Protection Act Un-Protects

(S.A. Karim, M.Com., LL.B., Advocate, Thiruvananthapuram)

The Muslim Women (Protection of Rights on Divorce) Act, 1986, popularly referred 'Protection Act' came into existence as a result of the Hon'ble Supreme Court decision in Mohammed Ahamed Khan v. Slut Bhanu Begum, 1985 Cri. L.J. page 875. It is known 'Sha Bhanu case'. The Sha Bhanu case decides the status of muslim divorced lady as wile as long as she remains not re-married for the purpose of maintenance. This agrees with the status of wife under the maintenance provisions, Sections 125 to 128, of the Criminal Procedure Code, 1973, Hereinafter referred as the Code. As per interpretation, the maintenance provisions of the Code stands above caste, creed, religion and personal laws. Under the Code every wife who is unable to maintain herself, gels maintenance from her husband. There is no difference between divorced need and un-divorced need. The concept of Muslim personal law, shariat, is that divorced lady is stranger to her former husband. So receipt of maintenance from stranger is against shariat. The Muslim intelligentsia considers the decision on Sha Bhanu case as assault and insult on 'shariat'. Protest reverberated through out the length and breadth of the country and it echoed in the Parliament and State Assemblies. This piece of legislation is the result.

The central point of the 'Protection Act' is the maintenance to muslim divorced lady. Under S.3(1)(a), a divorced lady is eligible for fair provision and maintenance within the iddat period from her former husband. This article does not deal with other rights, Iddat is a short period from the date of divorce. Section 4 gives authority to the Magistrate to order maintenance after iddat: period, if such lady remains not remarried and is unable to maintain herself. The obligation of maintenance goes to her relatives who inherits her properly. State Wakf Board is the last resort. A plain reading of the relevant sections gives the impression that divorced lady gets maintenance from her former husband during iddat period and not after.

Various High Courts have interpreted sections 3(l)(a) and 4 of the Protection Act. A Full Bench of Andhra Pradesh High Court in Usman Khan Bahami v. Fathimynisa Begum, decides that liability of husband to maintain a divorced lady limits it) iddat period, 1990 Cri. L.J. page 1364. The same High Court repeats the decision in Shaik Dada Sahab v. Shaik Mastan Bee, 1995 Cri. L.J. page 696. The Calcutta High Court in Abdul Rasheed v. Sulthana Begum, 1992 Cri. L.J. page 76, Madhya Pradesh High Court in Nooran Nisha and another v. Maqsood Ahumed, 1994 Cri. L.J. page 3129 and the Madras High Court in Raja Mohammed v. Moimoon, 1992 KLT SN page I. agree with Andhra decision.

The Kerala High Court in AH v. Sufaira, orders to pay maintenance during iddat and after- (1988 (2) KLT page 94). With respects, I submit the other High Courts apply the Protection Act, direct and the Kerala High Court relies texts and interpretation of words. The Kerala decision imposes heavy burden on the former husband and others limit during iddat period. A final and uniform decision rests with the Hon'ble Supreme Court. In fact, the Protection Act un-protects the muslim divorced lady but protects Shariat.

"Costly Advice - Supreme Court Structures"

(By Justice V. Bhaskaran Nambiar, Former Judge, High Court of Kerala)

When an Advocate General filed a 'Memo' in the High court "to appraise the High court of the correct constitutional position", the learned Judge asked, "Correct, according to whom? The Advocate General replied, "correct, according to me, till your lordship decides otherwise".

The opinion of a counsel is meant to advise the client about the correct legal position on matters on which his opinion is sought. The opinion may be accepted or rejected by Court, but that does not affect die Counsel as long as the opinion was rendered bona fide and after an application of the mind to all relevant facts and the law on the point. The opinion of the Advocate General has greater weight in view of his pre eminent position as the top constitutional adviser to the State.

The recent decision of the Supreme Court directing payment of exemplary costs even at the admission stage of a Special Leave Petition is significant in that ordinarily costs arc directed when the opposite side appears and not earlier, and costs arc directed to be borne by the parties and not by their Counsel. "The term costs signifies the sum of money which the court orders one party to pay to the other party in action as compensation for the expenses of the litigation".

