A Comment on 1995 (1) KLT 61 -- Mathew v. Saramma

(V.K. Sathyavan Nair, Advocate, Kottayam)

The construction of the second proviso to S.33 of the Evidence Act as embodied in the decision of the Division Bench in 1995 (1) KLT 61 (Mathew & Saramma) appears to be not free from doubt.

Substitute for Viva Voce testimony

Section 33 of the Evidence Act provides a substitute for 'Viva voce' testimony and is an exception to the normal rule that it is necessary to produce every witness at the trial for taking deposition. When the production of a witness in a subsequent proceeding is actually impossible the evidence already given by that witness in earlier proceedings would be relevant under S.33. The circumstances under which physical presence of witness cannot be insisted upon for taking evidence are enumerated in the Section itself.

The emergencies are:

i. when the witness is dead

ii. when he cannot be found

iii. when he is incapable of giving evidence

iv. when he is kept out of the way by the adverse party.

v. when his presence cannot be obtained without unreasonable delay or expense.

No doubt S.33 embodies a rule of forensic necessity arising out of administrative expediency for doing justice between litigants in particular situations. It cannot also be disputed that the powers vested with the court under S.33 of the Evidence Act have to be exercised with great caution only after satisfying that all the requirements have been strictly proved. It may also be mentioned that S.33 does not enjoin upon the court that the statement of witness given in previous proceeding and admitted in subsequent proceeding must be believed. What the section provides is that the former evidence is relevant for the purpose of proving the facts it states.

Application of second proviso to S.33 of Evidence Act

In this article we are concerned only with the scope and object of the second proviso to S.33 which reads: "that the adverse party in the first proceeding had the right and opportunity to cross examine". The Division Bench in (1995 (1) KLT 61 - Mathew v. Saramma) took the view that a defendant in a subsequent proceeding cannot use the evidence given by a witness who was examined in the former proceeding on the side of the plaintiff. The reasoning is that the evidence goes against plaintiff who had no right to cross examine his own witness in the earlier proceeding and the statement of such a witness cannot be used against him.

The principle laid down by the High Court can be explained by referring to the facts of the case. In the former proceedings between A and B as plaintiff and defendant respectively C was examined as A's witness. B who was the defendant in that proceeding had cross examined him also. There is a subsequent proceeding between A and B as plaintiff and defendant and the question in issue is substantially the same. Meanwhile C died. His statement in the prior proceeding is sought to be admitted on the side of B the defendant. (It may be assumed that the statement may be favourable to B to a certain extent though he was examined as A's witness). Then A raised the objection that C was his witness in the earlier proceedings and that he had no right to cross-examine him and therefore, the statements inadmissible. The High Court upheld the objection the ground that A had no right to cross examine C and the requirement of second proviso has not been fulfilled. The court interpreted the words 'adverse party in the first proceeding' as adverse party against whom the evidence is tendered in the second proceeding. In other words 'adverse party' as used in the proviso mean 'A' and not 'B' in the instant case.

If this view is accepted as correct the very object of S.33 would be defeated and would lead to the inequitable result that evidence can be used by 'A' one of the parties and the same evidence cannot be used by the other party. Is it not an illogical, unjust and unreasonable doctrine?

Right and opportunity to cross-examine

It seems rather strange, observed Rajasthan High Court in Poonam Chand v. Motilal (AIR 1955 Raj. 179) that person who himself examines a certain witness should be permitted in a subsequent proceeding to raise an objection that the statement should not be admitted because he had no right or opportunity to cross examine him. The rule in this proviso depends upon the principle of reciprocity, it being reasonable that the right to use evidence should be co-extensive with the liability to be bound thereby whether the party be plaintiff or defendant. The word 'right' used in the section means a right conferred by a statutory provision such as that contained in S. 138 of the Evidence Act and a not a right accruing from mere permission granted by the court as in the case of co-plaintiffs and co-defendants. The object of the second proviso is to protect the parties who were ex-parte in the former proceeding and also to protect co-plaintiffs and co-defendants who may not have the right and opportunity to cross examine the witnesses produced from their own side. The cross-examination may be by a co-plaintiff, co-defendant, co-accused or co-respondent as well as by the adverse party.

Who is adverse party in the first proceeding?

The Division Bench while construing the Section gave emphasis on the words 'right and opportunity to cross examine' and gave no effect to the words 'adverse party in the first proceeding'. The language of the section is clear and the normal construction is that if the adverse party in the first proceeding had the right and opportunity to cross examine the witnesses, his evidence is relevant provided the other conditions are satisfied. There can be no dispute that the expression 'adverse party' is used to distinguish that party from the party who calls the witness and that expression in the proviso can only refer to the party which was the adverse party at the time when the deposition was recorded in the first proceeding. The expression adverse party in the first proceeding does not mean the party against whom the evidence is sought to be adduced in the subsequent proceeding. But the Division Bench took such a view and concluded that the evidence of the witness in the first proceeding is sought to be used against the plaintiff and therefore, the plaintiff is the advese party and as he had no right or opportunity to cross examine that witness, his evidence cannot be used under S.33. In taking such a view the court did not consider the implication of the words 'in the first proceeding' qualifying 'adverse party'. The plain meaning of the proviso is that the question who is the adverse party has to be determined with respect to the first proceeding and not the second proceeding where the prior deposition is sought to be used.

A fair construction

In Poonamchand v. Motilal (AIR 1955 Raj. 179) Division Bench consisting of Wanchoo C.J. and Dave, J. had the occasion to deal with exhaustively the scope and object of second proviso to S.33. A reading of para.18 of the Judgment would show that the conclusion of the Rajasthan High Court appears to be more reasonable, logical and convincing than the passing observation contained in AIR 1926 Cal. 705. It was observed by the learned Judges of the Rajasthan High Court as follows:—

"Learned counsel wants to read the proviso as if it ran as follows:—"The adverse party in the subsequent proceeding had the right and opportunity to cross-examine the witness in the first proceeding". If the legislature had drafted die proviso in this manner then the court could have no option but to interpret it as it would have stood. But when the words in the proceeding' have been used, just after die words adverse party and not at die end of die clause, then it does not seem proper for die courts to change the sequence of words to suit die interpretation. The question to be considered is as to what was meant by the words "die adverse party in die first proceeding".

