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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

----------------------------------------------------------------------------------------------------------------

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'.

Protection Act Un-Protects

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

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

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

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

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

"Costly Advice - Supreme Court Structures"

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

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

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

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

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

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

The judgment of the Supreme Court highlights two aspects

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

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

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

The High Court rejected the application observing thus:

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

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

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

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

In fact, the Supreme Court prefaced the judgment thus:

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

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

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

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

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

Can Single Bench Override Division Bench

(By Shahul Hameed Moopan, Advocate, Ernakulam)

1. Myself being a junior member of Bar, first of all beg pardon of respectful readers for the mistakes likely to be crept-in in this attempt. I was quiet astonished to read the judgment in O.P. No.2882 of Kerala High Court, reported in 1995 (2) KLT page 794 (Abdul Rahiman v. Hameed Hassan Peruvad & Ors.). By the said judgment learned Single Judge expressed his view inter-alia that S. 5 of the Limitation Act is applicable in considering a belated application for setting aside exparte order passed by the Rent Control Court under Kerala Buildings (Lease & Rent Control) Act 1965 (hereinafter referred to as Act). The learned Single Judge was substantially relying on a Supreme Court Decision reported in 1995 (2) KLT 205 (Gopalan v. Aboobacker) in order to arrive at the above conclusion.

2. I am very much reluctant to observe that, while concluding his views apropos the application of Limitation Act before Rent Control Court, a Division Bench ruling of this Hon'ble High Court, happened to escape the notice of the learned single Judge i.e., the ruling in Selvi v. Nataraja Mudaliar (1994 (1) KLT 82).

3. In Abdul Rahiman v. Hameed Hassan Peruvad & Ors. (supra) the learned Single Judge had adopted the principles laid down by Hon'ble Supreme Court in Gopalan v. Aboobacker (supra) to arrive at the conclusion that the Presiding Officer of a Rent Control Court is not a 'persona designata' and that S.5 of the Limitation Act will help the Rent Control Court to entertain a belated application u/r. 13(3) of Kerala Buildings (Lease and Rent Control) Rules 1979. On the other hand, Supreme Court in Gopalan v. Aboobacker (supra) found that Appellate Authority under the Act is not a 'persona designata' and provisions of Limitation Act will apply to belated Appeals filed under the Act in appropriate cases.

4. Before proceeding further, let me place before the respected readers the following provisions of the Act:

Section 3(1): The Government may by notification in the Gazette appoint a person who is or is qualified to be appointed, a Munsiff to be the Rent Control Court for such local areas as may be specified therein.

Section 18(1)(2): The Government may, by general or special order notified in Gazette confer on such officers and authorities not below the rank of a Subordinate Judge the power of Appellate Authorities for the purpose of this Act in such areas or in such classes as may be specified in the order.

5. A comparative analysis of the above provisions will make it clear that only Sub-Judges and above are competent to be appointed as Appellate Authorities, but Munsiffs and persons qualified to be appointed as Munsiffs could be appointed as Presiding Officers of a Rent Control Court. According to me, even persons other than Munsiffs, but qualified to be appointed as Munsiffs could be appointed in Rent Control Court. The recent constitution of 3 independent Rent Control Courts in our State doesn't rule out the appointment of persons other than Munsiffs, but equally qualified hands from Bar as Presiding Officers of Rent Control Court. The respectful observations of our Hon'ble High Court in Sahadevan v. Sreedharan reported in 1996 (1) KLT 42 will, I think, support my reasoning. Here learned Single Judge was analysing the provisions of Consumer Protection Act, 1986. S.10(1) a of Consumer Protection Act prescribes the qualifications for the President of the "District Forum" as, a person who is, or has been, or is qualified to be a District Judge. In that case, in para.7, the learned Single Judge observes that, the argument of learned counsel for the petitioner that the person qualified to be a District Judge is normally confined to Advocates with sufficient standing who are complete to be appointed as District Judge cannot be brushed aside as untenable. Accordingly the Presiding Officer of a Rent Control Court can be described as an individual and the need not necessarily be a member of a Class (Munsiff). The observation of the learned Single Judge in Abdul Rahiman v. Hameed Hassan P. (Supra), that Rent Control Court is not a persona designata, as the decision rendered by Rent Control Court has finality and authoritativeness between landlord and tenant, and it has power to give a definite judgment, does not appear to be wholly correct. I am sure that quasi -judicial bodies and persona designata's constituted under other Acts, are equally competent to pass final orders and decisions in so far they are competent to pass such orders/decisions, unless they are varied or modified by Appellate or Revisional Authorities, if any.

As the Division Bench ruling in Selvi v. Nataraja Mudaliar (supra) is neither expressly nor impliedly overruled by Supreme Court in Gopalan v. Aboobacker (supra), my observation is that our High Court's view in the above matter is that S.5 of the Limitation Act cannot be made applicable to Rent Control Court for considering a petition to set aside exparte order filed beyond the time prescribed by the rules. Of course, before Appellate Authority application of Limitation Act will govern by Gopalan v. Aboobacker (supra).