Section 127 (3) Cr. P.C, 1973; The Muslim Women (Protection of Rights on Divorce) Act, 1986; and the Muslim Woman's Right to Mataa

(By Lucy Carroll) *

In 1879, the Calcutta High Court observed, in dealing with a case arising under the maintenance provisions of the Presidency Magistrates Act (a predecessor of the provisions later embodied in S.488 of the Criminal Procedure Code, 1898):

The fact that the power of divorce, given by the Mahomedan law, may be so exercised as to defeat the intention of the Legislature as expressed in S.234 Act 4 of 1877 (i.e., Presidency Magistrates Act), and other similar enactment, may go to show that further legislation is required, but it cannot affect the law as it stands.[1]

It was not until nearly a century later that Parliament acted and to the new Code of Criminal Procedure, 1973, was added a provision extending the jurisdiction of the magistrate to issue maintenance orders to include orders in favour of a divorced woman against her former husband[2] Almost immediately, however, the benefit apparently conferred by this section was placed in doubt by the subsequent amendment of S.127 of the Code.

During the course of the Parliamentary debates over the Government sponsored amendment of S.127 in December 1973, Jyotirmoy Bosu spoke in opposition on behalf of "millions of women, specially Muslim women," and cited petitions received from Muslim women and women’s organisations. In defense of the provisions of S.125, which as they applied to divorced Muslim women appeared to be negated by the amendment proposed to S.127, Bosu invoked Sura II, Verse 241 of the Quran:- "For divorced women maintenance should be provided on a reasonable scale". The new S.125, with the expanded definition of the term "wife", he suggested, did no more than to give to Muslim women "the benefit of this clear mandate of the Holy Quran."

Pressed by Bosu to reply to his objections to the proposed amendment of S.127, the Minister responded by stating that if Bosu's propositions held good, "this provision (i.e., S.127(3)(b) may not come into operation (to negate the rights of divorced Muslim women under S. 125)."

A short and powerful, and in a sense prophetic, 1977 article by T.M. Abdullah, in Kerala Law Times, appears to pick up the debate from the point where it was left by the Lok Sabha exchange between Jyotirmoy Bosu and the Government Minister.[3]In order to apply S. 127(3)(b) to the case of a Muslim divorcee, Abdullah asserted with calm logic, it is necessary to ascertain exactly what constituted the "sum .... under ..personal law.... payable on... divorce" by a Muslim husband to his former wife. The phrase used in S. 127 (3)(b) cannot, he asserted, refer to mahr, since mahr is payable on marriage; it is only to suit the convenience of the parties that it is often arranged that payment of a portion of the mahr shall be deferred until some later date or until dissolution of the marriage.

Similarly, the terms of S. 127(3)(b) cannot include maintenance for the period of iddah, the liability for which does not arise by reason of divorce. The obligation to maintain the wife during iddah is an extension of the husband's obligation to maintain his wife during the marriage.

Iddah does not necessarily fall to be observed after the divorce; when iddah precedes the actual dissolution of the marriage, the spouses continue as husband and wife throughout the iddah period and maintenance is incumbent upon the husband because of the subsistence of the marriage.

When iddah does follow the divorce, the divorced wife is prohibited from remarrying, not because of the divorce but because of the (now dissolved) marriage and the interests of the (former) husband in ascertaining whether the woman may be pregnant by him.

The divorced woman's inability to remarry during the post-divorce iddah derives from the marriage; the ex-husband's obligation to maintain her during this period likewise is an extension of his obligation to maintain her during coverture. If the woman is pregnant, iddah will extend until she is delivered; the former husband's obligation to maintain continues throughout the pregnancy, not because of the divorce but because of the father's liability for the maintenance of his child.

So, the mahr and the iddah maintenance are out of account for relief under S. 127 Cr. P.C. What remains is the command for making a reasonable or honourable provision for the divorced wife contained in Chapter 2 Verse 241 of the Holy Quran.

