Order for Maintenance u/S. 125 Cr. P.C

(P. Rajan, Advocate, Tellicherry)

Courts allowing applications under Section 125 of the Code of Criminal Procedure of wives, children and parents, could direct the amount payable by the opposite party either from the date of the order or from the date of application. Monthly allowance from the date of presentation of the petition had been the rule considering the object behind Chapter IX of the Code. By making radical changes to S.488 of the old Code, S.125 Cr. P.C. has been introduced as a speedy measure of social justice to protect the cause and interests of destitute who are the neglected class. It has the seal of constitutional empathy; so also the express consent of the apex court for open exhibition of judicial sympathy to protect the weaker group. Supreme Court even went to the extent of saying that Courts could even be choosy and selective while arriving at judicial conclusions under the above section in order to serve the purpose of the derelicts (AIR 1978 S.C. 1807).

Trial courts have a free hand in giving direction at the time of disposal of petitions, to pay the allowance from the date of application. Often petitions u/S.125 Cr. P.C. takes years for the final verdict, especially if the opposite party decides to take time-consuming contentions or approaches higher Courts with different requests for causing maximum delay and even in such cases rarely courts resort to S.126(3) of the Code to award costs. Hence claimant had sigh of relief by getting the allowance from the date of institution of the petition. This view has been fortified further by His Lordship Bhat's decision reported in 1980 KLT 969.

But later decision of our High Court reported in 1989 (2) KLT 503, even though reaffirms judicial discretion vested with trial courts, says' ordinarily the allowance shall be from the date of the order'. It is pertinent to note even now Chapter IX needs timely changes in order to achieve desired results. Rs.500/- is the maximum one could get per mensem whatever may be his or her need. Affluence of the husband coupled with claimant's pressing needs, educational or medical expenses, house rent etc. are no reasons since maximum is fixed by the Statute. Luxury is not the intention of the law makers - so goes the reply to this. Process is really cumbersome to execute the order duly passed for realisation of the amount, even though procedure contemplated is just like levying of fine as contemplated u/S.421 Cr. P.C. In spite of express provision, pendency of execution petitions is on its escalation. Our High Court was constrained to exhibit its displeasure considering the sad state of affairs relating to pendency of realisation petitions and gave its worth-considering opinions for insertion in the Section. (1980 (1) KLT 654). Then only realisation of the arrears could be made at the earliest.

Supreme Court in AIR 1986 S.C. 984 held that to deserving parties, interim maintenance even could be granted u/S.125 Cr. P.C. So, in short, it goes without saying that Statute, as it stands, and judicial pronouncements which are plethora, raise the voice to protect the interests of the neglected class who come within the purview of S.125 Cr. P.C. But now the Courts, even Sessions Courts exercising revisional powers, are tempted to follow 1989 (2) KLT 503 and direct payment from the date of the order. This being the later decision of the Kerala High Court so far, second thought could not be made by the lower courts even if interests of the destitutes are to be protected in ordinary cases. Rarely, as His Lordship has observed, maintenance could be given from the date of the petition. It is more desirable to pass the award from the date of the application ordinarily; just contra in exceptional cases if the contesting side places materials to strengthen that. Larger Benches' verdict alone could resolve the issue to achieve finality.

The Differed Woes

(T.M. Rajasekharan, Advocate, Calicut)

Lawyer I am, tired by evening

More by the ordeal of convincing

The Judge, than the friend opposing.

Sat on the chair, no time for relaxing

For the clients wait for briefing

With their woes baffling.

Cry, my wife and children aloud,

"Throw Your records around

And come to the beach for a round".

How charming my better half was

With promises on her playful eyes

Years ago, when rang the wedding bells.

Music to the ears, the kids' first sounds,

The young wife learning mother's rounds

While I probed the practising grounds.

Choice to the bench I declined

'Cause it is one for the dejected

And life's challenges rejected.

Bring I home amounts plentiful,

Loose I home's charms bountiful,

Immersed in stories woeful.

Burn I the oil at midnight

For the judgments I can't digest

The wordings therein disgust.

Dawn I wake up and prepare

For you can't seek to repair

A bad pleading in despair.

Illness and Ill health I brave

For you can't avail leave

On grounds flimsy, feint or naive.

Donations big and small,

Collections galore full,

Never a moment dull.

Taxmen, they don't leave my door

For tax at source they adore

Than truthful disclose bear.

