Maintenance for Divorced Muslim Wives

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

Two recent decisions of the Kerala High Court, reported as Mytheen v. Saphiya at 1993 (2) KLT 322 and Hassainar v. Raziya at 1993 (2) KLT 805, are of considerable interest for the development of the law and prompt me to make some more general comments about maintenance for divorced wives in India. The subject is of immense importance and is in urgent need of detailed analysis. At the University of London, we are presently preparing two major studies on this topic; they will hopefully be available in print during 1995. Our research shows that maintenance, because it concerns money, is one of the central areas of South Asian family law in which tempers run high and confusion reigns supreme.

Maintenance for divorced wives is not only an Indian or a Muslim problem, it is a universal predicament. Once a marriage breaks up, does either spouse have any continuing obligation towards the other? If so, for how long? Should the end of a marriage not signify the end of financial liabilities, at least for the ex-spouse, if not for any children from this marriage? Various legal systems have handled this problem in quite different ways.

As for children, the argument that their parents must have a moral and legal duty to maintain them till they can look after themselves may sound correct. But when is that? The law may stipulate certain norms, but these are not matched with actions in so many cases. Here, we are not concerned with maintenance for children from marriages that break up and focus on divorced spouses.

In India, modern Hindu law lays down that a divorced woman may have to provide maintenance for the husband under Ss. 24 and 25 of the Hindu Marriage Act, 1955. Few other legal systems in the world go along that extreme path of gender equality. Most laws rely on patriarchal notions and place an obligation oh the divorcing man to provide for the woman and to maintain any children from the marriage, too. Obviously, if a wife's continuing liability from a broken marriage is to look after the children, that should be reflected in her own maintenance arrangements. Our research in London shows that, to some extent, Indian law has been ready to recognise this basic principle. But what about maintaining the divorced woman herself?

The duly to maintain an ex-wife is, in a sense, the flip side of patriarchal chauvinism. A wife may have spent many years producing, bringing up and looking after children and after the husband himself, who acquired not only a wife, but multiple benefits arising from unpaid women's work, which is so little recognised in this male-focused world. Does all this give any divorced wife an inherent claim to financial support beyond the duration of the marriage? What about the rights of the man, who may find it attractive to remarry and who may need his resources for that purpose? Should he be allowed to lavish attention on the new arrangement only and simply forget about the past?

Few societies will find it agreeable that a spouse should be able to simply throw the other spouse out of the home at his or her whim and fancy. At the same time, it remains reality that marital breakdown happens more often than official statistics record, in all societies, not only among Muslims, and not always because the man has behaved in such a way as to make continued marital relations possible. Rightly or wrongly, attention has focused on male action to terminate marriages; in the extreme, we come across every shade of human depravity. Atrocity takes different forms; but mainly targets women: in Britain, as elsewhere, wives find themselves locked out of the home and thrown onto the street, or they have to escape from unbearable domestic violence. A growing number of such women are assisted by a network of women's refuges. In North India and the Pakistani Punjab, so-called dowry murders are sometimes used to get rid of unwanted wives. In a recent field study in Lahore, we found that men in certain neighbourhoods used 'accidental' fires fuelled by kerosene as the cheapest possible method of an instant divorce. The rationale is convincing: A dead wife can make no claims to maintenance.

In a high-level conference in Bangladesh in autumn 1992, it was significant that women's groups argued against a right to maintenance for divorced wives, of any community, 'till death or remarriage'. The preferred wording was a telling comment on human perversion: such a right should extend to her 'as long as she lives and remains unmarried'. Such subtleties of drafting disclose very perceptive nuances of the problem from a victim perspective and should be taken seriously. Getting rid of the woman by murder even saves on any form of mahr money or iddat payment and can now perhaps be seen as another form of the dreaded talaq-al-bida. But let us make no communalistic mistake: whether Hindu, Muslim, Sikh, Jain or Christian - there is evidence of a despicable uniformity of cruelly and meanness accompanying marital breakdown. At the same time, it remains a remarkable but not unsurprising feature of Indian raw that the leading cases assisting wives in securing maintenance have come from South India rather than the more chauvinistic North. Anybody with doubts should re-read Soundarammal (AIR 1980 Mad. 294) and a whole row of cases in the KLT under the Muslim Women (Protection of Rights on Divorce') Act. 1986 (see below). It is probably also no accident of history that the infamous Shah Bano case (Mohammed Ahmed Khan, AIR 1985 SC 945) does not come from Southern India.

Modern Western legal systems have shifted the burden of maintaining divorced women to the welfare state. The notion that Muslim Waqf Boards should take care of such women has been floated in India and has led to anguished litigation (see e.g. Syed Fazal Pookoya Thangal at 1993 (1) KLT 860). The verdict in that case is clear, but the case itself shows that public policy in India is confused about whether payment of maintenance for ex-spouses should be a matter for the state, some other agency, or rather for the families concerned. I have begun to argue against a welfare state approach (see now 1993 (2) KLT J.57-58). Much more remains to be said about that issue, but not in the present article.

First of all, we must draw attention to a remarkable legal development in Indian maintenance law which has been covered up and misunderstood far too long. Virtually unnoticed in India, and certainly abroad, where an outmoded image of Indian family law as medieval is being cultivated even by some professed 'experts', a quiet revolution has followed India's hasty promulgation of the Muslim Women (Protection of Rights on Divorce) Act. 1986. A remarkable line of progressive cases has come mainly from Kerala.- Ali 1988 (2) KLT 94; Aliyar 1988 (2) KLT 446; Shamsudeen 1988 (2) KLT 392; Ahammed 1990(1) KLT 172; Abdul Sathar 1991 (1) KLT SN No.22; Alavi 1992 (1) KLT 649; Hyderkhan 1992 (2) KLT 330; Syed Fazal Pookoya Thangal 1993 (1) KLT 860 and now also Hassainar 1993 (2) KLT 805. Other High Courts, too, have given divorced Muslim wives surprisingly generous treatment, based on an entirely correct and solid interpretation of the letter and spirit of the 1986 Act (see e.g. Arab AIR 1988 Guj.141).

