Literalegis v. Sententia Legis, 1989 (2) KLT 648

(V.K. Sathyavan Nair, Advocate, Kottayam)

The landlord goes on a tour or pilgrimage to some foreign countries during the pendency of an appeal filed by a tenant against an order of eviction and by misfortune he dies in a foreign country. It is quite likely that the information of his death reaches even in his home town after the lapse of more than fifteen days. How is it possible for the tenant-appellant to implead the legal representatives of the deceased landlord within fifteen days? This is one of the problematic hypothetical instances considered by His Lordship Justice Thomas in interpreting Rule 10 of the Kerala Buildings (Lease and Rent Control) Rules 1979 in the case of Surendran v. The Munsiff Rent Controller, Perinthalmanna and others (1989 (2) KLT 648). The court has also placed reliance on one of the rules of interpretations that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature the Court may modify the language used by the legislature.

The crucial question is whether the Court is justified in invoking the extraordinary power of judicial legislation. That no words are to be added to a statute unless there are adequate grounds to justify an inference that the legislature has intended something which it has omitted to express is a well known rule of interpretation. Absurd result alone is no ground for interfering with the plain and natural meaning of the words. So also if there is no ambiguity the literal rule would apply and the provision should be construed in the ordinary and natural meaning of the words and sentences. VERBIS STANDUM UBI NULLA AMBIGUITAS. There is no case that Rule 10 of Rent Control Rules is ambiguous. The meaning is quite clear. Therefore the only aspect to be considered is whether there is any manifest absurdity inconsistent with the legislative intent, as far as Rule 10 is concerned.

Rule 10 provides the time limit for impleading legal representatives. Every application for making the legal representative, or legal representatives of a deceased person, party to a proceeding under the Act, shall be preferred within 15 days from the date of death of the person concerned. The rule specifically directs that an impleading application shall be filed within fifteen days from the date of death of the party. There may be a few instances where the rule may workout inconvenience or hardship to the parties to the Rent Control proceedings. From the inconvenience or hardship or even from the absurd result that may sometimes follow it cannot be readily inferred that the Rule making authority has intended that the time shall run from the date of knowledge of death and it has failed to express that intention. Is it not more reasonable to assume that the Rule making authority was aware of all these consequences at the time when the rules were formulated? Legislative intention has to be gathered not from the results that follow the application of the statutory provisions in particular cases, but from the object and language of the Statute.

The declared purpose of the Act is protection of tenants from unreasonable eviction. It is a statute to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala. Rent Control Act is a self contained statute and the rights and liabilities of the landlord and tenant are to be governed by its provisions.

S.24 of the Rent Control Act says that the Rent Control Court shall, as far as may be practicable, pass final orders in any proceeding before it within four months from the date of appearance of parties thereto. A reading of the statute and the Rules would reveal the legislative intent that the proceeding should be disposed of summarily and expeditiously avoiding delay as far as possible. It is quite clear that that is the reason why Rule 10 provided for a shorter period of 15 days than the period prescribed by the Limitation Act. The High Court concluded that it cannot be presumed that the legislative intent was to ignore the harsh consequences, absurdity and even injustice resulting from the inability of one party to come to know of the death of his opposite party within 15 days. If that were the intention of the Rule making authority it could have very well expressed its intention by saying so. The provision is neither logically defective nor would it lead to such absurdity and unreasonableness as to make itself evident that the legislature could not have meant what is said. It is submitted that the functional approach made in interpreting Rule 10 by adding the word 'knowledge' appears to be repugnant to the true legislative intent. In this context it is relevant to note what Salmond says.

"Nevertheless in all ordinary cases the Courts must be content to accept the literalegis as the exclusive and conclusive evidence of the sententia legis. They must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has said.

Ita scriptum est is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law, simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it." (Salmond on Jurisprudence, 12th edition PP 132-133).

However the Court has rightly observed that there can be little dispute over the draconian character of Rule 10, if it is construed literally. The law has to be changed, but not by the court. It has been laid down by our High Court in several decisions that the Limitation Act is not applicable to Rent Control proceedings. This aspect has been succinctly discussed in 1985 KLT1015 by Bhat, J. It has been rightly concluded that the Appellate Authority constituted under the Act has no inherent power to condone the delay in filing, an application for impleading legal representatives of a deceased party. Therefore a party who fails to file such application within 15 days would be put to great hardship.

Before concluding this note it has become necessary to point out that there seems to be no discussion in 1985 KLT 1015 on the question why abatement cannot be set aside by the Rent Control Courts and Appellate Authority. True that no delay can be condoned. But setting aside abatement is a different procedural right. Order 22, Rule 3 sub Rule 2 says that where within the time limited by law no application is made under Sub Rule (1) the suit shall abate as far as the deceased plaintiff is concerned. Sub Rule (3) of Rule 4 of Order 22 also reads that where within the time limited by law no application is made the suit shall abate as against the deceased defendant. Ignorance of the death of the defendant is a ground to condone delay under Sub Rule (5). But the said Sub Rule contains the words 'within the period specified in the Limitation Act' and therefore it may be held to be inapplicable to Rent Control proceeding in the light of the reasonings stated in 1985 KLT 1015. Rule 9(2) of Order 22 provides for setting aside abatement.

"The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal and if it is proved that he was prevented by any sufficient cause from continuing the suit the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit."