Bad or wrong comments I forebear

For 'am not a judge but a lawyer

Of a class not mediocre.

Clamour my household for an hour

Of joy, freedom and leisure

That I can't afford as a lawyer.

Maintenance on Attaining Majority

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

Section 125 of the Criminal Procedure Code, 1973, speaks about order for maintenance of wives, children and parents. Sub-section (1)(c) deals with maintenance to major child and unmarried daughter, who is unable to maintain oneself. The subsection attracts only if the major child has physical or mental abnormality or injury unable to maintain oneself. The unmarried daughter is an exception. The statutory expression of S.125(1)(c) is "his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of physical or mental abnormality or injury unable to maintain itself. The old code does not contain any provision equivalent to S.125(1)(c).

There cannot be any difference of opinion about the meaning of physical or mental abnormality in sub-section (1)(c). The word 'injury' contained in the sub-section has been interpreted by His Lordship Justice Arunachalam of Madras High Court in T.P.S.H. Selva Saroja v. T.P.S.H. Sasinathana reported in 1989 Criminal Law Journal. According to the learned Judge, the word "injury" in S. 125(1) (c) is the physical or mental abnormality occasioned after attaining majority. With all humility, the interpretation of the learned Judge seems out of place. If the intention of the legislature was as reported, the expression of physical or mental abnormality would have been sufficient with any word that denotes future incident.

As per the Chambers Twentieth Century Dictionary, injure means to harm, to damage, to hurt and so on. Injury is that which injures. The plain dictionary meaning does not agree with the learned Judge. S.44 of Indian Penal Code defines the word 'injury'. It has no relevance in the maintenance proceedings. Therefore, the word 'injury' assumes special significance in S.125(1)(c).

The word "injury" cannot be interpreted devoid of the object of maintenance provisions. The object is to protect wives, helpless and deserted children and destitute parents and to secure the much needed relief. Such unfortunates shall not be tempted to commit crime or to tempt others to commit crime and as such prevent vagrancy and destitution. To bring them up as useful and better citizens, the Government interferes and forces the persons who are bound to protect.

I have a typical case in hand. An unmarried college going girl attained majority. Her father, a well placed person, divorced her mother years back. The girl has been residing with the mother. She has no source of income. Her mother finds it difficult to make both ends meet. If her well placed father refuses to maintain the girl on the plea of attaining majority, she will be nowhere in life and the solemn ideals of maintenance provisions will be defeated. The girl is not responsible for the stated contingencies. It is the creation of the society and the girl is the victim. In the instant case, her condition is nothing but 'injury' inflicted by the Society. Therefore, her plight is due to social injury. This may be the injury stated in sub-section (1)(c) of S.125 of the Code. It is the basic principle when a statute or a statutory expression is interpreted, the purpose of that piece of legislation deserves utmost consideration.

Quo Vadis Legal Profession *

(By T.P. Kelu Nambiar, B.A.M.L.)

I am sincerely apologetic, contrite and honest when I say: "Advocacy is dead". I hasten to add: ‘Long live advocacy'.

Let me make an honest statement of an obvious fact. A lawyer now-a-days sees 'a stranger in the mirror'. We cannot gloss over the palsy that has gripped the profession. We hear noises about the failure of the profession. We should be rattled by the developments in the profession. The legal profession is in distress, self-made though. The profession is caught in the throes of recession and retrogradation. The anaemic profession's woes are many. There is a grave crisis in the profession. The lawyers' house is on fire. The profession has lost its shirt. I am not making obiter dicta. It is time to count the losses. We have to rescue the profession without waiting for others who follow us to do it, unlike the king waiting for his diver's arrival to rescue his drowning son. We have to choose any God from the many and swear in His name, without bargaining with Him, that we shall try to redeem the profession, which is perilously close to paralysis and bankruptcy.

