The Parkway Collision

(T.G. John, Advocate, Trichur)

This happened in the United States of America. In May, 1963 the Parkway Collision was the talk of New York City. In the City's Henry Hudson Parkway, a north bound car suddenly plunged through a six foot divider hedge, skittered into the southbound traffic and smashed head-on into another car. All of the people in the north bound car a seven year old boy, his great-grandparents, his great-aunt and a friend of the family were killed. In the midst of a gathering crowd, Gareth Martinis the driver of the other car (a young man of 23) peered into the mangled cars and advised spectators not to move the bodies. Then he ran off leaving his car parked on a nearby exit road. He was arrested a short time later but he sullenly refused to submit to the drunkometer test. He violently grabbed a Press photographer by the throat, clawed and kicked at the police struggling to pull him away and bit a cop's finger. Martinis was charged with drunken driving, reckless driving and leaving the scene of accident. He faced a maximum penalty of 1500 dollars and three years in jail.

Gareth Martinis was the son of Acting Supreme Court Judge Joseph Martinis who had sat as a Judge since 1950 in City Criminal Court, gaining a reputation for delivering strong reprimands to careless drivers. When New York City newspapers learned about the arrangements for Martinis' trial before the three-Judge-Panel in New York City Criminal Court they emitted growls of protest. But the District Attorney insisted that young Martinis would not get any special favour because of his father's position. Said the D.A. "It does not matter if he is the son of a Judge, or a President or a Governor. We treat them all alike."

Trial started. Two policemen testified that Martinis seemed drunk when he was arrested. But three other cops testified that Martinis appeared to be sober. -During the four day hearing, the prosecution case was very badly weakened by the conflicting testimony. The three judges deliberated only five minutes to find the judge's son innocent of all charges:

The State Department of Motor Vehicles held a hearing of its own. It found out that Gareth Martinis was arrested for speeding three times in 16 days in 1959, had once got his licence cancelled and then got it back by lying about past convictions. And the Department of Motor Vehicles dealt out the hardest punishment on him, after finding that Gareth was driving while drunk & was unsteady on his feet atleast one half hour after occurrence. It revoked Gareth's driving license. Euqene Kramon, a Manhattan slacks manufacturer who was the only survivor of the Parkway collision, heard of the penalty and murmured "Giant Punishment" and turned twice in his hospital bed.

Sometimes we feel really concerned about public morality. It is our chief and indeed our only protection against tyranny and exploitation. If we could not rely on our politicians to give an honest account of their official conduct and intentions, if we could not rely on our civil servants to administer affairs impartially, if we could not rely on our magistrates and Judges to enforce equality before the law, if we could not rely on the police not to practice torture and not to manufacture evidence, if we could not rely on the press to make an honest attempt to ascertain the facts and to report them fairly, not only should we be deprived of any .control over the conduct of public affairs but we should be denied the security which is essential for our private well being. Among all forms of official wickedness, the perversions of justice outrages us most. Not that the egoism, or even the stupidity of a politician or the corruption of a civil servant may not do more harm. But we look on the law as our protection against the infringement of what we take to be our rights. Even though the laws themselves may be oppressive or discriminatory there is some safeguard in their being honesty applied. And we feel most deeply threatened and wounded when a miscarriage of justice arises out of political, racial or communal prejudice.

Delay in Motor Accident Claims

(By Zachariah Koshy, Advocate, Kottayam)

The Honorable High Court is taking steps for the speedy disposal of motor accident claims and the Tribunals are being alerted periodically. In this context may I point out certain practical aspects.

On a representation made by the various Insurers, the Honorable High Court has directed to fix dates for each Insurance Company, so that their officers be present on those dates for settlement of the claims directly. On implementation of the said orders, it is painfully found that the presence of some Officers of some Companies stand in the way of settlement. This statement is made viz-a-viz our experience when the Advocate representing these companies used to co-operate for settlement of claims. Recently in a claim, 20% disability was certified by the Medical College, Kottayam. The Tribunal, after considering the age and monthly income, worked out a figure of Rs.62,000/- as compensation. In the mean time, when the limit of Rs.50,000/-was pointed out, the claimant agreed to settle his claim for Rs.50,000/-. But the Officer who was present was not prepared for any amount above Rs.25,000/-. Later on pressure the' Officer contacted his Regional Office, and enhanced his readiness to Rs.40,000/-. He further instructed the lawyer that in case the applicant does not agree for this, a petition be filed for referring the injured before a Medical Board, after challenging the disability certificate already issued by the Medical College. Accordingly the lawyer filed a petition for referring the applicant to a Medical Board, but the Tribunal rightly dismissed the application. Now the result is a written standing instruction is given to the lawyer by the Insurance Company to challenge all disability certificates and to refer all of them for obtaining certificates from the Medical Board. Officers like these when present appear much royal than the king and they defeat the very purpose for which they are being invited.

Another instance, a young widow aged 22 (with two children) was an applicant on the death of her husband, who was an abkari contractor earning Rs.2,000/- per month. After due deliberations the Tribunal arrived at a figure of Rs.1,60,000/-. Because of the limit, the Advocate for the applicants agreed for Rs.1,50,000/-. Immediately the Officer insisted that it should be inclusive of all interest. Though it was pointed out that interest is a right in case of delayed payment, the officer was not amenable and the poor widow with the Advocate had to return for being examined on a day after some days.

By the presence of these officers, we are forced to place the legitimate claim to the mercy of these officers who are really parties, instead of being decided judicially by the impartial Tribunal. In the circumstances, I feel that the practice of inviting Officers, particularly when their own Advocates are present before court, is doing more harm than good.