......It also seems unfair that a person producing a witness in die previous proceeding should be able to utilise die statement, in a subsequent proceeding while die adverse party should be denied die right of using die same statement against die party producing die witness in case such a deposition goes in its favour".

The Kerala High Court did not agree with the view taken in Poonamchand's case. The court observed: "We have carefully read the words used in the proviso to S.33 of the Evidence Act. We are unable to accept the above view held by the learned Judges in Poonamchand v. Motilal (AIR 1955 Raj. 179). If the above view is accepted the proviso itself was quite unnecessary and it would have been suffice to say that an evidence given by a witness in a judicial proceeding as before any person authorised by law to take, is relevant for the purpose of proving the subsequent judicial proceeding the truth of the fact which it states, between the same parties or their representatives in interest".

But a careful and plain reading of second proviso to S.33 would reveal that its object is to ensure that no previous statement is admitted in evidence unless the opponent had the opportunity to cross examine as of right and test the truth of the statement at the time of recording the deposition. So the expression 'adverse party' in the proviso means the opponent against whom evidence is given in the previous proceeding. There is no sound reason for interpreting otherwise which would yield to unjust result that the same evidence is admissible when produced by one party and in admissible when produced by the other party.

Therefore, it is submitted that the decision needs a second look.

Case of "Common Cause"

(By V.K. Sathyavan Nair, Advocate, Kottayam)

A Judge is not to innovate at pleasure. Judicial innovation has its own limits. Courts legislate only between gaps and fill the open spaces in law. That Judges did not legislate at all is an old theory. The modern view is that the power to declare the law carries with it the power, and within limits the duty, to make law when none exists. While fixing the meaning of a statute a Judge sometimes functions as a legislator. Does this power of legislation extend to changing the enactment by adding new provisions?

In an effort to streamline Criminal justice system the Supreme Court has recently formulated some mandatory rules in "Common Cause: A Registered Society through its Director v. Union of India and others”. The rules directs the trial court to acquit or discharge the accused as the case may be in certain class of cases pending before the Criminal courts.

The judgment written by B.P. Jeevan Reddy, J. is not supported by any elaborate discussion or reasoning except the statement that it appears essential to issue appropriate directions to protect and effectuate the right to life and liberty of citizens guaranteed by Art.21 of the Constitution. The court felt that it is necessary to ensure that these criminal prosecutions do not operate as engines of oppression.

"Common Cause” a registered Society espousing public causes has asked for these directions in a Writ Petition filed by them and the court issued notices to Union of India and the State Governments of Utter Pradesh and Bihar and to the Delhi administration. While granting the directions suggested by 'Common Cause' the court made it clear that the Criminal Courts and all Courts trying criminal cases shall take appropriate action in accordance with the directions issued by the Supreme Court. It is also made clear that the directions are applicable not only to cases pending but also to cases which may be instituted hereafter.

The rules enunciated by the apex court are to be deemed as having been incorporated in the Code of Criminal Procedure. Directions numbered as clauses 1 (a), (b) and (c) of paragraph 4 of the judgment cover cases where the accused are in jail and the trial court shall release these accused on bail on personal bond. There can be no dispute that granting of bail in bailable offences is a matter of course. Sub-section (1) of Section 436 Cr. P.C. read along with the proviso provides that the release may be ordered on the accused executing a bond and even without sureties if the officer or court thinks fit. Under Sec. 446-A the bond or bail bond can be cancelled for breach of a condition and thereafter no such person shall be released only on his bond except where there is satisfying cause for the failure to comply with the condition. Sub-section (2) of Section 436 empowers the court to refuse bail even if the offence is bailable where the person granted bail fails to comply with the conditions of bail bond. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the court and the power to grant bail vests in the court before whom an accused appears or is brought subject to the special powers of High Court or Court of Session.

It has been laid down in AIR 1979 SC 1360 that where delays in the disposal of criminal proceedings take place, the accused ought not to be kept in custody for an inordinately long time and strongly emphasised the urgent need for provision enabling release on bail. Now according to the new rules enforced by the Supreme Court, the trial court need not consider the circumstances and the merits of individual cases and exercise its discretion judiciously as the trial court is bound to release the accused provided the conditions stipulated by the Supreme Court are satisfied. They are mandatory rules to be followed by other courts in all classes of cases referred to by the Supreme Court.

The directions contained in clauses 2 (a) to (1) of paragraph 4 are concerned with the discharge or acquittal of the accused, as the case may be. As per clause 2 (a) the trial court shall discharge the accused in traffic offences where the proceedings are pending for more than two years. The pendency may be due to the non-servicing of summons to the accused or any other reason. Even if the delay is caused by the accused's wilful default he is discharged and the case closed. It is significant to note the words 'the court may discharge the accused and close the case'. In summons cases and summary trials the accused is either acquitted or convicted and there is no scope for discharge. What are traffic offences? Does it include offences under Sections 297, 337, 338 and 304A IPC? Is there discharge of accused in 'petty' cases? These aspects require clarification.

The direction contained in clause 2 (b) deals with cases compoundable with permission of courts. If such cases are pending for more than two years and trial of cases have not yet commenced, the accused shall be acquitted or discharged after hearing the public prosecutor and other parties represented before it or their advocates. What is the purpose of that hearing if the accused is to be either discharged or acquitted and not to be convicted?

The next guide line as contained in clause 2 (c) covers non-cognizable and bailable offences. The accused is entitled to a discharge or acquittal provided the following two conditions are satisfied.

(1) Cases pending for more than two years.

(2) Trials have still not commenced.

Paragraph 5 of the judgment lays down that the period of pendency of criminal cases shall be calculated from the date the accused are summoned to appeal in the court. It is doubtful whether the date referred to above means the date of issue of summons or the date shown in the summons for appearance before court. The words 'commencement of trial' are also not capable of precise definition and the meaning varies with the context in which they are used in the various section of the Code of Criminal Procedure (See Chapters XVIII, XIX, XX, XXI etc.). Under Section 238 Cr. P.C. commencement of the trial means the appearance or bringing of the accused before a Magistrate after the filing of police report under Section 173 (5).