The reasonable or honourable provision for the divorced wife may take the form of a lump sum allowance or [be paid] by instalments.[4]

Following Abdullah's line of argument, and as the Minister had remarked in the course of exchange with Jyotirmoy Bosu, if the relevant reference is Quaran, II: 241, the terms of S. 123(3)(b) "may not come into operation" to negate the rights conferred upon a Muslim divorcee by S. 125. The husband could only avoid liability for a maintenance order under S. 125 by voluntarily making "reasonable or honourable provision" for his divorced wife by means of a lump sum payment or an arrangement for payment of regular alimony, in addition to payment of any outstanding mahr owed the woman and maintenance for the iddah period.

The interval of nearly two decades since Abdullah's 1977 Article in Kerala Law Times has witnessed the Bai Tahira[5] and Fuzlunbi[6] cases of 1979 and 1980; the 1985 Shah Bono[7] case and the accompanying controversies; the controversial Muslim Women (Protection of Rights on Divorce) Act, 1986; and the failure of the Indian Supreme Court to find occasion to deal with the half dozen or so Writ Petitions filed more than a decade ago and challenging the constitutionality of the Muslim Women Act.

The interval since 1977 has also recently witnessed a remarkable 1995 judgment from the Dhaka High Court which is immediately relevant to the Indian situation.

Hefzur Rahman v. Shamsun Nahar Begum, 47 DLR (1995) 54

The parties were married in March 1985; a son was born in December 1987; and the husband divorced the wife in August 1988. In November 1988 the divorced woman filed suit in the Family Court for her mahr and for maintenance for herself and her infant son at the rate of Taka 1,000 per month each.

The Family Court decreed the suit and, in addition to the amount due as mahr, ordered the defendant (ex-husband/father) to pay Taka 3,000 for iddah maintenance to the plaintiff (Taka 1,000 per month for three months) and Taka 1,000 per month for the maintenance of the child.

On the defendant's appeal, the District Judge reduced the rate of maintenance for each plaintiff to Taka 600 per month. The defendant took the matter to the High Court in an attempt to get the maintenance payments reduced further.

The High Court, firstly, reinstated the maintenance at the rate initially decreed by the Family Court.

We hold that each of the opposite parties is entitled to get from the petitioner an amount of Taka 1,000 per month as maintenance commensurate with the status and means of the petitioner. We further hold that the learned District Judge acted illegally in reducing the amount abruptly without assigning any reason whatsoever.

Then, the Division Bench took up, suo motu, the question of the duration of the maintenance decreed in favour of the divorced woman, which both lower Courts had limited to the 3 months iddah. Quoting the verse which appears no less than four times in sura 54 of the Quaran (ayats 17,23,32 and 40) - "And we have made the Quran easy to understand and remember; then is there any that will receive admonition?" - the Court rejected taqlid and endorsed the principle of ijtihad.

This literal study of the Quran is discouraged by a section of Muslims. They insist that the readers should follow any of the interpretations given by the recognised early scholars. They go further by saying that the door of interpreting Quran is now closed.

Art. 8(1A) of the Constitution of Bangladesh contained in Part III under the hearing "Fundamental Principles of State Policy" states that absolute trust and faith in the Almighty Allah shall be the basis of all actions. It indicates that Quranic injunctions shall have to be followed strictly and without any deviation.

Quaran urges: "Those to whom we have sent the Book study it as it should be studied: they are the ones that believe therein" (Second Sura Baqara, verse 121). This verse directs continuous study of the Quran which is in conformity with the dynamic, progressive and universal character of Islam.

We, thus, come to the conclusion that a Civil Court has the jurisdiction to follow the law as' in the Quaran disregarding any other law on the subject (eg. in the commentaries compiled by jurists), if contrary thereto even though laid down by the earliest jurists or commentators may be of great antiquity and high authority and though followed for a considerable period.[8]. For it is an article of faith of a Muslim that he should follow without questioning what has been revealed in Quran and disobedience thereof is a sin.

Applying these principles to Quran II: 241 and analysing the import of the Arabic text, the Division Bench concluded :

So, we find that a woman who is divorced is entitled to household stuff, utensils, goods, chattels, provisions, convenience which is known, recognised, honourable, good, befitting, a kindness. Abdullah Yusuf Ali is, therefore, correct in translating the expression "mataaoon bill maaroof" as "maintenance should be provided on a reasonable scale"....