There were times when the Counsel for the Suite fell ashamed when the appeal or petition filed at his instance and on his advice was dismissed in limine m the admission stage without notice to the other side when no case was made out in court. Years back, in the Madras High Court, an application for leave to appeal against an acquittal in a Food Adulteration case was filed by the Slate. Under the Food Adulteration Act, as it then stood, sale of food article in which an ingredient was adulterated was an offence. One person was charged for selling sweets prepared in ghee which was found to be adulterated. The court acquitted the accused on the ground that, ghee was not an ingredient of the sweets sold. An appeal against acquittal was advised by Counsel for the State and when the leave to appeal came up for hearing before a Division Bench, the Division Bench dismissed the same stating that ghee was only a cooking base and not an ingredient. It was observed that if ghee was used to fry fish, ghee does not become an ingredient of fish. The Counsel blushed and then sat. Of course, the Act was subsequently amended.

Times have changed and opinions arc given freely and dismissal at the admission stage is treated as a mailer of course, affecting none! The decision of the Supreme Court should therefore alert any counsel to show a greater sense of responsibility in advising the State or party to file appeals/petitions before the higher courts in the land.

The judgment of the Supreme Court highlights two aspects

(i) that it is not ordinary costs that have been awarded, but exemplary costs

(ii) that the persons responsible for filing the Special Leave Petition should share the burden of paying the costs.

In an ordinary eviction matter under the Rent Control Act, a fight between landlord and tenant, the State sought to be impleaded in Court.

The High Court rejected the application observing thus:

"In this connection it may also be observed that there are hundreds of petitions before the Rent Control Courts on the ground of reconstruction. We have not come across to any other instance where the State wanted to get itself impleaded in any such proceeding. The State is not a necessary or proper party in these proceedings".

Still the State chose to file the Special Leave Petition before the Supreme Court. The Supreme Court held thus:

"We find from the records that the High Court is well justified in not only not impleading the State, but practically monitoring the construction. It is obvious from the above facts that the landlady had abused the process of the court, obtained possession of the demolished building from the tenant and had it demolished but made no reconstruction. Every attempt was made to nullify the order of the court. When it found impossible to get the reconstruction stalled and all possible and conceivable obstructions put in the way of the tenant for reconstruction were removed and in that process obviously at the behest of the son of the landlady not only the Municipality lent its power but the State machinery was geared up to scuttle the construction as per orders of the Court. Every attempt to nullifying the orders of the court proved abortive. Even the observations made in the impugned order did not impress upon the State. Thereby as stated earlier the officers concerned representing the State not only behaved in an irresponsible way, but actively aided to sabotage the implementation of the orders of the court. Thus this is the case of abuse of process of the court without responsibility. Thus we find that this is a case where all the persons responsible to take decision to file Special Leave Petition should bear the burden. We accordingly award exemplary cost of Rs.10,000/- on them".

"Therefore, we feel that it is a case where all the personnel responsible to take the decision to file the Special Leave Petition and the counsel that advised the Government to file the Special Leave Petition should pro rata bear the cost".

In fact, the Supreme Court prefaced the judgment thus:

"This is a classic case of not only smack of reasonableness in pursuing the cause, but also the State to actively assist a party who flouts the law and abuses the process of the Court."

It is this judgment which has given rise to discussions in the Assembly and outside, as to who should be made responsible to pay the costs. It is clear that the Supreme Court has not made the State Government liable to pay the exemplary costs. It has made the persons responsible to take the decision to file the Special Leave Petition and the counsel that advised Government to file the appeal to bear the burden of costs. In the ordinary course, the identification of the persons and counsel responsible for filing the Special Leave Petition should pose no problem as they would be borne out by the records.

It was my experience as Advocate General that Government usually decides to move the Supreme Court only on the advice of the Advocate General. Even if the Government takes a tentative decision to move the Supreme Court, they wait till they obtain the Advocate General's views. If the Advocate General opines against filing and the government are inclined to file, discussion with the Advocate General follows and the decision is taken invariably accepting the advice of the Advocate General. In the present case therefore what has to be looked into is when the Government took the decision to file the Special Leave Petition. The decision of the Government is not that of the lowest Assistant in the Secretariat who may make his notes in the file but the decision of the Secretary of the concerned Department or the Law Secretary if he was consulted. If the decision was taken on the advice of the Advocate General he becomes the counsel responsible for filing the Special Leave Petition. It may not be the Government Pleader who may initially give opinion that an S.L.P may be filed should be made responsible for filing the S.L.P. because his views are only tentative and subject to the scrutiny and examination of the Advocate General on whom rests the responsibility to take a decision and advise the Government.

The Supreme Court has awarded not ordinary costs but exemplary costs reflecting on the conduct of the person responsible for filing. There is no judicial censure of the Government but there is a judicial castigation of the persons responsible for filing the Special Leave Petition.

The judgment of the Supreme Court is thus an eye opener of all in the matter of filing appeals/petitions before the highest court in the land.

Towards a Better World?