Ordinarily trial means examination of a cause in controversy. Inquiry includes every inquiry other than a trial conducted by a Magistrate or Court (Section 2 (g), Cr. P.C.). So evidently trial commences after enquiry. After charges are framed and read out to the accused in trials of warrant cases and trials before Court of Session, he shall be asked whether he pleads guilty to the charge or whether he claims to be tried. In summons-cases the particulars of the offence of which the persons are accused shall be stated to them and then the accused shall be asked whether he pleads guilty or has any defence to make. When there is no conviction on plea of guilty, trial commences. In all these classes of cases if the accused claims to be tried the magistrate or the court shall proceed with the case for taking evidence. Is it not reasonable and logical to infer from a reading of the relevant provisions of Criminal Procedure Code that ordinarily trial commences from the date fixed for taking evidence in a case? The Supreme Court left the point without clarifying it.

Apart from these nebulous areas, the far-reaching consequence of clause 2 (c) of the directions, in so far as criminal complaints under Section 138 of the Negotiable Instruments Act are concerned, has not been brought to the notice of the Supreme Court. Complaints filed under Section 138 of the Negotiable Instruments Act pertain to non-cognizable and bailable offences coming within the scope of clause 2 (c) of paragraph 4 of the Supreme Court judgment.

Such complaints are on the increase. According to the Supreme Court direction if the accused is able to evade the process to compel appearance before court he gets an acquittal after the specified period. It ends in denial of justice to a complainant. He is without any remedy. His civil remedy also might have been barred by the time the accused is discharged under clause 2(c). It is obvious that the Supreme Court did not apply its mind to such instances resulting in gross injustice.

There can hardly be any dispute that it is the prerogative of the trial court to convict, discharge or acquit the accused as the case may be and such decisions are subject to the scrutiny of higher courts. The permanent character of the mandatory rules enumerated by the Supreme Court gives them the force of an Amending Act, changing the provisions of Code of Criminal Procedure. It is an instance of judicial legislation and I do not intend to discuss in this article whether the court has acted within limits. That question apart, the application of the rules may result in injustice since the entire aspects have not been brought before the notice of the court. It is submitted that the decision requires further scrutiny and clarification.

Egoism Versus Family Solidarity : Women's

Property Rights In Kerala

(By Dr. Werner Menski, SOAS, London University)

At 1993 (1) KLT, J.45-48, Dr. Lucy Carroll argues that I have disregarded the legitimate claims and concerns of the Mitakshara Hindu daughter while criticising some of the effects of the Kerala Joint Hindu Family System (Abolition) Act, 1975. Surely, one could have said more about the daughter, but what I wrote a few years ago was based on extensive fieldwork in Kerala in 1985/86, focused on the lack of fit between the officially declared urban-based law and 'people's law' in the villages. There was, as far as I could see, no evidence of concern on the part of the urban lawmakers about the rights of the Mitakshara daughter. At any rate, in Kerala there are other kinds of Hindu daughters who have traditionally had belter rights.

Clearly, some of the problems that my fieldwork identified are of a transitional nature and are not unique; pointing them out was designed to show that a modern Act that seeks to strengthen individualism, and thus egoism, causes some new difficulties that the lawmakers may not have anticipated. That the new law would not work in favour of weaker members of society, including women and children, was probably clear from the start: the 1975 Act seem s to have been passed to protect propertied interests, not for the benefit of the poor. Talking to villagers in 1986, I learnt that, in their view, individualising law reforms cannot trigger off that precious human quality, concern for others; it may actually damage it beyond retrieval. The traditional status-based system, on the other hand, emphasising duties rather than rights, appeared to guarantee women a better deal, since the men were under moral pressure to fulfil their obligations.

I would have been glad to find evidence that the legislators who created the 1975 Act actually had a significant improvement of the position of Kerala's women in mind, but there was no such evidence. May be among the numerous readers of the KLT there are some persons who can enlighten us on this. As far as I know, Dr. Carroll is wrong to simply assert that a major thrust behind the 1975 Act must have been a will to improve the lot of the Mitakshara daughter. If that had been so, the law could have offered daughters a better deal and Kerala could have opted, as Andhra Pradesh has done, by the Hindu Succession (Andhra Pradesh Amendment) Act of 1985, for making daughters totally equal to sons as coparceners. Abolishing the birthright, in Kerala, did not indicate an explicit need or desire to assist women, the reform focused on male interests as far as Mitakshara Hindus in the State were concerned. Significantly, the Act itself is silent on this issue, nor have the eases under this Act made explicit policy comments in this regard.

This shows that it does not help our understanding of South Asian family laws if European or North American lawyers expound on such matters from an armchair perspective. Socio-legal realities in South Asia continue to have their own flavour and, this was a major result of the Kerala case study, may develop quite differently from the officially stated law.

The concern that I professed for the daughters was voiced by my informants during village field work in 1986. The issue is certainly not a transitional problem, it is at the core of South Asian family arrangements about property matters, imagine a basically landless family - all too common now - that owns a few cents with a house on it and perhaps some coconut trees. The parents have several children, boys and girls, and want to arrange the marriage of a daughter. Which form of state law will help (his family to have a 'decent wedding’? For poor people, too, this now seems to be a wedding on which you spend in the region of Rs.10,000/-. My fieldwork shows that the arrangements made by families in such circumstances disregard individual properly rights; family solidarity is the need of the hour. Thus, uncles, sons and brothers are called upon, the latter ultimately to the extent of being unable to marry till well into their thirties. The obligation to assist a sister in getting married clearly overrides the egoistic concerns of the male.

It is too simplistic for a Western legal scholar, however feminist and outspoken, to denigrate the South Asian marriage systems as 'frivolous and extravagant celebrations designed more to glorify her kinsmen than to contribute to the welfare of the bride...., as Dr. Carroll stated (p.47). Western egocentric hybris may see Indian weddings as wasteful, but how can one object to people's desire to 'marry in style' in principle? For the majority of people, this is still a once-in-a-lifetime occasion that needs to be celebrated and auspiciously completed. There is certainly some scope for economising in many cases, but what is extravagant and frivolous about giving a simple little party to relatives and neighbours, which is all a poor family can afford? People the world over, unless they merely cohabit, indulge in such 'frivolous' feasting. Poor Keralites, too, in their own small way, take their marriages very seriously as important family affairs. Lest we restrict marriage to the sterile procedure of signing a contract, which no legal system in the world has achieved to the total exclusion of all other forms of marriage, who are we Western scholars to deny South Asians their claim to have this probably most important rite of passage marked in a socially meaningful way'.'