Another important aspect is escaping the attention of all concerned. There are lot of cases in which awards have been passed long, long ago. The insurance companies are not at all paying any attention for the deposit of the money awarded, particularly when these amounts are comparatively small - say below Rs.25,000/-probably because the company's loss by way of interest is insignificant compared to their gain otherwise in delaying all such petty amounts together making a substantial figure. For filing of applications, and for disposals of these applications, there are compelling forces, but there is no compelling force now for the proper deposit of the award amounts except the interest. In case the Insurance Companies are really bona fide, in their show of cooperation, let them deposit all the amounts now awarded, so that the victims may get at least the compensation at an early date. Action from the Honorable High Court on these aspects will be a blessing to the poor victims in motor accidents.

Coastal Regulation Zone Notification and Its Impact on Kerala Region

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

This is a notification issued by the Government of India based on certain directives contained in the Parliamentary enactment called "The Environment Protection Act 1986". Actually the above Act is the necessary sequence of two Articles of the Constitution brought in as per the 42nd amendment of the Constitution in 1976. Those Articles are 48A and 51A(g). The former is stated as the duty of the State to protect and improve the environment and to safeguard the natural resources of the Country. The later is stated as the duty cast on citizen of this Country to preserve and improve the natural environment including forests, lakes, rivers and wild life.

The Environment Protection Act 1986 empower the Central Government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. It is laid down in the said Act that for achieving these objectives the Central Government can take measures, such as restriction of areas in which an industry, operation or process shall not be carried out or shall be carried out subject to certain safeguards. The Environment Protection Rules 1986 issued on the basis of the Environment Protection Act lays down the procedure, the Central Government is to follow in this regard. First publish the draft of the notification, giving brief description of the area, the industries, operations or processes which it wants to prohibit or restrict in the CRZ area and the reason for the same. It is after considering those objections received on the basis of the draft notification aforesaid that the Central Government is to finalise the notification defining the CRZ area and imposing prohibition and restrictions wherever it is necessary and expedient.

In the instant case before the finalisation and issuance of Coastal Regulation Zone Notification 1991 the Central Government issued the draft notification in December 1990 defining the CRZ area as comprised of Coastal stretches of seas, bays, creeks and estuaries and invited objection from the public on matters covered by the draft notification. In the draft the object of the notification was stated as the need for protecting the coastal areas and for ensuring that the use and activities in the Coastal areas are consistent with the principles and requirements of environmental conservations. In the objection process, on the plea of environmentalists to include water bodies comprised in backwaters and rivers also in the definition of CRZ area the same was included widening the definition of the CRZ area. It may be noted that for this inclusion no fresh draft was published nor views of State Governments or other local authorities obtained. The consequence was CRZ area in Kerala is magnified 10 times that what was intended by the draft notification.

CRZ area definition

As at present, CRZ area is defined as Coastal stretches of seas, bays, creeks, estuaries, backwaters and rivers affected by tidal action, upto a limit of 500 meters from the landward boundary and the land in between High Tide Line and Low Tide Line. As per the Note to this definition, for imposition of prohibitions and restrictions the 500 meters distance is relaxable in the case of creeks, backwaters and rivers. In respect of these waters bodies the restrictive distance is be decided by the respective State Governments on a case to case basis subject to the condition that it shall not be less than 100 meters from the land water boundary. As regards the extent to which tidal effect can go in backwaters and rivers, for the purpose of determining the CRZ area on both sides of these water bodies no guidelines is indicated in the notification. It is left to the respective State Governments and Union Territory administration. What happened in the case of the State of Kerala is that the Department of Science, Technology and Environment with the help of Centre for Earth Science Studies drew up the Coastal Management Plan fixing the CRZ area around these water bodies viz. backwaters and rivers influenced by tidal action based on salinity measurement in these water bodies. Any area where there is salinity upto 5 ppm on account of tidal effect was treated by them as coming within CRZ.

Restrictions and prohibitions in CRZ area

Para 2 of the notification mentions prohibited activities. Para 3 mentions regulation of permissible activities in CRZ area. The prohibition is in respect of

(1) Setting up of new industries and expansion of existing industries except those directly related to water front or directly needing foreshore facilities.

(2) Setting up of expansion of fish processing units including warehousing. There is a proviso added to this by the 1997 amendment, which states existing fish processing units for modernization purposes may utilise 25 % additional plinth area required for additional equipments and pollution control measures subject to existing floor area ratio and subject to Pollution Control Board approval.

(3) Land reclamation which disturb the natural course of sea water.

(4) Harvesting of drawal of ground water and construction of mechanisms therefor within 200 meters. of High Tide Line in the 200 mts. to 5 00 mtrs. zone.

(5) Construction activities in ecologically sensitive areas as specified in Annexure I of the notification. This is the restriction specified for category 1 to IV CRZ area.

(6) Any construction activity between Low Tide and High Tide Lines except facilities for carrying effluents and waste water discharge into the sea.

There are other prohibitions also for which there cannot be any objection and therefore not adverted to herein.

For certain specified activities mentioned in the Notification, like construction activities related to Defence requirements. Thermal power plants, environment clearance is required from the Ministry of Environment and Forests, Government of India. The notification states that clearance is automatic only for any activities if it requires water front and foreshore facilities. One of the activity for which permission from Environmental Ministry is required is activity with investment exceeding Rs.5 crores. All other activities are regulated by the concerned State level authorities in accordance with the provisions of para.6(2), Annexure 1 of the Notification. In other words, this means all developmental and construction activities in different categories of CRZ area shall be regulated in accordance with the norms stipulated for those categories.

