Nulity of Christian Marriages in Civil Law and Canon Law - Problems and Perspectives

(By Dr. Sebastian Champappilly, Advocate, High Court of Kerala)

Christians in India, though a minuscule minority, are not a negligible segment, as their numerical strength is equivalent to the total population of many a European State which are predominantly Christian. Yet, they have not been able to solve their problems in the field of family law especially in matters connected with declaration of nullity of marriages by the civil court and the Ecclesiastical Tribunals. Since 1960 a movement for reform in Christian law has set in. The efforts made by the judiciary to changes have had inadequate impact on the community. In this context, it may be useful to look into the history and development of the personal law applicable to Christians in India in the backdrop of Global developments so as to have an overall picture of the matter.

The historical development of Personal Law of Christians

In the march of history, Catholic Church had to face many ups and downs. In order to withstand the onslaught of the Reformation movement, Catholic Church initiated a Counter Reformation Movement in Europe in the 15th century. For this purpose the majority of Bishops from all over the world assembled to reform the Catholic Church from within. In this process the Bishops at the Council of Trent in its twenty-fourth session held in November, 1563 enacted a Decree known as the Tametsi Decree. It affirmed marriage as a sacrament and declared that clandestine marriages entered into otherwise than in facie ecclesiae as null and void. This decree bound all Roman Catholics in the countries in which it was promulgated. It was promulgated in Portugal and the Portuguese by this time established their influence over the western shores of India.[1] The Portuguese must be deemed to have carried the Tametsi Decree with them to India as part of their personal law.[2] When the Portuguese came here they found that the Church order and customs of the Syrian Christians were not in tune with the western church to which they belonged.[3] They wanted to westernise the Syrian Christians and their attempt (through the Archbishop of Goa) at the Synod of Diamper is now part of history.[4] By the decrees of the Synod, the marriage discipline contained in the Tametsi Decree of the Council of Trent came to be applied to the Syrian Christians. This was resented to by a Section of the Syrian Christian community and they revolted against the Portuguese supremacy in their religious affairs. This revolt is usually referred to as the Coonen Cross Revolt of 1653 A.D.[5] Yet the decrees of the Synod of Diamper were passed on to the posterity as the Canon Law of the Syrians of Malabar and were recognised as such by the Propaganda Fide under the Pope.[6]

One of the decrees passed at the Synod of Diamper was regarding redressal of disputes among Syrian Christians. Decree XV of Session IX provided:

"The dispute of Christians to be decided by the Bishop:- Whereas by the ancient custom consented to by the whole government of the Christians of this bishopric, not only in spirituals but temporals also, is devolved to the church and the bishop thereof, who is to determine all differences that are among Christians.............the Synod doth strictly command all die Christians of this diocese, not upon any pretence whatsoever, to presume to carry any of their causes before infidel kings or their judges, without express licence from the prelate; which when so ever it shall be judged necessary, shall be granted to them as shall be first carried before the prelate, that he may judge or compose them according to reason and justice; and all that shall do otherwise, shall be severely punished for the same, at the pleasure of the prelate, and he thrown out of the church for so long time as be shall think fit."[7]

This state of affairs continued for some time, exceptions notwithstanding. And as regards declaration of nullity of marriage the Church here could do the same as is evident from the writings of Rao Bhadur L.K. Ananthakrishna Ayyar.[8] He writes:-

"It should be noticed that there are some causes which render marriage invalid and null, as for example, default of consent, close affinity, illegality of contract, defect of age and other invalidating causes In these days the Church can, after enquiring into the matter, declare the union to be null and void from the beginning and this has been done and may be done again. Strictly speaking, however, this is not dissolving an existing marriage, but really declaring that no marriage ever existed between certain parties on account of certain impediments which made the contract void. But a valid marriage completed between baptised persons cannot in any case be dissolved."