Can it be held that Rule 9(2) of Order 22 is not applicable to Rent Control proceedings on the ground that Limitation Act is inapplicable? If the Limitation Act is not applicable the result is that there is no time limit for setting aside abatement. It cannot be argued that that procedural right has been taken away. It is a right conferred on the party under S.22 of the Rent Control Act read with Order 22 C.P.C It is doubtful whether it can be presumed that the right to set aside abatement has been nullified by the Government by providing a time limit of 15 days under Rule 10 of the Rent Control Rules for filing an application for impleading legal representative. Has the Rule making authority such a power to render a statutory provision nugatory? These aspects were not at all considered by the Court in 1985 KLT 1015.

These being the circumstances, it is submitted that 1989 (2) KLT 648 and 1985 KLT 1015 require reconsideration.

The Judge in K.K. Mathew

A Critical, Though Reverential, Appraisal

(S. Parameswaran, Advocate, High Court of Kerala)

I. It was Barbara Goldsmith who commented, "Today we are faced with a vast confusing jumble of celebrities, the talented and untalented, heroes and villains, people of accomplishment and those who have accomplished nothing at all, the criteria for their celebrity being that their images encapsulate some form of the American Dream, that they give enough of an appearance of leadership, heroism, wealth, success, danger, glamour and excitement to feed our fantasies". How true it is in the Indian context as well.

II. In such an atmosphere, a self-effacing jurist-judge like the late lamented K.K. Mathew is a refreshing exception. Reserved, withdrawn, taciturn though tactful, unassuming though not unasserting, letting his power rest lightly on his head, frail in health but firm in mind, Justice Mathew is a celebrity to be remembered' and reverenced. The rise and transformation of this rustic of a tiny hamlet near Athirampuzha in Kottayam District into a nationally known and respected Jurist-Judge is a saga of success through the sheer dint of hard-work and intrinsic merit, though apparently it may be phenomenal. But I do not propose to deal in this article with Mathew, the man; my endeavour is to assess the judge in him.

III. The apex judiciary in the country exercises more power over a broader range of social and economic issues than the framers of the Constitution ever envisaged. It plays an active role in shaping and carrying out social policy, passing on the legality of governmental decisions as to a wide range of issues from acquisition of land for a public purpose to usurious loans. This expanded public policy role of the higher judiciary -whether conferred or arrogated - underlines the importance of the quality of the judge-appointees. As Justice Felix Frankfurter put it, "The most relevant things about an appointee are his breadth of vision, his imagination, his capacity for disinterested judgment, his power to discover and to suppress his prejudice".

IV. Justice Mathew, no doubt, substantially satisfied these requirements, though in the later years of his judicial and quasi-judicial activities, his pro-Establishment proclivities pronouncedly surfaced. Otherwise, demonstrated disinterestedness and knowledge of the law were qualities exhibited by him, and in plenty. His intrinsic merit is discernible in the not so small numbers of judicial decisions handed down by Justice Mathew over more than one decade span of his judicial life.

V. We are a nation with a diverse quilt of political and religious traditions. Some of these traditions do not translate well or inspire emulation today. The framers of our Constitution gave us a fine written instrument, but all the same, an unfinished one. To use unchanged the arms of tradition will be to invite defeat. Our Supreme Court, particularly of the Fifties and the early Sixties, which had a star-studded composition, not only gave an incisive insight into the working of the minds of the framers of the Constitution, but an exciting environment of free thinking. All the same, when we discuss a person like Justice Mathew, it should not be as a hero created as ideological model.

VI. A perusal of some of the important judgments of Justice Mathew provides a near ideal laboratory for examining the way the Judiciary, which interpreted the fundamental law of the land, has both initiated, and responded to, social change. He has on occasions placed the shield of the Constitution between the basic citizen's rights of the individual and the potentially tyrannical government of the State. At the same time, on a number of occasions as in the Bennett Coleman case (AIR 1973 SC 106) and as Chairman of the Law Commission recommending a Bicameral Supreme Court, Justice Mathew plainly and palpably supported the Establishment. Just as Felix Frankfurter of the U.S. Supreme Court, Justice Mathew believed in the philosophy of judicial restraint, and it proved to be his pervasive guide and a la Frankfurter his record on civil liberation and fundamental rights, exemplary as a private citizen, would be less impressive as a Justice. But, unlike Frankfurter, Mathew, did not view the law as a living, vital force that must change with the times. Justice Mathew essentially an introvert unlike Justice Frankfurter, had, and indeed, prided in, his ability to impress upon men of power and wisdom with fresh insights into complicated public problems. His weapons in his judicial arguments were threefold:

i) a meticulous legal mind;

ii) a skeptic's respect for compromise in an imperfect world; and

iii) an effervecent and self-effacing personality that built good-will and confidence when even reason failed.

VII. The judicial opinions rendered by Mathew cover a wide spectrum ranging from acquisition of land for a public purpose Usurious Loans Act. His fertility of genius and fecundity of thoughts are reflected luminously in many of these judgments. Paucity of time and limitation of space preclude a detailed discussion of these in this article. Some random, yet representative, samples are taken which would help the reader understand the judge in K.K. Mathew.

VIII. The views of Justice Mathew on agrarian reforms cannot be said to be totally socio-economically oriented. For, he concurred with his brother Judges of the Full Bench in Narayanan Nair v. State of Kerala (1970 KLT 659 (FB)) in declaring invalid Sections 29A, part of S.32,S.45A,S.50A(2),Expln. to S.85(l)and S.125(7) of the Kerala Land Reforms Act, 1963 as amended by Act 35 of 1969, while striking a discordant note only in regard to S.73. All the same, it is useful and pertinent to recall the justice's observations in paras. 8 and 9 of his separate opinion. The conservative in Mathew made Ma concur with the majority in striking down some important provisions. It is a far cry from this to the later-day Mathew of the Supreme Court, who said that property rights should be elbowed out of the Fundamental Rights Chapter. But, then, consistency has never been a judicial virtue and Justice Mathew was no exception!