Considering all the aspects we finally hold that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddah for an indefinite period, that is to say, till she loses the status of a divorce by remarrying another person.

The petitioner was ordered to pay the maintenance as originally set by the Family Court (Taka 1,000 each per month) to his former wife until she remarried and to his son until he attained majority.

Concluding remarks

The Muslim Women (Protection of Rights on Divorce) Act is very curiously and ambiguously drafted. The important section is S. 3, which declares that the divorced woman is entitled to obtain from her former husband "maintenance", "provision" and mahr, and to recover from his possession her wedding presents and dowry (jahez); and authorizes the Magistrate to order payment and/or restoration of these sums or properties. The crucial provision is found in S. 3(1)(a), which states that the divorced woman "shall be entitled to"

a reasonable and fair provision and maintenance to be made and paid to her within the iddah period by her former husband.

The wording appears to imply that the husband has two separate and distinct obligations: (i) to make a "reasonable and fair provision" for his divorced wife; and (ii) to provide "maintenance" for her. The emphasis of this section is not on the nature or duration of any such "provision" or "maintenance" but on the time by which an arrangement for payment of "provision" and "maintenance" should be concluded, i.e., "within the iddah period."

On this reading, the Act only excuses from liability for post-iddah maintenance a man who has already discharged his obligations of both "reasonable and fair provision" and "maintenance" by paying these amounts in a lump sum to his wife, in addition to having paid his wife's mahr and restored her dowry, etc. as per Ss. 3(1)(c) and 3(1)(d). The whole point of Shah Bono was precisely that the husband had not made "a reasonable and fair provision" for his divorced wife, even if he had paid the amount agreed as mahr half a century earlier and provided iddah maintenance; he was therefore, ordered to pay a specified sum monthly to her under S. 125 of the Criminal Procedure Code.

The interveners on behalf of the husband in Shah Bano could not refute the words of the Quran, II: 241;9 all they could do was to contend that Yusuf Ali's translation of "mataa" as "maintenance" was incorrect and to point out that other translations employed the word "provision". This the Supreme Court termed "a distinction without a difference" - as indeed it was on the facts of the case before it: whether mataa was rendered "maintenance" or "provision", there was no pretense that the husband in Shah Bano had provided anything at all by way of mataa to his divorced wife.

As Abdullah pointed out in his 1977 article,[10] there is no reason why the "reasonable and fair provision" (mataa) enjoined by Quran II:241 could not take the form of the regular payment of alimony to the divorced woman. Rather than reserving the Shah Bano decision, it could be argued that the Muslim Women (Protection of Rights on Divorce) Act enlarged and codified it - truly preserving and protecting the rights of the divorced Muslim woman!

Footnotes:

*Fellow, National Humanities Center, Research Triangle park, North Carolina.

1Abdur Rohoman v. Sakhina, 918790 ILR 5 Calcutta 558, at P. 562.

2Section 125, Cr. P.C, 1973; explanation.

3.T.M. Abdulla, "MuslimHusband'sLiabilityunder Ss. 125 & 127.Cr.P.C." 1977 Kerala LT (Journal) 18. Actually, the author is continuing the discussion commenced by another South Indian Muslim lawyer in a previous note in the same Journal. See also : O.V. Abdulkhader, "Supreme Court Decisions on Maintenance to Muslim Divorcees," AIR 1982 Journal 115.

4.I have expanded a little on Abdullah's arguments in the summary above, but I want to call attention to his article because - short, clear, and directly to the point - it was written long before the Shah Bano and Muslim Woman Act controversies.

*BaiTahira v. Ali Hussain Fissalli Chothia, AIR 1979 Supreme Court 362; Krishnalyer, Tulzapurkar, & Patliak, JJ.

6. Fuzlumbi v. K. Khader Vali, AIR 1980 Supreme Court 1730; Krishna Iyer, Chinnappa Reddy, & A.P. Sen, JJ.

7. Mohammed Ahmed Khan v. Shah Banoo Begum, AIR Supreme Court 945; Chandrachud, CJ; Desai, Chinnappa Reddy, Venkataramiah, & Ranganath Misra, JJ.

