiality of the Judiciary. Naturally all the complainants are eager to recover full compensation. If the Magistrate took steps under S.325 of the Code, would not the Chief Judicial Magistrate Courts be inundated with spate of complaints? Not only that, the Chief Judicial Magistrate may have to try those cases denovo, which would cause much harassment and hardship to the accused as well as the complainant. So the first remedy suggested by His Lordship is not feasible.

 

The second remedy suggested by His Lordship is that a Magistrate can alleviate a complainant's grievance by resort to S.357(1) of the Procedure Code. That also is not feasible as the First Class Magistrate could not impose fine exceeding Rs.5000/- and he could compensate the complainant only out the fine recovered, which under no circumstances will exceed Rs.5000/-; In most of the cases the cheque amount will be much higher. So payment of compensation by a First Class Magistrate with limited powers of imposition of fine will not alleviate a complainant's grievance. So both the remedies recommended by His Lordship are not practicable. Thus the malady continues and the remedy eludes. It is not fair and proper to push the complainant to a civil court for realisation of the cheque amount as the intention of the legislature is otherwise.

 

Now considering the various aspects involved in the question, it is most respectfully submitted that the Hon'ble High Court be pleased to appoint sufficient number of Judicial Magistrates of the First Class to be Additional Chief Judicial Magistrates, u/S.12(2) of the Procedure Code or to recommend to the Central Government to invest First Class Magistrates and Metropolitan Magistrates with enhanced powers of imposition of fine under the Act, notwithstanding anything contained in the Code of Criminal Procedure. Hence it is submitted that the decision in Jaya Baby's case requires reconsideration.

Tax on Knowledge

 

(K. Sukumaran, Former Judge, High Court of Bombay & Kerala)

 

1. In my early infancy, I was taught one of the enduring lessons of life. It was done with all the imprint of authority. The verse was in Sanskrit, then revered well. Its gist was:

 

The thief can't steal it;

The King can't rob it;

Not to be shared with the brothers

Nor a burden that bothers;

 In daily deals, it increases as you spend;

 Knowledge is the best asset you can vend!

 

2. Knowledge could be gained in diverse ways. In some fields, proficiency may be in born with the family and environment. Some branches may require harder toil and greater expenses. The Indian case law has brought the distinction between the two types: Prostitution and the Indian Civil Service. The bias, was however, always in favour of the industrious scholar.

 

3. The Privy Council observed:

 

"Many a learned man makes nothing and many a specialist gets on his profession by pertinacity and mother wit. It is difficult to decide whether the emoluments are "the rewards of the learners brains and industry and good fortune".

 

4. In tune with the Indian sentiments, the Indian legislature passed an Act, to ensure that the gains of one's own knowledge did not go to swell the assets of me Joint Family in which he was born. Hindu Gains of Learning Act, 1930 set the controversy at rest. What is relevant is the outlook on acquisition of knowledge.

 

5. In England, people and their representatives in Parliament were unanimous in their opposition to any taxing measure which imposed any financial burden on the acquisition of knowledge. The reason is not far to seek A.L. Rowse records:

 

"Melbourne was an omnivorous reader. Pitt a good classic; Fox and Palmerston had languages at command. "Politics were not then the life sentence to hard labour that in our iron age they have become”.

 

6. Such taxes as the stamp duties on newspapers which rendered it impossible in those days to sell a daily newspaper at a price that allow it, to come into the homes of the poorer classes, were considered as 'taxes imposed upon the spread of knowledge'. According to Trevelyan, taxes on knowledge consisted of an excise duty on paper; a tax of one shilling and six pence on every advertisement however short; and a newspaper stamp of a penny on each sheet.

 

Those who have lightened the burden of taxation have been remembered by the enlightened for their imaginative acts.—Akbar who reduced the King's share to a third, and the British who had reduced it to a eighth or twelth.

 

7. Tax on knowledge can be levied directly, and some times even indirectly. Denying a deduction of expenses in computing income, is indirect impost of tax on knowledge when the expenses are incurred for acquiring knowledge.

 

8. Permissibility of expenses on deduction for Income Tax purposes had been subject matter of keen legal controversy. The precedents are more puzzling than dazzling. A conflict in the views of Law Lords in House of Lords which came out openly, is indicative of the sharpness of the conflict. The view of one of them was characterised by another as 'confusing'; and he proceeded to observe that such confusion would cause chaos in the administration of Revenue Laws (Smith v. Abbott 1991 (1) All England Law Reports 673). The decision has referred, almost exhaustively to the precedents dealing with permissibly of deductions under the relevant provision of English Act, which is more stringent and restricted than S. 37 of the Indian Income Tax Act, 1961.