IX. Observations have been made by Justice Mathew about the justiciability of Administrative Orders under Art.226 of the Constitution of India. Holding that administrative regulations and orders are sources of law, Justice Mathew observed "He that takes the procedural sword shall perish with that sword" (See James v. Auditor General of India reported in 1970 KLT 571 and similar other cases).

X. Mathew's comprehension of law relating to religion was equally good and great. The opinion in Achuthan Pillai & others v. State of Kerala and others (1970 KLT 838) (FB)) bears testimony to this.

XI. Justice Mathew in Sri Mahalinga Thamoiran Swamigal v. His Holiness Sri. Kasievasl Arulaandi Thambiran Swamigal (AIR 1974 SC199) gave a decision having far-reaching repercussions as regards succession to the office of the headships of Mutts. He expressed his views as follows:--

"The fact of a person being legally nominated as junior having peculiar relationship with the senior is status, and the capacity to succeed to the head is the incident of the status. The status, when created by a nomination, cannot be withdrawn or cancelled at the mere will of the parties. The- law must determine the condition and circumstances under which it can be terminated. Merely because the status originated from the act of a senior head in making the nomination, it would not follow that the senior head can put an end to it by other act. In other words, the junior heads as a class occupy a position of which the creation, continuance or relinquishment, and its principal incident, namely succession to the office of the headship of the Mutt, are matters of sufficient social or public concern in the sense that the Hindu religious community is vitally interested in all of them". There are similar other instances of his expatiation of the law concerning religion.

XII. Yet another opinion of far-reaching importance delivered by Justice Mathew was in the State of Gujarat and another etc. v. Shri. Amhica Mills etc. (AIR 1974 SC 1300) where the validity of the Bombay Labour Welfare Fund Act, 1963 was challenged by a group of textile mills before the Supreme Court. Reversing the decision of the Gujarat High Court, the Supreme Court held that a law which takes away or abridges the fundamental rights of citizens under Art.19(1)(f) of the Constitution would not be void and nonest even as respects non-citizens like companies. Mathew felt that a Court should be hesitant to choose invalidation as an appropriate remedy. Though the test is imprecise, a court must weigh the general interest in retaining the statute against the court's own reluctance to extend legislation to those not previously covered. Such an inquiry may lead a court into examination of legislative purpose, the overall statutory scheme, statutory arrangements in connected fields and the needs of the public. The Frankfurterian complex in Mathew is demonstrably visible in his opinion in this case.

XIII. For Justice Mathew's illuminating exposition of the law of domicile and the law concerning foreign judgment and res judicata, one may have a look at his opinion in Sankaran Govindan v. Lakshmi Bharathi reported in AIR 1974 SC1764.

XIV. Justice Mathew had a proclivity -- or shall I say, penchant -- to endorse the Establishment's views and actions, and a number of such instances are available in the Law Reports of the country. An example is the case of preventive detention under the MISA (Maintenance of Internal Security Act, 1971).Speaking for a Constitution Bench, with Justice Bhagwati holding to the contra, Justice Mathew gave an interpretation upholding S.13 of the Act as amended by S.6(d) of the Defence of India Act, 1971. He held that the power to determine the maximum period of detention is not discriminatory. The words 'maximum period', means the highest or greatest course or extent or stretch of time, measurable in terms of years, months or days as well as in terms of occurrence of an event or the continuance of a state of affairs. "The maximum period" in Art.22(7)(b) can be fixed with reference to the duration of emergency. The Parliament in fixing the duration of the maximum period of detention with reference to an event like the cessation of the period of Emergency has in no way abdicated its power or its function to fix the maximum period or delegated it to the President. Only because the duration of the period is dependent upon the volition of the President, it does not cease to be the maximum period. The President will not act unreasonably and continue the Proclamation of Emergency even after the Emergency has ceased to exist", opined Mathew, who, on several other occasions, displayed a desire to don the dress of a liberal and libertarian.

XV. In matters of interpretation of statutes and testing the validity and vires of statutory enactments and subordinate legislation, Mathew had an approach of his own. The dilution of preliminary watch-dogging on delegated legislation may be declared valid in the compulsion and complicity of modern life, according to the learned Judge.

In a decision dealing with FERA (The Superintendent and Remembrancer of Legal Attain, West Bengal v. Girish Kumar Navalkar and others, AIR 1975 SC 1030), he observed as follows:-

"The general purpose or object of the Act given in the preamble may not show the specific purpose of the classification made in S.23(1)(A) and S.23(1A). The Court has, therefore, to ascribe a purpose to the statutory classification and co-ordinate the purpose with the more general purpose of the Act and with other relevant Acts and public policies. For achieving this the Court may not only consider the language of S.23, but also other public knowledge about the evil sought to be remedied, the prior law, the statement of the purpose of the change in the prior law and the internal legislative history. When the purpose of a challenged classification is in doubt, the courts attribute to the classification the purpose thought to be most probable. Instead of asking what purpose or purposes the statute and other materials reflect, the Court may ask what constitutionally permissible objective this statute and other relevant materials could plausibly be construed to reflect. The latter approach is the proper one in economic regulation cases."

XVI. While espousing principles considered essential to representative democracy, Mathew was careful enough not to upset the apple-cart of the Establishment. Critically and impartially observing, one may say that had it not been for this streak in his. personality, which some critics, perhaps, uncharitably, characterise as intellectual dishonesty, Justice Mathew's reputation would have gone up to dizzy heights.

