Interpretative Affront or Aberration? —

A Critique of Mohammed Kunhi v. K.A. Salam &

Another — 1993 (1) KLT 867 and Chacko Joseph

(Order dt.6-4-1993 in C.M.A. No.49 of 1992)

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

Law is an ocean. It is constantly changing and expanding. No Judge, jurist or lawyer has so far claimed ultimate legal wisdom or saturation with legal knowledge.

2. Interpretation of statutes is as much an art as a science. It is a delectable, diligent, and yet, delicate, exercise and courts should be alert, attentive, and cautious, lest it be misled into misinterpretation by Counsel. Instances are not few or far between, when courts have slipped and tripped in the interpretative exercise and, not infrequently, occasioned by arguments at the Bar. The latest instance on point is Justice Pareed Pillai's decision in V.M. Kunhi's case (1993 (1) KLT 867).

3. In Moideenkutty v. Kadalundi Panchayat and another reported in lLR 1991 (3) Ker. 496. Justice P.K. Shamsuddin of the Kerala High Court held that no appeal lies against an interim order passed in an appeal filed under S.104 of the C.P.C. In that ease, a suit was filed by Moideenkutty, the appellant, for declaring his right to conduct boat service in a ferry and for an injunction against the Panchayat from cancelling the auction confirmed in the name of the appellant. An ex parte order of injunction was granted, but on hearing the opposite side, it was vacated and the injunction application dismissed by the trial court. The Contractor filed an appeal before the District Court against the said order and he moved an interim application for injunction restraining the Panchayat for conducting further auction and this was dismissed by the District Judge. Against the said order of dismissal, a CMA was filed before the High Court by Moideenkutty. The respondent before the High Court challenged the Appeal as not maintainable and upholding its contention Justice Shamsuddin dismissed the appeal. His Lordship observed: "Section 104 deals with appeals from orders. Clause (1) of S.104 provides that a n appeal shall lie against an order made under rules from which an appeal is expressly allowed by rules. Under O.XLIII, R.1(r), an appeal shall lie from an order passed in an application under 0.XXXIX for temporary injunction. Sub-section (2) of S.104 bars an appeal from an interim order passed in appeal filed under S.104 CPC. The order under attack in this CMA is an order passed in the CMA No.44 of 1991. In the circumstances, no CMA lies from such an order in view of the bar contained in sub-section (2) of S.104. In order to attract S.104(2), the appeal in which the order was passed should be one falling under S. 104 and that the bar is not applicable to an appeal from an order passed in appeal under S.96". The learned Judge relied on the decision in Cherian Lookose v. Narayana Pillai Gopala Pillai reported in 1958 KLT 828.

4. An identical view was taken earlier by Justice Khalid of the Kerala High Court then in Somavally v. Appavu Nadar reported in 1980 KLT 907. A very curious reasoning was given by Khalid, J. Observed the Judge:— "Order XLIII provides for appeals against original orders and not against orders passed in appeal. To allow an appeal of this kind would be to go against the express provisions contained in S.194(2) Civil P.C. under which no appeal can be filed against any order passed in appeal. If the argument that O.XLIII provides for appeal against orders mentioned therein, be it passed in appeal or suit, is accepted, the position would be that while there is no appeal against a final order in a Civil Miscellaneous Appeal, one is provided against an interim order. The anomaly is evident. To contend that an appeal lies against an interlocutory order passed in appeal would be to permit a second appeal against the interlocutory order dismissing the injunction petition! A careful reading of S.104(2) shows that it takes within its mischief all orders passed in appeal".

5. It is very strange that the learned Judge thinks that it is a second appeal against an interim order that is involved. The appeal before the District Court is against the interim order passed by the trial court. But the appeal before the High Court is not an appeal against the order in CMA but an appeal against an Interlocutory order passed in appellate proceedings by the lower appellate court.

6. Singing in the same strain of the decision of the Kerala High Court referred to earlier, Justice Nesargi of the Karnataka High Court held that an appeal will not lie, in Middle Huge Gowda and others v. Channamma & another reported in AIR 1974 Karnataka 63. In that case an application for ad-interim injunction was filed by the plaintiff. After hearing both sides, the learned Munsiff adjourned the application for hearing on merits and directed both the parties to maintain status quo. It was against such an order that an appeal was filed before the District Court and the same was questioned before the High Court. His Lordship held that against such an order, no appeal lies as the same cannot be treated as one passed under O.XXXIX, R.1 of the C.P.C. This case is clearly distinguishable.