8.Reference is to the statement of the Privy Council (Aga Mahomed Jaffer Bindanim v.Koolsoom Beebee, ILR 25 Cal. 9): "Their Lordships.....do not care to speculate on the mode in which the text quoted from the Koran, which is to be found in Sura II, verse 241-2 (sic; read "240"], is to be reconciled with the law as laid down in die Hedaya and by the author of the passage quoted from Baillie's Imamia. But it would be wrong for the Court on a point of this kind to attempt to put their own construction on the Koran in opposition to the express ruling of commentators of such great antiquity and high authority."

9. The All India Muslim Personal Law Board, the Jamaat-ul-Ulemam, and the Jaamat-i-Islam had sought and been granted the right of addressing the Supreme Court in the course of the Shah Bano hearing.

10. 1977 Kerala L T (Journal) 18.

Issac Ninan's Case

(P. C. Chacko, Senior Advocate, Ernakulam)

Issac Ninan's case reported in 1995 (2) KLT 848 was the subject matter of an article published in 1996 (1) KLT (Journal) 3.

The learned author, if I may say so with respect, has not viewed the question from the correct perspective.

In order to allay the doubts and misgivings expressed, in the article, these few lines.

The criticism of the judgment by the learned author is mainly on two grounds:

(1) The judgment ignored the possible socio-economic consequences of an abrupt explosion of the impugned provisions from the Rent Control Statutes in force in the State.

(2) The judgment did not consider the impact of the Supreme Court judgment reported in AIR 1988 S.C. 485 which found no unreasonableness in S.4 of the East Punjab Urban Restriction Act 1949 fixing fair rent as rent prevalent for similar houses in 1938.

On the first point what is stated by the author is that even though method of determination of the fair rent is unfair and unreasonable it would not have been taken as a ground to negate the very concept of fair rent. The concept of fair rent, according to the author is different and distinct from the mode of computation. The effect of the judgment, the author continues, is that the landlord would be more equipped to enhance the rent on their-own actions and desires as many times as possible without being controlled by any law or law courts. In the said circumstances instead of a total cancellation of the provisions, according to the author, what was required was a scientific modification in the method of determination of fair rent without opposing die socio-logical jurisprudence involved therein.

The decision in question dealt with the constitutional validity of Sections 5, 6 and 8 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Section 5 deals with determination of fair rent, the basis being property tax fixation by the local authority considering time of letting as basic year and ceiling on fair rent limited as per Section 5(2) viz. not more than 15% the monthly rent on the basis of which the property tax or house tax for the building prevailing two years immediately before the date of the application was fixed by the local authority. Section 6 imposes a ban against further increase of rent from what has been fixed by the court as fair rent except in one contingency where some additions or improvements or alternations, are made by the landloard to the building. Section 8 imposes a restriction on the landlord from claiming or receiving, or even stipulating for payment of rent in excess of the lair rent.

The Division Bench found that the combined operation of Sections 5, 6 and 8 of the Act is a gross invasion on the right of a landlord to carry on business. According to the Division Bench Section 6 of the Act is an unreasonable restriction on the right to livelihood envisaged in Art.21 of the Constitution, and an unreasonable restriction on the right to carry on business envisaged in Article 19(1)(g) of I he Constitution. In conclusion what is found is that Section 5 cannot stand alone without subsidiary and incidental provisions for periodical revision of the fair rent. The legislative scheme provided through Sections 5, 6 and 8 is package and are mutually dependent and interlinked. One provision therefrom cannot be separated from the others. It was in this view of the matter that the Sections 5, 6 and 8 of the Act put together was found by the Hon'ble High Court to be ultra vires the Constitution of India. The Division Bench also found that the provisions do not stand the test of reasonableness.

The possible socio-economic consequences of the abrupt expulsion is sufficient reason according to the author of the article for the Court to fold its hand even when the provision of law challenged is found to be unconstitutional and void. This statement of law apart from being incorrect, is also against the mandate of Article 13 of the Constitution. Article 13 of the constitution reads:-

"13. Laws inconsistent with or in derogation of the fundamental rights -

(1) All laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency, be void.