While so, the Tamesti Decree of the Council of Trent came to be promulgated all over the world on 2nd August 1907.[9] Thus, the marriage discipline contained in the Decrees of the Council of Trent and as modified by the Synod of Diamper, applied to the Syrian Catholics. Later codification of the cannon law applicable to Catholics of the Oriental Churches, including that of the Syrian Catholics was attempted by Pope Pius XI in 1929 and the matrimonial law of the Oriental Churches was promulgated on 22^nd February 1949 which took effect from 2nd May, 1949.[10] And it remained the personal "law" of the Syrian Catholics at the time of the commencement of the Constitution of India.[11] It continued to be the personal law till the Code of Canons of the Eastern Churchs was promulgated on 18th October 1990 which came into effect from 1st October, 1991.[12]

Judicial Decisions

Courts in India have had, in several cases before them, opportunity to examine the extent of applicability of personal law of Christians especially that of Catholics and rendered divergent decisions. In this context, it may be mentioned that the statutory law applicable to marriages of Christians in (British) India was and still is the lndian Christian Marriage Act, 1872. And for divorce and allied matters, following the Matrimonial Causes Act of 1857 of England, the Indian Divorce Act, 1869 came to be enacted and applied to Christians in India. There was no law except personal laws and customary laws in force in Travancore regulating marriages or matrimonial reliefs among Christians. When India became independent the Indian Christian Marriage Act was specially excluded from its application to Travancore and Cochin, Manipur, Jammu and Kashmir areas by the provisions of the Part B States (Laws) Act 1951. However, the Indian Divorce Act, 1869 came to be extended to the Part B States in 1951. Yet there was (and still is) no civil law in force regulating customary or canonical marriages among Christians in the Travancore and Cochin, Manipur, Jammu and Kashmir areas. This position has not changed even after half a century of democratic rule. It is in this context of the civil law and personal law that the Courts in India are called upon to decide matters on these questions. A question that generally arose on several occasions was as to what was the law to be applied for determining the validity or otherwise of a Christian marriage in these areas. Yet another question is whether Canon Law can be pressed into service for that purpose.

In order to find out as to how the courts dealt with the question in the past it is necessary to examine the British-Indian decisions. In Lopez v. Lopez [13] a Full Bench of the Calcutta High Court held that where parties to the matrimonial proceedings are Roman Catholics (to determine prohibited degrees), it is the law of England but the Canon Law of the Church of Rome as applied in this country which is to be looked into and applied. This decision was quoted with approval in Lucas v. Lucas.[14] Again in Saldanha v. Saldanha it was held that personal law for Roman Catholics is the Canon Law of the Church of Rome and that the Church has no concern with the civil effects of matrimony.

Coming to Travancore, in Eappan Punnan v. Koruthu Maria [15] it was held that a case for nullity of marri age ought to stand or fall by the rules of the Canon Law. Again, a Full Bench of the Travancore - Cochin High Court in Cheriya Varkey v. Ouseph Thresia,[16] wherein the parties were Roman Catholic Syrian Christians, ruled that the principles relating to marital obligations embodied in the Canon Law apply to all Catholics.

The Supreme Court in Lakshmi Sanyal v. Sachit Dhar [17] (1972) 2 SCC 64 held:

"The question of capacity to marry and the impediments in the way of marriage would have to be resolved by referring to their personal law. That, for the purpose of deciding the validity of the marriage, would be the law of the Roman Catholic Church, namely the Canon Law of that Church." (Para.10)

This was a case where the parties were Roman Catholic and the marriage was solemnised in accordance with religious rites and ceremonies between persons who are within the prohibited degrees of consanguinity. This was done after obtaining dispensation from the Bishop as per Canon Law. The husband later challenged the validity of the marriage under Section 19 of the Indian Divorce Act on the ground that the parties to the marriage were within the prohibited degree of consanguinity. And the marriage was not annulled as the Court presumed that there was dispensation from the prohibited degrees granted by the Bishop as per Canon Law.

Again in Leelamma v. Dilip Kumar [18] Justice Chettoor Sankaran Nair sitting as a Single Bench of the Kerala High Court held that in the absence of statutory law, Canon Law governs the members of the Syrian Catholic Community.

Thus the Supreme Court and various High Courts in clear terms laid down that the validity or otherwise of a marriage between Catholics would have to be decided by referring to the provisions of Canon Law in the absence of statutory law. Hence it may safely be concluded that validity of the marriage, where the parties are Roman Catholics, must be determined by resort to the provisions of their personal law i.e. Canon Law.