Using so many words here, I am not excusing excesses of the dowry problem for a moment. However, we should never forget that dowry, apparently, becomes only a matter of concern when there is a breakdown of relations between the participating families. Nobody takes rich people to court simply forgiving and taking a huge dowry. Celebrating one's marriage and the dowry problem are not exactly the same issue and it is fundamentally wrong to assume that all Indian marriages involve a dowry of some kind or another. In this context, I see the Keralite 'donation' that the bride's side is expected to make as a contribution to the expenses of the wedding, admittedly a form of dowry, but not the one that causes the legal problems that North Indians, in particular, are so familiar with.

Dr. Carroll very rightly emphasises the fundamental connection between dowry and women's property. While they are intimately linked, there is no simple legal solution to either problem. Blaming Indians for wasting money on marriages is certainly not a constructive approach. What has the modern law to offer here?

My evidence from Kerala in 1986, confirmed in 1992, was quite clear on this. A legal improvement of the daughter's property rights would only be of help if there is substantial property to distribute. At any rate, at the time of marriage it is not the daughter who pays for her marriage, but her natal family. Thus, the people's law saves daughters, as my informants so clearly indicated, from being deprived of a decent wedding. Brothers, uncles, everyone will rally round to bear and share the burden. If a daughter or sister has all this done for her, how then can she sit back and insist on a separate share of properly as well? My apprehension, expressed in 1986, that giving women their own property lights may leave them on their own when it comes to bearing the marriage expenses, has been confirmed by more recent field work.

Here, as elsewhere. Western women's concerns are out of fit with the realities of South Asian societies. The Hindu daughter cannot have it both ways, and I doubt whether many women in Kerala would take Dr. Carroll's path of claiming separate property rights and foregoing the enjoyments of an 'extravagant' marriage and the solidarity of their family. Elsewhere, Asians in Britain included, women are known to renounce their shares in favour of male relatives, in exchange for goodwill and solidarity in times of need. Of course this gives them a position of moral strength, but the Mitakshara system embodies that same moral principle. If this is unpalatable to modern feminists, so be it.

I have not come across any evidence to suggest that the Kerala Act of 1975 has, as speculated by Dr. Canoll. mitigated wasteful and extravagant expenditure on marriage and dowries. Again, it would be most welcome if readers of the K.LT could enlighten us on this point. The question would be whether some families now make conscious decisions to spend less on marriage because individual property rights have reduced willingness to share and to contribute. Perhaps some bright students con Id apply their minds to this.

Dr. Carroll also, and rightly, alerts us to the scope for male deviousness in willing away property to disinherit Hindu females. One fails to see, though how recourse to Islamic law can offer a realistic remedy that will work in practice. Muslim women, too, complain of being disinherited, despite the clear stipulations of Quranic shares. The political gesture of copying another rule of Muslim law into Hindu law, or into the illusory uniform civil code provisions, would be quite, pleasant. But where is the meaningful remedy for women faced with male chauvinism and greed? As indicated, legislation per se is of limited value.

Here, a secular judicial approach in Kerala shows some promise. What we need is astute judges and judicial alertness to the plight of women, not more legislation, however refined. In Lakshmi v. Valliyammal (1992 (2) KLT 873) we find a case under S.39 of the Transfer of Property Act, 1882 (clearly a secular Act) which illustrates the scope for judicial creativity, which is now so prominent in Indian cases concerning maintenance for women and children.

This is actually a Hindu Shah Bano situation. An unpleasant old man had alienated his property to defeat his wife's claim to maintenance. He had simply given it to a younger mistress. The older woman, whose claim as wife is disputed in revolting fashion, had grown old bearing nine children and found herself deprived of financial support. Mr. Justice Balasubramanyan of the Kerala High Court astutely ruled that the husband's gift to his lover was vitiated by the clear intention to defeat the old lady's claim for maintenance. Thus, the wife had a charge upon the properties of the husband. Lawyers will note the good use made hereof the leading case o[ Tulasamma (AIR 1977 SC 1944), which can be applied to all Hindu females and would, thus, assist a Mitakshara daughter in peril. I venture to suggest that this case could even assist a Hindu daughter where her egoistic brothers have decided that they cannot contribute to her marriage expenses.

In conclusion, if we want to fix our gaze on formal equality between the sexes, we may have to bear with encouraged egoism. Recent developments in various areas of Indian law concerning the property rights of women show that an unambiguous recognition of legal inequality works, in fact, to the advantage of women. Alert judges rather than pompous legislators or Western scholars can be the most efficient protectors of the legitimate financial interests of Indian women. As so often, the judiciary in Kerala has been playing a leading role in this process, emphasising moral obligations over the cold and sterile concept of legal rights.

Matrilineal Succession Law in Kerala : An Aborted Challenge to Women's Property Rights

(By Dr. Werner Menski, SO AS, London)

The issue in its wider context

In the important recent lest case of Chellamma Kamalamma (1993 (1) KLT 174 F.B.), a Full Bench of the Kerala High Court led Jagannadha Rao, C.J. was called upon to consider whether two earlier decisions by the same court, reported in Madhavi Amma (1988 (2) KLT 964) and Bhaskaran (1990 (2) KLT 749) were correct. In the earlier cases, the respective judges had held, without much explanation, that S. 17 of the Hindu Succession Act. 1956 (HSA) had not been rendered inoperative after the coming into force of the Kerala (Hindu Joint Family System Abolition) Act of 1975 (the 1975 Act), which had, no doubt, abolished the joint Hindu family law in the State of Kerala.

The test case concerns succession to the property of a female Hindu from a matrilineal community. Typically, where the deceased woman died childless, the succession struggle is between her mother, on the one hand, claiming inheritance based on matrilineal principles, and the deceased's husband on the other, whose claim arises from patrilineal principles. The simple facts in Chellamma Kamalamma (1993(1) KLT 174 FB) gave no rise to any dispute. But which law applied to those facts after the death of a Marumakkathayi female from Kerala?