There have been a few indignant murmurs of dissent, as in Usman Khan AIR 1990 AP 225 FB and Raja Mohammed 1992 (2) KLT SN 1. The latter is a Madras case, explicitly opposing the Kerala High Court's interpretations. More recently, Mytheen 1993 (2) KLT 322 tests the strength of Kerala's concern for divorced women's maintenance and seems to favour the man's position. It must be emphasised that there is no authoritative all-India decision on the point, but the Kerala High Court's detailed interpretations of the 1986 Act make sense in legal as well as social terms. Thus, Muslim men. like all other Indian men, have been held accountable to pay maintenance for ex-wives and children. I am certainly not saying that the law is perfect in its application , but the state's strategy to have the costs of broken marriages paid by the spouses themselves has worked out for the benefit of many women. That women continue to bear the brunt of the costs of marital breakdown, in financial as well as emotional terms, is so obviously clear that it need not be emphasised in many words.

It is, of course, entirely right that the courts have concluded from the 1986 Act that a divorcing husband has, in law and in principle, some responsibility towards the woman he divorces. What is disputed, in fact, is no longer the factum of this responsibility, but the extent of provision to be made by the man. The high-profile dispute in modern Indian law has been mainly about the obligation of Muslim husbands to pay maintenance to divorced wives which extends beyond the traditionally stipulated limit of the iddat period. Our current research in London, based first of all on Arabic sources, has shown that Quranic law put a definite moral obligation on the husband to maintain an ex-wife decently; yet the Quran does not say for how long this should be done. The dilemma for Muslim jurisprudence, as we can now see so clearly, is that this general rule in the Quran raises all the basic issues of interpretation in Muslim law and distracts from any policy discussion about the maintenance for divorced wives by reference to inter-communal and intra-communal politics. At the end of the day, the Shah Bano decision, confirming the general principle that a divorcing wife, gave a correct interpretation of the basic ground rule of Islamic law on this point, despite the fact that it was reached by five Hindu judges.

It will be general knowledge that Muslim jurisprudence has gradually defined away and whittled down the original Quranic obligation of the divorcing husband to be kind to the woman he sends away. This is what led, as every lawyer in India, must be presumed to know, to the famous Shah Bano situation, faced by lakhs of women in India from any community. After the Muslim Women (Protection of Rights on Divorce) Act of 1986, the Kerala High Court has courageously taken the lead in showing that the 1986 Act was not a retrograde step taken by an intimidated government but a firmly pro-women statute which does not violate the basic Quranic principles but contradicts subsequent juristic interpretations. Inevitably, this has again raised the perennial question about the primary source of Islamic Law. If the clear answer ought to be that it is Allah's law of the Quran, rather than man-made interpretations of it, the 1986 Act cannot be faulted. Conversely, juristic definitions of what constitutes adequate maintenance for divorced Muslim wives cannot be entitled to judicial recognition in any modern state if they violate the basic Quranic requirement of being considerate. Again, thus what one argues about is the extent of this considerable behaviour. This, I would suggest,, can only be determined by reference to the facts and circumstances of each individual case. At least with regard to maintenance, Islamic law never purported to establish a rule of law model in which everybody was to be treated equally. Reported cases in modern Indian law also tell us that if both spouses are poor, they have to starve together, whether Hindu or Muslim, or anybody else. Not untypically, the cases that go to court involve spouses who have money but cannot agree on how to allocate it.

The public discussion of this legal problem in India has remained overshadowed and confused by communal politics. In turn, Western audiences and readers have been misled, mainly by the media, into believing that Muslim women's struggles for maintenance rights are a matter of communal politics, when in fact they are a question, first and foremost, of financial liability and the rights of women. Far too many writers, whether in law journals, newspapers like the Indian Express or India Today, have continued to repeat politicised nonsense about the 1986 Act, showing their ignorance of the legal facts which it undauntedly created. This has only served to increase confusion. In view of this, the Kerala High Court's clear sighted position on the letter and spirit of the 1986 Act is a remarkable example of judicial independence and of skilful application of a controversial statute. This is not judicial law making, it is, I humbly submit, evidence of the best of judicial craftsmanship.

For years, we were told that highly charged and politically motivated petitions, challenging the constitutional vires of the 1986 Act, have been pending before the Supreme Court of India. The apex court may be too busy, or have its own reasons for seeking to delay a decision. But what about Syed Fuzul Pookoya Thangal at 1993 (1) KLT 860? Here a learned single Judge, Mr. Justice Viswanatha Iyer, held that the 1986 Act was not violative of Arts.25 and 26 of the Constitution. That case did not answer some of the questions carried to the Supreme Court, but it strengthens the entirely reasonable and logical stance taken by the Kerala High Court so far, standing up to male chauvinism and seeking to protect disadvantaged women as far as possible.

Indian law had imposed, in Ss. 125-127 of the Criminal Procedure Code of 1973, a uniform rule system that studiously avoids placing a burden on the state in terms of maintaining divorced persons and their offspring. Following the high drama of the Shah Buna case, that uniform regime was only formally broken up by the 1986 Act, which continues in effect the same ground rules as the 1973 Code. If anything, Muslim ex-husbands in India today are worse off: even though the wife may be rich herself, she can still ask for more (see Ahammed 1990 (1) KLT 172).

Given that a Muslim husband in India, after divorce in any form, now has few excuses left not to pay some form of permanent maintenance to his divorced wife, it was inevitable that a test case on the legal strength of mutual agreements about non-payment of maintenance would be brought. To what extent would the modern, professedly secular law uphold private agreements made under the personal law? This is precisely what Mytheen v. Saphiya at 1993 (2) KLT 322 is about. I see it as a test case in this regard, perhaps a victory for common sense and flexibility at this stage, but an ambivalent precedent which can easily be overturned. In Mytheen, the man appears to win, but his gain is not a victory for Muslim chauvinism; it puts the onus on Indian Muslims to come up with an acceptable solution to an age-old problem. If this is what Tahir Mahmood and other spokesmen of Muslim interests have been asking for, here is their opportunity to become creative: The case offers a good change for South Asian Muslims to develop an extra-legal Islamic rule system regarding maintenance of divorced wives which satisfies both the Quranic requirement of being considerate and the modern state's expectation that the breakdown of a marriage should not impose any costs on the public purse and still allow the divorced woman to survive in dignity.