Conflict between Canon law and Civil Law

Then a question arose so as to what extent Canon Law can be looked into and applied and whether the decree of nullity of marriage granted by the Eparchial Tribunal (Ecclesiastical Tribunal) can be accepted and acted upon. And who should adjudicate the validity or otherwise of a marriage between Roman Catholics. In Kurian v. Alphonsa [19] a Single Bench of the Kerala High Court, held that the rights flowing out of a legal marriage cannot be interfered by the Eparchial Tribunal and that the Personal law cannot over ride provisions of Section 125 Cr. P.C. Again in Jose v. Alice [20] a Division Bench of the Court took the same view. That too was a case for maintenance. In George Sebastian v. Molly Joseph [21] a Special Bench of the same Court held that the rights flowing out of a legal marriage cannot be interfered with by the Eparchial Tribunal and that a marriage cannot be dissolved except by resort to statutory provisions of law. It was further held that even if an Ecclesiastical Court grants annulment or divorce the Church authorities will still continue under a disability to perform or solemnize a second marriage for any of the parties. [While holding so the Special Bench disapproved the proposition laid down in Leelamma v. Dilip Kumar]. And when the matter went up to the Supreme Court, (in Molly Joseph v. George Sebastian [22] it was held that the provisions of the Divorce Act exclude jurisdiction of Ecclesiastical Tribunal or any Tribunal other than the Courts envisaged by it to annul a marriage and that as regards civil effects of marriage the Civil Court has exclusive jurisdiction. Now, therefore, even after obtaining a degree of nullity of marriage from the Ecclesiastical Tribunal, it has become essential for the parties to the marriage to obtain a civil decree from the civil court as otherwise they cannot get remarried and in the event of a second marriage being solemnised prosecution for bigamy is most likely and the priest who solemnises the second marriage is liable to be prosecuted for abetment of the offence of bigamy.

A critical appraisal of the judicial decisions

To begin with, in Kurian v. Alphonsa [23] the question that arose for decision was whether a Christian woman, whose marriage was declared as null and void by the Eparchial Tribunal,[24] was entitled to get maintenance under S.125 of Cr. P.C. The Court answered in the affirmative on certain basic assumptions that are fundamentally incorrect. The first and foremost error was that the Court founded it's judgment on a notion that when Parliament has enacted a law creating a forum for dissolution and for a decree of nullity of Christian marriage, the Eparchial Tribunals cannot adjudicate upon those matters affecting the Civil Rights of parties to the marriage. In fact, Parliament had not enacted a law on the subject and the pre-constitution law was not appreciated in its historical background and its position in the constitutional era. Secondly, even according to Canon Law, questions like maintenance and such other Civil Rights of parties are to be governed by the Civil Law. Unfortunately, this position under the Canon Law was not brought to the notice of the Court.

The ratio in Kurian was reiterated by a Division Bench in Jose v. Alice.[25] The Division Bench added that a Christian marriage can be declared as null and void only under Sections 18 and 19 of the Indian Divorce Act. Again the Division Bench built up its thesis on a fundamental error that the Indian Christian Marriage Act, 1872 applied to the case. In fact, that Act had no application in that case as the marriage in question was solemnised in the Travancore area of the State of Kerala. It was in this background that Justice Chettoor Sankaran Nair of the Kerala High Court in Leelamma v. Dilip Kumar,[26] emphatically stated that personal law applicable to Syrian Catholics is the Canon Law and their marriages are to be governed by that law.[27]

While matters remained thus, a Special bench of the Kerala High Court in George Sebastian v. Molly Joseph [28] upheld the view in Kurian and Jose and expanded the theory further. The Special Bench held that the grounds for nullity of marriage enumerated in Section 19 of the Indian Divorce Act, 1869 are exhaustive and Courts are not empowered to go outside the contours of the Divorce Act for granting a decree of divorce or a decree of nullity. Again, it may be pointed out that the grounds enumerated in Section 19 are not exhaustive in so far as there are ground available under Sections 4 and 5 of the Indian Christian Marriage Act, 1872 for declaration of nullity of a Christian marriage.

It appears that their Lordships of the Special Bench has ignored a vital aspect in upholding Civil Law against Canon Law, that they were dealing with a situation where there was no civil law but only Canon Law. The Special Bench relied on the Indian Divorce Act to find out the principles governing marriage. While doing so it failed to appreciate that the law relied on was not the Indian Chrisitan Marriage Act or for that matter any other marriage Act but the Indian Divorce Act which deals with post marriage status only.

The Special Bench also struck a dissent from Leelamma's ratio and tried to distinguish the Supreme Court's decision in Lakshmi Sanyal. The Special Bench further held that the rights flowing out of a legal marriage cannot be interfered with by the Eparchial Tribunal and that even if a decree of nullity is granted by the Eparchial Tribunal, no second marriage for the parties are permissible without obtaining an Order from the Civil Court. Thus, in the eyes of the Civil Law, for all practical purposes, the decree of the Eparchial Tribunal was of no consequence and a Civil decree became mandatory.