Since the HSA made special provisions for succession in matrilineal communities, S.17 of that Act has the effect of preferring the mother's right to that of the husband. Not surprisingly in our male-dominated world, the representatives of the patrilineal principle have again gone to great lengths to defeat the female principle. But they have lost the battle, at least so far, and for some good reasons. My argument here is that the majority verdict of the Kerala High Court in Chellamma Kamalamma (1993 (1) KLT 174 (F.B.) looks shaky on purely legal technical grounds, but that it is correct and highly appropriate as far as the social consequences of the decision are concerned.

Regrettably, the !aw\ as and judges involved in Chellamma Kamalamma’s case got so carried away and partly side-tracked in their fine-tuned legal argumentation that they overlooked the wider social and political implications of the decision they were called upon to produce. At least the case report does not disclose any such concerns, which may well have arisen in the elaborate opinions provided by three senior members of the Kerala Bar (see p. 181 of the case report).

If the purpose of certain sections of the HSA, prominently Ss.7 and 17 was to save various aspects of matrilineal family law in India, prevalent in South India, with the famed Marumakkathayam system the most prominent among them, any decision that renders those sections ineffective would simply kill off the matrilineal legal systems of India, at least in Kerala. If that is the price we are prepared to pay for legal uniformity, so be it; as always, I have grave reservations about such an overzealous reformist approach. Firstly, it damages the property rights of women and their dependents and strengthens the already superior rights of men. Thus, to declare S.17 HSA ineffective changes the balance in favour of men and the male principle, which cannot be constitutionally sound, nor socially acceptable in many families of South India. Further, weakening (if not abolishing) the matrilineal principles of succession will impose, on the matrilineal families of Kerala at any rate, the North Indian system of succession, which is not really alien, but has radically different effects, as the cases show all too clearly.

The hidden political dimension

What we need to understand, then, is that the current struggle over the effectiveness of S.17 HSA is also an eminently political matter, in terms of gender politics as well as the Indian struggles over legal uniformity. Courts are probably wise not to indicate this in so many words. In the present case, though, it seems that legal technicalities have taken up all mental energy. This is not healthy. From the study of the High Court cases before us, it seems that the various advocates have narrowly concerned themselves with their clients' interest. The judges, too, have addressed their minds to many legal niceties and appear to have shut out any consideration of the wider dimensions. Chellamma Kamalamma (1993 (1) KLT 174 (F.B.)) certainly represents a serious attempt to solve the current conundrum and is a typical test case, but it could have said a bit more about the socio-legal dimensions of the issue. Without this, as I shall show below, our basic understanding of the law itself may suffer.

Thus, to hold now that S.17 HSA is rendered ineffective - we shall see that S.7 HSA has already been ineffective since 1976 - would mean to impose North Indian succession law on those South Indians that used to live by a radically different tradition. This ex-post re-writing of the HSA goes too far, in my view, since it wipes away the legal safeguards for South Indian patterns of inheritance and succession in the HSA which was designed as an all-India law, explicitly taking account of legal diversity. Within it, South Indian laws and traditions are just as valid and valuable as North Indian ones. Even though the trend worldwide goes against matrilineal systems (see various examples in African countries, whether Tanzania or Ghana), there is no logical reason for this. It simply reflects the continuing onslaught of male chauvinism and brash North Indian-style principles that see women as the property of men.

Surely, if the Hindu Marriage Act, 1955cancxplicitly save South lndian marriage customs in Sections 5(iv) and 5(v), as well as by implication in Sections 7and 29(2), then the HSA must retain similar mechanisms to allow continuity for the various South Indian matrilineal systems of succession.

The fatal flaw in the tinder standing of Marumakkathayam law

I have warned repeatedly, at 1986 KLT J 17-20, 1986 KLT J 63-65 and now at 1993 (2) KLT J - 45 that the Kerala (Hindu Joint Family System Abolition) Act of 1975 took too little account of the social dimension and, the implications of the legal reforms brought about by that Act. Is this another example of a miraculous wonder drug with disastrous side-effects (see 1990 (2) KLT J 3-10)? I f it is now argued that the 1975 Act has rendered whole important sections of the HAS otiose, some thinking has to be started over the social consequences of such wide-ranging legal changes that were, surely, not anticipated by the eager law-makers in the 1970s.

In my writing so far I have been complaining about the lack of fit between the officially passed law and the rules that Kerala villagers continue to apply to themselves. In this situation, it may pay off to go to court and to challenge the continued application of traditional law. Clearly, such acts of egoism are not restricted to male litigants, though it must be said that behind female claimants there are mostly male lawyers. Thus, the stubbornness of female claimants, such as in Madhavi Amma (1988 (2) KLT 964), seems to be a major factor leading us now to very interesting and controversial questions concerning the position of the official law itself.

The current controversy has focused entirely on the official law and has led to interesting but quite confused legal arguments. At first sight, it is indeed the correct position, as now authoritatively restated by the learned Chief Justice in Chellamma Kamalamma (1993 (1) KLT 174 (F.B.)), at pp. 192 and 193, that all joint Hindu family law of Kerala stands abolished with effect from 1-12-1976. But there is a fatal Haw in this reasoning. What precisely is the Marumakkathayam Law? As correctly noted throughout the judgment, the 1975 Act affected the various Hindu joint family laws and turned all jointly owned property into individually owned shares. But has this change in the law also affected those parts of the Marumakkathayam Law which are concerned with succession to individual property? With respect, the statement of the learned Chief Justice that no part of the Marumakkathayam Law can be said to be in existence after 1-12-1976 (p. 193) cannot be correct. The Marumakkathayam Law in Kerala is still alive, and long may it live! But it is now restricted to rules concerning succession to individual property. S.17 HSA applies precisely to such property only, not to joint family property.

Clarifying the law

When I started my n search for this article, I focused (as almost always) on the social dimensions of the legal problem, developing the working hypothesis that in succession struggles a good law should ensure gender equity. I appreciate that busy mainstream lawyers may not be interested in resolving the conflicts between official law and real local practice, but now the nature of the official law itself has come under scrutiny in the courts of Kerala and no lawyer can afford to ignore the issue: Has the 1975 Kerala Act really rendered S.17 of the Hindu Succession Act, 1956 otiose and ineffective, thus depriving matrilineal families of their old-established rules on all kinds of succession?