Mytheen establishes, for Kerala at any rate, that if a Muslim woman has signed away her entitlement to maintenance, she cannot later go to court and seek to use the 1986 Act to fill her pockets or make her life easier. Some Muslim strategists will have been jubilant: all a husband has to do now is count on his wife's ignorance about the law and get an agreement out of her that she renounces any expectation of permanent maintenance after divorce. If the 1986 Act cannot be challenged in a court of law, can it be circumvented by social engineering in the community itself?

My view is that simple social facts will foil such facile ploys: I venture to predict, that Muslim families will learn very fast that what helps a husband to save maintenance cannot help the wife, who is, after all, somebody else's daughter, sister or niece. Thus, in the negotiations prior to a marriage, there will be some social pressure to ensure that women get a fair deal. As stipulated by Shahdeen Malik in 'Saga of divorced women: Once again Shah Bano, maintenance, and the scope for marriage contracts', published at 42 Dhaka Law Reports (1990), Journal Section 34-40, Muslim families in South Asia can make good use of the old-established institution of pre-nuptial contracts to safeguard the position of their female members at the point of entry into a marriage. This may sound like planning the break-up of a marriage before it has even started, but good marital planning these days may mean precisely what the Islamic law has always advised: Putting contentious matters down in writing eases problems of evidence and can be used by a petitioner to have one's right upheld in a court of law, if necessary. It is an insurance policy; emotional barriers may work against making such arrangements, but the interests of the women concerned should be paramount.

Mytheen helps the husband to assert his position that he is not liable to pay more maintenance to his wife than was originally agreed. But, given inflation and other changes in circumstances, we will inevitably come across situations of the Bai Tahira type (AIR 1979 SC 362), in which the learned V.R. Krishna Iyer very appropriately ruled that a meaningful maintenance settlement that expects to be upheld by modern state law has to be such that it enables the wife to keep body and soul together. In Mytheen, it does not appear that the wife desperately needed the extra money. Rather, she embarked on a fishing trip and perhaps wanted to achieve what Tahir Mahmood has castigated as abuse of divorced Muslim men's rights: in such situations, the woman (as Saphiya here did) remains unburdened by a further marriage but expects her former husband to pay for that privilege.

The critical question in Mytheen was whether a court should reopen an existing maintenance agreement and how this could be harmonised with public policy. The facts in the reported case are not detailed enough to allow much comment on this particular issue, but the principle itself is important: a court will not re-open an existing settlement if the wife simply wants more money. The decision might have been different if the wife, in Bai Tahira style, had justified her claim by reference to inflation or changed circumstances. Of this, there is no evidence in the reported case, where we merely find an indication of the wife's expedient move to ask for more because the law changed in her favour. It should at least be noted that in Shamsudeen, reported at 1988 (2) KLT 392, a Muslim husband's misguided attempt to play a similar trick misfired: he trusted political gossip and thought the law had changed in his favour!

We can be quite sure that Indian Courts have not spoken the last word about this kind of situation. Mytheen gives a clear message to Muslim women and their male protectors that it is wise to anticipate marital trouble and to ensure that a premarital contractual agreement or any other agreement made during the marriage (especially if its purpose is to terminate that marriage, as in this case) allows for adequate post-divorce maintenance for the woman. The kind of financial vetting that South Asian marriage often involves should help to give substance to such agreements.

Let it be emphasised again, lest there is any doubt: Maintenance law in India does not guarantee food for all people to an imaginary level of 'breadline', as the English law purported to do till this eyewash strategy of the benevolent welfare state ran into trouble because it became too costly. In English law, the state's direct financial involvement in maintenance arrangements has recently prompted a large-scale reopening of existing agreements between divorced couples. This has led to much enhanced demands on ex-husbands to pay more maintenance for their children from a former marriage. Purportedly, the recent reforms in English law were introduced for the benefit of the children, in an allegedly child-centred family law system. However, the fact that most such men had remarried and had new families to look after was quite brutally discounted, leading to several suicides and large-scale demonstrations against the new rules. Most obviously, at the end of the day, the divorced women concerned are no better off financially: the new rules simply effected a shifting of the financial burden for child maintenance from the state, desperate to save money, to the ex-husbands, who of course remain the fathers of the children they produced. The current shambles in Britain over the Child Support Agency and its disastrous trail of misery must be the subject of a separate article.

In my view, the current events in Britain show that Indian family law is wise to keep state interference in post-divorce maintenance arrangements to a minimum. Let the spouses work it out, in accordance with their means and expectations, let the increasingly operational family courts play a useful role in strengthening such settlements. If the people of India have to pay for post-divorce maintenance rather than the welfare state, then the state should keep its finger out of the maintenance pie. If we read Mytheen as a decision that seeks to strengthen the powers of individuals to make their own reasonable arrangements, I have little to quarrel with that decision. If we choose to read it as a victory for male irresponsibility, it will not carry much weight. At the same time, it gives a warning to Indian women that they cannot hope to abuse procedural loopholes to plead for more maintenance unless they can show real need. After Mytheen, one must wonder how courts will deal with the legitimate expectation, expressed in Bai Tahir at AIR 1979 SC 362 by Kerala's learned philosopher-judge Krishna Iyer, that maintenance payments must enable divorced women to live in dignity.

Male litigants will seek to ignore such basic principles with the same ease with which the Quranic stipulation about being considerate has been marginalised. Hassainar v. Raziya at 1993 (2) KLT805 provides further evidence that some divorcing men will seek to fight against reasonableness in order to save money. In this case, the 'ingenious contention' (p.806) that the wife's claim was barred by limitation had been produced. Mr. Justice K.T. Thomas gave short thrift to this argument, upholding - at least this is a possible interpretation - the right of a divorced woman to demand reasonable maintenance any time after the divorce. The case reported is appropriately technical, given the nature of the suit. I shall venture here to add some comments of a socio-legal nature about the important questions raised by this case, because it is bound to be misused in future cases.