7. Justice Pareed Pillai dismissed an appeal filed against an injunction order granted in an Interlocutory Application filed in CMA on the ground that under S.104(2) of the Code of Civil Procedure, no appeal lies. The Judge observed as follows in V.M. Kunhi v. K.A. Salam and another reported in 1993 (1) KLT 867:—

"Order XLIII, R.1 mentions the orders from which appeals could be filed under S.104. Order XLIII, R.1(i) enables a party to file appeal against orders under Rules 1, 2, 2A, 4 or 10 of Order XXXIX. When such appeal is filed before the appellate Court, a party can make interim injunction by filing interlocutory application before that Court. The question for consideration is whether the order of the appellate Court in an interlocutory application can be challenged before the High Court by filing appeal under S.104. S.104(2) categorically provide that no appeal shall lie from any order passed in appeal under the section. A reading of S.104(2) makes the position very clear that no appeal can be entertained from any order passed in appeal under S.104. "Any order passed in appeal" would certainly take in orders of the appellate court in interlocutory applications. Any order passed, by an appellate court in interlocutory application moved in an appeal before it squarely comes under the category of ‘any order passed in appeal'. It follows that as the impugned order is one passed in the interlocutory application in C.M.A. it would certainly be within the inhibition of S.104(2). Thus the appeal to this Court against the interlocutory order passed by the lower appellate court in appeal under S.104 is incompetent."

8. Justice Pareed Pillay, however, on a later occasion in Chacko Joseph's case (CMA. No.49 of 1993) readily reconsidered his view and posted the case for re-hearing after the Counsel for the appellant brought to His Lordship's notice, decisions taking the contra view. Unfortunately, however, when this case came up for final hearing before Justice P.A. Mohammed, following Somavally (1980 KLT 907), dismissed the appeal.

9. Under Order XLIII, R.1(r) of the Code of Civil Procedure, 1908, the right of appeal given to the affected party is not only against a final order of injunction passed by the lower court after hearing both the parties under O.XXXIX, R.4, but also against an ex parte order of injunction passed by the lower court under O.XXXIX Rule 1 (E. Manyamma v. A. Maniswamy Naidu, AIR 1983 A.P. 128; C. Mangaiachi v. Ashokan. AIR 1973 Mad. 258 etc.).

10. The Andhra Pradesh High Court had occasion to consider the same question in Gangulappa Naidu & others v. K. Gangi Naidu reported in AIR 1982 A.P. 284. In refreshing contrast to the erratic, reasoning of the learned Judges of the Kerala High Court, Justice Madhava Rao held by cogent, convincing and logical reasoning that an appeal would lie. Observed the learned Judge as follows:—

"The point for consideration is whether an appeal against the orders in a petition filed afresh under O.XXXIX, Rules 1 and 2 lies under O.XLIII or is precluded under S.104(2) C.P.C. Section 107(2) makes it clear that the appellate court exercises the same powers and performs the same duties as are conferred and imposed by the C.P.C. on Courts of original jurisdiction in respect of the suits. It is not in dispute that the appellate court entertains applications under O.XXXIX, Rules 1 and 2 C.P.C. for the first time when appeals are pending before it. When an order is passed on such application, it is very plain that an appeal lies against such an order under O.XLIII, R.1 C.P.C. It also provides for appeals against several orders made under various orders of C.P.C. Rule 2 of Order XLIII makes it clear that the Rules of Order XLI shall apply so far as may be, to appeals from orders. Whatever is the procedure laid down, while dealing with appeals, Order XLI will be applicable to appeals filed under Order XLIII. No distinction whatsoever is made under Order XLIII as to whether the order is made by the trial or appellate court. There is a prohibition for filing appeals against orders passed in appeal under S.104(2) CPC. S.104 contemplates appeals from orders. Appeals are filed not only against orders made under various sections of the C.P.C; but also against orders enumerated in Order XLJII under various orders of the C.P.C. Order XXXIX, Rules 1 and 2 is one of the orders against which an appeal shall lie under Order XLIII, Rule 1 (4) C.P.C. When such an appeal filed against such an order is disposed of, no further appeal lies against such an appellate order under S.104(2) C.P.C. Therefore, when, for the first time, an order is passed under O.XXXIX Rules 1 and 2 by trial or appellate court, an appeal shall certainly lie under S.104(1) of the C.P.C. But against such an order in appeal no further appeal shall lie under S.104(2) C.P.C".

11. In Ramaswamy v. Chinna Sithammal (AIR 1976 Mad. 63) Justice Ramaswamy, interpreting S.104(2) C.P.C, observed as follows:—

"If I may say so with respect, the decision of Nagarajan, J. (in C. Kalahasi v. P.C.M. Chetti - AIR 1975 Mad. 3) is unexceptionable. As seen above, the order which was appealed against, though made under O.XXXIX, Rule 1 had been passed in an appeal, which itself was one against an applicable order. But the observations of learned Judge are sought to be construed as laying down the law that no appeal lies against an order passed in any appeal even though the order is an appealable one under one or other of the clauses of O.XLIII, Rule 1 C.P.C. If the learned Judge has really stated that an order passed even in a regular appeal coming under S.96 of the Code is not appealable, it would be purely obiter, for, in the matter before the learned Judge, the order has been passed, not in an appeal coming under S.96, but in an appeal coming under S.104".