XVII. The High Bench cannot be too cautious in upsetting practices embedied in our society or system by many years of experience or practice. The State is entitled to have great lee-way in its legislation when dealing with important economic or social problems. This philosophy of Justice Mathew forms the sheet-anchor of his discordant note in the Bennett Coleman case. Countless similar examples could be listed; but there is no need to be labour the obvious. We have come to recognise through bitter experience that it is not within the power of Government to invade the citadel of freedom of expression whether its purpose or effect be to aid or oppose to advance or retard. Though the application of this rule requires interpretation of a delicate sort, the rule itself is clearly stated in the words of Art.l9(l)(a) of the Constitution of India.

XVIII. Justice Mathew was at his best in his dissenting opinions from the Bench which are not small in number. Today's dissenter, in judiciary, is tomorrow's path-finder. His Lordship's observations in the famous E.M.S. Contempt case ((1968 KLT 299 (F.B.)) is an instance on point.

XIX. Justice Mathew's views in the E.M.S. contempt case are worthy of emulation in this preitine glory. In T. Narayanan Nambiar v. E.M.S. Namboodiripad (1968 KLT 299 (F.B.)) the respondent E.M.S. Namboodiripad, the then Chief Minister of Kerala in a press conference stood charged of having condemned the judiciary as follows:-

"Marx and Engels considered the judiciary as an instrument of oppression and even today when the State set-up has not undergone any change, it continues to be so that judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well-dressed, pot-bellied richman and a poor, ill-dressed and illiterate person, the judge instinctively favours the former".

XX. Justice P.T. Raman Nayar and Justice T.S. Krishnamoorthy Iyer in two separate, but concurring, judgments found that E.M.S. was guilty of very grave contempt of Court; in a dissenting note reflecting courage, clarity of thought, catholicity of outlook and constitutional punditry, Justice Mathew declared that the laws in relation to defamation referred to in Art. 19(2) should not be allowed to paralyse a citizen's right to participate in self-government by free discussion of public conduct of officers or of public figures and that it is logical to hold that the law of contempt by scandalising a Court should not prevent a citizen from expressing his views as to the defects in the system of administration of justice or as to the remedies therefor. Justice Mathew then goes on to expatiate the Law of Seditious Libel as it developed in this country and the West and the Law of Contempt in all its ramifications and range reflecting enviable erudition.

XXI. Narrating the story of Timoleon in Plutarch's Lives, Justice Mathew concludes his opinion:-"I think Timoleon's attitude might not be a bad one for courts to adopt in our Republic, where the people have the fundamental right to say what they have to say concerning the governance of the country, including the administration of justice". While one wishes that the ultra-sensitive among the higher judiciary cared to follow this sagacious advice, one has also/to admit that the later opinion of the Kerala High-Court in the contempt case against Justice V.R. Krishna Iyer, and of the Supreme Court-in the contempt case-against Sivasankar pale into insignificance in qualitative content when compared with the great dissenter's rejoinder. That the Supreme Court speaking through Justice Hidayatullah (EMS Namboodiripad v. T.C. Narayanan Nambiar, 1970 KLT 588) confirmed the Kerala decision does not detract from the greatness, merit or scholastic content of Justice Mathew's judgment.

XXII One of the many outstanding judgments delivered Dy Mathew was in Bennet Coleman & Co. Ltd. and others v. Union of India and others (AIR 1973 SC 106) where the question as to whether the News Print Policy of 1973 of the Government of India violated Arts. 19(1) (a) and Art.14 of the Constitution of India arose for consideration. The majority of the Constitution Bench comprising Chief Justice Sikri and Justices AN. Ray, P.J. Reddy and M.N. Beg took the view that the news print policy violated the Constitutional freedom. Justice Mathew's dissenting Opinion reflects- in abundance his erudition; scholarship, insight, incisive, analysis and legal legerdemain. It could even be called his causus celebae. Justice Mathew observed that the freedom of the press is net higher than, the, freedom of speech under Art.19(1)(a) of the Constitution which does not specifically provide for freedom of the Press as the First Amendment of the U.S. Constitution. The freedom of the Press is simply an emanation from the concept of fundamental right of the freedom of speech of every citizen. Mathew added that it is a total misconception that speech cannot be regulated or every regulation of speech would be abridgement of the freedom of speech. He referred to the observations of Justice Holmes in Abraham v.- United States (1918 (250) U.S. 616):--

"But when men have realised that time had upset many fighting faiths, they may come to believe even more than they believe the very foundation of their own conduct, the ultimate good desired is better reached by free trade in ideas-that the best of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution".

XXIII. He adverted to the sentiments echoed by Justice Black when he said that the freedom of speech rests on the assumption that the; widest possible dissemination of information from the diverse and antagonistic forces is essential to the welfare of the public (Associated Press v. U.S. (1945) 326 U.S. 1.20) and made reference to the speeches and writings of great thinkers to bolster his views. According to Mathew, with the concentration of mass media in a few hands, the chances of new ideas antagonistic to the idea of proprietors of the big newspapers getting access to the market has become very remote. It is no use having a right to express your views unless you have got a medium for expressing it. The concept of a free market for ideas presupposes that every type of ideas should get into the market and if free access to the market is denied for any ideas, to that extent, the process of competition becomes limited and the chance of ail the ideas coming to the market is removed. There can be no doubt that any mass medium having the greatest circulation will influence the political life of the country because the ideal for which the paper stands has got the greatest chance of getting itself known to the public. It will also affect the economic pattern of the society. Whether or not the modern big news paper is the cultural arm of the industry, it has an interest in the present method of production and distribution, as it subsists mainly upon advertisement."

XXIV. "The mass media's development of an antipathy to ideas antagonistic to. theirs or novel or unpopular ideas, unorthodox points of view which has no claim for expression in their papers make the theory of market place of ideas too unrealisitc. The problem is now to bring all ideas into the market and make the concept of freedom of speech a live one having its roots in reality."