It seems as though the process of learning about the 1986 Act and her rights under it took the divorced lady in Hassainar more than six years. Again, it is not an issue in the case whether she actually needed extra money; we also do not know whether she had to look after the two children from the marriage. The husband's reaction to her petition is significant: he searches for a procedural loophole rather than addressing the substance of the ex-wife's claim. We could expect him to do that, well and good, but is this what lawyers do, and are paid to do? In the process, the court was not given a full picture of the complex issues that this case raises.

Apart from technicalities about limitation, what about the nature of the ex-wife's claim? One issue in the case is at what point the ex-wife's claim actually arose. It seems that the ex-husband's ingenious contention is matched by a more ingenious answer from the court, basically telling the husband that, because he just slipped away from his responsibilities, he cannot now claim that his action gave rise to a cause at some point in the post which should now be covered by limitation. Thus, it seems, the husband got beaten at his own devious game.

But that does not answer the real question which lies at the root of this case. If a woman is unaware of a law beneficial to her for so many years, docs she lose the protection of that law because of limitation? In other words, could ignorance of the law be a valid defence here? There will be many Raziyas who are simply abandoned without sufficient arrangements for their maintenance, with nobody telling them about Kerala High Court cases which could mean a significant financial improvement for them. Hassainar should not be read to mean that such women lose their claim for ever.

When, however, does such a woman's claim arise? I would have thought that the right to claim under the 1986 Act arises when the husband has refused to make reasonable arrangements, as is his duty according to this Act. If the couple never discuss maintenance arrangements, for whatever reason, a woman may not know whether the man will make any reasonable provision till the iddat period has expired. Under the 1986 Act, according to the Kerala High Court cases of 1988 cited above, he is under an obligation to make proper arrangements for the time after the iddat period during this period. Unless he explicitly refuses to provide for the woman prior to the expiry of the iddat period, she could not really file a petition till after the end of her iddat. Contrary to the statement in Hassainar, thus, the divorced woman's right to apply for maintenance may arise precisely at the end of the iddat period.

But can she still claim this right many years after it actually arose? While Hassainar is, no doubt, an appropriate response to the skimpy husband in this case, it does not settle the law as fully as one would hope for. Given the nature of the subject, we can look forward to further test cases. In principle, though, it is now quite certain that divorced Muslim wives in India are entitled to reasonable maintenance beyond the iddat period. This not only gives food for thought to policy planners in other jurisdictions, but strengthens the claim of modern Indian law to be able to work out secular solutions that do not infringe on basic religious principles. Dissent there will be, anywhere, especially when money, power and male egos are involved. But it is long overdue that India as a whole and people abroad recognise the importance of the legal groundwork on maintenance for divorced Muslim wives under the 1986 Act, so painstakingly laid by the Kerala High Court. It is extremely unlikely that this pioneering position will be undermined by verdicts from other High Courts. Commonsense does not depend on any one religion, nor on state boundaries. In our present context, reasonableness and commonsense would seem to indicate that in a huge country without the resources to pay for the casualties of broken marriages, mos. divorcing men will need to face up to continuing responsibilities beyond the duration of the marriage, while women, at the same time, must be prevented from exploiting a law that is appropriately weighted in their favour. As always in family law, a gendered imbalance has to be harmonised with the need for achieving relative justice. There is no easy prescription for this, but judicial vigilance, such as evidenced in Kerala, is an essential precondition.

Sidelights on 'Contempt'

(T.G. John, Advocate, Thrissur)

"The Karachi Bar Association has learned with grant regret and concern of the undeserved insults given by the Hon'ble Chief Judge to the President of the Karachi Bar Association, Mr. Syed Ahmed Rafique, Barrister-at-Law, and to an outstanding member of this Association Mr. M. A. Alvi, Advocate and places on record that in its opinion the attitude of the Hon'ble Chief Judge has been persistently contemptuous towards the members of the Bar in general and the displaced lawyers in particular, making it impossible for them to keep up the well-known tradition of the Bar, of placing their clients' causes before a Bench adequately and fearlessly. This Association further affirms that the learned profession of law is the mainstay of the liberty and the rights of the citizens and the Courts will be undermining foundation of the State by a disregard of the rights of the lawyers and this Association warns the learned Chief Judge that if there is a further repetition of this behaviour, this Association will be forced to take measures which it sincerely wishes to avoid".

On 15th June, 1949 at a meeting of the Karachi Bar Association the-above resolution was moved by Syed Ahmed Refique, the President of the Bar Association. The Secretary Mr. Raza Mirza supported the resolution. In its issue on 17th June, 1949 the "Dawn" a Karachi Daily newspaper reproduced most of the resolution under the caption "Karachi Lawyers Resent Chief Judge's Attitude".

When these matters were brought to the notice of Sind Chief Court notices were issued to the President and the Secretary and also Altaf Hussain, the Editor and Ghulam Hussain, the printer and publisher of "Dawn" to show cause why they should not be punished for contempt of the Court. Tyabji C.J. had no hesitation to hold that the imputations and threats contained in the resolution were such as were calculated to lower the authority of the Chief Judge and the Court and further expressed that it would be impossible to argue that the matter published was merely a reasonable argument of expostulation against some particular judicial acts as being contrary to the law or the public good. The Judge also referred to 33 Bombay 252 (Government Pleader v. Jaganath Samant) where Scoot C.J. stated "Pleaders are a privileged class enrolled for the purpose of rendering assistance to the courts in the administration of justice. Their position, training and practice give them influence with the public and it is directly contrary to their duty to use that influence for the purpose of bringing the administration of justice into 'contempt'. However, in the Karachi case, in view of the unqualified apologies handed over by the two advocates to the Advocate General before the commencement of the hearing and the peculiar circumstances of the case, the Judge discharged the notice against all the parties with the further following observation: "We have reason to believe that Sayed Ahmed Refique, the President of the Bar, was the prime mover behind the resolution and that it was personal pique arising from offended vanity, which had led him astray into the irresponsible course which he followed. Under these circumstances, the humiliation involved in the recantation which he was constrained to make, in the presence of his fellow Advocates and in a crowded Court, may in itself, I think, be regarded as a fitting punishment for an offence, which appears to have been committed very largely as the result of false pride".