Let us make a positive assessment of the professional fall-out of the recent setback, in the background of the polluted corridor of the profession. The legal profession is now used only as an accessory, not the ultimate. This aspect seems to be ominous to the profession's future. Law practice is a dynamic profession. But it has now reached the stage of the dead digging its own grave. The noblest of the professions has now become the sorriest of trades, going fast-forward, from zero to zero. Instead of being on the right side of the profession, we are now on its wrong side. It is a familiar homily now-a-days that lawyers are becoming expendable; they allow themselves maintained on a 'daily wage' basis, selling the profession for a bundle, ignoring that one of their duties is to provide voice to the voiceless. They act as worried investors in the profession. A lawyer is neither a vendor nor a less or of arguments. Absolutely genuine, deep, unfathomable, steadfast and firm devotion to the profession is sadly lacking. The will to learn is missing. Lawyers are defaulting on personal matters, without keeping character, going even for brief hunting. We have to guard against 'advocacy misadventure'. We have to safeguard reputation. Even as a fledging that comes out of an egg cannot get back into the pierced shell, one who has lost his reputation can never hope to get back his fair name. The situation warrants panic reaction. The profession is on the verge of facing an impeachment. True lawyers are becoming endangered species. We should attempt at exercises in damage control. It is high time that such attempt is started, avoiding 'wag the dog' policy.

I am only compiling a catalogue of situations in the profession, after waiting and watching in helpless anxiety. I am not making a declaration of defeatism. We should not un-learn what we have learnt from experience. I am not expressing an exaggerated expectation when I say that we should try our best, both horizontally and vertically, to save the profession from the grip of the crisis; to pull back the profession from the brink; to diffuse the gathering crisis in the profession, by taking positive, candid and constructive steps, identifying the fragile areas of the profession. It is not possible to announce a bonus for the promotion of the profession.

We have to show positive commitment to the profession. Law practice is a profession, not a mission like genuine politics. Therefore, concentrate on the profession, playing by fair rules in the legal super-market; without allowing the profession to sink; but allowing it to float. Do not allow the profession to be processed by the death-wish. Look to the future with hope and faith, instead of despair.

We should not forget the profession's excellences. The Swedish discoverer of dynamite, Alfred Bernhard Nobel, or the Nobel Foundation, did not institute a prize for advocacy. Let a prize be instituted for advocacy in the name of Hortensius, who, according to Cicero, was the greatest of advocates. We should strive to maintain the culture of professional responsibility. Advocates, please roll-on; do not roll-back. We should try to be part of the solution, not part of the problem. Let us discover ourselves. A radical revamping is required. Otherwise, we might feel deserted. The situation calls for a thorough recycling. Let us go the extra mile to improve the situation.

We should have total concentration on the brief: Be a Karmayogi lawyer: good results will follow. The legal tiger certainly distinguishes between honest and dishonest rider. There is total need for change of the shape of the Bar and structure of the profession.

Both hardwork and neat arguments are essential, to enjoy professional eminence in peace. When two things are essential, they are not alternatives, just like comparisons being possible only when there are options available. Achieve good results, without being over-anxious to 'show-case' your achievements. Accept the result with poise-, without attachment to the result. Advocacy is a difficult terrain. Therefore, ride carefully. You cannot win a case by inspiration, but only by preparation.

We are living in a world full of labels. We have to play our professional game with dexterity, without minding the nature of the courts, whether it be the concrete hard Court, rubberized surface, sappy grass or red clay. Do not indulge in bread and butter argument. Remember, advocacy is the dynamic aspect of law practice.

Sometimes, Judges resting on their cushion of safety in box-seat, show anger, revulsion and disgust, when hearing cases; and sent sharply worded judicial missive, seeming deriving an unstated satisfaction in affording only second language status to the Bar, forgetting that it is not easy to compound a hurt. They seem to be far away in stratospheric heights, putting so much distinguished distance between themselves and the rest, showing distinct displeasure, heaping discourtesies on the members of the Bar to their utter distress; and sometimes trying to remove the goal posts in the midst of the game. The judiciary should be disciplined; and should not try to subdue or subjugate the lawyers. The Court is not a clearing-house of ego-related issues. The tensions should dissipate in a hurry. Bilateral restraint is needed. And, respect is an aspect which is reciprocal. The Judiciary should shake hands with the Bar on reciprocity. The Bench and the Bar should be held together by the adhesive of 'mutual respect'. I emphasise the adjective rather than the noun in the term 'mutual respect'. It is well to remember that a court-house is not a trade-house for nagging questions and unprecise answers. The judges, also, without going after the fleeting pleasures of the judicial world by exhibiting authority, should show capacity; the judiciary has also to be judged; because lawyers and judges form and constitute the judicature. The game would be over if the King is sacrificed.