12. The question of appeal ability of an order passed by a court under Order XXXIX, R.1 C.P.C. under O.XLIII, R.1(r) came up for consideration before the Hon'ble Kerala High Court in Alice v. Thomman reported in 19S3 KLT 97. The judgment was delivered in a Revision Petition which arose from an order passed in an Interlocutory Application in a suit by the Munsiff Court, Ernakulam. The Munsiff, after hearing, passed an order as an interim arrangement and posted the injunction application for final hearing to a future date. That order was challenged before the High Court by one of the parties. Justice Kader observed as follows:—

"There is nothing in Order XLIII, R.1(r) either expressly or impliedly showing or indicating that the order contemplated therein is only final order and not an interim or temporary order. Any order, whether final order, interim or temporary, passed or purported to have been passed under O.XXXIX, Rule 1 is an appealable order. The grant of remedy under S.115 is in the discretion of the High Court and as a rule of practice this discretionary power will not be exercised in favour of interference where there is another remedy open to the party which he did not avail of. Under S.115(2) C.P.C. there is an express ouster of jurisdiction of this High Court in the case of appealable orders. Sub-section (2) of S.115, C.P.C. clearly states that the High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or any Court subordinate thereto".

13. In Vasu v. Narayanan Namboodiripad reported in 1961 KLT946, the Kerala High Court held that when there is an attempt as to whether the particular order would fall under a particular Rule or not, the benefit of that doubt should be given to the petitioner and the Civil Revision Petition should be allowed to be proceeded with. The court relied on the decision of the Calcutta High Court in S.N. Mitra's case reported in AIR 1927 Cal. 354. The Kerala case was one in which there was a bona fide doubt as to whether the order under attack in that case really fell under O.XXXVIII, R.5 or R.6.

14. Justice D.K. Kapur of the Delhi High Court interpreted Section 115 of the C.P.C. 1908 as amended by Act 104 of 1976, in Khemchand v. Hari Singh reported in AIR 1979 Del. 7. In that case the Court was concerned with the applicability of S. 115(2), C.P.C. vis-a-vis Order XXXVII, R.4. Justice Kapur observed as follows:—

"A revision is maintainable in a case for which no appeal lies to the High Court. However, though under sub-section (1) of S.115 a revision was maintainable even before the Section was amended in 1976, the High Court’s as a matter of practice did not interfere in a revision in cases where any appeal against a decree lay to the District Judge. By the addition of sub-section (2) of S.115 by the Amendment Act, 1976 this practice has been statutorily recognised in that the new sub-section now prohibits interference in revision if appeal lay against an order or decree sought to be reversed by the Court or decree sought to be reversed by the High Court or any court subordinate."

15. That an appeal is maintainable against an order passed under O.XXXIX, Rule 1 even in an ex part order of injunction was found by Justice Balagangadharan Nair in Bhaskaran v. Ambika (1977 KLT 476). In that case the plaintiff obtained an ex parte order of injunction against the respondents from committing trespass into the plaint schedule properly. Straightaway the aggrieved defendant approached the High Court with the Revision Petition and the respondent-plaintiff challenged the maintainability of the revision contending that an appeal alone will lie from the order to the District Court. Holding that an appeal lies, the learned Judge dismissed the revision petition observing as follows:—

"Whether an order of injunction is to operate only till cause is shown by the opposite party against it or whether it is to remain in force till the disposal of the suit, it is nonetheless an order of temporary injunction within R.1 or 2 of Order XXXIX. When the court issues an order of injunction and notice to the opposite party as in this case, it is really passing an order until further orders falling squarely within Order XXXIX, R.1 and therefore appealable under Order XLIII, R.1(r). Order XLIII, R.1(r) itself does not say that appeals shall lie only from final orders and an ex parte order is as much an order of injunction as the final order under Order XXXIX. Order XXXIX, Rule 3 on which counsel for the petitioner based his argument does not provide for orders of injunction; it lays down only a rule of procedure under which the Court might dispense with the initial notice before issuing an order of injunction. The order of injunction, whether interim or final, is, therefore, an order falling within Rule 1 or 2 of Order XXXIX and, therefore, appealable under Order XLIII, R.1(r). Nor is the appeal ability taken away by the circumstance that R.4 of Order XXXIX enables the order of injunction to be discharged, varied or set aside on application made for that purpose, for two alternate remedies can co-exist with an option to the aggrieved party to invoke the one or the other - to apply under R.4 of Order XXXIX or to appeal under O.XLIII Rule 1(r)".

16. Thus, it is quite evident that in a regular appeal pending before the appellate court, if an order is passed under Order XXXIX, Rules 1 and 2 or as a matter of fact under any of the Orders, then the appeal is maintainable under Order XLIII Rule 1 C.P.C. as all such orders are appealable under Order XLIII.