 

9. A more comprehensive view on the term 'expenditure incured wholly and exclusively', had been taken in early times in the well known Vellambrosa case. Such a perspective is preferable in areas where statutory obstructions are absent. That would be in consonance with a better management of the Revenue Laws, conserving for the State in the long range, what is due to it, and at the same time, encouraging the entrepreneur to spend initially so that income would be generated, if not immediately, atleast in the forseeably near future. Ultimately, it is the Revenue which is benefited by the derivation of such income, by having the opportunity to slice off a portion of that income for sovereign use. The resistance to encourage initial expenditure by denying a permissible deduction in the computation of income, would be counter productive in the ultimate analysis.

 

10. Apart from heavy burden directly imposed on the means of acquisition of knowledge, there could be indirect but equally onerous imposts. That has now become clear beyond doubt,

 

A provision for permissible deduction in the Income and Corporation Tax 1970 as enacted in Britain is illustrative. Farewell C.J. refers to those corresponding provisions of England as "notoriously rigid narrow and restricted in their operations". Many were the victims of the rigidity and narrowness of that provision.

 

11. Way back in 1925, a medical man was roughly treated by the Revenue. He joined certain medical and scientific societies in order that by means of their meetings and published transactions, he might be aware of all recent advances and keep himself upto date on all medical questions affecting public health. (Many may infer from the thin attendance in IMA meetings, that such a habit is not so astutely cultivated among the Indian Medical men). The expenses incurred were claimed as permissible deductions while computing the income. The claim was disallowed by a Judge familiar with Taxation jurisprudence. It is doubtful whether the reasoning advanced was not a fragile one. However, the reasoning supporting of the conclusion was expressed by him, as follows:

 

"When one looks into the matter closely, however, one sees that these are not moneys expended in the performance of his official duties. He does not incur these expenses in conducting professional inquiries or get the journals in order to read them to the patients".

 

12. Twenty years later, a student Assistant in a Research Laboratory of a company had a similar unfortunate fate. He was required by his employer as a condition to employment to attend classes for preparation of final examination for Degree of Bachelor of Science. The employer allowed time off to attend the classes for that purpose. There was a claim to deduct for Income Tax purpose, the expenses he incured in travelling to and from the classes and in the purchase of text books. It was Macnaughten J. who pronounced on the claim. He observed that:

 

"the duties of his employment were as a Student Assistant in the Research Laboratories on the General Electric Company".

 

The Judge continued:

 

"It seems to me impossible to say that, when he was listening to the lecture at the Chelsea Polytechnic, he was performing the duties of a student assistant at the laboratories of the company".

 

13. It is little wonder that expenses such as had been incurred by a Regimental Officer in joining the Mess, which under the Regulations he was obliged to become, had been disallowed in the year 1953.

 

14. More directly on the questions of the deductability of expenses for educational activities was a case decided in 1962. A Head Master was required to teach history in a school. He attended a series of week-end lectures on history. The Court accepted the fact that the Headmaster

 

"attended the course to improve his background knowledge of the subject.... he gleaned useful information from the lecturers .. he felt the course was essential to keep himself up to date ... to provide him with materials which he reproduced in the history lessons".

 

Even then, the claim was rejected!

 

According to the Court, deductable expenses do not include expenses incurred in qualifying initially to perform the duties and in adding to his usefulness in performing his duties.

 

15. Three decades later, the journalists themselves became victims of this harsh treatment of the Revenue law.

 

16. Under the agreement with the National Union of Journalists, allowances were granted for purchase of newspapers and periodicals, which could equip them better to perform the duties as reporters, photographers or editors. No doubt, the amount involved in the litigation was substantial. The membership of National Union of Journalist exceeded 30,000. The yearly expenditure per head come to about 1000 pounds. The aggregate amount was a substantial amount of 30 million pounds! In pure theory, of course, the range of the revenue is not decisive on the ultimate conclusion. Yet, that aspect was referred to in the final decision rendered by the House of Lords in July 1993 (Smith v. Abbott 1994 (1) All ER 673).

 

17. There were two batches of cases, with the Departmental set up in Scotland and England taking divergent views. Ultimately, the decision turned out to be adverse to the Journalists.

 

Lord Templeman gave the leading Judgment on behalf of the House. The emphasis was on the distinction between the performance of duties and enabling the duties to be performed. Templeman observed:

 

'When he reads newspapers and periodicals he is not acting in the performance of his duties as a reporter'.