Categorisation of CRZ area in the Notification

In the notification CRZ area in the Country is divided into 4 categories.

(1) Category 1 comprised of ecologically sensitive and important areas such as National Parks, Marine Parks, Sanctuaries, Mangroves, Corals and areas close to breeding and spawning grounds of fish. To this is included the entire area between the HTL and LTL stretching all along the coast. The prohibition and restriction so far as Category 1 area comprised within 500 mtrs. landward side of HTL, is that here no new construction is permitted. In the area between the HTL and LTL also no construction is permitted except in a limited way, such as facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes oil, gas and similar pipelines.

In the CZMP for Kerala, area comprised within category I, is identified as 100 mtrs. belt around mangroves, forests, in few places in Vypeen Island. 100 mtrs. belt around adjoining filtration ponds (shallow water bodies) in several places in Cochin. Outstanding natural beauty area like Kovlam, Varkala, Papanasam pilgrimage centre, Ezhimala etc. also will come under this category. The total area under this category is estimated as 68.006 sq. km. As per the CZMP report, besides the area aforesaid there is an extent of 30.387 sq.km. area comprised of land in between HTL and LTL coming under this category.

(ii) Category II - This comes mostly within Municipal and Corporation limits, areas which are already substantially built up and which have been provided with drainage and approach roads and other infra structural facilities such as water supply and sewage mains. Here building construction permitted only on the landward side of the existing road or roads proposed in the approved CZMP of the area or in the 1 and ward side of the existing authorised structures. No construction is permitted on the seaward side of the existing road or roads proposed in the approved CZMP. Reconstruction of the authorised building to be permitted subject to the existing FAR norms and without change in the existing use. In Kerala 19 coastal Municipalities and three Corporations comes under this category. Both the sea coast and the backwater and river side with tidal effect comes under this category. The total area comes under this category in Kerala is 68.478 sq. km.

(iii) Category III - Under this category comes areas that are relatively undisturbed and those which do not come either under category I or II. These are practically rural areas. All areas falling in Grama Panchayats are demarcated as CRZ III. Both the sea coast and the backwater and river side area with tidal influence, comes under this category. Here the area upto 200 metrs. from the HTL is to be earmarked as 'No construction Zone'. No construction shall be permitted within this zone except for repairs of existing authorised structures not exceeding FSI, existing plinth area and existing density. There is no restriction for this area to be used for agriculture/ horticulture gardens, pastures, parks, play fields, forestry and salt manufacture from sea water.

Vacant plots between 200 and 500 mtrs. of HTL can be used with the prior approval of MEF for construction of Hotel/Beach Resorts for temporary occupation of tourists, subject to condition as stipulated in the guidelines in Annexure II. As per Annexure II the total plot size shall not be less than 0.4 hectares and the total covered area on all the floors shall not exceed 33% of the plot size i.e. the FSI shall not exceed 0.33. The overall height of the construction upto the height ridge of the roof shall not exceed 9 meters and the construction shall not be more than 2 floors between 200 and 500 meters.

Construction/reconstruction of dwelling units be permitted so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and goathans. But there is restriction that the total number of dwelling units shall not be more than twice the number of existing units and total covered area in all the floors shall not exceed 33% of the plot size and over the all height of the construction shall not be more than two floors. The total area comes under this category in Kerala is estimated as 341.825 kms.

(IV) Under category IV comes Andaman and Nicobar Islands in one group and Lakshadweep and small islands in another group. Though regulations pertaining to Andaman, Nicobar and Lakshadweep islands by its very nomenclature is not applicable to any part of Kerala, there is no reason to think that regulation stipulated for small islands is not applicable to islands in the water bodies like Vembanad, Ashtamudi and other backwaters. Possible explanation can be that one is island in the sea and the other is island in backwaters. Anyway when CZMP was drawn up by the State Government they decided to keep out category IV small islands for any water bodies in Kerala.

Dealing with small islands in category IV the notification specifies that the restrictive distance from the High Tide Line here is to depend on the size of the island. This has to be laid down for each island in consultation with experts and with the prior approval of the Ministry of Environment. Here also the newly constructed buildings shall not have more than 2 floors, ground and first floor and the total height of the structure shall not exceed 9 meters. Further restriction here is that the total covered area on all floors shall not be more than 50% of the plot size.

Anomalies in the Definition of CRZ Area

In the matter of giving a definition to CRZ area, the Central Government committed grave error. First thing is that coastal area as understood in common law alone was identified to be included in the definition of CRZ when the draft notification was published in December 1990. Draft notification was published specifying only coastal stretches of seas, bays, estuaries and creeks as corning within it. The object was also stated to be for protecting the coastal areas from environment hazards. When final notification was issued this definition was widened by including water bodies comprised in rivers and backwaters which are affected by tidal action on the objection/suggestion by the Environmentalists without fresh draft notification issued and objection called for. Secondly no guideline is given in the notification as to how the CRZ area is to be drawn up by the concerned Coastal States based on tidal effect in backwaters and rivers. In other words, what the notification means by tidal effect and to what distance the tidal effect can go in backwaters and rivers, no criterion is indicated in the notification of the Central Government. What the notification states is that this can be determined by the State Government on a case to case basis while preparing the CZMP subject to the condition that this distance shall not be less than 100 mtrs. or the width of the river, backwater of creek, whichever is less.

Instead of leaving the matter to be determined by the State Government the Central Government should have indicated the limit unto which tidal effect can go. They could have followed the "Sere Lantern Law" of tidal effect limiting it to a distance of 2 kms from the sea river entrance point. For clarity the said provision is extracted below.