A case has to be argued with precision, without indulging in unlimited arguments. A court-house is not the theatre of the absurd. Lord Reid said, in Rondel's case, that far more cases have been lost by going on too long than by stopping too soon. Lord Templeman considered torrents of words by Advocates, oppressive. Oral marathon by loquacious lawyers goes unappreciated. Do not frontload your case with untensable contentions. Remember, in these days, judges order 'cut' when lawyers are performing, because they expect 'quick-fixes' in cases. Therefore, we should not use professional videos as just raw tapes - they should be produced, directed and edited; and, remember, some judges are laid-back with immobile countenance; some are disciplinarians with the reserve of a school master. Be respectful, for respect unlimited is expected. But, be bold; it is said, lawyers are heartless, spineless and gutless, and their heads and rear ends are interchangeable. A lawyer is no bezonian. A lawyer's loyalty is to the law; and by worshipping law, chanting law and meditating on law, he becomes a true lawyer.

Let me attempt a crisp advice to the young wing of the profession. Your agenda should not begin and end with enrolment. You have miles to go. You enrol young; you die old; in the long meantime you have to carry on with your profession. Do not be a tinsel lawyer. Nor be a mere pipe-dreamer in the profession. Juniors should act as monitors of seniors, not as mere back-room boys of the profession's super-stars, who occasionally ignore and periodically disown their juniors. They should not allow themselves to be shunted to the side-lines or recesses of the court. Do not lead a purposeless existence. Prove that you are not redundant. Spin a golden thread between you and your senior. Show a credible interest in the profession; and sustain that interest day by day and year upon year. There is no substitute for experience. Scan your brief, create and perform. Your endeavour should not only be to become the man of the match, but also the man of the series. Legal profession is not the fifty-fifty hit-or-miss game. Your have to play a long innings. Do not remain totally and completely hostage to the seniors. Discharge your professional duty with unfailing regularity; you will certainly experience the inescapable results, whether you be a winner or a loser. Do not show either irrational exuberance or unjustified pessimism. Do not show peevish impatience. Never behave like a 'petulant errant' in the profession. And, remember, you are destined to replace the ageing fleet, sans eyes, sans ears. Therefore, explore the excellence of the profession by plumbing the depths, scaling the heights and treading the miles; and chase your desire. And discover the passion for the profession. Thus you will find yourselves seated in the best front seat row. A lawyer has to go about his profession, with a 'mind without fear' and 'the head held high', to use the music of Tagore.

At the end of the day, I should emphasise the urgency to repair the damage. There is no hurry; but there is certainly an urgency. Beware, you are going to inherit an impoverished profession. Try to revive and re-live the splendour of the profession.

I call upon every lawyer to give a robust response to this exhortation, which I make not a day too soon: Let us make an emphatic declaration that we shall not allow the profession of law lose its zing and zest, vitality and virtuousness, excellence and exuberance; we shall try to regain the glow and flash of the legal profession, like sparkling carbon. "Strong in will", let us "strive, seek and find", as Tennyson said in Ulysses.

The expression 'thank you', is too little payment for so great a debt I owe to The Kerala Law Times, the provider of this great and fine opportunity; and to the tolerance of this evening's listeners.

Long live Kerala Law Times.

Foot Note

*"K.L.T. Address", delivered on21-12-1998, on the occasion of the Golden Jubilee Celebration of the Kerala Law Times, at the Bar Council Auditorium, Ernakulam.

Accomplishment of A - Dissenting Prediction

(C.J. Varghese, Advocate, Shertallay)

"An obese treatise on a point that does not arise will only result in added confusion and not a needed clarity" (1987 (2) KLT 848 at 869 para.16 - a dissenting judgment by Sukumaran, J.)

An anomalous legal position is evolved in Kunnath Yesoda v. Cheroota Kurthambu (1991 (2) KU 112).

The constitutional mandate under Art.141 together with principles of precedents, make it compulsory on all courts to follow the decision of the Supreme Court as binding. Similarly the decision of the High Court is binding on all subordinate courts as well as all other tribunals and quasi judicial authorities. In M/s. Star Diamond Co. India v. Union of India AIR 1987 S.C. 179, the Supreme Court made it further clear (A) constitution of India, Art.141 - Supreme Court decisions laying down position in law are laws binding on all-party need not be served with any notice or be a party to the said proceeding" (paras.1 & 4)

Again in Gopal Upadhaya v. Union of India, AIR 1987 S.C. 413 at 414 para.4, "when a question is answered expressly or by necessary implication we cannot ignore the answer by referring to the decision appealed against and holding that the real question that must be - considered to have been answered was something else. That is not an understanding the law of precedents. What the Judges expressly decided or what they must be considered to have decided by necessary implication by reference to the facts stated by the judges themselves are what constitute precedent". So a binding decision whether in limine or without notice is not void or invalid.