XXV. Any law or executive action which advances the freedom of speech cannot be considered an abridgement of it. The constitutional guarantee of the freedom of speech is not so much for the benefit of the Press as it is the benefit of the public. Relying on the observations of Meiklejohn in his "Political Freedom", Justice Mathew observed:

"If the right of the public to hear and be informed is also within the concept of these freedom of speech, the government, when it insists upon the newspapers concerned maintaining their present level of circulation does not abridge the freedom of speech, but only enriches and enlarges it. In other words, under the theory of the freedom of speech, which recognises not only the right of the citizens to speak, but also the right of the community to hear, a policy in the distribution of newsprint for maintenance of circulation at its highest possible level as it furthers the right of the community to hear, will only advance and enrich that freedom".

XXVI. Though there may be difference of opinion concerning the philosophy espoused by Mathew, it is beyond cavil that the dissenter in Mathew was in his elements in this masterpiece of his judicial exposition.

XXVII. With the increasing numerical strength of the apex court and the corresponding decline in the qualitative content of its judicial opinions, one has to content oneself with nostalgic memories of a bye-gone era of the Supreme Court, to which life and lustre was added by stalwarts like Patanjali Sastri, Subba Rao, Gajendragadkar, K.K. Mathew and V.R. Krishna Iyer.

Tail piece

XXVIII. Certainty is not the El Dorado for any legal system; on the contrary, uncertainty and change are the sine qua non for legal growth

A Comment on Leelamma v. Dilip Kumar alias Kochaniyan –

1992 (1) KLT 651

(K.N. Chandrasekharan Pillai, B.Sc.(Ker.); LL.M. (Del.); LL.M., S.J.D. (Michigan), Professor of Law, CUSAT, Kochi-682022)

The decision handed down by Justice Chettur Sankaran Nairin Leelamma v.Dilip Kumar alias Kochaniyan (O.P. No. 1074/1987 and O.P. No. 1470/1992 --1992 (1) KLT 651) assumes much importance for several reasons.

It is for the first time that such a ease came up for decision in the Kerala High Court. The facts are quite interesting; the points decided are quite relevant; the reasoning innovating and refreshing and the law laid down is of some consequences.

Leelamma belonging to a Roman Catholic family was married on 2-3-1986 according to custom followed by the Roman Catholics, Dilip Kumar alias Kochaniyan who represented to her that he belonged to a traditional Christian family and that his name was Philip Joseph. After the marriage the husband and wife spent some days in the wife's house. Thereafter they went to the husband's house. It was then that the wife came to know that her husband did not belong to a Christian family. In fact he belonged to an Ezhava family and his father and mother continued to be Ezhava though he was reported to have undergone baptism ceremony before marriage. By the time, the wife's jewellery were misappropriated and she was compelled to have sexual intercourse with his friends. She went back to her parent's house and did not live with her husband thereafter.

The wife petitioned the High Court for a declaration that the marriage is a nullity by reason of fraud practised on her to obtain her consent. Though initially the husband contested the petition after an order of interim alimony he withdrew from the proceedings.

The husband did not care to appear in his O.P. filed for restitution of conjugal rights. Thus there was total withdrawal from the proceedings by the husband. It was in these circumstances that the honourable High Court appointed Shri. Sebastian Champappilly, the author of 'Christian Law' amicus curiae.

The judgment does reflect the adequate homework done by the Court. Its reasoning is appropriate and convincing. It signifies the caution with which the Court arrived at its conclusion (See how the judge reasoned out the conclusion that there was fraud, in his observation extracted at n.23 infra.). It is a good piece reflecting the judicial craftsmanship of Justice Sankaran Nair.

The first question that arose for decision is as to the law applicable to the case. The court found that the Indian Christian Marriage Act 1872 was not in force in the erstwhile Travancore and Cochin areas of Kerala as has been noticed by the Travancore and Travancore-Cochin High Courts in a series of cases (See Eapen Punnen v. Koruthu Maria, 10 TLR 95, Cheriya Varkey v. Ouseph Thresia, AIR 1955 TC 255, Sirkar v. Mathu Kuruvilla, 11 TLR 33 (FB). Also see S.1 of the Act.) Though in Sirkar v. Mathu Kuruvilla (11 TLR 33) the Full Bench of Travancore High Court opined that the customary law had predominance over canon law in the case of followers of the protestant churches, it seems that the courts had been taking the view that the canon law coupled with customary law applied to the Roman Catholic Christians in Kerala in the matter of marriages. In the case of Christians in other parts of India also it has been accepted that the personal law, which governs Roman Catholics is the Law of Church of Rome (See Lopez v. Lopez, ILR 12 Cal. 706, Lucas v. Lucas, ILR 32 Gal. 187, Saldhana v. Saldhana, AIR 1930 Bom. 105). Here the petitioner is undoubtedly governed by canon law. The husband was converted into Christianity and moreover, opted to undergo the ceremony according to the custom of Roman Catholics. As such the law that should govern the marriage in this case is undoubtedly the canon law applicable to the community to which the wife belongs. This accords well with the position obtaining in private international law. This principle is echoed in Lakshmi Sanyal v. S.K. Dhar, AIR 1972 SC 2667. Also see the reasoning in Jude v. Jude, (AIR 1940 Cal. 75), wherein the Supreme Court pinpointed this aspect thus:

"The question of capacity to marry and 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 marriage, would be the law of the Roman Catholic Church, namely, the canon law of that church." (Ibid at 2672).