"That area lying within a limit of three hundred meters landward of the Mean High Water Line and a limit of two kilometers seawards of the Mean Low Water Line and in the case of rivers, streams, lagoons, or any other body of water connected to the sea either permanently or periodically, the landward boundary shall extend to a limit of two kilometers measured perpendicular to the straight base line drawn between the natural entrance points thereof and shall include waters of such rivers, streams and lagoons or any other body of water so connected to the sea".

What happened in the matter is that the State Government in exercise of the power vested in it under para.3(1) of the notification adapted the yard stick of 100 mtrs. from the land water boundary as the area comprised in CRZ so far as banks of backwaters and rivers are concerned. The impact of tidal effect to determine the CRZ area they adopted the criterion of salinity of water in rivers and backwaters. In this process they also adapted the principle of excluding areas inside the bunds which arrests the inflow of tidal water from CRZ area. It is on this principle Kuttanad is excluded from CRZ on the ground of Thaneermukkam and Thottappilly Spillway arresting the tidal flow to this region. As reason for adapting shorter distance of 100 metrs. from land water boundary instead of 500 mtrs. regulation zone for all water bodies they say if 500 mtrs regulation zone is adopted vast streches of land in Kerala will have to be brought under the Regulation Zone. This will greatly retard developmental activities in the State when population density per square kilometer in rural area of coastal region is above 2000 and above 4000 in urban area. At the same time average density of population in Kerala is below 700 per sq. km. Effective area available for developmental activities will not be in proportion to the population if Notification CRZ area is adopted. Hence lesser regulation zone proposed. The State Government was not correct in the adoption of salinity of 5 ppm as a criteria to ascertain the CRZ area. In the first place salinity is not a criteria laid down by CRZ notification. What is laid down in the notification is tidal influx and not salinity which has little salinity. Secondly 5 ppm is a very low density in routine life. PPM means part per million. Usually salinity is measured in ppt which means parts per thousand. Thirdly salinity in river-mouth is an oscillating phenomenon. Salinity varies shapely with depth. Salinity also varies with season.

To what extent and in what manner the notification affects Kerala

Kerala is a land of rivers and backwaters. 44 rivers and 4 backwaters cut across Kerala with their innumerable tributaries and branches. Backwater includes lakes and ocean inlet which stretch irregularly along the coast. When the estimated coastal line of the Country is 6000 kms. the coastal line in Kerala itself is around 560 kms. Banks of rivers and backwaters affected by tidal action is besides the above extent. On a recent estimate 15.43 % of the total area of Kerala is found to be affected by the CRZ notification. Limited land availability and high population is the distinct phenomenon of Kerala. Though Kerala represents only 1.18% of the total area of India. 3.4% of the total population of this Country is in Kerala. It is the density of population especially in the coastal areas and the limited land availability for development that is facing as problem hindering the implementation of CRZ notification.

In the Environment Rules, specific mention is made that before imposing restrictions and prohibitions the Central Government should take into consideration various factors, like topographic and climatic features of the area, biological diversity of the area which in the opinion of the Central Government needs to be preserved, net adverse environmental impact likely to be caused by industries, processes or operation proposed to be prohibited or restricted etc. Supreme Court also has ruled that environmental restrictions should not hamper developmental activities. Both must go together. It is evident that the above aspects highlighted in the Rules have not been given due consideration when the notification was issued. It is further evident than the State Government also did not give much attention to these aspects when they drew up the CZMP. As cause to this it may be argued that in the matter of preparing CZMP due publicity could not be given, objections were not called for, local authorities were not consulted, etc. because of the speed with which it was done based on the Supreme Court direction to prepare and finalise the CZMP within a particular time indicated in the judgment rendered at the instance of the Environmentalists. The net result of all this is that without looking into the adverse impact, uncalled for areas were unnecessarily brought into the definition of CRZ and restrictions and prohibitions were imposed creating untold sufferings to many.

Inclusion of the area around backwaters and rivers affected by tidal action was' without following the procedure fixed therefor as per the Rules. The purport of the notification imposing restrictions and prohibitions is for settlement of environment and also for avoiding environmental pollution. Stating these as grounds there was no report or data before the Central Government for inclusion of backwaters and rivers affected by tidal action within CRZ. Yet those areas were included in the CRZ. By reason of inclusion of these areas especially by the adoption of the citerion of salinity to determine the extent and depth of tidal effect, more areas were unnecessarily brought within CRZ. Consequences was that not only river sides and areas around backwaters were brought within the fold of CRZ but also its tributaries i.e. areas around canals and thodes which were affected by tidal action. Consequence being prohibition and restrictions laid down in the CRZ notification were made applicable to these areas also. To add to this is the circumstance that the State Government while preparing CZMP did hot for want of details, excluded the entire areas behind all the bunds which arrest the tidal influx, but mentioned only the important ones like Thanneermukkam barrage and Thottappilly Spillway. Non-mentioning of all bunds which arrests the flow of tidal effect gave occasion for the plea that non excluded areas in CZMP will come within CRZ though actually not so. Another aspect of the matter which requires consideration is as regards actual CRZ area coming under category II. Here prohibition and restrictions is inapplicable on the landward side of the existing or proposed roads in the approved Coastal Zone Management Plan or on the landward side of the existing structures. Which is that excluded again each Municipality, Corporation or Panchayat is discernible only on perusal of PWD records or local authorities records which admittedly have not - been looked into at all while CZMP was prepared by the State Government. This is causing difficulty to many. This has to be rectified by a survey of such existing records relating to existing roads, proposed roads and existing structures.