(2) The Slate shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of tins clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires - (a) "Law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) "Law in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of tins Constitution made under Article 368."

The object of Article 13 is to secure the paramountancy of the Constitution in regard to fundamental rights. The first clause relates to the laws already existing in force and declares that pre-constitution laws are void to the extent to which they are inconsistent with the fundamental rights. The second clause relates to post-constitution-laws and prohibits the State from making a law which either takes away totally or abrogates in part, a fundamental right. This clause further states that the enacted law to the extent of the inconsistency will be void. The object of the definition in Article 13 is to ensure that instruments emanating from any source of law-permanent or temporary, legislative or judgment or any other source, will pay homage to the constitutional provision relating to fundamental rights. At the same time clause (4) seeks to ensure that a constitutional amendment does not fall within the definition of law in Art.13 and its validity cannot be challenged on the ground that it violates a. fundamental right. It is the duty of the High Court, exercising jurisdiction under Art.226 and of the Supreme Court under Art.32 of the Constitution to declare the law as unconstitutional and void, if it, is found to be against fundamental rights. In case of such declaration it is the duty of the Government and the Legislature of the State, to step in to rectify anomaly if any, created by the courts declaration of the law. In all cases of anomalies consequent on Court declaration of a provision of law, as unconstitutional and void, the Government and the Legislature of the State had stepped in and that is the practice, in all these years, since the advent of the Constitution in 1950. The Court herein interfered with the present fair rent determination method, since the same is an inroad into certain of the fundamental rights of the citizen. It is not the function of the court to formulate and propound better and more scientific fair rent determination methods, while declaring a provision of law as void and unconstitutional. That is the function of the Government and the Legislature of the State.

That rent control legislation needs no change is nobody's case. Many features of Rent Control Laws in existence in various States have outlived their utility. The task therefore was of unifying, consolidating and amending the Rent Control Laws in the States and to bring them in tune with the changed circumstances. Recognising the negative impact and tension created by the Rent Control Acts in existing in several States in India, various Commissions have been set up at the Centre, Economic Administration Reforms Commission in 1980 and a National Commission on Urbanisation in 1985. Both these bodies recommended reform of the rent legislation in a way balancing the interests of both the landlord and the tenants and also stimulate future construction. The National Housing policy of Government of India envisages amendment of the State Rent Control laws for bringing uniformity of application throughout the country.

On the basis of series of consultations with State Governments and various experts, the Ministry of Urban Development had prepared a paper suggesting the basic features of the Model Rent Control Law. The policy paper was considered in the Chief Minister's Conference held in 7-3-92 in New Delhi, where the broad frame work of the Model Rent Control legislation was endorsed. In accordance with the decision thus taken, Central Government, formulated a Model Rent Law incorporating the views outlined in the policy paper endorsed in the Chief Minister's conference aforementioned. The Model Rent Control Law was in fact tabled before both the houses of the Parliament.

It is on the basis of the model Rent Control Law that Delhi Rent Control Act was enacted in 1995. States like Tamil Nadu, Madhya Pradesh and Maharashtra, have also carried out certain amendments in their Acts. Since Rent Control is a State subject the state Government and the State Legislature have the exclusive jurisdiction to legislate on the subject. By bringing forth Model Rent Control Law, the Centre is advising the State Governments to undertake enactment of amendments to existing Rent Control Laws or to enact new laws on the basis of the Model Law. The essential features of the Model Law in regard to determination of fair standard rent and its revision is as stated below.

B. Standard Rent

6.2. Substitution of multiple formula for fixing standard Rent (SR) by a simple formula, which will provide fair rate of return on the investment in the house.

a) Standard Rent (SR) to be fixed on the basis of 10% return on the cost of construction and market price of land at the commencement of construction. The rate of return can be varied by legislation. The Standard Rent so derived could be increased by a certain percentage from the year of construction to the present year to arrive at Standard Rent for given year.