The principle governing contempt of courts has been neatly elucidated by Lord Russel in his Judgment in Reg v. Gray (1900 2 Q.B.36). It has been made clear by his Lordship that any act done or writing published calculated to bring a Court or judge of the court into contempt or lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is a contempt of court. The former class belongs to the category which Lord Hardwick L.C. characterized as "scandalizing a Court or Judge". The description of that class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no court could or would treat that as contempt of court.

In A.I.R. 1967 Allahabad 586, it was held that the concept of contempt of court by scandalizing court, as modified in England and Austria has no application in India. The social and economic conditions of the public in India are again such that it would be very dangerous to grant them the liberty of scandalizing the court. In the Supreme Court judgment in. E.M. Sankaran Namboodiripad v. Narayanan Nambiar (1970 KLT 588), Hidayattulla C.J. observed. "The spirit underlying Article 19 (1)(a) must have due play, but the provisions of the second clause of the Article cannot be overlooked while it is intended that there should be free speech and expression, it is also intended that in the exercise of that right contempt of court shall not be committed".

As far as our country is concerned, the law regarding contempt of court had been neatly codified as early as 1926 with successive enactments upto 1971. It would have been highly salutary that in view of the onerous duties of the Advocates, the Legislature was munificent enough to envisage an enactment on the line of "Contempt of the Bar Act" also. It is upto the Bar Councils to take some interest in the matter.

The Case of Indigent Firm

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

The correctness of the proposition laid down in 1994 (2) KLT 697 that a firm as such cannot claim to be an indigent person under O.33 of the Code of Civil Procedure is doubted.

1. Firm - a collective name of all the partners

The reasoning of the High Court is that where a suit is filed in the name of a firm it is still a suit by all the partners of the firm and O.33 of the Code provides only a litigative convenience to the partners of the firm, for instituting the action in a Civil Court. The Division Bench also placed reliance on an observation contained in AIR 1961SC 325 to support the view. References are also made to 1910 -1 KB 868 and AIR 1955 SC 74.

There can hardly be any dispute regarding the established proposition that the word 'firm' or the 'firm name' is merely a compendious description of all the partners collectively and where a suit is filed in the name of the firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not authorised the suit. In other words the firm has no separate legal entity apart from the partners who constitute the firm.

2. Legal persons

A person is any being whom the law regards as capable of rights or duties. A legal person as opposed to natural person is any subject matter other than human being to which the law attributes personality and is a creation of law. Legal persons may be of as many kinds as the law pleases. A relevant portion of the discussion on the personality conception of the legal entity as contained in Salmond on Jurisprudence (12th Edition - Page 310) is given below:

"In all these respects a Corporation is essentially different from an unincorporated partnership. A firm is not a person in the eye of law; it is nothing else than the sum of its individual members. There is no legal entity, standing over against the partners, as a company stands over against its share holders".

Yet a partnership is an accounting unit and there are special rules with regard to the position of partners which give it the superficial appearance of a legal entity.

3. Limited Personality

Firm is an artificial or 'moral' person for business purposes, and in some systems of law this personality receives formal acknowledgment. The commentaries on Indian Partnership Act by Pollock and Mull a say that i n Scot! and, in particular, a firm is a legal person distinct from the partners of whom it is composed. This aspect was considered by the Privy Council in Bhagawanji Morarji, Goculdas v. Alembic Chemical Works Co. Ltd., AIR 1948 PC 100 and observed:

"The Indian Partnership Act goes further than the English Partnership Act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it, me law in India, in that respect being more in accordance with the law of Scotland man with that of England".

The above principle has been followed by the Kerala High Court in 1960 KLT 1087. In that case the question was whether a firm as such is a manufacturer entitled to the benefit of exemption granted by a notification issued under the Central Excise Rules. Some persons were common partners in more than one firm. It is held by the court that the firm (and not the individual partners) is the manufacturer entitled to me benefit of the notification.

In 1987 (2) KLT 314 U.L. Bhat, J. has observed that the concept of partnership law is that a firm is not an entity or a person in law but only a compendious mode of designating persons who have agreed to carry on the business of partnership. The law English as well as Indian, has for some specific purposes relexed its rigid notions and extended a limited personality to a firm. It is an independent and distinct juristic person for the purpose of Income-tax and Sales tax laws. This decision has been confirmed in 1987 (2) KLT 630. Though the question of limited personality was not involved in 1987 (2) KLT 630 the court has referred to AIR 1977 SC 489 and quoted the observation made by Krishna Iyer, J. - that a firm is a unit of assessment in Income Tax Law and other laws where it has been specifically so provided, and "that although for the purpose of those special litigation, the firm has certain attributes simulative of personality, the partnership is not a person, but a plurality of persons."

The significant point is that the court recognises certain limited purposes for which a firm can be deemed as a unit and legal entity. In this connection the observations made by the Supreme Court in AIR 1965 SC 1718 after referring to AIR 1956 SC 354, AIR 1961 SC 325, AIR 1963 SC 243, AIR 1948 PC 100 and other decisions and also to the authoritative opinion of Lindley L.J. are very pertinent. "0.30 of the Code permits a firm to sue or be sued in the firm name vas if it were a corporate body'. Consistently with this legal fictions R.3 permits service of summons on a partner or a person having control or management of the partnership business, R.4 permits the institution and continuance of the suit in the firm name in spite of the death of a partner before the institution or during the pendency of  the suit without joining the legal representative of the deceased partner as a party to the suit, and R.9 permits a suit between a firm and one or more of its partners and between firms having one or more common partners. But the legal fiction cannot be carried too far.

For some purposes the law has extended a limited personality to a firm". (emphasis supplied)

A reading of O.30 and also other provisions of the Code concerning partnership (R.49 and R.50 of O.21) would lead to the conclusion that for certain limited purposes procedural law recognises firm as a unit and legal entity. In such cases the appearance of a legal entity may be simulative or superficial, when compared to the permanent legal unity of a company or Corporation. But it cannot be gainsaid that to a limited extent procedural law and some special statutes like Income Tax Act and Sales Tax Act recognise firm as a unit and legal entity.

4. Property of Firm

Another important aspect also has to be considered. Property of a firm is different from the properties that exclusively belong to the individuals who are partners. S.14 of the Partnership Act deals with the concept of property of the firm. The effect of Ss.14 and 15 is that so long as partnership continues, no part of the assets of the partnership can be regarded as belonging to an individual partner and, conversely, the personal assets of a partner is not the property of the firm. A firm as such holds and deals with property. It is worthwhile to quote paragraph 5 of the decision of the Supreme Court reported in AIR 1966 SC 1300.