Environmental Pollution and the Individual

(Mrs. Sathyashree Priya Lakshmi Narayanan, Advocate)

Can an individual assertively claim as a matter of right that he be protected from the environmental pollution? Well, the apex court of our country in M.C. Mehta v. Union of India (AIR 1987 SC 1086) has recognised the 'individuals right' to move the apex court under Art.32 but it held that "the infringement must be gross and patent". To quote further, the infringement must be "incontrovertible and ex facie glaring and cither such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil court". Does that mean that an individual or a small group of individuals cannot move the court under Art.32 if their very life is in danger due to some kind of Environmental pollution if it is not gross or patent enough to affect the rights of a large group of persons?

The Environmental Protection Act, 1986 vests the protection of our Environment in the hands of the Pollution Control Boards set up in a few places in the country. In fact it is for these Pollution Control Boards to file cases against industries or individuals who contravene the provisions and permissible standards enunciated in the 'Environmental Laws'.

Apart from the duty vested upon these Pollution Control Boards to effectively check the Environmental Pollution, the alternative remedies available to individuals to assert their rights in such cases is to be given a serious thought. Their standing, the reliefs they are bound to obtain under the precincts of law, the nature of damages or the relief of injunction is not clearly dealt with under the statutory law at present.

The current trend adopted by the Kerala High Court in (Jacob v. Superintendent of Police) (ILR 1993 (1) Ker. p.248) is the most progressive step in the field of Indian Environmental law where it is observed as an obiter - that ".....compulsory exposure of unwilling persons to dangerous and disastrous levels of noise, would amount to a clear infringement of their constitutional guarantee of right to life under Art.21. Right to life, comprehends right to a safe environment including safe air quality, safe from noise".

More often than not, an individual is denied to knock at the portals of the High Court or the Supreme Court as a matter of right, when affected by environmental pollution since there is every possibility of his petition being rejected in favour of an alternative remedy. Especially at the current juncture where the hazards of Environmental Pollution has reached such a destructive level costing many lives in different occurrences, it is high time that an individual's right to a Safe Environment be brought under the precincts of 'Fundamental Right' enshrined in our constitution which shall bring a most effective & speedy relief to the affected individuals thereby protecting the individuals interest in Environmental Pollution!

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

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

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

Substitute for Viva Voce testimony

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

The emergencies are:

i. when the witness is dead

ii. when he cannot be found

iii. when he is incapable of giving evidence

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

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

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

Application of second proviso to S.33 of Evidence Act

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

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

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

Right and opportunity to cross-examine

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

Who is adverse party in the first proceeding?

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

A fair construction

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

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

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

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

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

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

Case of "Common Cause"

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

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

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

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

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

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

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

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

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

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

(1) Cases pending for more than two years.

(2) Trials have still not commenced.

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

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

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

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

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

The Dowry Problem : Progress in Legal Remedies

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

In November 1997, the Third International Conference on Dowry and Bride-Burning in India will take place in London at the School of Oriental and African Studies, following two earlier Conferences at Harvard University.[1] Concern among the Indian diaspora has risen, since there are now cases of dowry murder in Britain and the USA. Few people are willing to talk about such problems.

This article attempts to analyse the dowry problem in its social context and then turns to the relevant statutory and case law in India. It is possible to show now that the legal machinery of India anti-dowry measures is in place and functions, but this is true only for the superior courts. Anti -dowry measures still do not produce effective controls at the lowest level, when it comes to prosecuting murderous mother-in-laws and callous husbands. The law does not appear to have enough effect on the minds of those of those who turn into murderers.

The first fact to note about dowry is that it is a modern phenomenon, a consumerist aberration, rather than an old tradition. Ancient Indians did not kill women for cash, gold, fridges or cars. The bride herself, rather than any goods that came with her, was valued for reasons which Indians understand well: women alone could produce the next generation. Dowry extortion is also not a poor people's disease, a sickness of illiterate Indians who didn't know better, instead it is calculated middle class game, a pre-occupation of the supposedly educated elite. I have found it highly problematic that teaching about the dowry problem in London equips students to exploit this phenomenon still better, since a London-returned lawyer, fetches more dowry.

Much has been written about South Asian dowry problems. Indian anti-dowry law has now reached a point where almost all possible legal reforms have been made and the highest judiciary is now sensitised. But every day, dowry murders continue as though the law does not exist. Dowry is clearly a social problem, which must be tackled through self-controlled action on the part of people as members of society. What is the role of the law in this context? In fact, is there a role for law?