(T.G. John, Advocate, Trichur)

There is a general impression that violence is more prevalent now than ever before. Statesmen are assasinated, planes hi-jacked, ambassadors kidnapped, university professors roughed up, piccadilly mansions invaded, post offices and Banks robbed and even religious abodes and Court of law desecrated by unruly mobs. Threats with fist, knives, and anatomical twists have become the fashion in the so called representative assemblies of the people. Little wonder that the worthy representative who had to stand jeers and brickbat's of the crowd at Die time of election campaign repeats the same in the house vindictively.

This sort of thing has happened, before. Plane hi-jackers are the modern version of pirates - or rather of buccaneers for they purport to operate for a country and a cause, not merely for personal gain. Political assassination has a history far older than Julius Caesar, and the London Eighteenth Century Mob was far more terrifying and destructive than our militant students. Highwaymen were more to be feared by the ordinary citizen than are bank robbers, and ambassadors have by no means always been treated with punctilio and courtesy. Yet there is something new and disquietening about the present day violence especially as seen by those who broadly speaking believe in and abide by the rule of law and the liberal democracy, which were in the ascendant over most of Europe from about 1918-1930, and in Britain and France a good deal longer, and in India that is Bharat, recently.

Skipping over the pages of English history we come across crucial events-the signing of the Magna Charla, the Mad Parliament- and a long list of fiery incidents, individuals, institutions and kings. But all these people fought for law and not against it. For nearly three hundred years from the end of the wars of religion to the beginning of the wars for political dictatorship the most powerful countries in the world that is to say the nation-States of Europe and North America-on the whole kept to self-imposed rules, in warfare and in their peaceful relationship. There were many transgressions but the kings and emperors did not resort to the method of Chaka of Genghis Khan. Governments which in both internal and external affairs, try to abide by the rules of the game arc constantly pained and surprised when others ignore them.

Most modern violence appears to be politically motivated. The street grangs of Negro hooligans who terrorise parts of many American cities, and some of the recent crimes in our own country are not mere thuggism but could be considered only as the militant arms of some Black Power Political party. Cubans and Arabs who hi-jkack planes risking the lives of hundreds of passengers do so in their imaginary or assumed role of revolutionary palriots-as do bank robbers in Brazil, bandits in Southern Africa and gunmen in Kenya. As ninety per cent of this violence is in aid of some wings of politics, it enjoys the tacit approval or atleast tolerance of the Government or the about to be formed Government.

There is nothing new in people unable to get their own way by other methods, turning as a last resort of violence. In the past, however, violence was generally the resort of popular movements unable to make headway against tyranny or bureaucratic obstruction. That is still the case in tolalitarian countries. But in countries where the most sweeping changes can be brought about peacefully by convincing the majority of the people that they are necessary, violence is the resort of those who can never win an election. It used to be hoped that the twentieth century would be an age of reason. It is not. A small but conspicuous minority of young people are the fanatics of the new world, so convinced of their righteousness and the wickedness and obduracy of those who deny it, that they are prepared to use any methods to force their views upon others-even to the extent of wrecking the whole legal system in the vague, naive hope that the new world which will emerge, more or less spontaneously from the ruins, cannot be worse and may well be better than the old. John Stuart Mill once wrote that unpopular minority opinions can only obtain a hearing by studied moderation and the most cautious avoidance of unnecessary offence. Now however the mass media and the political colouring of most of our leaders ensure that any left wing opinion, however bizarre its nature and few its adherents, receives ample publicity if only it displays enough spectacular violence.

The year 2000 is only live years away and the world of the future has already begun to take shape. It is being hammered out in a series of revolutions in science, technology, communications, education-revolutions so explosive that they are disrupting the structure of man's Society and changing the entire hierarchy of social and moral values. Alcohol is placed on a very high pedestal. And there is (lie very real problem of behavioural control involved in shaping coming generations physically and mentally through manipulation of the genetic code. Some of the experts gloomily predict a society run by a small elected elite presiding over a mindless multitude kept happy by drugs and circuses!

So long as mankind shreds his fear for law and legal systems, Society, will benefit little by such scientific boosters as landing in the Moon or Jupiter, fox-trotting round the sun, or even helicoptering straight into the lap of Jehovah Himself!