To this Standard Rent are to be added charges on account of maintenance, taxes payable and amenities. The maintenance charge may be ten percent of the Standard Rent, that for taxes as per actual tax payable pro-rata and the charge for amenities as agreed between the landlord and the tenant subject to a maximum in relation to the rent paid. These charges are over and above the Standard Rent and do not constitute a part of it.

b) The new Standard Rent is to become applicable from the day the Act becomes effective. The permitted increases in Standard Rent would also be effective from the day the amendment permitting the increase in rent comes into effect.

c) The Standard Rent may be received every three years on the basis of criteria notified by the State Governments. Meanwhile, the Standard Rent to increase by a given percentage every year to be prescribed by each State according to rate of inflation, subject to adjustment at the end of three years according to CPI, The increase in Standard Rent will be automatic. Reference to the Rent Controller will be made only in case of disputes on the base rent.

The rate of increase could vary from city to city and can be higher for larger urban areas. Thus in cities like Delhi, Bombay etc. Standard Rent could increase by eight per cent every year, whereas for smaller urban areas, this figure could be five per cent or as the State Govt. may decide. The percentage of increase in Standard Rent may be higher in case of non-residential properties.

For must of the States in India, price increases over the past one to two decades have been in the range of 8%, 10%. This should determine the outer bound for prescribed increases in rent, since in smaller cities as well as in some parts of large cities, an increase of ten per cent may result in Standard Rent being higher than the market rent. Further the Rent Control Acts have also been used as anti-inflationary measures and rent increases equivalent to price increases may full the inflationary pressures. Under the current macro-economic scenario when the CP1 has crossed 14 per cent mark, linking rents with CP1 will lead to sharp increases in rents.

Extrapolating the current rents at 8 percent per annum, a rent of Rs.1500/- for a, two bed-room flat in a middle class colony in Delhi in 1991 will increase to Rs.2204/ by the year 1995' and will approximate Rs.3500/- by 2001.

d) The increases in Standard Rent for premises in non-residential uses may be at a higher rate.

(e) The new Standard Rent will be applicable to all old and new tenancies. The rent of the old tenancies with less than the specified rent is to be brought at par with the prescribed Standard Rent gradually over a period of five years in order not to impose a sudden financial burden on tenants. The State Government may decide to have a longer adjustment period and/or a lower rate of growth of rents of older tenancies to further lighten the burden on tenants. The level of neutralisation of rent may relate to the age of premises and lower rates of increases be used/adopted for earlier period. Further, the of neutralisation could range from 25 per cent for residential premises with less than 25 squares meters area to 100 percent for plinth area over 80 sq, metres and for non-residential premises.

f) Standard Rent is to be increased if landlord invests subsequently in the premises and the investment has been made in agreement with the tenant/s and it leads to significant improvement in the flow of services or amenities to the tenant/s. The increase in Standard Rent will be only in relation to expenditure incurred on construction by the landlord. The land price taken for calculation of the rent will continue to be the price prevailing at the time of initial construction and indexed upto the year of reconstruction.

g) Reduction in flow of services due to reduction in accommodation space or poor maintenance or deterioration in services will result in lowering of Standard Rent and the tenant can apply to Rent Collector for refixation of rent. The important principle is that while the tenant will enjoy security of tenure in controlled premises, he should agree to pay a rent that provides adequate return on investment and provides for proper maintenance and taxes, so that he does not enjoy an unfair advantage over the landlord. If at all the tenant is to be subsidized, it should be done by the State and not the landlord.

Standard Rent and Revenue Base of the Local Authority:

The revision of Standard Rent will strengthen the property tax base and augment the financial resource base of the local authorities for who property tax is a major source of revenue.

The above is a ample 'illustration for the non-continuance of the derogatory provisions in the Rent Control Statutes, in force in this State.

On the second point the author of the Article is not correct in thinking that the judgment reported in 1988 S.C. 485 is decisive as regards the issue in question.