Dowry is such a complex subject because it is not just about women or money, it is also about status. But what status, and whose status? The dowry literature is dominated by gender debates, while it is confirmed, every day, that women turn other women into dowry victims. I see dowry- violence as a severe form of bullying, manifestation of exploiting unequal power relationships between individuals in a family, in a way which leaves 'the other' no space to bargain and, ultimately, to live. Research in the past few years has shown that merely focusing on the man or the husband's family as the perpetrator of dowry violence overlooks the self-interest of the bride and her family and their stake in dowry transactions. A bright young American Asian economist, Bisakha Sen, has gone further by showing that the dowry problem is clearly situated at the interface of male/female relations and has powerful economic status dimensions especially for the bride's family, which no sensible debate can overlook.[2]

A survey of the literature on dowry shows that several suggested strategies for the abolition of the dowry problem have failed. The legal control of dowry has not been a full success either and faces determined social opposition. The anti-dowry law can be read as a law prohibiting people from getting rich quick. Criminalising such practices cannot be fully effective unless one has a police state in which every infringement of the law will be reported. That, in my view, would be too high a price to pay for controlling one problem - it would create many others. But why do South Asians burn women for cash? Can't one trust educated people to be sensible about their marriage arrangements?

Let us ask three simple questions : What is dowry, what is the dowry problem, and what actually is the law trying to prohibit? It is wrong to say and to assume that there must be a dowry in every Indian wedding. One reads this all the time, but it makes the problem worse. Writers dramatise the problems of dowry but fail to mention that dowry deaths only occur in certain situations, while the law suggests a blanket ban on dowry. That itself is nonsense if it means that one is not allowed to give one's daughter all sorts of goods on her wedding day. A lot of the writing-and the law itself-is confused about such basic issues. Dowry is at least two things at once, comprising gifts which go from the girl's family with her to the new home and gifts for the husband's family. As long as everyone agrees about the nature of such gifts and transactions, even a huge dowry creates no dowry problem, it only occurs when there is a breakdown in what I call the 'customary contract' between the families, when either side violates the implicit understanding or explicit agreement. In essence, this occurs only when either the girl's people have promised too much and later can't deliver, or the boy's people demand more and more, despite assurances that they wanted 'only the girl', as one reads later in court documents.

If dowry as an instrument of extortion did not exist earlier, why does it occur today? It seems that the ancient pattern of endowing one's daughter with all kinds of goods on her wedding day, on her transfer to a new family and home, has been 'hijacked' by modern consumerism. Exploiting the entrenched cultural pattern of endowing daughters on marriage, it has been easy to abuse this basically sensible custom for extortionist excesses. "Your daughter is too fat, my son will only marry her if you give him a Mercedes." No self-respecting father would say such words outright, but exactly this thought process is there when every perceived blemish of the bride is weighed up in compensatory payments, and the dowry becomes a 'sweetener', enticing he most desirable groom available for one's daughter. There may still be no dowry problem if everyone is happy with their bargain. Dowry murders occur, however, where a daughter-in-law is viewed primarily as a carrier of property, and when she herself is treated as part of this property. While this is less likely to* occur in South India than in the North, there are also cases from South India which show that such thinking is not alien to anyone.

Discussions about dowry have been confused because the ancient tradition of giving a daughter goods on marriage, predominantly for use in her new home, has been challenged as an unfair deal for women in patriarchal setup. However, the argument that giving women better property rights would alleviate the dowry problem, was already questioned by one of the earliest writers on dowry.[3] Feminist writers have also found that dowry is an important asset to women, often a valuable security of enormous benefit in financial and status terms.[4] To demand that right-minded women should renounce dowry, says Kishwar (1988 : 10), is the same as asking an impoverished labourer to work for free because it is degrading to receive a pittance rather than fair wages!

Dowry transfers have been abused in two distinct ways. First, it is relatively easy for the boy's side to indicate that the bride should come endowed with specified items, much beyond the realm of the personally useful and practically-needed. Inflation of dowry has undoubtedly been driven by wife-takers exploiting their ritually and socially superior position. But while this is a major reason for dowry problems, it is only half the story. If everyone agrees to give and take what is expected, if the two families play the status game of marriage to maximum mutual benefit, there is still no dowry problem. However, if further demands are made after the marriage, during the marriage ceremonies, or already at the time of negotiations, some families sensibly pull out of the negotiations, if they still can, while others may agree to unreasonable demands in their desperation to catch the groom. Once the boy's people find that it pays to make more demands, the girl's side has allowed itself to be trapped. Pulling out would involve loss of face, and of the groom, so some families accept even the most unreasonable demands. Years later, one reads such details in divorce papers, but at least the woman is alive and can argue her case.