Categorisation of sea facing CRZ area into category 1, 2 and 3 and imposition of distinct condition to each such category is understandable but applicability of such categorization and distinct conditions to other water bodies i.e. backwater and river facing areas is understandable. This is so because in the CZMP drawn up by the State Government restrictive distance for imposition of prohibition and restriction is 100 meters uniformly from the land water boundary, whether area comes under category 1,2 or 3. This in other words means by reasons of stipulation of 100 meters uniformly. In respect of such water bodies categorisation has no meaning 100 meters from land water boundary is always restriction zone. Whereas in the case of sea facing CRZ area, where the no-development zone depends on category to which it belongs and which extent goes upto 500 meters from land water boundary. It is necessary that the State Government should have a second look into these aspects.

In this process the most pitiable is the position of people who are residing and owning properties in the islands, especially in Vembanad backwaters. Here except Vypeen Island all the other Islands are having width only below 500 mtrs. The Vypeen Island western side is Arabian Sea and all the other sides are surrounded by Vembanad backwaters. This means 500 mtrs. area from the High Tide Line of the western side is to remain as 'Non Development Zone' all the other three sides being backwater area, at a width of 100 metrs. from HTL is area likewise to remain as 'Non Development Zone' The net result is that a major portion of the Island is 'No Development Zone'. In the case of other Islands like Thanthonni, Kadamakkudi, Perumbalam etc., the width of which is less than 100 mtrs. on the four sides 100 mtrs. width is to be kept as 'No Development Zone'. This means on no part of the Island any development is possible at all. One striking feature so far as these islands are concerned is that there is no environmental problem here. Here the land, water and air is absolutely non-polluted by any industry or the like. Therefore in the guise of abating pollution or betterment of environment, there is no necessity to retard developmental activities in these areas.

Take also the case of main land sea facing coastal area starting from Neeleswaram on the north upto Kanyakumari in the South. Coastal area from Kochi to Kanyakumari is thickly populated. Barring a few places where there is public road separating the beach from the private land, most areas are places where there is no public road and consequently there is no accessibility to the beach at all. Access to the beach is obstructed by thickly populated houses. It is evident from the notification that one of the reasons for the 500 metrs. landward area from HTL to be kept as CRZ zone is that the public should have free access to the beach and the coastal line. That is the reason why in the notification stipulation is made that in between two resorts hotels permitted to be put up in CRZ category III (area in between 200 mtrs. and 500 mtrs.) there should be vacant space of 20 mtrs. at least and further the provision permitting fencing, stipulates the condition that it should in no way hamper public access to the beach. In view of the circumstance that in most parts of Kerala the area upto the coast is privately owned property, having no public road separating it with the coast, accessibility to the beach is impossible unless a public road at the instance of Government is constructed through the privately owned property making it possible for the public to have access to the beach.

Concept of 'Workman' Under the Workmen's Compensation Act, 1923

(By Valsamma Paul, M.A., LLM., Applied Economics, University of Cochin)

The Workmen's Compensation Act, 1923 is an Act, which provides for the payment of compensation by employer to his workman for injury by accident. It is a legislation, beneficial to workman and hence, the question. 'who is a workman?' assumes significance. In common parlance, a ‘workman' means a person who does manual work. 'Workman' under the Workmen's Compensation Act, 1923, however, has a wider connotation.

The use of the words 'employment' and 'employed' in the definition [1] suggests the existence of a master and servant relationship. This relationship is characterised by a contract of service. The indicia of contract of service are the master's power of selection of his servant, payment of wages or other remuneration, the master's right to control the method of doing the work and the master's right of suspension of dismissal [2].The prima facie test to decide the existence of master and servant relationship could be the master's right to supervise and control the work done by the servant not only in the matter of directing what work the servant was to do, but also the manner, in which it was to be done. The nature or extent of the control might vary from business to business and is by its nature incapable of precise definition [3].

It is the master's right to control the work of the servant that makes the latter a workman and distinguishes him from an independent contractor. In Hasbannessa v. Zahiruddin [4], the Calcutta High Court applied the test of control to the case of drivers. The court admitted that a driver can be a workman. But all drivers cannot be categorized as workmen. The driver, who hires out a car and has complete freedom during the period of hire to use the car for purposes and routes, as he may think best, with no control from the owner, is not a workman. This is because there is no employment and he does not have an employer. He is only a bailee of the taxi.

A contractor is a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons. But he will not submit himself to their control in respect of the details of work [5]. There is a clear-cut distinction between a contractor and a workman. An independent contractor is charged with a work, and has to produce a particular result. But the manner, in which the result is to be achieved, is left to him. A workman, on the other hand, may also be charged with a work and asked to produce a particular result. But he is subject to the directions of the master as to the manner, in which the result is to be achieved [6].

But the language of the definition of workman [7] does not import in the contract of employment powers of dismissal or power of direct superintendence or control. A coolie employed by a mistry for a specified remuneration on behalf of the principal to do the work of the principal is, therefore, a ‘workman’ under the Act. His employment by the mistry is a contract of service within the meaning of the definition [8].

The criterion of control came before the Supreme Court in Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments[9]. The Court laid down that for deciding the question of relationship of master and servant, the test of control over the manner of work is unrealistic. In its application to skilled and particularly, the professional work, the control test, in its traditional form, has really broken down.