The decree in S.A. 379/83 referred and quoted in Kunnath Yesoda's case lays down a well established principle. "Any observation on the question of title can only be incidental to the finding on the question of possession, that will not preclude the plaintiff from bringing a fresh suit to establish his title". In other words in a suit for injunction the question of title does not arise. "In suit for injunction we are concerned only with the question of possession" Kesava Bhat v. Subraya Bhat 1979 KLT 766 = ILR 1980 (1) Ker. 89 = AIR 1980 Ker. 40. It is also laid down in the same case that the rule of presumption following title as is well known, is applicable only in certain limited classes of cases and under limited conditions and circumstances".

It is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person, who had no title whatever". Nelson's Law of Injunctions second edition page 355. In Vasudeva Kurup v. Ammini Amma 1964 KLT468 the Kerala High Court laid down that even a trespasser can get an injunction against true owner.

So it is very clear that the decision in S.A. 379/83 is a decision having a binding force through-out the State. But still the fortunate 'Kunnath Yesoda' got it as a non-binding decision. This anomalous position is the result of Thampi v. Mathew 1987 (2) KLT 848. This is what is predicted in the dissenting judgment Sukumaran, J. The principle laid down S.A. 379/83, following judicial precedents became "a virtual nullity". Legislative change made by the Code of Civil Procedure (Amendment) Act 104 of 1976 introduces Order XLIA. Under Order XLIA Rule 1 "The rules contained in order XLI shall apply to appeals in the High Court of Kerala................" So Order XLI Rule 11 is also applicable to appeals before High Court.

Scope of the rule:--

"The Law Commission was of the view that there should be stricter and better scrutiny and instead of appeal as a right on any substantial question of law, should be subject to special leave. The Legislature, however, thought it better to preserve the Court's discretion to hear the appeal, but placed injunction to keep the hearing confined to the question formulated by it at the hearing of the appeal under Order XLI Rule 11. The proviso to sub-section (5) of S.100 has, however, been kept as the repository of judicial discretion for reasons to be recorded; the power although not unbridled, yet enough to impress all such questions which deserve consideration to subserve the ends of justice. The caution that the Division Bench has administered that caution should be exercised, is nothing beyond reminding that hearing the appellant at the stage of Rule 11 of Order XLI for all purposes is enough except the question on which the court desires to hear the respondent; but formulation of a question of law at that stage cannot be allowed to deny a hearing on questions other than one framed if the court is satisfied that such denial shall cause injustice. Ritualistic adherence to the formulation which may have the effect of shifting the course of justice can never be desirable". (page 2742 Code of Civil Procedure, 3rd edition, Sir John Woodroffe and Ameer Ali's).

The order of dismissal of an appeal under Order XLI - Rule 11(1) is a decree (Surajpal Pandey v. Uttampandy, AlR 1922 Pat. 281, Radhanath Jha v. Bachalal Jha AIR 1955 Pat. 370, Annapa Ramanna v. Pondusi Sree Ramalu AIR 1958 A.P. 768). It is abundantly clear that an appeal dismissed in limine by any court other than High Court is a decree. It is further important to note that the majority after discussing various decisions of the Supreme Court and other High Courts observed p. 862 1987 (2) KLT "Dismissal of an appeal on the ground of limitation was thus held as amounting to a confirmation of the decree of the trial court on the merits of the case and the decision of the appellate court is held to be res judicata on the question of title raised in the connected appeal. This decision of the Supreme Court would clearly indicate that the decree of the trial court gets merged - in the appellate court's decree even when the appeal is dismissed on a preliminary ground or as time barred".

How then a decree of High Court passed under Order XLI - Rule 11 (dismissing the appeal in limine) be treated as non est or nullity. It is not queer to say that the judgment of the High Court which is binding on all courts, tribunals and quasi judicial bodies is not binding on the respondent therein for the simple reason that he is not served with notice - a mere formality which the statute itself made obsolete.

Therefore it is most respectfully submitted that the majority decision in Thampi v. Mathew (1987 (2) KLT 848) needs re-consideration in the light of the best reasoning of the dissenting judgment of Sukumaran, J.