Though the matter was taken up before the Supreme Court in Molly Joseph v. George Sebastian, [29] the view taken by the Special Bench was upheld without any further attempt to throw more light into the subject. The Supreme Court also did not appreciate the precedent set forth in Lakshmi Sanyal v. S.K. Dhar [30] wherein the Court appears to have approved of the finding of Bombay High Court to the effect that the whole of the Indian Christian Marriage Act, 1872 deals only with the ceremony of marriage and repelled the contention that it was not open to the courts to travel beyond S.19 or the provisions of the Divorce Act to discover whether an impediment which renders the marriage null and void ab intio existed. In fact in Lakshmi Sanyal the Supreme Court traveled beyond the provision of the Statutory Law to decide the validity or otherwise of a Christian marriage.

It may be said that the British Indian Courts had taken a more balanced view in those matters as is evident from the decision of the Bombay High Court which held:-

"any marriage which should for any reason be invalid in the eyes of that law (Canon Law) must also be held invalid in a civil court."[31]

Even after codification of Hindu Law, for determination of the validity of a Hindu Marriage and to establish the marital status for claiming maintenance under section 125 of Cr. P.C., the personal law is to be referred to and the marriage should be established as a valid one in accordance with the personal law as has been held by the Supreme Court in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav & Anr. (1988) 1 SCC 530. [32] In Abdulla v. Noorjahan, the Kerala High Court has held:

"So long as the personal law by which the parties are governed does not prohibit a second marriage, it cannot be said that an offence of bigamy is committed." [33]

And there is no reservation on the part of our legal system to recognise a unilateral "talak" under Muslim Law and to hold that the parties have capacity to marry again.

Therefore, it emerges that capacity to marry is always decided by personal law and nullity arises only when the party had no capacity to marry. Hence, when the personal law of Catholics (Canon Law) holds that the parties had no capacity to marry, the civil law cannot and should not hold otherwise. It may also be said that if a certificate of marriage issued under the authority of Canon law is sufficient for the civil court to accept the marriage as valid, there is no rhyme or reason why the civil court should not accept and act upon a certificate or decree granted under the authority of the same Canon Law, which provides for the grounds and a machinery to declare that no such valid marriage has taken place. Therefore any such declaration to the effect that a marriage is non est which should for any reason be valid in the eyes of that law (Canon Law) must also be held valid in a Civil Court.

In this backdrop it is submitted that the decision of the Supreme Court in Molly Joseph is not a contribution to the advancement of law in the present legal and constitutional frame. At any rate it has added to the woes of Catholics in so far as they are in double jeopardy in matters of matrimonial reliefs. And it has become the need of the hour to find a way out from the impasse.

Conclusion

It is possible to solve the problem by accepting and incorporating the provisions of the Portuguese Civil Code as applied in Goa, where me decrees of the Ecclesiastical Tribunals are as such enforced by the civil courts. Comparatively speaking if the Muslims and Hindus are allowed to have their personal law to be applicable to their matrimonial disputes, there is no reason why our legal system should not respond to the Christians' demand for giving respectability to the decrees of the Ecclesiastical Tribunals.

In the alternative, if for any reason the above proposal is unacceptable either to the Government or to the community, a provision can be made to include a decree of nullity of marriage granted by the Ecclesiastical Tribunals as a ground for declaration of nullity of marriage by the civil court. Till such time the law is amended, the Ecclesiastical Tribunals may accept petitions only on termination of the civil proceedings. Or the Ecclesiastical Tribunals may defer the declaration of nullity of marriage till the parties obtain a civil decree.

However, a comprehensive legislation on the subject is the only answer. This requires a legislative proposal to be submitted to the Government for which the leaders of the community should take the lead. As a first step towards this end an Expert Committee should be constituted, either by the community or by the Government, to formulate a draft Code, for consideration and legislation.

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Foot Note

1.      Vasco Da Gamalanded in Calicut in the year 1498 A.D. and the Portuguese established their rule in Goa by 1510 A.D.