The main chunk of the definition of 'workman' under the Workmen's Compensation Act focuses on a 'railway servant', who can be said to fall within the concept of 'workman' under the Act [10]. As per the definition, any person, who is a railway servant as defined in S.3 of the Indian Railways Act, 1890 [11], is a workman. But he must not be permanently employed in any administrative, district or sub-divisional office of a railway. Moreover, he must not be employed in any such capacity as is specified in Schedule II [12]. Accordingly, a person employed on a railway, in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle, is not a workman [13].

The definition excludes a railway servant, who has to work habitually and continuously in the office. If it can be established that the person concerned has to perform out-door duties in addition to his duties in the railway office, he would be a workman. This is manifest from the expression 'not permanently employed' in any administrative, district or sub-divisional office of a railway [14].

In order that a person may claim to be a workman within the meaning of the Act, he must, unless he is a railway servant and is covered under clause (i) of S.2(1)(n), prove that he comes under one or other of the clauses set out in Schedule II [15]. This Schedule gives a list of persons who are workmen within the meaning of clause (ii) of S.2(1)(n) of the Act. The words 'in any such capacity as is specified in Schedule IF clearly indicate that the list given in Schedule II is completely exhaustive and not illustrative. If the employment is one that would not come under any of the categories mentioned in Schedule II, the definition of 'workman' in S.2(1)(n) cannot be applied to that person [16]. It is worth noting that Schedule II excludes persons employed in clerical capacity from the concept of 'workman’ under the Act.

To make a person a 'workman', it is not necessary that his contract of employment must be in writing. It is immaterial whether the contract of employment is express or implied, oral or in writing.

Definition of "workman' includes dependants of a workman also. The need for the inclusion of dependants within the purview of the definition arises, when an injured workman dies. This enables legal proceedings being continued even after the death of the workman.

Any person, working in the capacity of a member of the Armed Forces of the Union, falls outside the purview of S.2(1)(n) of the Act. Therefore, such a person is not a 'workman', entitled to enjoy the protection afforded by the Act.

One of the grounds, on which a person is excluded from being considered a workman under the Act, is that his employment is of a casual nature. The word 'casual' has not been defined in the Act. It may not be possible to define exactly what casual employment is. There are some cases, in which employment is obviously not casual and other cases, in which employment is obviously casual. But there are a number of debatable cases in between. Thus, the question, whether an employment is of a casual nature or not, depends on the circumstances of each particular case. An employment is not of casual nature, if there is regularity or periodicity of employment [17]. When the owner of a coconut garden engaged professional climbers for plucking coconuts from time to time and once in 50 days or so, the climber had to be engaged, it was held that it cannot be said that he was employed casually [18]. Casualness, in the context in which it is used in Act, indicates employment by chance.

The transient or protracted nature of an employment can be the criterion for deciding its casualness or regularity. If an employment is reasonably and normally spread over sometime, how can it be 'casual'? On the other hand, if it is very brief and transitory, it may be a casual employment [19]. But from the mere fact that a person worked for two days only, before he died in an accident, it would not automatically follow that his employment was of a casual nature. The reason is that even a regular employee may meet with an injury immediately after he joined duty [20].

Is the mode or the time of payment conclusive on the question of the casualness of an employment? It cannot determine the question of the casualness of an employment. The mode or the time of payment is only a matter of convenience and mutual adjustment. Merely because a workman is paid on daily basis, his employment cannot be casual [21].

The burden of proof of the casual nature of employment is on the employer [22]. If an employer does not produce the muster roll, the issue as to the employment being casual must go against the employer [23].

But if a person is employed casually, he would be a 'workman' under the Act, if he is employed for the purpose of the employer's trade or business. Trade means exchange of goods for goods or goods for money. It may be any business carried on with a view to making profit. Such business may be manual or mercantile as distinguished from the liberal arts or learned professions [24]. 'Business' is taken to mean anything that occupies the time, attention, and labour of men for the purpose of livelihood or profit [25]. Though the word 'business' is ordinarily more comprehensive than the word 'trade', quite often 'business' is used as synonymous with trade [26].

An agriculturist started boring operations in his well so as to make it fit for purposes of irrigation. A person was employed by him as a labourer for the purpose. It may be true that the labourer in this case is a casual worker. But the agriculturist engaged him for the purpose of his agricultural business. So, he was held to be a ‘workman' [27].

The fact that a person is employed for the purposes of his employer's subsidiary and not principal business cannot affect his claim to be a workman. A person, though working as clerk, was letting out houses to others and deriving benefit therefrom. Letting out of houses was only his subsidiary business. Still, it cannot be denied that his employment of workmen, in the construction of houses to be let out, was for the purposes of his trade or business [28].

In order to exclude a person from the category of 'workman', both the conditions, that is to say (1) that his employment is of a casual nature and (2) that he is not employed for the purpose of employer's trade or business, have to be satisfied [29]. Both these qualifications must be present together [30]. This is because the word 'and' occurring between the above mentioned conditions has been used conjunctively [31].

In view of the Apprentices Act, 1961 [32], the definition of ‘workman' under the Workmen's Compensation Act, 1923 stands modified. Now the definition of ‘workman' includes any person who is engaged as an apprentice as defined in the Apprentices Act, 1961 and who in the course of his apprenticeship training is employed in any such capacity as is specified in Schedule II to the Workmen's Compensation Act [33].

Under the Workmen's Compensation Act, the exercise and performance of the powers and duties of a Government Department are considered to be trade and business of such Department [34]. Therefore, a person engaged for driving a jeep of the Central Excise Department is a workman [35].