What we witness here is confusion among the law makers and the legal profession about what actually is the law that was officially passed. This problem, although by no means unique, seems particularly acute in the Indian family law set up, where legislation (and case-law, for that matter) may be produced at central and state level, but it is potentially an issue in every legal system. While the doctrine of precedent is supposed to take care of conflicting positions taken by courts at different levels, in the realm of legislature there is much scope for confusion. More often than not, the legislators have not considered the implications and side-effects of a new enactment, so that we find had drafting and inconsistencies in the law, requiring judicial intervention.

But the current Kerala problem is not quite of this kind, it would seem. When the 1975 Act was created, one was clearly concerned to abolish the incidents of the joint Hindu family in the state and to provide for separate ownership of property rather than joint family sharing. Out went the birthright and aspects of the pious obligation, in came the strengthened notion of individual property rights. Following on from this, the next step must be a succession regime that concerns itself with allocating shares in a deceased individual's property to the right claimants.

Precisely here lies the problem for Kerala. As correctly stated in the test case, the 1975 Act does not really cover succession, it only concerns the abolition of the joint family holdings. Any legal disputes over succession are still referred to under the regime of the relevant central Act, which is the Hindu Succession Act, 1956. The central issue for Kerala (and, in some respects, adjacent states) concerns rights of inheritance to females from the matrilineal systems of Hindu law, mainly those governed by the Marumakkathayam law. After Marumakkathayam Law has virtually been abolished by the 1975 Act in Kerala, and S.7 HSA has been rendered ineffective to that extent, has S.17 of the HSA also lost its relevance for Keralites?

In a nutshell, the argument for the male principle has been this: S.17 HSA makes special provisions respecting persons governed by marumakkathayam and aliyasanthana laws, but such persons do no longer exist in Kerala; thus S.17 is now ineffective. This argument, as Mr. Justice Radhakrishna Menon has said in Madhavi Amma (1988 (2) KLT 964, at 966), is "really attractive". The learned judge, then, came to the conclusion that S.7 of the 1975 Act "has no manner of impact on the order of succession prescribed under S.17 of the Succession Act" (p.967), but he did not tell us why this should be so.

In this case, the mother of a deceased man was trying to appropriate the whole of his inheritance for herself, though her son was married and had left a widow who, however, followed him to the heavenly abode a week later. The couple being childless, the heirs of the deceased male under S.8 HSA were his mother and his widow, both taking an equal half share. This was not a share in real estate, rather a certain amount of insurance money, which would not have been worked out by the time the widow herself died. The mother-in-law, seeing chance for quick enrichment, one must suspect, sought to claim the entire insurance amount for herself, while a female relative of the deceased widow - her identity is not further specified in the case report - claimed the widow’s half share exclusively for herself as an heir under S.17 of the HSA, 1956.

In support of the mother-in-law's claim, her lawyers resorted to the new situation created by the 1975 Act in Kerala. I am not sure whether it is the first case in which this point has been argued; whoever invented it deserves much credit for originality. The deaths having occurred in 1982, the petitioner's lawyer simply said that there were no Marumakkathay is in Kerala after the abolition of the system by the 1975 Act. Thus S. 17 of the HSA could not apply, instead the succession was governed by S.15 HSA and his client was entitled to the full insurance amount. For, in accordance with the provisions of S.15 HSA, in the absence of offspring, the property of a female Hindu dying intestate would devolve-upon the heirs of the husband, here the greedy mother-in-law to the exclusion of all other claimants.

On the other hand, if one applied S.17 HSA, then a rather different sequence of statutory heirs comes into play: the heirs of the husband have been relegated to the last slot in the section, while preference is given to the heirs of the mother. This is how the female relative of the deceased widow in Madhavi Amma (1988 (2) KLT 964) came in as a claimant. She ultimately won her case for a half share in the insurance amount because the learned single Judge found that S.17 of the HSA had not been affected by S.7 of the 1975 Kerala Act. In other words, S.17 of the HSA continues to protect matrilineal based inheritance rights where these are relevant.

The test case of Chellamma Kamalamma (1993 (1) KLT 174 (F.B.) questioned the correctness of this verdict, as well as the decision made by a bench of two judges in Bhaskaran (1990 (2) KLT 749).

In this case, Ramakrishnan, J. spent more time on the interpretation of certain non statutory insurance regulations and the definition of 'family' than on the question that concerns us here. But he made an unequivocal decision, without referring to Madhavi Amma (1988 (2) KLT 964), to the effect that S.7 of the 1975 Act in Kerala "does not in any manner interfere with the mode of succession reflected in S.17 of the Hindu Succession Act" (p.754). The court, therefore, rejected an appeal by a husband, whose wife had died childless in 1978, against the lower court's decision to make the deceased's mother the sole heir under S.17 of the HSA. Of course, the application of S.15 HSA, as claimed by the husband, would have made him the sole heir. Though there is not as much as an inkling of social comment in this case, it needs to be emphasised how radically different the two alternatives before the court were. In my view, to find in favour of the female principle is the socially correct and preferable approach. A Marumakkathayi marrying a woman from his community should know that he neither owns his wife, nor her property.

Thus, both cases discussed above uphold and protect the preferential inheritance rights for women or heirs claiming through women in Kerala. I can find no fault with this either in terms of gender equality, nor legislative policy. It would surely be a retrograde step if Kerala's laws were to deprive matrilineal people of their old-established rights that provide a viable counterbalance to male domination.

This does not mean that the abolition of the joint Hindu family systems in Kerala as from 1-12-1976 was, per se, a bad thing, though I have my reservations. Traditions, where it causes social problems, may legitimately be curtailed or even superseded. Thus, to turn all property into absolutely owned shares was the most important effect of the 1975 Act; readers will have to make up their own minds whether this was good or bad.

Now, to what extent should this important change in the law have any effects on the various regimes of succession that prevail in Kerala? Without doubt, what the 1975 Act has abolished are the joint family aspects of Marumakkathayam law. Thus, there is no more joint family property to distribute, and S.7 of the HSA, 1956 has indeed been rendered ineffective since 1-12-1976 for Kerala Hindus; there simply are no longer any shares in this kind of joint Hindu family property to distribute. This issue may be regarded as clearly settled.

What about S.17 of the HSA, though? Like Sections 8,10 and 15 of the HSA, S.17 applies to separate property only. The class of persons who owns such property was increased by millions of Kerala Hindus on 1-12-1976, precisely the new owners of separate shares that the 1975 Act gave to everyone who had an interest in joint family property that would otherwise have passed under S.7 HSA. Surely it goes too far to argue now that the basis for the application of S.17 HSA has been legislated away by the 1975 Act because it abolished the Marumakkathayam law in its entirely?