2.      See Saldanha v. Saldanha ILR 54 Bom. 288 at 292.

3.      C.B.firth, "An Introduction to Indian Church History" at 70-71.

4.      See Cardinal Eugene Tisserant "Eastern Christianity in India" P. 57.

5.      See Cardinal Eugene Tisserant "Eastern Christianity in India" P. 79.

6.     See Cardinal Eugene Tisserant "Eastern Christianity in India" P. 166.

7.     See "The Acts and Decrees of the Synod of Diamper" - Edited by Dr. Scaria Zacharia. Published by Indian Institute of Christian Studies. (1994 Edition) at 209.

8.     Rao Bhadur L. K. Ananthakrishna Ayyar in his book on the "Anthropology of the Syrian Christians." Cochin Govt. Press, Ernakulam, 1926.

9.      See Saldanha v. Saldanha. ILR 54 Bom. 288 at P. 292.

10.     See Victor J. Pospishill, "Code of Oriental Canon Law - The Law on Marriage (1962) Chicago at 17.

11.     See Articles 13(3)(a), 366(10) and 372 of the Constitution of India.

12.     See "Code of Canons of the Eastern Churches" (1990) Latin - English Edition Translation prepared under the auspices of the Canon Law Society of America. Published by Oriental Institute of Religious Studies India Vadavathoor, Kottayam - 686 010. Reprint 1992. Pages XI to XIX.

13.     Lopez v. Lopez IL R. XII Cal. 706 (1985).

14.     Lucas v. Lucas ILR. 32 Cat 187 (1904).

15      Eappan Punnan v. KoruthuMaria X T.L.R. 95. (Full Bench Judgment dated 17.5.1892 at page 112).

16.     Cheriya Varkey v. Ouseph Thresia AIR 1955 T.C. 225 F.B.

17.     Lakshmi Sanyal v. Sachit Dhar (1972) 2 SCC 64.

18.     Leelammav. Dilip Kumarli, 1992 (1) KLT 652 = AIR 1993 Kerala 57 = 1992 (1) KLJ 648 = ILR 1992 (2) Kerala 798 = II (1992) DMC 213. (Para.13).

19.     Kurian v. Alphonsa, 1986 KLT 731.

20.     Jose v. Alice, 1988 (2) KLT 890.

21.     George Sebastian v. Molly Joseph, 1994 (2) KLT 387 (S.B.) =AIR 1995 Kerala 252.

22.     Molly Joseph v. George Sebastian, AIR 1997 SC190 = 1997(1) KLT 1 = (1996) 6 SCC 337).

23.     Kurian v. Alphonsa, 1986 KLT 731. (The marriage of the parties in this case was solemnized at the Sacred Heart Syrian Catholic Church, Erumapetty in Thrissur District).

24.     Following the directive of St. Paul, the Catholic Church has a long tradition to settle disputes through its own tribunals. Such tribunals exist at the Eparchial (Diocesan), Metropolitan and even at a higher level. These tribunal scan decide apart from other issues, the validity or otherwise of a Catholic marriage in case of dispute, in accordance with their personal law, i.e., in the present case Canon Law.

25.    Jose v. Alice, 1988 (2) KLT890.

26.     Leelamma v. Dilip Kumar, 1992 (1) KLT 652 =AIR 1993 Kerala 57 = 1992 (1) KLJ 648 = ILR 1992 (2) Kerala 798 = II (1992) DMC 213. (Para. 13).

27.     This view has again gained momentum in Saly Joseph v. Baby Thomas, 1999 (1) KLT 74 (D.B.), though it was disapproved in George Sebastian v. Molly Joseph, 1994 (2) KLT 387 (S.B.) (See paragraph 25).

28.    George Sebastian v. Molly Joseph, 1994 (2) KLT 387 (S.B.) =A1R 1995 Kerala 252.

29.     Molly Joseph v. George Sebastian, AIR 1997 SC 190 = 1997 (1) KLT1 = (1996) 6 SCC 337).

30.     Lakshmi Sanyal v. S.K. Dhar, (1972) 2 SCC 647 page 654.

31      Peter Philip Saldhanha v. Anne Grace Saldhanha, (1929) ILR 54 Bom. 288 at page 313 = (AIR1930 Bom. 105) It is pertinent to note that this decision was rendered in the context of the Indian Christian Marriage Act, 1872 and the Indian Divorce Act, 1869.

32.     Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav & Anr. (1988) 1 SCC 530. Para. 4 & 6.