He is also not correct in thinking that as and when fair rent fixation application comes up for determination the temptation will be to look in obedience to the said Supreme Court Judgment. On the contrary the said Supreme Court Judgment is no answer to the problem considered by the Division Bench in Issac Ninan 's case,

The Supreme Court opens the said judgment by stating as follows :

"It must, however, be mentioned that the petition is lacking in particulars as to what premises the appellant owned and in respect of which premises the appellant is making the grievances. On tin's ground it is not possible to decide the question of vires canvassed before the High Court and repeated before us. A petition challenging the constitutional validity of certain provisions must be in the context of certain facts and not in abstract or vaccum. The essential facts necessary to examine the validity of the Act are lacking in this appeal. On this ground the petition was rightly rejected and we are not inclined to interfere with the order of the High Court on this ground alone." Section 4 of the East Punjab Urban Restriction Act 1949 was the provision under challenge before the Supreme Court. The said Section is quoted in extenso in the said judgment. On the materials available on record, the Supreme Court dealt with the matter as follows :

"Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory or different. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The source of authority for the two statutes being different. Art.14 can have no application."

"It must be the function of the legislature of each State to follow the methods considered to be suited for that State that would be no ground for judging the arbitrariness or unreasonableness of a particular legislation in question by comparison. What may be the problem in Madras may not be the problem in Punjabi It must however, be borne in mind that the Act in question was passed in 1949 and it pegged the rent prevalent in the similar Houses in 1938 and as such is not unreasonable per se. The rises stated tremendously after the end of the Second World War after the partition of the country. In that view of the matter, we cannot say that per se, there is unreasonableness in fixing the prices in 1938 level. Having regard to the specific preamble of the Act we find nothing unreasonable in the Scheme contemplated under Section 4 of the present Act." (from page 488 of the report).

It may be mentioned here that as per S.4 of the East Punjab Urban Rent Restriction Act permissible increase i.e., increase from 8 1/2% upto 100% on the basic rent depending on nature of tenancy is permitted unlike in the case of the Kerala statute, and this circumstance was also taken into account by the Supreme Court for finding Section 4 not unreasonable.

The Division Bench of the Kerala High Court held Sections 5,6 and 8 invalid not solely on the basis of the arbitrariness of these provisions but on the basis of Article 19(1)(g) and 21 of the Constitution. In the Supreme Court judgment, validity of Section 4 East Punjab Rent Restriction Act was considered only on the ground of arbitrariness. Relevant materials and necessary statistics essential to substantiate the infringement as per these Articles of the Constitution were available to the Division Bench unlike in the case of the Supreme Court matter. It is on the basis of those facts and circumstances the Kerala High Court Division Bench decided the case. The Division Bench found that living on rental income is business. Right to live being a fundamental right, to deprive a person of his livelihood by restrictions imposed by Section 5,6, 8 of the Kerala Rent Control Act is found unconstitutional and void under Articles 14, 19(1)(g) and 21 of the Constitution.

Section 34 of C.P.C. - To be Amended

(By P.S. Vasavan Pillai, Advocate, Trivandrum)

If Section 34 of the Code of Civil Procedure 1908 is amended suitably, pendency of cases in the Execution Courts can be brought down substantially.

Out of the pendency in the Execution Courts, a good percentage belongs to 'money suits'. Number of money suits in the Execution Courts swells up because of the low rate of interest stipulated in the above section.

At present as per the above Section 34, interest at the rate of a maxi mum of 6% per annum on the principal sum alone is needed to be paid by a judgment-debtor after the decree is pronounced. Many debtors make undue advantage of this provision. They can afford to delay the payment of the decree amount to any extent. If delayed, it will be only to their advantage. The decree amount they can lend to needly persons and can realise from them interest at any rate. In turn they need pay only 6% or less to their creditor (decree holder). They need pay the low rate of interest on the principal sum alone while they can get high interest for the whole of decree amount which will be invariably bigger than the principal sum.

If the debtors (Judgment-debtors) have to pay a high or reasonable rate of interest On the decree amount, they will try to clear the liability at the earliest.

Therefore it is desirable that the Parliament raises the rate of post decree interest in money suits to a reasonable percentage. Interest must be made payable for the whole of the decree amount and not for the principal amount alone.