The socio-legal argument here, as far as Kerala is concerned, must be that the lawmakers, in this case the judges, should uphold the rights of the matrilineal people of Kerala to inherit through females rather than males on account of the principle of nondiscrimination. The legal argument, I would suggest, is that the Marumakkathayam law (like the Mitakshara law, of course) is composed not only of a system of joint family property law, but contains also rules on the ownership of and succession to, individual property.  The Marumakkathayam law of Kerala regarding succession to individual property have clearly not been affected by the 1975 Act. Thus, the argument that S.17 HSA does not longer apply to the marumakkathayis of Kerala must be faulty, since the Marumakkathayam law of Kerala, though only as far as its rules concerning individual property and succession are concerned, is still fully alive. That these rules are heavily influenced by family, local and caste custom will be known throughout the state. That most people will, therefore, find amicable settlements within their community and without recourse to the state courts, is also clear. Lawyers acting for greedy individuals who think they can exploit the current legal insecurity should beware: To argue that S.17 of the HSA has been rendered entirely ineffective is not going to lead them anywhere. The attempted total abolition of the Marumakkathayam system has simply not happened. An important part of that law is still alive, and long may it live!

If the above argument is correct, the five categories of potential claimants listed by Jagannadha Rao, C.J. in Chellamma Kamalamma (1993 (1) KLT174 (F.B.)), at p. 193 need to be looked at afresh. Categories (i) and (iii) are clearly governed by S.17 HSA, but what is the position of heirs to persons governed by Marumakkathayam law, whet her living on 18-6-1956 (when the HSA came into force) or born on or after that date, who died on or after 1-12-1976, when the 1975 Kerala Act came into force? The learned Chief Justice has correctly argued that it is not difficult to identify this class of persons (see p.194). He then goes cm to state that "such persons once identified need not in our view, continue to be governed by the Marumakkathayam law on their death" (p.194). My view would be, as stated above, that such persons continue to be governed by Marumakkathayam law as far as it refers to individual property. Thus, once the class of persons has been identified, succession to their property can be regulated as laid down in S.17 HSA, as before the passing of the 1975 Act. This means, by implication, that also succession to Marumakkathayis born or after 1-12-1976 continues to be governed by S.17 HSA. Obviously, in their case it can only be separate property that falls for succession.

To hold, as the learned Chief Justice does in effect (see p.200), that his fifth category of persons has already irrevocably lost its claim to inheritance under S.17, might seek to avoid the harshness of the sudden death of the Marumakkathayam system on 1-12-1976 and the envisaged ineffectiveness of S.17 HSA. Instead, it would mean slow death for the Marumakkathayam system and S.17 HSA, as the class of persons born after 1-12-1976 naturally increases, while the older class can no longer be replenished and will gradually die off. Thus, the application of S.17 HSA would only cease when the last Marumakkathayi Keralite born before 1-12-1976 has died. The argument of the learned Chief Justice, then, gives a limited lease of life, as it were, to the continued application of S.17 HSA and the Marumakkathayam system in Kerala. I have already shown that this argument cannot be maintained due to the lack of distinction between the joint family property and individual properly dimensions of Marumakkathayam law.

The Marumakkathayam law lives on

Thus, I find neither the majority view in Chellamma Kamalamma (1993 (1) KLT 174 (F.B.)), nor at all the dissenting view given by Krishnamoorthy, J. doing justice to the problem posed before the court. Considering the wider context of this difficult problem, the law must come to a conclusion that helps the women of Kerala and upholds the matrilineal traditions of this great State. It is not a matter of recent sociological enlightenment that women tend to be deprived of legal rights by official legal systems that work on Upendra Baxi’s principle of ‘the long purses' deciding the law. The learned Judges in Madhavi Amma (1988 (2) KLT 964) and Bhaskaran (1990 (2) KLT 749) have done a splendid job to defend women's rights, though that was not what their judgments tell us. It is entirely proper that a superior court should examine the correctness of such verdicts, but wider issues of socio-legal policy making must inform such decisions. Law, do we need to be reminded, is more than a technical craft. To some extent, one can read Chellamma Kamalamma (1993 (1) KLT 174 (F.B.)) as an example of the waste of precious judicial time by lawyer-induced obfuscations. At the end of the day, the solution seems so simple, but we must admit that we have learnt from aberrant arguments. To follow them could have ruined the social fabric of Kerala society.

In a constitutional democracy supposedly based on equal rights, there is every justification for having two or more principles of succession side by side. In Kerala, the 1975 Act abolished all joint family interests, not just the matrilineal ones, leaving the field entirely to individual property rights. The matrilineal principle of succession to individual property, even though it may hurt men, is alive and well in Kerala, though it seems for the moment buried under the rubble of Chellamma Kamalamma's case. The Marumakkathayam law, I was glad to find, is not entirely dead.

Much water has flowed down the Ganges: Muslim polygamy, the Special Marriage Act and judicial collusion

(Dr. W.F. Menski, SOAS, London)

At 1992 (1) KLT J 6 (see also 1991 Cri. L.J. J 127-8), our learned friend S.A. Karim of Thiruvananthapuram argued that the decision of the Allahabad High Court in Anwar Ahmed (199l Cri. L.J. 717) needs reconsideration because of the Special Marriage Act, 1954 does not apply to Muslims. This is an attractive argument which is, however, as the learned High Court judge aptly put it, "a fallacious contention". Apart from the Muslim clement in this debate, this particular case demonstrates the continued leniency of Indian judges towards bigamists.

Basically, there was no dispute about the facts of the case, though the case report itself is somewhat confusing about various dates. As far as I can see, Anwar Ahmed had married a Muslim woman some time ago and had then contracted a second marriage with another Muslim woman in 1981. This marriage was registered under the Special Marriage Act, 1954 and was, it appears, only subsequently solemnised in a nikah some four months later. To achieve registration under the 1954 Act, the husband had concealed the fact of his first marriage, which was clearly an offence punishable under S. 494 of the Indian Penal code, 1860.