33.     See Abdulla v. Noorjahan, 1987 (1) KLT 885.

Revisional Remedy Under the Rent Control Law in Execution Proceedings - 1990 (1) KLT 664 (Thankamma v. Krishna Pillai) –

a legal fiction overlooked

(M.R. Parameswaran, Advocate, Ernakulam)

In 1990 (1) KLT 664 (Thankamma v. Krishna Pillai) a division bench of our High Court consisting of Sivaraman Nair and Shamsuddin, JJ. held that a litigant under the Kerala Buildings (Lease and Rent Control) Act, 1965 is not entitled to get a third opportunity to agitate the correctness of an order in execution and that he is in the same position as an ordinary litigant and came to the conclusion that a second revision from a revisional order passed by the District Court in Execution proceedings is not maintainable under S.115 of the Code of Civil Procedure, 1908. Their Lordships drew support for this conclusion from the decisions of the Supreme Court right from Vishesh Kumar v. Shanti Prasad AIR 1980 Supreme Court 892 and the subsequent decisions on the point in Aundal Ammall v. Sadasivan Pillai 1987 (1) KLT 53 and Shyamaraju Hegde v. Venkatesha Bhat 1987 (2) KLT 977 and M/s. Jetha Bai & Sons v. Surederdas Rathenai 1988 (1) KLT 386. The Court refused to agree with the view taken by Radhakrishna Menon, J. in Anilatmajan v. Manoharan, 1988 (1) KLT 877 which followed an earlier decision of Vadakkel, J. in Mammoo v. Krishnan 1978 KLT 901 to the effect that the revisional jurisdiction under S.115 CPC can be invoked in execution proceedings in the Rent Control Act on the ground that there is is no reference to the decision of the Supreme Court in Jetha Bai's case in that decision. Their Lordships also followed the decision under the Telegraph Act of the division Bench in K.S.E. Board's v. Cheriyan Varghese 1989(1) KLT 451. The main concern of the court that compelled the conclusion arrived at appears to be the anxiety to reduce the number of remedies to avoid undue delay in the litigative process. Another reason stated is that an ordinary litigant gets only one opportunity to call in question orders in execution and S. 14 of the Rent Control Act also provides for only that.

Evidently one vital aspect has escaped the attention of the Court and it is not seen raised before it. Under S.14 of the R.C. Act the order passed by the Rent Control Courts executable by the Munsiff as if it were a decree passed by him. It is a legal fiction. (See 1975 KLT 527-G.BalagangadharanNair,J. in M.V. Ali v. Kunjannamma Philipose) See East end Dwellings Co. Ltd. v. Flisbury Borough Council 1952 A.C. 199 at 132 per Lord As quith quoted with approval in AIR 1975 S.C. 164 Boncher Pierre Andre v. Superintendent Central Jail. So the legal fiction has to be carried to it's logical conclusion, of course, within the permissible limits. So the order of the Rent Controller gets transformed into a decree of a Civil Court. Under S. 2(2) of the Code of Civil Procedure, 1908 prior to it's amendment by Act 104/76 orders in execution under S.47 of the Code were decrees within the definition but by the amendment such orders are no longer decrees and hence not appealable but only revisable under S.115 of the Code. What S. 14 of the Rent control Act, provides for in the proviso is a revision instead of an appeal against orders in execution to the court to which appeals Ordinarily lie against the decisions of the Munsiff. The word Ordinarily used here connotes the position available prior to the amendment in 1976 of the Code as after the amendment no appeal lies against execution orders of the Civil Court. If so after the CPC Amendment Act 1976 no revision should lie to the District Court against execution orders in Rent Control cases under S.14 but only a revision under S.115 CPC to the High Court. As at present under the Civil Procedure Code no appeal lies Ordinarily to the District Court in execution proceedings so it should be in Rent Control matters also and that is the effect of the legal fiction after the amendment when it is applied without allowing one's imagination to boggle.

It is not a revision under S.20 of the Rent Control Act in execution proceedings thereunder. The Division Bench seems to have thought so in 1990 (1) KLT 664 and fell into the error, it is most respectfully submitted, of drawing the analogy from Aundal Ammal and Jetha Bai which were cases under S.20 of the Rent Control Act. The resulting position is that as in any other Civil Suit in Execution Proceedings so also in Rent Control matters revision should be held to be maintainable under S.115 CPC directly to the High Court by applying the legal fiction in the proviso to S.14 of the Kerala Buildings (Lease and Rent Control) Act, 1965, Act 2 of 1965.