Christian Succession and Probate of Wills - Need for Change

(Sebastian Champappilly, Advocate, Ernakulam)

Christians in India constitute a distinct community in matters relating to their marriage, divorce and intestate succession. Their Personal Law in these areas are totally different from those that of the fellow citizens, belonging to the Hindu and Muslim religions. As a result of some progressive thinking and steps taken by the community and of late by the judiciary the issues relating to marriage and divorce arc being settled or attempted to be settled satisfactorily. However, matters relating to intestate succession remain unattended inspite of the crying need for their, updating. The importance of the matter can be gauged by the decision of the Hon'ble High Court of Kerala in Joseph v. Union of India (1978 KLT SN 116) wherein the Court pegged its decision for status quo on "historical reasons", better known to it. This decision was apparently not justified either on historical reasons or on statutory law. So far as Christians in Travancore -Cochin area of Kerala were concerned, statutorily speaking, the Indian Succession Act, 1925 was not applicable in 1978 in as much as the Travancore Christian Succession Act, 1916 and the Cochin Christian Succession Act, 1921 had not been deemed to be repealed by the Indian Succession Act, 1925, as was clearly laid down in Kurian Augusthy v. Devassy Aley (AIR 1957 TC 1). Therefore, obviously in 1978 S.213 could not apply to intestate succession among Christians of Travancore as the ratio of Kurian Augusthy was still holding sway. But the agonies caused by Joseph v. Union of India was, allowed to be further aggravated by the Supreme Court in Mary Roy v. State of Kerala (AIR 1986 SC 1011) which declared, apparently against legislative intention and Kurian Augusthy, the Indian Succession Act, 1925 to be applicable to them with effect from 1st April, 1951.[1]

So far as "historical reasons" referred to by the Court in Joseph, are concerned, it may be noted that it was the vacuum in Christian law with reference to intestate succession in comparison to their fellow citizens belonging to the Hindu and Muslim religions that had made the English to bring in their law for the purpose of Christian Succession. "Historical Reasons" do not have any other significance.[2]

Be that as it may, at present the Christians are at a disadvantage so far as intestate succession is concerned. Their woes arc more as explained below:—

1. If a Christian does not appoint an executor for his will before his death, the property has to wait to be administered till letters of administration is granted by a competent court. It is common knowledge that in India, in the above situation it takes years together for a Court to issue letters of administration and the causalities are the property and the legal heirs. The benefit might perhaps be reaped by undesirable persons. Further in some cases the Court may even refuse letters of administration on some technical grounds.

2. Even if an executor is appointed by the will, he has to pay Court fees on the market value of the property to get the will probated. This is indeed unnecessary.

3. If the application for letters of administration is made by one of the legatees, he must seek the entire relief in respect of the whole of the estate and has to pay court fee in respect of the value of the entire estate, though he may be entitled only to a small portion of the estate. (Chacko Varkey v. Sheela Peter (1991 (1) KLT 81).

4. The difficulty will be further aggravated if somebody chooses to contest the prayer of the executor in which case it will be converted into a suit and the property remaining without any use to the rightful heirs, in most cases leading to the ruination of the family.

These are some of the difficulties of the Christians if the law is allowed to remain as it is, for the so called "historical reasons". Whatever might have been the historical reasons for the Legislature to enact S. 213 in 1925, the validity of the section must, now, be tested on the touch stone of the constitution. It appears that S.213 is hit by Art.13(1), in view of the provisions contained in Arts.14, 15 and 25(1) of the Constitution. Art.13(1) saves only those "laws in force" which are not inconsistant with the fundamental rights. Obviously S.213 is inconsistent with the rights conferred under Arts.14 and 15. Art.14 guarantees equality before law and equal protection of the laws. Art.15 guarantees prohibition of discrimination on grounds of religion. Though the State is given freedom to make special provision for the advancement of weaker sections, it is entitled to make only a reasonable classification for achieving certain objects. However, there must exist a reasonable nexus between the classification and the objects to be achieved. In the case on hand, no specific object can be seen for the classification of Christians into a special category in matters of intestate succession or in the case of probating of wills.

Viewed in this perspective, it may also appear that S.213 puts hindrance on Christians in the matter of free profession and practice of their religion and thus violates the mandate of Art.25(1) of the Constitution. At any rate, it can safely be concluded that "historical reasons" do not constitute any ground under Arts.14, 15 and 13(1) to allow a provision like S.213 to remain on the Statute Book.

Speaking in the context of the Indian Constitution, the problems can be solved at least in four ways:—

1. If one accepts the view of the Supreme Court in Mary Roy's case, the State Government can amend S.213 by invoking its legislative power under Entry 5 (intestacy and Succession) of List III of the 7th Schedule to the Constitution and reserve the Bill for the assent of the President. Art.254(2) of the Constitution does seem to permit such a course.

2. The State legislature can add "Indian Christians" after "mohammedans' in S.213(2) of the Act and thus avoid its applications to the Christians. [3]

3. Union Legislature can amend or repeal S.213 and thus abate the woes of Christians in matters of intestacy and succession.