On Watergate and Monicagate

(By T.G. John, Advocate, Thrissur)

1972 - During the Presidential Campaign of Richard Nixon, a group of election agents employed by the Re-election Organisation of the President, were caught breaking into the Democratic Party Headquarters in the Watergate Building, Washington D.C. The consequent political scandal was exacerbated by attempts to conceal the facts that Senior Whitehouse Officials had approved the burglary and this oblique situation eventually forced the resignation of President Nixon to escape impeachment.

1995- Monica Lewinsky, one November night walked into the Oval Office of President Clinton with a Pizza. It could have been any one of the other interns. Monica only offered a different type of topping. A woman who is aware of what she can arouse in a man has little difficulty in sending the right signals. A predatory male can usually sniff it in the air. The response is their private affair. But it is surprising that when sex scandals are attached to VIPs they assume such proportions of global publicity that even wars do not get.

The most powerful man in the world President Bill Clinton, was recently grilled for six hours by the Lawyers of Paula Jones, who had worked in the office years ago when he was the Governor of Arkansas State. The charge is that she was invited to a hotel room by Clinton and propositioned. Paula's 'sense of female dignity' suddenly woke up after Clinton became the President! In the wake of that another woman, Monica, too has made allegations that she was given a job so that she should not speak about her affair with Clinton. And then the Kenneth Star drama has followed:

The American President would not have done much for his country but the entertainment he is providing for the people of America and the world by subjecting himself to the ordeal makes Americans feel that they have got their money's worth in electing Clinton.

Sometime ago there was the sensational case of the noted Base Ball player - O.J. Simpson - who was sued for raping a woman admirer of his. The question looms large why these women readily go to the hotel rooms when they are invited? What else did they expect the men to do to them in the hotel room? Making allegations against VIPs might be giving them the psychological satisfaction of becoming famous. Paula Jones or Monica Lewinsky or for that matter any of the interns would not have achieved this stardom i f they had not happily and blushingly revealed that they had been propositioned by the U.S. President. It is true and welcoming that in the system of American democracy even the President is not immune from the judicial process. But why some of these ladies who were willing participants are immune from the same judicial process? Why in spite of their candid confession they are allowed to roam in society as social butterflies.

We have yet to watch and see the grand 'finale' of the Kenstar Drama - whether it will have two climaxes - the tragic one of Clinton leaving the White House in tears clasping Hillary to amuse the Gulf and Asian Countries, and the other happy climax of Clinton remaining in the White House till 2000 AD to amuse the European countries.

Stop Press

(T.G. John, Advocate, Trichur)

On Friday, 13th of March 1914, Henriette Caillaux, 36 years old second wife of the French Finance Minister, M. Joseph Caillaux swept into the office of the Paris newspaper 'Le Figaro' and shot dead its Chief Columnist, Gaston Calmette. For 2 months 138 articles and cartoons deriding Caillaux had appeared in 'Le Figaro' but when Calmette published a letter Caillaux had written in 1901, to his first wife ('I have crushed the income tax bill while appearing to defend it, thereby pleasing the centre and right, without too much upsetting the left.....'), the Finance Minister and his wife were frantic knowing that the first Madame Caillaux also possessed copies of their own premarital correspondence. In 1909, during a separation from his mistress (who became in 1911, the second Madame Caillaux) the Finance Minister had written her letters winch were politically and amorously indiscreet. These letters had somehow fallen into the hands of his first wife. The Finance Minister and his wife visualised passages from these letters also appearing in the newspaper because it was clear Calmatte was in possession of these letters.

Realising the inflammatory nature, Henriette sought legal advice and got the information that in France then there was no law to protect individuals against newspaper libels. She left a note for her husband and called at a gunsmith's, where she tested weapons in the firm's shooting gallery. Soon afterwards, she fired four bullets at Calmette in his office and he died in hospital that night.

Monseur Caillaux, the Finance Minister handed in his resignation, an English newspaper stated that the wife of a British Cabinet Minister would never behave in such a way and 'Le Figaro' printed a list of people who deplored the killing!

Henriette Caillaux was tried the following July: She pleaded great provocation and said the gun had gone off accidentally. The jury found her not guilty of murder. Caillaux resumed his political life although after the First World War, he was imprisoned for correspondence with the enemy. Henriette Caillaux died in 1943.