High Court v. C.A.T.

(K. Kanakachandran, Industrial Tribunal)

Many ripples are being created now on account of the conflicting versions given on the powers and jurisdiction of Central Administrative Tribunals. The latest decisions rendered by a learned Judge of the Kerala High Court in Mony v. Union of India (1990 (II) KLT 216) and Ernakulam Bench of the Central Administrative Tribunal reported as Case No. 1 in 1990 (II) KLT are in highly conflicting terms. The litigants and lawyers are equally in confusion now. My attempt here is to highlight some more issues which are of topical importance.

If we go through the provisions contained in the Administrative Tribunal Act 1985 (For short AT Act) it can be seen that statute makers had also contributed a bit for the creation of these types of controversies. It appears, the law makers failed to anticipate the possible misreading of the provision regarding the assumption of powers which were exercised by the High Court immediately before the coming into force of the AT Act in relation to matters specified in S. 14 and 15.

By the Forty Second Amendment to the Constitution, Articles 323-A and 323-B were incorporated making provisions for constitution of various Tribunals for adjudicating service matters and certain other matters. Article 323-Aof the Constitution empowers the Parliament to enact laws for giving exclusive jurisdiction to the Administrative Tribunals for adjudicating all disputes and complaints with respect to recruitment and conditions of service of person appointed to public services. Art.323(A)(2)(d) empowers the Parliament to make laws for excluding the jurisdiction of all courts except the Supreme Court. Strictly in terms of those objectives, AT Act was enacted by the Parliament in 1985. The S.14 of the AT Act says that all jurisdiction, powers and authority exercised by all courts except the Supreme Court shall be exercised by the Central Administrative Tribunals. The provision contained in S.28 specifically excludes the jurisdiction of all courts except Supreme Court, Industrial Tribunals and Labour Courts. On account of this specific exclusion clause, the powers exercised by the High Courts under Article 226 and 227 of the Constitution on the matters specified in S.14 and 15 of the AT Act are taken away. The change effected only means that High Court will not have any jurisdiction and power to deal with any of the matters specified in S.14 and S.15 of the AT Act even by exercising the constitutional powers vested in it under Articles 226 and 227 of the Constitution. But, it does not mean that the Central Administrative Tribunals constituted by the Central Government will automatically get constitutional powers also conferred exclusively on the High Court through Arts.226 and 227 of the constitution of India. It also does not mean the inherent powers vested in the High Court under S.115 of the Civil Procedure Code will be similarly vested in the Administrative Tribunal. The decision tendered by the Ernakulam Bench of the Administrative Tribunal is on the assumption that the extra ordinary jurisdiction conferred on the High Court under Article 226 of the Constitution is also transferred to the Central Administrative Tribunal by S.14 of the AT Act. This is the real issue leading to the present controversy.

By invoking Art.226 of the Constitution, the High Court can issue various writs in the nature of certiorari, mandamus, quo warranto etc. when there is error or illegality in the exercise of powers by an authority coming under the definition of 'State'. The powers vested in the High Court under Art.226 of the Constitution were rather undefined and unlimited till the 42nd Amendment to the Constitution. But, through Art.323(A) and 323(B) of the Constitution, the Parliament and State are empowered to make laws restricting the powers of all courts including the constitutional powers of High Court in respect of matters specified in such legislations. The bar imposed on the High Court is only that it shall not exercise any of the powers which are to be exclusively exercised by Administrative Tribunals. However if there is usurpation of powers, even against acts of Administrative Tribunals, writs in the nature of quo warranto or prohibition can be issued by the High Courts. Restrictions in the exercise of powers and jurisdiction by the High Courts are only confined to the matters specified in S. 14 and 15 of AT Act and not on other matters.

In the original AT Act, all the Courts except the Supreme Court were barred from adjudicating any of the matters coming within the jurisdiction of Administrative Tribunals. By the subsequent amendment to S.28 of the AT Act, the Industrial Tribunal, Labour Court or any authority constituted under the Industrial Dispute Act 1947 or any corresponding law for the time being in force are also empowered to exercise any jurisdiction, powers or authority on matters exclusively conferred to the Administrative Tribunals. Therefore the position is that any person who will come under the definition of 'workman' in the Industrial Dispute Act 1947 or any other corresponding law for the time being in force can approach not only the Industrial Tribunal or Labour Court but even the Administrative Tribunal also for the redressel of grievances it relation to service matters.