Thus, judged by the canon law the court found that an error concerning the person renders the marriage invalid. Here, there was indeed an error concerning the person inasmuch as he was not the person of the background which she thought him to be. According to the wife he misrepresented to her that he belonged to a traditional Syrian Christian family. It was on this belief that she consented to the marriage. (See at p.3 of the judgment). Thus an erroneous belief was induced in the wife by the husband 'concerning a quality of his', namely religious faith or religious status. This is what the court found to be fraud in the meaning of S.19, and certainly in canon law, that made the wife to consent to the marriage. The court cited T.O. Aykut v. M.O. Aykut, (AIR 1940 Cal. 75) to support its stand that misrepresentation of the religious status might amount to fraud. In Jude v. Jude (AIR 1949 Cal. 503) also the Calcutta High Court found such misrepresentation to be fraud. The court has therefore declared the marriage null and void.

Looked in this perspective it was not necessary for the court to express any opinion as to who is a Christian. Indeed, the court has not gone beyond what the Allahabad and Madras High Courts had ruled (See Maharam v. Emperor, AIR 1918 All. 168, Pakiam Solomon v. Ohelliah Filial, AIR 1924 Mad. 18). However, it may be pointed out that the determining factor of a person being Christian should not either be baptism or professing the Christian religion but his being accepted by the community as Christian. This has to be the definition atleast for the purpose of marriage inasmuch as it is a social institution and it is the society's acceptance which is material for the ceremonies like marriages. Indeed, the declaration of nullity of the marriage in question may be accepted by the church and the wife permitted to contract a second marriage. But suppose, the eparchial tribunal does not recognise the verdict of the High Court and does not permit her to contract second marriage. The whole exercise of the High Court then goes a waste of time and energy.

Quite often Christian marriages are dissolved under the canon law by the eparchial tribunals in our country if there was any defect in the essentials of a marriage. However," though our courts have been maintaining that it is the canon law which applies in such cases, they have been denying jurisdiction to eparchial tribunal to declare the marriage null and void. They have been insisting that they alone have jurisdiction.

Many reasons are mentioned in support of this view. In Saroja David v. Christie Francis (AIR 1966 AP. 178), the A.P. High Court traced the history of this jurisdiction. It has been pointed out by the Court that originally this jurisdiction rested with the ecclesiastical courts in England and from them the Supreme Court in India inherited it. From the Supreme Court our High Courts came to inherit this jurisdiction. The High Court's jurisdiction has been reiterated by Delhi High Court also in J. F.S. Eric D' Souza v. Florence Martha (AIR 1980 Del. 275).

The Kerala High Court has also been rendering a series of decisions on the question of jurisdiction of eparchial tribunal. In Kurian v. Alphonsa (1986 KLT 731) Justice Sreedharan disregarded the Eparchial Tribunal's order dissolving the marriage on the ground of defect of wife's consent due to insanity and ruled that Eparchial Tribunals cannot adjudicate upon dissolution of marriage so as to affect the civil rights of the parties to the marriage. He observed:

"Whatever be the jurisdiction of Eparchial Tribunal in ecclesiastical matters it cannot affect the civil rights of the parties. Rights flowing out of a legal marriage cannot be interfered with by the Eparchial Tribunal". (Ibid at 733).

It was a case where the wife's claim for maintenance was resisted by the husband on the ground that the marriage was declared null and void by the Eparchial Tribunal. Still the court described it as a legal marriage from which flowed the civil liability to maintain the wife. In other words it refused to recognise the declaration by the Eparchial Tribunals.

In Gabriel Antony v. Thresya Grace, (1987 (1) KLT 690) Thomas, J. ventured to examine the legal position. According to him a Christian marriage becomes void under S.19 only when a High Court decrees so. His Lordship argues that the word Void' inS.19 of the Divorce Act shall subject to the context means "voidable" as well. And as such it is only when on the option of either parties, the High Court passes a decree on the nullity of the marriage, a marriage becomes null and void. The Eparchial Tribunal does not have any say in the matter. He distinguished the decisions in Yamuna Bai Anantrao's case (The Bombay High Court's decision reported in 1983 Crl. LJ. 259 (FB). Later it was affirmed by the Supreme Court, ((1988) 1 SCC 530) saying that S.11 of the Hindu Marriage Act 1955 by itself declares certain marriages null and void even without the requirement of a decree passed by the High Court whereas S.19 of the Divorce Act requires such a decree.

The decision in Gabriel was followed in Jose v. Alice (1988 (2) KLT 890), in which also the Eparchial Court gave a declaration of nullity on the ground of defect of consent, The court observed:

If either of the parties does not choose to file a petition as contemplated by S. 18 the marriage is not rendered void even if any of the grounds capable of invalidating the marriage is present and available to the parties to have recourse to the procedure established by the Act. When S. 18 gives only an option to the parties to present a petition for a decree declaring the marriage null and void, it cannot be said that the marriage is ipse jure for the reason of ground 2 to 4 mentioned in S.19 of the Act. It is also not correct to say that these grounds do not postulate any adjudication." (Ibid at 896. The court has relied on supra n.11 and 12).

In this connection it may be pertinent to point out that the Jose court has taken the marriage as solemnized in accordance with S.5 of the Indian Christian Marriage Act 1872 (See para.11 of supra n. 18). The Kurien Court has also taken the marriage to be a legal one on the ground that it was solemnized in accordance with customary law. (see supra n.14). It is however to be noted that the Indian Christian Marriage Act 1872 is not applicable to erstwhile Travancore and Cochin States. As such, it would be appropriate to say that the above courts took the position that the validity of marriages is to be determined under the customary law applicable to Christians in these areas. It is indeed the correct position.