The husband's revision petition before the Allahabad High Court was only admitted on the question of sentence. Anwar Ahmed had been sentenced to undergo rigorous imprisonment for three years. His defence was that as a Muslim he could have up to four wives and, further, that the provisions of the Special Marriage Act cannot take precedence over his personal law. This latter argument, pursued with some vigour by Mr. Karim also, would .certainly bail out the husband. Mr. Karim has argued that the 1954 Act does not apply to Muslims because it does not specifically mention them. However, a close study of the objects and reasons of the 1954 Act, of which Mr. Karim seems to be aware, reveals its purpose as "to provide a special form of marriage which can be taken advantage of by any person in India and by Indian nationals in foreign countries irrespective of their faith which cither party to the marriage may profess".

I fail to see how one can interpret this to mean (see 1991Cri. L.J. 127, at 128) that the 1954 Act is "mainly intended to legalise the marriage of Indian nationals in foreign countries - irrespective of the faith of the spouses" and can then proceed to argue that the Special Marriage Act does not apply to Muslims. Surely, they are included under "any person in India" and "Indian nationals in foreign countries"? Further, as was also noticed by Mr. Karim, the Act specifically indicates that its provisions apply irrespective of faith, which is fully appropriate for a secular statute. The argument that this Act does not apply to Muslims, therefore, is not tenable and was rightly thrown out by the learned judge. The Special Marriage Act, i954 is, with few exceptions, an optional law, and can be used by any Indian who is attracted by its provisions.

Mr. Karim's argument in support of the polygamous husband, namely that "both marriages are legal and within the ambit of shariath" (1992 (1) KLT J 6) would appear to be correct, as long as we assume that the husband did not move beyond the realm of shariat. But that is not what he did: by attempting to register his second marriage under the Special Marriage Act, he brought himself within the umbrella of the secular law of India and committed a crime in the process. We are not told what his reasons were for doing so, but it does not appear to be the case that the husband was ignorant of the law, nor would I compare him to an unfortunate insect fatally attracted by the glistening spider's web of India's optional Uniform Civil Code. Anwar Ahmed clearly knew what he did, wanting to sanctify his desire by fraud, for which he was duly punished.

Muslim reluctance to acknowledge the superiority of any form of Suite law in modern India is now an issue which is similarly politicised in several European countries with substantial Muslim minorities. It is not helpful if Muslim lawyers, in India or anywhere else, are seeking to construct obfuscating arguments to 'protect' Muslim law from some kind of secular onslaught. More often than not, as in this case, the real purpose is to assist and protect a devious man. The object of the appeal was, one assume, to have the husband's sentence reduced; that object was indeed achieved. So why harp on about the Muslim element in this case? It may be fashionable, but only helps to stir up communalist arguments, the last thing any sensible Keralite should wish to see.

In my view, the more important legal issue raised by this case is the judicial handling of polygamy. Here we see no evidence at all of India's famed judicial activism, rather the opposite: continued male collusion between judges, lawyers and polygamists to defeat the claims of female victims of polygamy. The case report does not tell us why the first wife pressed the prosecution after so many years, but possibly this was so because of some trouble over maintenance. Not a single comment in the case report shows any concern about the superseded woman, who could well turn out to be a Shah Bano-type lady.

The learned judge, in reducing the husband's sentence from three years to the time already served in prison, refers to the fact that the offence occurred many years ago. As he puts it, "much water has flowed down the Ganges" since then (p.719) and, astonishingly, "I see no reason to impose retributive punishment just to satisfy certain provisions of law" (ibid.). In other words, the learned judge, while upholding the superior status of the Special Marriage Act vis-a-vis the Muslim personal law if a Muslim chooses to opt for the former, shares the well-known altitude of Indian judges that polygamy is really only a small cavalier's delict and that the law, if anything should protect the polygamist from unduly harsh victimisation. Nothing seems to have changed since Professor Derrett, ages ago, noted this attitude to polygamy in ‘A roundup of bigamous marriages' at 1967 (69) Bombay Law Reporter, J 84-93.

The present case, thus, throws some interesting light on the current sentencing policies of Indian judges for bigamists. It confirms that, even in 1991, India's polygamists can count on judicial sympathy. This case is, therefore, in illustrious company. After all, India's leading case on the punishment for polygamy (Gopal AIR 1979 SC 713) contained a lecture to the nation about the seriousness of the offence, followed by a reduction of the bigamist's sentence to the time already served. Gopal is not referred to in the judgment, but it is probably not wrong to assume some continuing empathy here among many male members of the Indian higher judiciary.

Readers will be aware that I have argued against the total and strict abolition of polygamy in India (See 1990 (1) KLT J 50-69 and 1991 (2) KLT J 20-24),but the argumentation used to free Anwar Ahmed reeks of male collusion and does not bode well for women in India. One wonders how this particular approach can be matched with the stiffer attitude to polygamy found in Baby (AIR 1981 Bom. 283) and especially in the much-underrated case of Sumitra Devi (AIR 1985 SC 765), in which the Supreme Court overruled itself and, at a stroke, got rid of the very unsatisfactory earlier leading cases of Bhaurao Shankar (AIR 1965 SC 1564) and Kanwal Ram (AIR 1966 SC 614).

In remarkable contrast to the law on maintenance for divorced wives, the Indian higher judiciary's position on polygamy lacks any element of judicial activism in favour of the concerns of women. This, and not communalist politics, is the focal point of Anwar Ahmed's case that Indian lawyers should pay attention to.

In this context, the Pakistani case of Faheemuddin (PLD 1991 SC 1074), a very interesting public interest petition concerning the right of the second wife to prosecute her husband for polygamy under the Muslim Family Laws Ordinance of 1961, might serve to show that South Asian women of any faith, anywhere, still have to wait for much more water to flow down the Ganges before they may have effective remedies against the trickery of polygamous husbands. True, the lady in Faheemuddin was given standing to prosecute him, but what is she going to gain other than some revenge, or a divorce? At least, however, Muhammad Afzal Zullah, C.J. (as he then was), took the arguments of the female complainant seriously and made no attempt to collude with the polygamist and his legal advisers. Mr. Karim and others would do well to study such judgments; they might realise that Indian Muslims arc well-protected by the secular Indian legal framework and that polygamy at the whim and fancy of any husband cannot be a right worth defending, whether in a secular or an Islamic context.