Are railway porters workmen? A licensed railway porter has to work under the overall supervision of the officers of the railway according to the roster drawn by the authorities. He is under the disciplinary control of railway. His licence is liable to be cancelled for misconduct, disobedience and inefficient working. There is, therefore, the relationship of employer and employee between the railway and the porter. Hence, a railway porter was held to be a 'workman' [36].

The question, whether workmen employed by contractors are 'workmen' for the purpose of the Workmen's Compensation Act, 1923, has provoked judicial analysis [37]. A building contractor appointed a person to do white washing work on piece-rate basis. He was doing white washing as part of parcel of the contract undertaken by the contractor. The appointee was expected to use the material supplied only under the supervision of the contractor. Because of this control, he was held [37a] to be not an independent contractor, but a workman paid on job basis.

Suppose an agent of a contractor appoints a person to help him in performing the work undertaken by the contractor. Is a person appointed by the agent a 'workman'? If he is, of whom? This question has also come for examination by courts. A contractor had a contract to unload wagons. He employed a maistri who worked under him with the assistance of coolies. One of the coolies met with an accident, while engaged in unloading a wagon and died. The question arose whether the cooly was a workman of the contractor. At the time of the accident, the cooly was employed for the purpose of unloading the wagon, which was the business of the contractor. It is true that the cooly was employed by the maistri and not by the contractor. But he was employed for executing the purpose of the business of the contractor. Therefore, he was held to be a workman of the contractor [38].

Another issue analysed by courts was whether a 'contractor' and his 'coolies' are workmen of the person, whose work the former executes. The work in the coal department of a mill was carried through a contractor. He was paid a fixed monthly sum as per a contract. Out of it, he paid to persons employed as coolies for the work. The contractor and his coolies were granted bonus and annual leave with wages just like the other employees of the mill. This led the court to conclude that the so-called 'contractor and his coolies' were workmen of the employer of the mil [39].

Entries in Schedule II to the Workmen's Compensation Act, in fact, form the fulcrum, around which the broadness of the concept of "workman' under the Workmen's Compensation Act revolves. These entries have also been subject to judicial interpretation, which led to the widening of the concept. A person was employed to operate a tractor. When an accident occurred, the said vehicle was not in operation but was merely loaded on a truck for being sent to another place. Still the operator has to be treated as a person employed in connection with the operation of the said vehicle. This was because the expression "employed.........................in connection with the operation" [40] of the vehicle cannot be construed to be confined to its actual mechanical operation. It extends to other activities connected with it. The emphasis appears to be on the factum of employment, which has to be in connection with the operation or maintenance of a vehicle [41].

A traffic controller had to see that the bus arrived at and departed from the bus-stand at the proper time. He was to count the number of passengers in the bus and verify it with the tickets, and make an endorsement on the way-bill and also make a note in the register maintained in the bus-stand. He was also required to report to the Divisional Manager in the event of any breakdown. These functions were not held to be clerical, in spite of the argument to that effect. The words 'in connection' [42] were held quite wide as to include employees not merely operating the vehicle but also in connection with it otherwise. In view of the fact that the traffic controller was expected to report in the event of any breakdown, his duty was connected with maintenance of the vehicle. Similarly his duties were also connected with the loading of the vehicle, as he was to check the number of passengers in each vehicle. Hence it was held, he would come within the meaning of the term 'workmen' [43].

A watch man was expected to preserve a building against unwarranted interferences from unauthorised persons and cattle. He was to keep it clean by sweeping the premises and dusting it. He was thus engaged in the upkeep of the office for the purpose of keeping it in an efficient state. His services were held to be for the maintenance [44] of the office and building and that he was a 'workman' [45].

A person employed by a farmer for crushing sugarcane on a power driven charkhi was held to be a workman', since 'farming' [46] is not confined to cultivation, but would also mean raising of crops, poultry, sale of chicken and eggs and takes in all operations which a farmer necessarily engages in including crushing of sugarcane. [47].

The condition that to be a 'workman', one's employment should not be of a casual nature and that one should not be employed otherwise than for the employer's trade or business, may appear to curtail the broadening concept of 'workman'. But in fact, the curtailing effect is not so serious. This is because only when a person is both casually employed and employed otherwise than for the purposes of the employer's trade or business, he will fall outside the ambit of the definition of 'workman'. But the requirement for the simultaneous assembling of the two conditions for excluding a person from the category of 'workman' makes the concept play round the expression 'trade or business'. Suppose the work of the employer, for the execution of which a person is employed cannot be labelled as 'trade or business', will the person employed by the employer be a 'workman'? It appears he will not be. This lacunae in the law affects adversely domestic servants, who will be helpful if they sustain injury in the course of their employment. The definition of workman' deprives the clerical staff of a business establishment of the benefits under the Workmen's Compensation Act. All persons employed for the purposes of the employer's trade or business, should be considered as his ‘workmen' entitled to the protection of the Act. A widening of the concept of 'workman' under the Workmen's Compensation Act is called for.

___________________________________________________________________

Footnotes:

1. S.2(1)(n) of the Workmen's Compensation Act, 1923 defines a 'workman' to mean "any person (other than a person, whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is --

(i) a railway servant as defined in S.3 of the Indian Railways Act, 1890, not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of [the Armed Forces of the Union]; and any reference to a workman who has been injured, shall, where the workman is dead, 'include a reference to his dependants or any of them".