Be that as it may, it appears that the Indian Christian Marriage Act and the Indian Divorce Act may act as a code complementing each other. As such if the Marriage Act is not applicable and the validity of marriage is determined by church law the Divorce Act may not work well. In this view, the relevant part of Divorce Act should not have been applied in the erstwhile Travancore and Cochin areas inasmuch as divorce or nullity out of the church was unheard among Travancore-Cochin Christians because of the pivotal role the church plays in marriage and divorce.

At present while in the case of dissolution of a Christian marriage on the ground of its being null and void, a decree by the District Court/High Court is insisted upon, in the case of certain Hindu marriages, no such decree is insisted upon on the gound that such marriages are declared null and void by the statute itself (See discussions in Gabriel's case supra n.16). In fact if this argument is extended to the case of Travancore-Cochin Christians it becomes clear that the declaration of nullity of their marriages should be done by their church because the validity or otherwise of such marriages is 'declared' by their customary law through the instrumentality of Eparchial Tribunals.

Viewed in this perspective, it can be argued that if the court is ready to concede jurisdiction of civil/criminal courts to take cognizance of the nullity of a Hindu marriage by virtue of the declaratory language employed in S.11 of the Hindu Marriage Act nothing should stand in the way of a court to accept a nullity order given by an eparchial court which must have, in the light of the circumstances and its experiences, gone into all aspects of the case, to accept the latter's decision on the nullity question.

There is no dispute that the capacity to marry, the essentials of marriage and the rules of ceremony etc. are governed by the church in Kerala. The impact of the courts' decisions is that while the church has the right to determine whether a marriage is to be solemnized, if subsequently something goes wrong such as defect in consent, only because the Divorce Act is made applicable, its validity can be decided by the District Court/High Court. The sum part of this argument becomes evident when a person whose marriage has been declared null and void by the Court is seeking remarriage. The church in Kerala may not allow him to remarry. He can of course go through a civil marriage. Church may not recognise it. If on the other hand, the High Court does not recognize the dissolution granted by the Church and the person remarries through the church, he faces the threat of prosecution for bigamy by the first spouse. Thus, the Christians in the erstwhile Travancore and Cochin areas seem to be in a dilemma.

Since the Christians in these parts constitute a separate class for the purposes of marriage and divorce having regard to the tight grip of the church on them it would be in the fitness o* things if Ss. 18 & 19 of the Divorce Act are not made applicable to them. The eparchial court being the custodian of canon law may be conferred with the jurisdiction to decide the question concerning dissolution of Christian marriages.

In the context of the facts presented in the case under comment, the High Court was perfectly justified in declaring' the marriage null and void. (The Court observed: "Having heard the evidence and watched her demeanour, I am inclined to accept the evidence of the wife, and I do so. I find that the husband had made a false representation, knowing it to be so and obtained consent of the wife to marriage, by practising fraud.) However, as mentioned earlier, it is doubtful whether the church would permit the petitioner to remarry. Thus the very purpose of obtaining a declaration maybe defeated. It is therefore felt that a thorough revision of the Saw in this sector by the Parliament is the desideratum. The court has again provided a chance for rethinking. It is now for the reformers to take up the challenge.

All About Finger Prints

(T.G. John, Advocate, Trichur)

As we skip over the pages of the Indian Evidence Act and come to S.46, we find the word 'finger impressions' in brackets in that section. The portion in brackets was added by S.3 of Act V of 1899. The statement of objects and reasons of that Act contains the following paragraph:

"The system of identification by means of such impression is gaining ground and has been introduced with considerable success in the Lower Provinces of Bengal. It seems desirable that expert evidence in connection with it should be admitted and with that object it is proposed by the third clause of the Bill to amend the law on the subject."

Years have rolled by; still no Indian criminal is found doing his job with gloves oh, or in any way afraid of leaving his fingerprints at the scene of the crime, for the very plain reason that in India unlike Scotland Yard and FBI, analysis of finger prints have not reeived the due regard it should have in the detection of crime.

It is very interesting to trace the back ground of the history of finger print legislation. In China and the East, the finger and thumb print have been used for centuries as a form of signature, to seal official documents and legal claims. A twelth century Chinese romance describes the finger printing of two women arrested for murder. The finger prints of an early Briton on a pick haft at Brandon, Suffolk, are at least five thousand years old.

In the West, a most important early record of the legal awareness of the fingerprints is the Major Declamations, the addresses of a Roman Lawyer. One of them is a case which centres on the planted evidence of bloody handprints and this is used by the defending lawyer of the innocent man to break down the real murderer, who then confesses. During the middle ages, in Europe seals were also impressed by the finger print as a sign of one's 'act and deed'. Marcello Malpigi, an Italian Physiologist of the seventeenth century was the European to consider scientifically the ridge patterns on the skin. His contemporary Nehemiah Grew, Secretary of the Royal Society, similarly studied the pores of the hand and feet. Other scientists followed up these studies over the next two centuries. In 1823 Johann Purkinje, Professor of Anatomy at Breslau, suggested the first system for the classification of finger prints. In the 1880's too, there is evidence that others in the West were becoming very conscious of the significance of fingerprints. In two contemporary detective stories of Mark Twain, 'Life on the Mississippi' and Pudd'nhead Wilson', fingerprinting plays a crucial role. In 1892, Juan Vucetich, later director of the fingerprint bureau in Buenos Aires and formulator of a classification system, achieved the first conviction of a murderess on the evidence of finger-prints.