 

18. That Lord Brown-Wilkinson took a different view is poor consideration for the Journalists. According to him:

 

"Knowledge of each day’s news and the way it is being dealt with by other newspapers is the raw material from which that day's news is presented in that day's paper. Each day’s paper is a separate lecture; each day's work is preparation of that lecture and each, day's reading of other newspapers is research for that day's lecture. Certainly on the facts found, the knowledge acquired from daily reading of news papers could not properly be described as being merely preparatory or by way of background information'.

 

Journalists may find the approach and conclusion as congenial and comfortable. Yet, from the practical angle, it offers them little solace. The majority has its way. It did act and affect them, in hard way and on harsh terms. The decision has been criticised in 1994.110 LQR page 364.

 

19. When the highest Tribunal of law, hands down an authoritative verdict, it has necessarily to be accepted as the law till such time that a later and stronger Bench decides otherwise. (We in India are now having such experiences fairly frequently!)

 

20. Fortunately for India, the provision regarding permissible deduction does not appear to be that narrow or that rigid. It may be hoped that liberalisation may not make the Administrators, follow the English example!

 

21. I have before me one volume of a foreign law journal, the All England Law Reports, and its bill for Rs.13,331! How many among the lawyers who are expected to assist the Judges, afford, subscribing for that informative report? There are many Law Colleges, where Post-graduate teaching is also undertaken, which have discontinued the subscriptions for such costly journals. And the teachers unfamiliar with the later trends are to guide their wards!

 

They have doubtless missed the sonorous song of Tagore praying for the country to awake

 

'where knowledge is free,

where the world has not

broken up into fragments by

narrow domestic walls

 

22. Doubtless, the above situation is not one faced by law colleges only, but all colleges in the country; not merely in the Delhi University but in all Universities in the country. That is an aspect in which Ministers of Education and Finance would do well to bestow some thought as soon as they can. Taxing knowledge, would be vexing the intellect

 

23. Every one extols the virtue of Education, the Finance Ministry included. We will have no disbelief in the man who holds the string of the purse, for, he was himself an academic but yesterday. Yet, we feel unduly disturbed when a renowned Vice-Chancellor of his own University resigned over the failure of the Government in making available to a prestigious University the subsistence level funds. No one is alarmed about such developments. The claim of a Minister that he will not lose his sleep, whether there be a scam or a plague, does not disclose a Samsonite strength.

 

24. Why is it that even when a Vice-Chancellor had to quit his office because of the tax on knowledge, no one appeared to be alarmed about it? The brilliant students; the vigilant teachers, the shrewd intellectuals and dedicated public men watched the event with perfect detachment. Will it not lead India into the labyrinths of gloom? - India which taught the world, the glory of liberation into the fulness of knowledge? It is time for the people to get worried about a possible bleak future for the Nation and the remedial measures emergently needed to redeem the situation.

 

"What was held by the House of Lords in these cases was that Oils decision should be taken by the Court and not by the employer".

 

He is of the view that two significant questions were omitted to be raised during the course of the case when it was argued.

 

"The first question is this: If the employers had bought the newspapers for the employees to read, at the place of work or elsewhere, would the employees have then.had to pay tax?

 

And the Second question is: Would it have made any difference if the journalists had not been employees, Schedule E, but had been freelance, Schedule D?"

 

A graver question projecting a point which may adversely affect the Revenue is thereafter raised:

 

"If the Revenue wants to claim that an activity is somehow outside the scope of an employee's employment - so that he cannot deduct the expenses arising from the activity - then the logic of the Income Tax system, and it is basically logical, may suggest mat payments made to the employee in relation to the activity are not emoluments from the employment and so are not taxable".

 

What is relevant in the present context is not the finer naunces of taxation jurisprudence, but the effect that the decision had in adding to the burden on a journalist for his inalination to have an intellectual activity, inter-linked and inter-twined with the better and more efficient discharge of his duties as a journalist.

___________________________________________________________________

NOTE

The above decision has been subjected to a strong critical review by Roger Kerridge of the University of Bristol. A history of the Income Tax Legislation dating back to 1853 when Gladstone in his first budget, introduced the Income Tax Act, 1853 has been alluded to in the article. The criticism notes that the essential problem is with the phrase "in the performance of the duties of the employment". According to Roger, the problem is not one of wording; he poses the problem; who is supposed to decide what these duties are, is it to be the employee, the employer or the Court? and expressed his view about the decision:

Humour in Robes

 

(S. Parameswaran, Advocate, High Court of Kerala)

 

Law, literature and humour were inseparable companions in the days of yore. Ever since the nobility and learned nature of this oldest profession in the world started going down the Gadarene slope, and what was essentially a profession with its etiquettes, ethos, rigour and rhythm started degenerating into a trade, thanks to the influx of undesirable and undeserving persons into the field, these essential traits also started disappearing from the arena. The lawyers, and the judges, whose origin is in the lawyers, have, apart from undergang other qualitative degeneration, lost their sense of humour. One has, therefore, to be content with nostalgic memories of the past when law, literature, legality and lighter vein used to be visible in a commendable camaraderie.