2. Short v. J.W. Henderson Ltd., (1946) AC. 24 (H.L.): 1946 62 T.L.R.427.

3. Dharangadhara Chemicals Ltd. v. State of Saurashtra, AIR 1957 S.C.264; (1957) 1 LLJ.477.

4. AIR 1964 Cal.61: (1963) 1 LLJ.593.

5. Chintaman Rao v. State of Madhya Pradesh, AIR 1958 S.C. 388 :(1958) 2 LLJ. 252.

6. State of Kerala v. V.M. Patel (1961) 1 LLJ.549 (S.C).

7. Supra, n.1.

8. Armugham v. Nagammal, AIR 1949 Mad.462.

9. (1974) 3 SCC.498.

10. Supra, n.1.

11. S.3(7) of the Indian Railways Act 1890defines a 'railway servant' as any person employed by a railway administration in connection with the service of a railway.

12. Supra, n.1.

13. See Schedule II to the Workmen's Compensation Act, 1923.

14. See Supra, n.1

15. See Ibid.

16. Pattammal v. Janakirama Kounder, 1975 Lab.I.C.984.

17. Kochappan v. Krishnan, (1987) 2 LLJ. 174 (176) (Ker.), per Kochu Thommen,J.

18. Kochu Velu v. Joseph, 1980 Lab.LC.902 (Ker.).

19. Mahmoodv. Balwant Singh, 1980 Lab.I.C.300 (AIl). The question before the Court was whether a person employed by agriculturists for thrashing wheat by instrument operated by tractor was a 'workman' as per S.2(1)(n) and Schedule II, Clause (xxix). The act of thrashing with the aid of a device worked by means of a tractor driven by mechanical power was ancillary to farming or agriculture making the case fall under clause (xxix). Hence the person employed for the purpose was held to be a "workman'.

20. Patel Engg. Co. Ltd. v. Commr. For W.C. 1978 Lab.I.C. 1279 (1281) (AP.). The point in dispute here was whether workman employed by contractors, availing themselves of the facility of the Government lorry for coming to the workspot, can claim workmen's compensation, if an accident occurs while availing themselves of the facility. The court held that it is not necessary that the workmen concerned should either travel in a conveyance provided by the employer or that it would be obligatory on their part to do so in order to conclude that they were in the course of employment while travelling in that conveyance. The contractors had no lorry belonging to them for carrying the workers employed by them. Hence they used to avail themselves of the Government lorry. This practice was in force for about four years before the accident. It could be inferred from the circumstances that the contractors expected the workers to avail themselves of the facility of the Government lorry for arriving at the workspot. It could therefore, be concluded that the accident arose out of and in the course of employment, entitling the workmen to compensation.

21. Mahmood v. Balwant Singh, Op. Cit.,

22. Madanlal v. Mangali, AIR 1961 Raj. 45 (47).

23. Ladi Jagannadham v. Smt. Padmabati Baurani, AIR 1962 Orissa 7 (8).

24. The Secretary, Madras Gymkhana Club Employees' Union v. Management, AIR 1968 SC.554 (562,563) : 1968 Lab.LC. 547.

25. S. Mohan Lai v. R. Kondiah, AIR 1979 S.C 1132 (1133): (1979) 2 SCJ. 362.

26. Krishna Kumar v. J. & K. State, AIR 1967 S.C. 1368 (1371): (1967) 2 SCJ. 373.

27. Popatal v. Bai Lakhu, AIR 1952 Sau.72.

28. Madan Lai v. Mangali, Op. cit.

29. Kamala Devi v. Bengal National Textile Mills Ltd. (1975), 2 LLJ. 81, see also Kochappan v. Krishnan, (1987) 2 LLJ. 174 (Ker.) pp. 175-176.

30. Periyakkal v. S.I. Railway, AIR 1935 Mad. 721 (722): Huseinbhai Ahamedbhai Memon v. Mangiben, AIR 1985 (N.O.C) 73 (Guj): 1984 AC.J.701 (705) (DB) (Guj.).

31. Vijay Ram v. Chander Prakash, 1981 Lab. I.C. 359.

32. The Apprentices Act, 1961 is an Act to provide for the regulation and control of training of apprentices and for matters connected therewith.

33. Vide item (l)(d) of the Schedule to the Apprentices Act, 1961, read with S.16 thereof.

34. S.2(2) of the Workmen's Compensation Act, 1923 provides: "The exercise and performance of the powers and duties of a local authority or of any department (acting on behalf of the-Government) shall, for the purposes of this Act, unless a contrary intention appears, be deemed to be the trade or business of such authority or department".

35. Union of India v. Mohd. Wasi, 1980 Lab. I.C. (NOC) 57 (All.): (1980) 40 Fac. L.R. 17 (All.).

36. K. Narayanan v. Divisional Supdt. Southern Railway 1980 Lab. I.C. 776. The issue to be decided was whether master and servant relationship existed between railway administration and licensed railway porters. The latter being railway servants within S.3(7) of Railways Act, were held to be workmen under S.2(1)(n).

37. S.B. Gurbax Singh v. Dhani Devi, 1981 Lab. I.C. (NOC).

37a. Ibid.

38. Armugam v. Nagammal, Op. cit.

39. Kanpur Mill Mazdoor Union v. Muir Mills Co. Ltd. (1955) 2 LLJ. 537.

40. See Workmen's Compensation Act, 1923, Sch. II, Clause (1).

41. New India Assurance Co. Ltd. v. Smt. Fatmabai, 1982 Lab. I.C. 732.

42  Supra, n.40.

43. Malatibai v. Mysore SRTC, (1968) 2 LLJ.443.

44. See Workmen's Compensation Act, 1923, Sch. II, Clause (viii).

45. Smt. Satiya v. Sub-Divisional Officer, P.W.D. (1974) Lab. I.C. 1516.

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.