The second major reason why young wives get killed is because their parents promised too much and could subsequently not pay up. Some families offer 'dowry sweeteners' up front for the less than perfect daughter's most desirable match because it is seen as more meritorious to give freely than to be forced. Current research on this problem among Asians in Britains hows that it is not acceptable for the boy's family to demand dowry; instead there are silent expectations. This bargaining was vigorously opposed in ancient India, where in the best marriage form, the Brahma type, the bride herself was the main consideration. If some of today's parents offer the carrot of economic incentives to the boy's side, they not only violate ancient ideals about expectations of the bride, they also act in distinctly modern fashion, placing consumerist, status-focused concerns above the welfare of their daughter. Rather than fulfilling the familial obligations towards her by helping her to get married, they are using the daughter as a means for their own status games.

Thus, the main blame for today's escalation of dowry violence appears to fall on the girl's side. Many parents are using the strategy of 'dowry sweetener' to attract the best possible bridegroom for their daughter; many daughters want it that way. Through the marriage alliance, the girl's family buys status for the girl and for itself. Today, in a globalised 'marriage market', many more marriageable women are perceived to have 'undesirable' characteristics; they are too old, too educated, not beautiful enough, there are so many reasons to criticise. Dowry payments may then be used to entice a man into marriage with a woman who might be perceived, by both sides, as less than ideal. A lot could be said about less than ideal men as well, of course.

The key to solving the dowry dilemma, therefore, lies with the bride's family. In my view it has been far too convenient to wrap dowry discourses into feminist, anti-patriarchal slogans and to blame one sector of society, the 'male world', as though at the point of marriage it was possible to isolate that world from everything else. If we want to understand how dowry works and can be controlled, socially and legally, a simplistic gender war scenario makes no sense. The wife-givers of today are the wife-takers of tomorrow. Significantly, Indian anti-dowry law seems to understand this. But how effective is that law?

The legal dimension of dowry control

Indian dowry control law is still very young but we are beginning to see significant changes in the application of that law, confirmation of a judicial strategy, particularly at the highest level, of toughening up against dowry bullies and murderers. The first major piece of national legislation in India which sought to outlaw dowry transactions was the Dowry Prohibition Act of 1961. This Act has undergone important amendments in 1983,1984,1985 and 1986. This close sequence reflects desperate attempts during the 1980s to counteract the escalation of dowry murders. Since 1986, there has been no further legislation and the emphasis has shifted to the courts, especially the Supreme Court. The judicial involvement shows a progression from male collusion and judicial condonation of the procedural tricks of lawyers during the early 1980s to increasingly outspoken judicial criticism of the dowry evil. It appears that Indian judges have finally accepted their moral and constitutional duty to activate the anti-dowry law. Whether this is portrayed as human rights protection, or a matter of public interest, or pro-women activism does not matter, what counts is that the most judges in the superior courts now take a definite anti-dowry stance and are ready to punish perpetrators of such evils in the harshest possible terms.

The Dowry Prohibition Act of 1961 started off, by common consent, as a dead letter. There was no reported case until 1975. The Act states that its purpose is "to prohibit the evil practice of giving and taking of dowry", seeing dowry as a social problem. The anti-dowry law is therefore, an educative measure, saying in its preamble that "it is .... felt that a law which makes the practice punishable and at the same time ensure that any dowry ,if given, does ensure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil". This candid statement admits at once that the law makers never envisaged that this law would be followed to the letter. While this is typical of much of modern South Asian legislation, it is equally typical that the law therefore provided for its own violation. Consequently, S.6 laid down that any dowry shall be for the benefit of the wife or her heirs. But the matter does not stop there: the law also takes the next logical step and provides for cases in which even this particular rule is violated and those who hold property in trust for the woman fail to deliver it to her. This reflects a remarkable anticipation of double violation of the law.

Dowry is defined in S.2 as "any property or valuable security given or agreed to be given either directly or indirectly............at or before or after the marriage as consideration for the marriage.", while Ss. 3 and 4 of the Act specify the penalties for giving, taking or demanding dowry. Further sections made the offence non-cognizable, bailable and non-compoundable, indicating a softly-softly approach to the criminalisation of dowry offences. Because of the absence of case law for almost 20 years, there was a strong call for making only the demanding and taking of dowry an offence. The main argument was that making both sides culpable, putting them in pari delicto, prevented the wife givers from starting any legal action, since they themselves were guilty under the law. The obvious remedy would have been to decriminalise the giving of dowry, but tills step has never been taken.

The Criminal Law (Second Amendment) Act, 1983 focused on violence against women during the first seven years of marriage, empowering law enforcement agencies to gain evidence of dowry murders. More specifically, the Dowry Prohibition (Amendment) Act, 1984 sought to tackle the unsatisfactory definition of 'dowry', reacting to several early cases which had shown potential loopholes. Dowry "as consideration for the marriage" now reads "in connection with the marriage", a wider definition, basically covering any transaction in relation to the marriage. Higher penalties for violation of the law are another significant amendment, a definite toughening, stipulating minimum jail sentences of six months and a maximum of two years, as well as an additional fine, no longer discretionary, up to Rs.10,000/- or the value of the dowry, whichever is higher. This is evidence of a tougher criminal law approach. The 1984 Act also sought to tighten the rule system concerning the transfer of dowry property to the woman and provided, in reflection of public interest strategies, relaxed rules on locus standi for complainants from the social work area. Officers under the Act were now also made cognizable.

The Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 were introduced to improve the evidentiary position, since husbands and their families would frequently argue that disputed items had been given to them rather than the woman. Lists of presents are to be maintained and signed by both sides. Finally, the Dowry Prohibition (Amendment) Act, 1986 represents a further toughening, with a clear recognition that dowry may be given or demanded at any time after the marriage. A recent case confirms that 'dowry' covers even demands made before the marriage (S. Gopal Reddy AIR 1986 SC 2184). In S. 6 of the 1961 Act, the transfer mechanisms have been further strengthened and the punishments in S. 3 were further increased to a maximum jail sentence of five years and a maximum fine of Rs.15,000/- or the value of the dowry, if higher. The 1986 Act also bans dowry advertisements (S.4A) and S.8B introduced Dowry Prohibition Officers. In addition,' a new S. 304B, dealing with deaths, was inserted into the Indian Penal Code of 1860. These amendments have given the judiciary powerful weapons to punish violations of the dowry prohibition law. It seems that the statute law is now in place; it is tough and meancing. But will society take any notice of this law? It appears now that the persistence of dowry murders has shaken the judiciary into some activism.

A trickle of cases on dowry appeared in the Indian law reports by 1980s. Some of these are horrible cases; defence lawyers and their clients almost got away with murder. In Daulat (1980 Cri. L.J. 1171), the accused did not succeed in pleading that dowry demands by letter were not dowry demands. Successful tricks are reported in Inder Sain (1981 Cri. LJ 1116), while the wife in Kiran Kapoor (AIR 1982 Del. 543) I was slapped on the wrist for complaining that her husband and his family had demanded more dowry. The atrocious case of Vinod (AIR 1982 P & H 372 FB), overruled in 1985, confirmed the patriarchal inclinations of North Indian Judges, holding in effect that women are owned by men.

By 1983, a set of three cases resulted in a Supreme Court verdict which significantly improved the definition of dowry and led directly to the 1984 Amendment Act. In Shankarrao (1983 Cri. LJ 269), the Bombay High Court still held that an unfulfilled demand for dowry was not an offence under the 1961 Act. In Lajpat Rai Sehigal (1983 Cri. LJ 888), where the wife had died of burns, it was held on the facts that partly unfulfilled demands were still demands, and the husband's appeal against conviction was thrown out. The Supreme Court, in the appeal case arising from Shankarraro (see Jadhav AIR 1983 SC 1219), overturned the Bombay High Court's clearly unsatisfactory verdict and signalled judicial toughening up. Mixed messages continued to be given by the Supreme Court at this time, as evidenced in two fascinating cases. Pratibha Rani (AIR 1985 SC 628) was a woman's case on female property rights (stridhanam) which is widely used today, even in Britain, as a key precedent helping women to establish property rights against men. This case contains extremely strong criticism of The Punjab & Haryana High Court's handling of Vinod (see above) and reaffirmed the importance of S. 6 of the Dowry Prohibition Act for women's ownership of property. On the other hand, a strange case on the human rights of convicted dowry murderers could be taken to suggest that the human rights of the present and future victims of dowry murders are less important than those of their killers.[5]

By 1988, many Indian courts, and certainly the Supreme Court, began to take a much stricter approach to dowry offenders. Making dowry demands became now a ground for divorce under the Hindu Marriage Act of 1955, fitted under the wide umbrella of cruelty. [6] On the other hand, if a husband made dowry demands and threw the wife out of the house if she did not comply, he could not claim breakdown of the marriage, because he would be taking advantage of his own wrong. The explicit application of the 'own wrong rule' in Ashok Kumar (AIR 1989 Del. 121) shows that also the High Courts of North India have become sensitised to dowry issues.

More recent cases have been driving home an increasingly unambiguous judicial message to dowry murderers and men who drive their wives to suicid : Punishments will be tough and the courts will be unwilling to tolerate prevarications. In State (Delhi Administration) (AIR 1986 SC 250), neighbours had unsuccessfully sought to rescue a burning woman. The Delhi High Court, almost unbelievably, had acquitted the accused but the Supreme Court sentenced the husband and other members of the family to life imprisonment. This was also a landmark decision on the difficult question of how to treat a victim's dying declaration. While in some cases, where a suicide occurred rather than murder, the evidentiary position was less than clear, [7] the Supreme Court has awarded deterrent life sentences in several cases to a murderous mother-in-law, [8] the husband, father-in-law, and sister-in-law, [9] and a husband who prevented neighbours from rescuing his burning wife (Ganeshlal (1992) 3 SCC 106). In this case, the husband appealed against the life sentence imposed by the High Court but it was confirmed. It seems that the other family members were lucky to get away because this husband acted so very obviously to further his evil design.