4. If we accept the legal position in Mary Roy and Joseph under S .3 of the Indian Succession Act, the State Government is given the power to exempt any race, sect or tribe from the operation of various sections of the Act, including S.213, by a notification in the official gazette. A question may arise whether Christians can be treated as a sect for this purpose. Going by the lexicographical meaning of the word "Sect", there seems no objection for treating Christians as a sect. Then they could be exempted from the application of S.213 by way of a notification under S.3.

At any rate, in the absence of a Uniform Civil Code as envisaged under Art.44 of the Constitution it seems fair, proper and logical for the Christians to ask for deletion of S.213 of the Indian Succession Act, 1925 or atleast for exclusion from the application of the Section. Neither the State Legislature nor the Union Legislature has done anything to alleviate the sufferings of Christians in this respect.

It is hightime that atleast the Kerala Government/Legislature should strive to solve the problems by acting on any of the above proposals.

___________________________________________________________________

Foot Note

1. See Section 29 of Indian Succession Act, 1925 saving existing laws from its operation in areas where there were laws governing Succession. Thus the Succession Acts of 1916 and 1921 in force in Travancore-Cochin areas were to continue to be in force even after the bringing into force of the Indian Succession Act, 1925.

2. The research made by the present writer in this area embolden him to declare that there is no other historical reasons than the above for the enactment of S.213 of the Indian Succession Act, 1925. It is pertinent to mention in this context that 89% of the respondents, to a questionnaire issued by the present writer in connection with his Ph.D. Programme under the Law Department of the Cochin University of Science and Technology, expressed the view that S.213 should not be made applicable to Christians.

3. In this context it may be pertinent to point out that S.20 of the Indian Divorce Act, 1869, came to be deleted by the U.P. Legislature by Act XXX of 1957 vide its S.2 and schedule. If it can be done, there could be no objection for the State Legislature to effect minor changes suggested above.

The Woman in Black Satin

(T.G. John, Advocate, Trichur)

"Base and shameful England there is no justice in this Country".

The words rang like a clear bell and the packed court hall of Old Bailey which had witnessed many a criminal trial swayed a bit at the electrifying statement which came from the slender woman dressed severely in black satin standing in the dock. On the Bench Mr. Justice Cressel (who pronounced the death sentence on this woman) squirmed restlessly.

"I tell you, my Lord", she continued "this verdict the jury has returned will rest on their consciences heartier. I am not treated like a Christian but like a wild beast of the forest".

She was still shouting when the Judge pronounced the death sentence.

EngIand-1849.....It was the same old story of two men and a woman; a saga that had trailed humanity ever since Adam had tasted the forbidden fruit. The prisoner in the dock was Maria De Reux a Swiss maid employed by the Duches of Sutherland. She was indicted for the murder of Pat O' Connor, an Irishman. The meeting of Maria and Pat had ripened into friendship and with the relentless arrows of Cupid, the friendship ripened into something else. But for Patrick O' Connor, the Swiss lady meant business and business meant marriage. In a fit of pique and to cure a growing sense of frustration she switched her continental charms from Pat. O' Connor to one Fred Manning and they became man and wife at St. James Church, Piccadilly. Manning was a railway guard; but subsequently he was out of employment and also turned out to be a pauper. And then 'ideas' began to take shape. Together they invited Pat O' Connor, Maria's old flame. And when Pat came he had a wad of securities with him, as good as spot cash. A crowbar, a shovel and some quicklime did the rest of the business. Pat O' Connor was murdered and his body was buried in the scullery of the house of Fred. Fred Manning sold the first batch of securities for $ 110 and when Fred returned with the second batch unsold, Maria knew that the police was on their trial. And when the next day Fred returned after his ramblings Maria was gone with everything worth taking. Left on his own Fred also panicked and hurriedly he caught the boat train to Jersey.

Meanwhile all Britain was looking for Fred and his wife. Detectives trying to trace the missing Irishman had found Manning's home deserted. Their search ended when they dug up some freshly cemented flagstones in the scullery. They found the late Mr. O' Connor, very dusty with quicklime and minus his clothes. Maria was arrested in Scotland trying to dispose of some railway bonds.

xxx                                  xxx                             xxx

The aforesaid outburst of Maria, the woman who donned black satin, during the course of her trial earned her a great gathering for the public hanging. Ten thousand Londoners watched the slim woman in black satin keeping her appointment with the hangman.

In the crowd that watched was Charles Dickens, the immortal English novelist. He had no liking for what he saw and wrote a seething letter to the press. That letter started an outcry that twenty years later, resulted in the abolition of public hangings.