All the employees connected with the affairs of the Union or of any State or of any local or other authority will not come within the definition of 'workmen' in the Industrial Dispute Act. Only a few section of the employees will come under that definition. The intention of the amendment to S.28 might be that those employees who would come within the definition of 'workmen' could resort to remedies provided in the I.D. Act also instead of seeking remedies through the Administrative Tribunals. Thus it is purely the option of the employee concerned to choose any of the forums. That is why concurrent jurisdiction is conferred on Administrative Tribunals, Industrial Tribunals and labour Courts. What the legislature had intended can also only be like that. Nowhere in the AT Act it is stated that the Administrative Tribunal will have appellate or superintending powers over the Industrial Tribunals and Labour Courts. It does have only concurrent powers to exercise. So long as there is no confernment of constitutional power under Art. 227 to the Central Administrative Tribunal, such Tribunal cannot hold the view that it does have superintending powers over Industrial Tribunals and Labour Courts as in the manner the High Court has. It's source of power is only through the provision contained in AT Act and not through the Constitution of India. The Central Administrative Tribunal can exercise powers under Art. 227 only when there is specific provision in the Constitution itself.

Now, in terms of power conferred under Art.227, the High Court is exercising Superintending power on all Courts and Tribunals. So long as the Industrial Tribunals and Labour Courts are creation of Industrial Dispute Act, 1947 or other corresponding law for the time being in force, the Superintending power of the High Court under Art.227 will continue. This position will change only when the Industrial Tribunals are appointed in terms of the law which may be enacted by the concerned legislatures by invoking Art.323-B of the Constitution and provision is also made therein for the exclusion of jurisdiction of High Court as in the manner it is done in the AT Act. Thus the position emerges is that as the matters stand now, only the High Court will have power of judicial review on the awards and orders which will be passed by the Industrial Tribunals and Labour Courts. The Industrial Tribunals and Labour Courts are in no way authorities subordinate to or under the control of the Central Administrative Tribunal so long as there no specific provision for that in the AT Act. In the height of this controversy, it is up to the Apex court of this country to lay down the correct position in law. Till that comes, the present chaos will continue.

Advocate Commissioners

(By Prakash Ramanathan, Advocate, Manjeri)

Every civil lawyer at some point in his practice is sure to have experienced the crucial influence that an Advocate Commissioner appointed by Court has had on the progress and ultimate out-come of suits, especially in matters where emergent reliefs are sought or where very substantial property/easement rights are involved and where a correct plan is essential to judicious disposal of issues.

In actual practice however the fact is that young lawyers fresh out of Law Colleges are usually appointed as Advocate Commissioners even though they may not have any idea of what exactly their role is nor how to go about its effective execution.

It is therefore suggested that the syllabi of legal education (perhaps in the final year) be modified to include a capsule course on all aspects of Commission work including the rudiments of survey techniques and preparation of plans which would go a long way in furthering the rights and interests of genuine litigants.

Is the Supreme Court without a Chief Justice?

(By Varghese Vattakkav, Advocate, Vaikom)

A particular Bar Association was conducting a condolence meeting on the demise of Mr. Justice Sabyasachi Mukharji, the Chief Justice. In the course of the resolution passed by the meeting, which was to be sent to the Registrar of the Supreme Court of India, a minute problem arose among the members- The expression "The Chief Justice of the Supreme Court of India" or "the Chief Justice of India" is to be used.

What did the provision say? Article 124 of the Constitution of India reads:-"The establishment and constitution of the Supreme Court --(1) There shall be a Supreme Court of India, consisting of a Chief Justice of India, and Parliament by law prescribe a larger number of.................other judges."

The provision says that (1) there shall be a Supreme Court of India. (2) There shall be a Chief Justice of India (and not a Chief Justice of the Supreme Court of India) and other Judges (of the Supreme Court, or India? -- the provision is silent). Can a Chief Justice or any other Judge exist without a Court? The term 'Chief Justice of India' indicates a Court and not a country, independently from a Court, is not it?

The very intention of Article 124 of the Constitution, seems to me that the expression "the Chief Justice of India", is to be meant "the Chief Justice of the Supreme Court of India" and "other Judges of the Supreme Court". The mere expression "the Chief Justice of India" is not apt in the provision, in the strict sense. Let me humbly place it before the learned Jurists of the Country.