 

The immediate provocation for these lines is a small incident that took place yesterday (24-10-1994) in the Court of Honourable Chief Justice. A batch of cases in which this writer appeared for the appellants was taken up for hearing. This writer sought for adjournment on the ground of his having to go out of station on professional work and submitted that it could be taken on a specified date. The puisne Judge sitting with the learned Chief Justice humourously asked what guarantee was there that this writer would be back and argue the cases on that day to which this writer replied that he would come back and argue, if he was alive. The junior Judge said that, that is the case with everybody. Then pat came the remarks of Chief Justice Sujatha Manohar "That is all the more the reason why the cases should be argued by you today", which threw the full court into reels of laughter. Without exaggeration it may be said that after the M. S. Menon Court, it was for the first time that one could witness such sharp witted and humourous comments from the Chief Justice's Court.

 

Talking of M.S. Menon, Chief Justice, who is one of the most intelligent Judges 'that adorned the Kerala High Court, the repartees exchanged between him and the late lamented doyen of the Bar, Thycaud Sri Subramania Iyer rush to one's mind.

 

Once during monsoon, Thycaud's case was called in the First Bench of Chief Justice M.S. Menon and Justice Govindan Nair. As usual, Iyer who was not in Court rushed to the Court Menon C J. said "Slowly, slowly Mr. Thycaud. It is slippery outside over there". Without batting an eyelid replied Thycaud, "Yes, I know My Lord. And I know that this Court is more slippery!". The whole court roared with laughter.

 

On another occasion, Justice Menon, who revelled and exulted in provoking Thycaud, pointing to the cracks in the outer wall of tire Court hall told Sri Iyer "Look there, Sri Iyer, there are several cracks over there. What shall we do?". Without pausing for a minute, Iyer replied "Yes, My Lord, I saw that - But there are bigger cracks within this Court. I am concerned about it" Needless to say, Justice Menon, with his partly frame and penetrating intellect, shook with laughter.

 

On another occasion, Sri Menon, who could not brook mediocre, presentation or prosaic agreements or bad English, told a counsel, stopping his harangue midway, "Look here, Mr........, you are now making your valuable (!) contribution to the jurisprudence of this country to the detriment of your client and the delectation of the bench". Poor counsel, he took it as a compliment and patted himself on his back!

 

The illustrious Supreme Court lawyer of yesteryears Sri. A.V. Viswanatha Sastri was as much notable for his sense of humour as for his sharp wit, voluminous practice, frugal living and dishevelled attire and appearance. Justices Jeevanlal Kapur and S.K. Das of the High Bench, who were highly appreciative admirers of Sastri, delighted in taunting him to bring out his repartees. Once Sastri argued a Special Leave Petition in Das, J's Court and rushed off to another Court. Finishing argument in a case there, he rushed back to Justice Das's Court to argue another case. He went on repeating the process, when, unable to control his tongue, Justice Das remarked, "Mr. Sastri, you are all the time coming back to us like a bad coin" Spontaneous came the reply of Sastri "My Lord, Your Lordships may not talk of bad coins because Your Lordships came every day to the Court". A peel of laughter went around the Court.

 

I may conclude these lines mentioning an incident involving, Thycaud, Justice P.T. Raman Nayar, as he then was, was sitting in a bench dealing with Second Appeals admission and hearing. Nayar, J., wlto was a very competent Judge, had prejudices and predilictions. His.Lordship was dismissing all cases listed for admission on aparticular day. When a week case of a favourite lawyer of his came up, Justice Raman Nayar without hearing at length, admitted the Second Appeal and granted stay. Then came the tarn of Thycaud. The indefatigable, illustrious and irrepressible lawyer, in his inimitable style, opened his arguments, "My Lord, my first submission is that my case is not as bad as that of my learned friend Mr......(meaning the favourite of the Judge)". Before he uttered the next word, the Court ordered: "Notice and interim stay". It is our benighted fate that we have to remain content with the nolstagic memories of such lawyers and judges who enriched the law of life with their sharp wit and witticism, remarkable presence of mind, commendable perpicacity, incisive analysis, sturdy independence and priceless integrity. Such great men will ever remain an outstanding ever-blazing comet in the legal firmament.