"It seems to us looking to the scheme of the Indian Act no other view can reasonably be taken. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in a capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not to be able to claim or exercise any exclusive right over any property which he has brought in much less over any other partnership property."

It follows that the property of a firm is distinct from the other assets of the individual partners.

5. 'Person' in Q.33 R.1

It is settled by our High Court that word 'person' occurring in O.33 R. 1 includes juridical persons like company and association of persons. The Division Bench in 1961 KLT 45 observed:

"There is no definition of person in the Civil Procedure Code. Therefore, the interpretation of the said term in the General Clauses Act would apply, according to which a "person' shall include any company or Association or body of individuals, whether incorporated or not. This shows that" person' would include both natural and legal person". This principle has been followed in 1992 (2) KLT 274 and held that "person' in O.33 R.1 C.P.C. should have the extended meaning given to it in law and is not limited to natural person.

6. Procedural indulgence

Pauperism is a personal matter and not the right to sue itself. 0.33is an indulgence granted to persons who sue in a court are unable to pay the fee prescribed by the court fees Act. It only postpones the payment of court foes for the sake of litigative convenience and does not affect the substantive rights of parties. Similarly it is only for the sake of litigative convenience, O.30 of the Code permits a firm to sue or be sued in the firm name. Moreover where the plaintiff sues in a representative capacity the question whether he is indigent person shall be determined with reference to the means possessed by him in such capacity (Explanation III to R.l of 0.33). The position is similar with respect to partnership also. In a suit by a firm the parties are the partners in their capacity as partners and not in their individual capacity. The question whether the partners have property in their individual capacity is immaterial in deciding the question whether the partnership is possessed of sufficient means to enable the firm to pay the fee prescribed by law.

To conclude, a firm may become indigent while its partners may remain rich. The legal fiction of limited personality incorporated in O.30 can be applied with equal appropriateness in the case of O.33 also.

It is respectfully submitted that 1994 (2) KLT 697 requires reconsideration.

United Kingdom Immigration Laws

(Ranjit Malhotra, Advocate, Chandigarh)

This article highlights the further tightening of the immigration laws with regard to spouses, visitors and students seeking to enter Britain from India. The irony is that even a large number of genuine cases are dealt very harshly, invariably resulting in refusal of visa.

The primary purpose rule has generated more anger and anguish for the British Asians than perhaps any of the immigration rules. The primary purpose test basically lays down that the husband and wife coming from abroad must prove that the admission to the U.K. is not the primary purpose of the marriage.

The facile assumption that Asian marriages are cleverly arranged devices to get around immigration controls has led to three major tests that intending immigrants have to pass. They are the primary purpose test, the intention to live permanently as husband and wife and the requirement that the parties have met before marriage may be considered as actually undesirable for some traditional orthodox Punjabi families.

The primary purpose rule is mainly targeted at spouses seeking entry from our homeland but more recent evidence suggests that the harsh effects of this rule are also felt by non-white ethnic minority groups, in particular people from Nigeria, Ghana and some Caribbean countries.

A crucial contributory factor to the no win situation in primary purpose cases is the fact that the immigration rules provide that the onus of proof rests upon the applicant to satisfy the entry clearance officer (when applying from India) or the Secretary of State (if applying within the U.K.) that it was not the primary purpose of the marriage to gain entry to the U.K. It is a matter of serious concern that the intimidating manner in which the interviews are conducted by the British High Commission at Delhi and Bombay. In a large number of cases the applicant is put to a disadvantage so onerous that she is unable to establish his/her own case. It is disturbing to note that the evidence so recorded, usually under pressure, forms the foundation of the applicant's case, which is used by the U.K. immigration authorities ultimately to refuse entry clearance outrightly.

It is also pertinent to note that British immigration control is now achieved not so much by changes to the relevant statute, nor even the immigration rules but by secretive administrative instructions from the Home Office to the immigration officers, which are outside the purview of both the public and parliamentary control.

The systematic deterrent strategy employed by the courts in England and Wales illustrates that the courts tend to favour Government over immigrants even where the immigrant's important interests such as liberty, livelihood, reputation and family unity are at stake. It is indeed pathetic that the Punjabi community among other Asian communities, who have toiled in Great Britain for several decades have been meted out such treatment when it comes to marrying their children to eligible spouses from India. The way law is developing in this direction, which will eventually mean that Punjabi families will have to forget marrying their children to suitable boys and girls from Punjab or other parts of India. It is more than apparent that the primary purpose rule has been tailor - made to hit husbands coming from our motherland and to curtail, rather thwart, the Asian practice of arranging international marriages.

Furthermore, the Asylum and Immigration Appeals Act, 1993, makes provisions about persons who claim asylum in the U.K. and their dependants and drastically restricts certain rights of appeal under the Immigration Act, 1971, in non asylum cases. Lawyers in Britain specialising in Immigration laws are of the view that the application of the provisions of the 1993 Act will lead to manifold increase in judicial review applications.

The most disturbing aspect about the 1993 Act is that the abolition of right of appeal from visitors, short term and prospective students which will give the immigration officers less incentive to make thorough and reasoned decisions. Otherwise, in many situations there is a right of appeal against an adverse decision by an entry clearance officer or the British Home Office Immigration Department. In the implementation of the said Act, there are genuine fears that an already hostile system will be further tightened against students and visitors coming from a commonwealth country like India. The possibility of judicial review bearing in mind its remoteness, is no substitute for reassessing their case on merits. Being practical, it is unrealistic for a visitor/student from India to spend money in pound sterling to initiate legal processings in Britain, especially in light of the current exchange rates.

What then is the solution to this problem which has now assumed serious dimensions. Part of the problem can be attributed to the fact that some applicants do not prepare their papers properly. Quite often, they also rely on half baked advice given by travel agents. It is strictly unadvisable to rely on the advice of travel agents since they do not have proper professional knowledge of British Nationality Laws, which are complex in their understanding and undergo amendments very rapidly.

