Maintenance for Divorced Muslim Wives

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Case of Indigent Firm

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

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

1. Firm - a collective name of all the partners

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

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

2. Legal persons

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

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

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

3. Limited Personality

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

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

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

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

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

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

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

4. Property of Firm

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

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

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

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

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

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

6. Procedural indulgence

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

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

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

Needs of Superannuation

(By R.P. Remesan, Advocate, Kannur)

It is true that the industrial enactment purports to console the 'sickness' between employees and employers. But this statement raises a question. Does it really do so?

Answer would neither be 'yes' nor 'no'. It is somewhere in between.

I think dial the labour law is deficient in retirement provisions.

Present laws hesitate to demark any line on the age of the workmcn.lt is left to the employer as well as employees to decide the date of superannuation of the employees working in the particular establishment. The law stretches its right hand to the employee with a note, 'work till you are satisfied' at the same lime stretching its left hand to the employer holding out 'save yourself. It is the epitome of the industrial law prevailing in this country.

Grey matter helped the employers. They brought to bed of the dale of 'death' along with the appointment order. Someone chooses the standing orders for their survival and as defence. In such a situation the position is belter for those who are espoused to take such weapons: The industrial establishment having crores of investment arc particular about dealing with the labour problems eventhough the bade unions arc more offensive. They are big shots. Big shots are likely to be big wigs.

One-horse-carts are not rare on Indian Roads. Many of the establishments are infirm or incapable of framing their own standing orders. The condition of superannuation cannot be imposed up on the employees at the time of appointment since there need not always be the practice of issuance of appointment orders.

If a dispute sets in a small establishment normally it would end up in the court of law. Passing an award by the proper forum will not change the situation much. Let me illustrate my speculation as follows: "An award has been passed by the Labour Court directing the employer to reinstate the workmen with back wages. Employee was 58 years old and refused to work properly. That was why he was dismissed from service earlier. He is not willing to retire from service for the time being. The employer knows the indomitable strength of the union to which he belongs. In such a case the employer has no option but to pray for his good mindedness. According to him it is Hobbson's Choice'.

What is the remedial measure to overcome this is dead end. The ball is at the court of the legislature and of the judiciary. But it does not mean that the task is easy not involving any risk. The retiral age was discussed by the Supreme Court may times. On several occasion the Supreme Court held so, as “the question (age of superannuation) would always depend on a proper assessment of the relevant factor which may conceivably vary from case to case (1960 II LLJ. 716 (SC) Gajendragadkar observed in Guest, Keen, William (P) v. V.P.J. Sterling (1959 (II) LLJ 405 SC) that the important factors that industrial adjudication has to take into consideration for fixing the age of superannuation are;

(a) nature of the work assigned to the employees in the case of their employment.

(b) nature of the wage structure paid to them.

(c) retirement benefits and other amenities available to them.

(d) character of the climate where the employees work.

(e) the age of superannuation fixed in comparable industries in the same region.

(f) (he practice prevailing in the industries in the past in the matter of retiring its employees.

Again in lmperial Chemical Industries v. The Workmen (I960 II LLJ 716) Supreme Court observed that no hard and fast rule can be laid down in fixing the age of retirement. It is further held that proper assessment of the relevant factor which may vary from case to case.

What is the apt age for retirement of a workman? Consensus between employer and employee is yet to arrive. Our courts also opined different ages for different workmen, varying from 55 to 60 i.e. 55, 58 or 60. In G.M. Talang v. Shaw Wallace & Co. (1964 II LLJ 644) and the British Paints v. The Workmen (1966 I LLJ 407) the apex court was inclined to hold the age of superannuation to be at an age of 60 years. In the Workmen v. Balmer Lawrie (1964 I LLJ 380) the Court held "we feel that the time has now come for increasing the age of retirement in the case of clerical staff and the subordinate staff generally from 55 to 58. In Associated Power Co. v. The Workmen (1964 LLJ 743) the Supreme Court held the view that the age of retirement of the workmen al58 years was reasonable. In Jeevan Lal v. The Workmen, 1961 (I) LLJ 517 (SC) the observation of the court is that the present day tendency to fix the age of superannuation generally at 60 years and unless the tribunal feels that the work of the operatives is particularly ardous or hazardous where workmen may lose efficiency earlier. Same view was held again in Hindustan Times V. The Workmen (1963 I LLJ 108).

Considering the judicial verdict and opinion of the jurist flat retirement age system is not practicable. So, after considering the relevant factors pertaining to employment a statutory provision can be introduced. On any account such an amendment will not affect the nature and purpose of labour law.

Humour in Robes

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

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

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

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

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

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

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

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

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

Judicial Repentance or re-thinking?

(By. S. Parameswaran, Advocate Ernakulam)

(1) One is not dismayed, but dejected and disappointed, on reading the news item entitled "Judge deletes own remarks on V.V.I.P." in the Indian Express dated 24.9.95. Justice Jagadeesan of Madras High Court suo moto deleted certain paragraphs from his judgment concerning the mega-wedding of Sudhakaran, the foster son of the megalomaniac Madras Chief Minister Jayalalitha. He cannot claim to be poineer of suo moto review on the judicial front, for, way back in 1968, Chief Justice M. Hidayathullah of the Supreme Court suo moto reviewed a judgment passed by his Lordship in circumstances entirely different and justifiable.