In State of U.P. (1992) 3 SCC 300), a husband had been acquitted of a dowry murder which occurred in 1971, by an unreported High Court decision of 1979. When the case was again taken up after all these years, the Supreme Court brushed aside all suggestions that this old matter should be left alone and awarded life imprisonment. The court clearly expressed its opinion that non-action would have amounted to perpetration of injustice. One cannot emphasise enough that ten years earlier, this kind of decision would have been unthinkable. The most recent position appears to be, therefore, that the Supreme Court has become extremely alert to issues concerning dowry murder and that the High Courts, too, are now pulling their weight. The Kerala High Court, hardly ever-lacking alertness when it comes to protecting women, has produced an excellent judgment in State of Kerala (1994 (2) KLT 700), considering in detail the appropriate procedures to be followed in cases of suspected dowry deaths. This is a model of procedural structuring, designed to save judicial time and to have maximum effect on the ground.

While dowry murder cases inevitably demand judicial reactions to social practices, most judges have been reluctant to make explicit comments about how, in their view, the menace of dowry may be controlled In Ashok Kumar (AIR 1990 SC 2134), at p. 2136, however, R.M. Sahai J. launched into a lecture on the desirability of social ostracism to curtail what he called the "increasing malady of bride burning". Significantly, the judge also confirmed, in no uncertain terms, that the poor never resort to that kind of crime. His focus on neighbourhood vigilance and social ostracism echoes very closely the views of the activist writer Madhu Kishwar.[10]

While the courts can busy themselves with putting dowry murderers behind bars forever, the critical question remains whether the new toughness of the law will actually have any deterrent effects. It is difficult to assess this from a desk in London, but the apparent progress in the negative reaction of the Saw and its personnel to the continuing phenomenon of dowry murders cannot be overlooked. Unlike judicial fora in Britain (and, one suspects, in the USA and Canada), the Indian superior courts have now taken explicit cognizance of the fact that some South Asian women are murdered every day. I suggest that this public recognition of the evil was a crucial first step in tackling the dowry problem, a step which the legal system in Britain still has to take. [11] As far as India in concerned, at least, it is no longer correct to assert that the Indian judiciary, which remains of course a male-dominated elite, plays chauvinistic collusion games with women's lives in the complicated scenario of the dowry abolition law.

Problems persist, however, at the lowest level of implementation. New research, it appears, will now need to be conducted on why it is that so few cases of dowry murder actually result in prosecutions in the first pi ace. It is evident that considerable social and legal collusion occurs at that level to avoid meaningful redressal of dowry attrocities. Thus, there is progress in the legal remedies to curb dowry problems, but by no means enough. It is manifestly not sufficient for the law at its highest level to pronounce on the evils of dowry extortion and to penalise the offenders. Going by the gruesome statistics of daily dowry murders in India, there is no excuse for prolonged lack of activism in this field.

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Foot Note

1See Menski, Werner F. (ed.): Dowry: The South Asian dimension. Stoke-on-Trent 1998 f = GEMS, Ethnic Minority Studies at SOAS, No.5 ] (forthcoming).

2Sen Bisakha : 'Why does dowry still persist in India? An economic analysis using human capital'. In Menski as note 1.

3. 'Hooja, S.L. [1969]: Dowry system, New Delhi, p. 222.

4. Sharma, Ursula[1984]: 'Dowry in North India: Its con sequences for women'. In: Hirschon Renee (ed.): Woman and property - woman as property. London, pp. 62-74; Kishwar, Madhu [1988] : 'Rethinking dowry boycott'. In: No.48 Manushi, pp. 10-13.

5. See Attorney General (AIR 1986 SC 467), which is such a brief case report that it does not make sense without the help of press clips published at the time. The public execution of dowry murderers was stopped by the Supreme Court on grounds of violation of their rights as prisoners, while the Rajasthan High Court had clearly wanted to set a public example of tough treatment for dowry murderers.

6. The leading case on this is Shobha Rani AIR 1988 SC 121 and (1988) 1SCC105, followed for example in Rajani 1989 (1) KLT 234.

7. In Wazir Chand (AIR 1989 SC 378), dowry demands had been made, but it could not be established with certainty that the accused had murdered the woman rather than driven her to suicide.

8. In Paniben (1992) 2 SCC 474, the young woman's dying declarations were fully accepted.

9. In State of U.P. (1992) 2 SCC 86, where again a High Court had acquitted the accused.

10. See in particular Kishwar, Madhu [1990]: "Women's organisations. The pressure of unrealistic expectations'. In No. 59 Manushi, pp. 11 -14.

11. 'There have been a number of recent dowry cases in English courts, but these cases somehow do not get reported, so that the problems remain, as it were, 'under cover'.