This can only be a brief account of the present day harsh operation of the United Kingdom immigration law. In the final analysis, the author's advice is that the relatives and friends of immigrants from India seeking to enter Britain should prepare their papers meticulously, never rely on the advice of travel agents, do not attempt to enter Britain as illegal entrants, rather seek legal advice in complex situations.

______________________________________________________________________

Footnote:

*The author is a practising lawyer at Punjab and Haryana High Court and has recently obtained his LL.M. degree from University of London, with a specialization in Immigration Laws.

Is Our Constitution a Non-Fundamental Document?

(N. Haridas, District Judge, Alappuzha)

What immediately distinguishes our Constitution is its unusual length, running into nearly three hundred closely printed pages containing 395 articles, too many schedules and innumerable amendments. We do claim to adopt and borrow the practices of British Parliamentary government, but the British have no Constitution in writing. The British Parliament is working as the perpetual Constituent Assembly or Convention. Among the written Constitutions, as the fundamental law supporting a mighty republic, the Constitution of the United States stands most distinguished, but this classical document is only in seventeen printed pages. In comparison, the Constitution of Ireland is 30pageslong, Australia21 pages, the Basic Law of Germany 48 pages, and that of Japan 11 pages. The ideal constitution of Switzerland is in 25 pages and that of the latest French Republic 15 pages. After India, the longest document is the Constitution of Austria - in 60 pages. The Constitution of Israel is the shortest - only 6 pages, and the Constitution of Greece - the birth place of democracy - is in 22 pages. India's Constituent Assembly debated the making of a Constitution for four long years, and satisfying all precautions for administrative detail and doubt-clearance, the complex instrument was adopted. But that this volume deprives the document of its claim as fundamental law, has missed the draftman's quill. In the jungle of articles and schedules, the fundamental incidents are seen indistinguishably lost, and now there is more ordinary law than fundamental law in the text. This unequal coexistence between the fundamental and the ordinary .remains an abominable problem in making judicial commentary also, leading to consequences in bad law.

2. No prophetic insight needed to say that a Constitution shall lay down only the fundamental guidelines of a state. Ordinary law, which is non-fundamental and municipal, must find its place in the code of ordinary laws, and not in the constitutional text. The judicial power of the Union must be the inevitable part of sovereign power. How the framers define judicial power in the American Constitution, presents a good case-study on the nature of basic laws. That document defines that "the judicial power of the Union shall vest in a Supreme Court, and also in such other courts which the Congress may ordain and establish", and leaves the details of judicial organisation for the legislature (Congress) to formulate and establish. Similarly that basic law prescribes the method of election to the offices of the President, the Vice-President, the members of the House of Representatives and the Senate; how an impeachment motion is to initiate and proceed, and on what reasons etc., but gives no other directives on further congressional procedure on these questions. The Constitution leaves those future details to develop along democracy's firstprinciples. This incompatible, or rather enforced co-existence of the fundamental and the ordinary in our supreme document, creates a lot of misdirection on the content and meaning of our basic law. The draftmen's motive in incorporating such trifling administrative details also into the Constitutional text, had been prima facie a laudable one - to secure clarity within easy reach; - but then what results is that the Constitution itself is looking like a commentary, on an otherwise ought to be fundamental law. It must cause concern that the non-fundamental details, get undeservedly elevated to the status of fundamental law and in the resulting confusion. It is the fundamental law which suffers a set-back. The anomalous equation of the non-fundamental and procedural with the fundamental, in the constitutional text, remains a dangerous factor plaguing the basic concept in judicial review also. The framers of the American Constitution even avoid to mention therein the structure and functions of an electoral college, deciding on the election of the American President, and leaves it as the future business of the Congress. So is the case of judicial power, which in fact had been really fundamental to have more detail. A study in retrospect will convince the constitutionalist that our framers have ignored the historic rule that the Constitution shall contain only the fundamentals.

3.  This criticism that the Constitution shall exclusively be a body of basic laws alone, and therefore the inflation of this text into big volume by including the mass of governing details, will distort the meaning of fundamental law, does not appear stressed in the debates in the Constituent Assembly. All opinions were inexorably moving towards the aim that the working of the Constitution shall not be hindered by any doubting and gaping impasses - and so they thought that the more explanatory it is, the better. So the Constitution descends down to enumerate even bureaucratic offices like Attorney General, Auditor General, Public Service Commissions etc., which details are eligible to be the subject matter of a statute in administration law. Also there is a large body of articles describing legislative procedure governing the transaction of business in the Houses of Parliament and Assemblies, the distribution of finances, re-organisation of state-territory, the powers and departments under the Union and the States etc. Then there are chapters dealing with trade, commerce and contracts. The Election Commission and its powers, the conduct of elections etc. can very well be part of the Representation of People Act. We must remember that when we speak of the British Constitution, we do not think of the British Police Act, The Mental Health Act, The Poor Law or the Fire Services Act; but we think of the Magna Carta, the Bill of Rights, The Habeas Corpus Act, The Petition of Rights, The Act of Settlement etc. As fundamental Law, a written Constitution need lay down the composition and power of the legislature, the executive, and the judiciary of the Union and States, define the Bill of Rights, set out Constitutional remedies, confirm the primacy of basic principles, provide for amendment to the Constitution etc. The hundreds of other questions in running the state-machine can be left to be enacted and codified under ordinary laws, and matters like emergencies can be left to be handled by the executive. But what we see is that what is usually called municipal law, is underservedly placed on a par with fundamental law, and this placement is confusing to the sense of constitutional primacy. The preamble or articles make no distinction that one article declaring a fundamental right belongs to a superior category, and another article declaring the powers and privileges of an ordinary office as part of an inferior law. But for the classifications attempted judicially and with hesitancy all articles in the Constitution stand independently equal.