(2) Justice Jagadeesan's belated attempt is to wriggle out of the opprobrium and onslaughts rightly directed towards him by the discerning common men and the enlightened public of this country. When the case came up on 4.9.1995 before the Bench, the Judge appeared independent and earnest in adjudicating the case, and gave certain directions to the Respondents and the Advocate General. But, in spite of persistent and persuasive efforts by the counsel for the petitioners, who were themselves Advocates of the Madras High Court, Justice Jagadeesan did not give an early posting, but posted the case for orders on the 7th September to be delivered after the wedding, thereby rendering infructuous and nugatory the writ petition itself.

(3) One is not surprised at such conduct of the higher judiciary in this country which has witnessed several instances of the higher echelons of the judiciary functioning as evolutionery extensions of the Establishment.

Self-seeking sychophancy has ceased to be the exclusive preserve of the politicians and the Bureaucracy in this country; it has found fertile soil in the higher echelons of the Indian Judiciary as well. Chief Justice Coke of England, who repudiated Government of men in favour of Government of law (Non sub sub homine sed sub deo et lege) and invited the wrath of the monarch of England must be turning in his grave.

(4) In the present, case it was the critical editorial in Tuglaq, a Tamil fortnightly, that has apparently spurred Justice Jagadeesan into deletion of his observation. After having done great damage through his judgment there was nothing for the Judge to lose by deleting the observations in question. The reasoning given by the learned judge for his review is astounding, and no less agonising. It is not a remorse-stricken retreat, but a belated attempt at escapism on account of a frontal attack from the Fourth Estate. Nor does the learned Judge appear to have been swayed by the observation of Justice Jackson of U.S. Supreme Court;"we are not final, because we are infallable, but we are infallible because we are final".

(5) Justice Jagadeesan's decision aroused the ire of the public and the press by inventing and extending a protection to the powers and prerogatives of the Chief Minister by eclipsing the egalitarian ethos informing Article 14 of the Constitution.

(6) Our constitutional set-up and development of Indian jurisprudence in the post Independence era provide opportunities to individual justices to influence the development of constitutional law and public policy significantly. In certain cases they can be specially influential because of the force of their intellect and the power of their personality or of their commendable persuasive capacity. Justices Krishna Iyer, Bhagwati, Chinnappa Reddy, Dharubhai Desai, Y.V. Chandrachud and P.B. Gajendragadkar fall in this category. Their social vision and moral mission have given a totally new look and direction to the Apex Court and they translated Justice Vivian Bose's famous dictum that the Constitution is not meant only for the affluents and the influential, but also for the butcher, the baker and the candle stick makers" into an operative reality. They are the salt of the earth. But, unfortunately, we had and have a few Justices who a la Jagadeesan, J. express views and expound philosophies from the Bench making people suspect that they do with an eye on their personal future. The black robes of judicial office cannot eliminate the human attributes and motivation of the people appointed to sit on Bench.

(7) When dealing with subjects like judges who are relatively inaccessible and purposefully obscured behind a symbolic facade, one has to be cautious and must avoid speculation. But in order to ensure and promote the collective understanding of the judge's roles in the Indian legal and judicial system, one must necessarily have the freedom critically to observe and analyse their judicial conduct. Jurimetrics is a sine qua non for the healthy development of any judicial system and the preservation and promotion of the Rule of Law. And the public has to keep a vigilant watch to see that an institution expected to be the sentinel on the qui vive does not degenerate itself into a semantic forum for self-seeking sycophancy. A drop of vinegar will suffice to spoil and savour a whole cup of milk.

(8) In judicial discourse, atleast in the tradition of legal justice in the Anglo-American orbit, the will to power has to be constantly, in each decision, justified by an act of reasoned discourse. Judges have to give cogent reason for their decisions, which have to be publicly articulated and reported (unlike a Minister's order on files). Not merely is this articulation and publication of reasons thus structured, it has also to form part of a corpus of judicial reason itself. In other words, past decisions are a guide, and they sometimes bind, the future scope for decision. The obligation for public discourse is thus writ large on judicial power which, all said and one, is not like the executive and legislative power residing in the domain of sheer will. It also straddles the domain of reason, judicial power is the jurisdiction of reason in ways that neither legislative nor executive power is, in its very nature. (Upendra Baxi, "Judicial Discourse : Dialetics of the Face and the Mask" 35 J .I.L.I. (1993) page 1).

(9) In the imperfect legal setting and political atmosphere we have in this country, we expect our Judges to uphold the Rule of Law and yet not utterly disregard our need for the discretionary justice of Plato's philosopher king, to be cautious sometimes and sometimes to be bold, to respect both the traditions of the past and the convenience of the present, to reconcile liberty and authority, the whole and its parts, the letter and the spirit. The great judge is an "activist", a legislature who uses the law's inevitable ambiguities to promote justice and, no, doubt, he carries the merciless burden of adjudication. Justice Jagadeesan cannot take shelter under the Holmesian "can’t helps" to justify his conduct. " A judge must manage to escape both horns of the dilemma", he must preserve his authority by cloaking himself in the majesty of an overshadowing past but he must discover some composition with the dominant trends of his time - at all hazards he must maintain that tolerable continuity without which society dissolves, and men must begin again the weary path up from savagery". (Learned Hand, 'The Spirit of Liberty' 3rd Edition Dilliard, 1960, page 130).

(10) Tail-piece:

                             "I live with bread like you, feel want

                             Taste grief, need friends, subjected thus

                             How can you say to me I am a King".

                                                                                                  (Shakespeare's Richard II).