4. A peoples' inalienable and natural rights are not born from the matrix of the Constitution, and it is on this point that our judicial interpretism suffered seriously. Suppose a Constitution is overthrown; do the people forfeit their natural rights by such overthrow? In this search, the history of the Philadelphia Convention on the Bill of Rights provides an intersting anecdote. The inclusion of Bill of Rights (now superbly fundamental) in the American Constitution had been opposed by the majority in the Convention, who argued that it is ridiculous to remind the citizen of his fundamental right to awake in the morning, breakfasting at 8 a.m., eat his lunch at mid-day, dinner at 8 p.m. and then his irresistible right and inclination to go to bed at 10 PM. Any how, not having a Bill of Rights in writing had been viewed as an act of neglect of the civilized rights of man, and only the relentless pressure of the proponents could persuade a reluctant Madison to incorporate a Bill of Rights, by an immediate amendment. This discretion and over caution of the framers to demarcate only the fundamental frame-work alone in the text, speaks of their rigorous selection of fundamentals for inclusion in the constitutional text.

5. The Constitution of a republic cannot be a ready-reckoner for every unfolding politican situation. Madison says "There must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutiae". Emphasising the inevitability of implied powers, Marshall says that "a Constitution to contain an accurate detail of all the sub-divisions, of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves". During arguments in the Kesavananda Bharathi case, a heavy mass of juristic logic had to be dragged into and traded in the court-room in order to identify the rare fundamentals from the jungle of prolix Constitutional text, overloaded with municipal details, and thus the basic structure theory was developed for judicial view. Even the Counsel and the Court seemed reaching a blind-alley injudicial reasoning for a while, and to accept these rights dearest to freeman, there ultimately was the majority of only one vote. A rediscovery of human rights became an onerous job once again, and the contenders were seeking and reading every letter in every article again and again, and the identification of fundamental law from the complex text became a very difficult job for the court to undertake. The reason is that the large body of ordinary law in the text almost swallows up the fundamentals, making the fundamentals as such dwarfed as the ordinary.

6. Man's natural and inalienable rights are not born out of a written Constitution. A Constitution shall define only the frame work of the state and its powers, the relation of the state with the citizen and his rights etc, which are necessary to define the basic rules of bond between man and state, and nothing more. But in the Kesavananda Bharathi case, the court decision appears anchored on the principle that the source of all human rights is the Constitution itself. Instead of emphasising the rights of man so precariously defined in the case, the subsequent Habeas Corpus Case placed dangerous restrictions also on the rights of the citizen narrowly upheld in the Kesavananda Bharathi case.

7. The purpose of this write-up is not to attempt an exhaustic marking out of the outline of what ought to be the fundamental facts making our basic law. But easily we know that the large body of materials included in the Constitution could have been kept out of the text, and made the subject matter of different statutes in ordinary law. The great democracies say that a Constitution, as fundamental law, need not run for more than fifteen to twenty pages. The election rules can be the subject matter of the law on elections, the service rules can be part of service law, The legislative procedure another ordinary law, and so it goes on. On gaining freedom, India was suddenly changing into a republic, and in that speedy transition, the framers might have thought it wiser to adopt a voluminous document literally planning for every minor political eventuality. But the transition of the American colony into a democracy was speedier and more abrupt and their precedents more vague, but their basic document could be as brief as 17 pages. By arrangement and synthesis, when there is equal importance for every article, the court is forced into the controversy of seeking out the 'original intent' of the framers in constitutional non-interpretism. Then, is it not abhorrent to our constitutionalism to see an article on the salary claims of an official becoming entitled to an equal treatment with the inviolability of an article in the Bill of Rights?

8. A Constitution, codifying fundamental law, necessarily granted implied powers. The power of a government to legitimately punish the violator of its laws is historic, but this is not a power enumerated in any article in any Constitution. The high power of judicial review also is not raising its head through any single article in the Constitution; but without granting primacy to this power of courts, the rights of man will remain merely fiction. Though unexpressed literally, this implied power is seen more and more emphatically read into the Constitution in course of time by our courts. Regarding an emergency like war, mutiny or calamity, the court and the legislature are bad managers. But the court must be there to balance the situation and check any abuse. But unlike the other leading Constitutions, our Constitution empowers the declaration of emergencies, the suspension of fundamental rights etc. An emergency is a question which shall be confronted by the executive when the factual situation of war, rebellion etc. exists. But the inclusion of an article explaining the reasons justifying an emergency and authorising its use, makes its imposition not only legal, but constitutional also. Sometimes in anticipation of reconstructing a factual situation later on. In the Constitution of Japan, Ireland, U.S.A. etc, there is no article authorising the declaration of emergency or the suspension of citizens's liberty, but when a situation of war, mutiny, or calamity exists, an emergency has to be clamped, out of necessity. There this extraordinary step is empowered not by an article in the Constitution but by the need of an extraordinary circumstance. A Constitution cannot direct how a war is to be waged and won, and similar the case of managing an emergency.

9. In our Constitution, perhaps the sole guideline to the basic principles of governance is the preamble. Even the 'Fundamental Rights' fail to retain its special primacy as a Bill of Rights, as it is given only an equal place with the other chapters and articles enacted in ordinary law. Or the framers could have divided the Constitution into fundamental and non-fundamental parts, in order to protect the primacy of fundamental law.

10. The partisans of detail may say that the Indian Constitution is the best working basic law among post-war Constitutions, and this uniqueness is solely due to its voluminous detail. A Constitution sustains and survives only on the commitment of its people to the ideals, and more so on the quality of its leadership, and rearely because of the wisely crafted idioms and phrases superbly interspersed in its clause. A Constitution, in reality, presents the face-look of the nation. All modern Constitutions, without exception, accept all the important basic principles in free government, and differ only in detail, but how long they could live with the ideals and fundamental law, depends on their democratic discipline and loyalty to the system. A fundamental law cannot descend down to explain every minor detail in bureaucratic logic.

11. This wrong co-existence between the ordinary and the fundamental, is the main reason enabling to challenge the basic rights also enumerated in the Constitution. A Constitution shall represent only the supreme law of the land. For decongesting the overcrowded document, the ordinary laws, now taking up the lion's share of the constitutional space, has to be amended out, and such rejected parts are to be re-enacted into different ordinary statutes, according to the subject and department it represents. Here I will specify that such severance need not present any problem in law, as the amending process will not touch on the basic structure schemed in the document. The emergency provisions also can be scrapped, and the executive can be authorised to deal with a factual emergency, and any excess checked by courts in judicial review. This incongruous combination is the reason causing a lot of confusion in judicial review, and thereby causing serious damage to the rights of the citizen on many occasions.