In 1890, Edward Richard Henry, Inspector General of Police in Bengal, simplified and made really workable achievements hitherto made in the field of finger printing system. In 1897 he published a book "Classification and uses of Fingerprints" which became an official text book and his system was accepted by many European countries and the United States. In 1901 Henry was made the Assistant Commissioner at Scotland Yard and in the same year the Central Finger-print Branch was created. In 1902, on Derby Day, fifty-four men were arrested on the Epsom Race Course and fingerprinted. By next morning, an Inspector was ready with the records of twenty-nine old offenders amongst those charged. In the autumn, a burglary at the Denmark Hill provided the first trial to accept fingerprint evidence at the Central Criminal Court. Jackson, the accused, whose finger-prints were already in F.B.I. records received seven years.

The first murder case in which fingerprint testimony placed a serious role was the celebrated 'Straton trial'. On a rainy Monday morning, in 1905 an elderly couple named Farrow, was found battered in a chandler's shop. The husband was dead and his wife died three days later in hospital. The motive had obviously been robbery and two black masks made of silk stockings were found in the shop. Aright thumbprint was found on the tray of the cash box which did not correspond with any of the victims or a policeman who admitted having touched the tray. The robbery committed under a delusion that the Farrows were fabulously rich and kept a large sum of money in the premises. Actually, they were only employees of the shop and had only a few pounds in the cash-box. A careful police check finally led suspicion to fall on two young hooligans named Alfred and Albert Straton. On the Sunday after the murder, a police officer heard that Alfred was in a public house. With some courage, he went in along (the place was full of petty criminals and prostitutes) and ordered Alfred to come outside where he arrested him for murder. 'The thumbprint on the tray was found to have eleven points of resemblance to Alfred's thumb print. Albert also was arrested later. Mr. Justice Channel in his summing up, was cautious about the thumbprint evidence but admitted the extraordinary resemblance. The Stratons were found guilty and sentenced to death.

The Bhowal Sanyasi Case

(T.G. John, Advocate, Thrissur)

Appearing and disappearing with bewildering rapidity, the facts of the Bhowal Sanyasi case (Bibhabati v. Ramendra Narayan - AIR 1947 P.C. 19) have the disjointed quality of a surrealist movie. It has all the thrills and twists of a fictional whodunit-all the dramatic portents ofa melodrama; it is a true life story of mystery, crime, love and adventure. It will seem that a dead man has walked out of his funeral pyre-a sequence which can only be imagined as a product of trite fiction of the class of Marie Corelli's immortal work 'Vendetta'. But still that was what really happened on that fateful night at Darjeeling in the year 1909.

Raja Bajendra Narayan Roy, the Zemindar of Bhowal, one of the largest landed proprietors of East Bengal died on 26-4-1901. The family was regarded as the premier Hindu Zemindar family of Dacca and the annual rent-roll of the estate was about six lakhs of rupees. The Raja was survived by his widow, three sons and three daughters.

Ramendra Narayan Roy was his second son. The three sons were mentioned in order of seniority as Bara Kumar, Mejo Kumar and Choto Kumar.

Though born with silver spoons in their mouth, the three Kumars neglected their studies in such away that though placed under the tutelage of the best educationists, they never got beyond their Bengali and English alphabets. The Kumars were busy otherwise. They were thriving in other fields; at the age of 18, when his father died. Ramendra Narayan - the hero of our story - was a confirmed debanchee visiting prostitutes and haunting low dens of vice. In 1902 he married Bibhabati, a beautiful girl of 13. Even after his marriage, he kept on sowing wild oats and at some date subsequent to 1905 the second Kumar had gummatous ulcers on or about both the elbows and on his legs, being the tertiary stage of syphilis.

Bhibabati had a brother Satya Babu who was studying for law about the year 1908. He was a very cunning man and he proposed to the second Kumar the idea for visit to Darjeeling. Ramendra set out to Darjeeling with a party consisting of Satyababu, his wife Bhibabati, a retinue of servants and a doctor. Sixteen days after reaching Darjeeling, Ramenra fell ill and on May 8, 1909, he died a little before midnight. The body lay in the house 'the entire night and was cremated the next morning'. On 10th May, Bhibabati with the rest of the party left Darjeeling for Jaidebpur where she had her ordinary residence until April 1911, where she left for Calcutta to live there permanently with her mother and brother Satyaendra. She began to enjoy her widow's estate in the undivided one third" share of the Bhowal estate, which her husband the second Kumar had owned, and she recovered the proceeds amounting to Rs.30,000/-, of a life policy taken out by the second Kumar, the necessary certificates of death having been provided. By 1910, the first Kumar died and in 1913 the third Kumar also died, all due to dissipation and fast living. The Bhowal family was practically extinct.- And then things began to happen December 1920. One cold morning in December an unusually lean sanyasi alighted at the usually crowded railway Station of Dacca. He was later found sitting on the Buckland Bund on the river. There he sat night, and day, rain or shine, for nearly four months till April 5,1921. But for a loin cloth, he was naked. He had a fairly long beard and his hair fell behind his back, malted into a mass of cords reaching down to his knees, his body besmeared with ashes from head to foot. Buckland Bund was a public walk on the margin of a river where people promenade morning and evening for pleasure or health. All were struck by the close resemblance of this ascetic with the second Kumar of Bhowal. He was later taken to Jaidebpur where all his tenants and his relatives after close scrutiny, deliberation and questioning were finally convinced that he was none other than the second Kumar of Bhowal. Bhibabati through her brother Satya Babu resisted and maintained that the sanyasi was only a pretender. On April 24, 1930 the second Kumar instituted a suit for declaration that he is Kumar Ramendra Narayan Roy, the second son of the late Rajah Narayan Roy of Bhowal and that his possession should be confirmed in respect of the one third share of the properties described in the schedule, or if from the evidence and under the circumstances plaintiff s possession thereof should not be established, then possession thereof should be given to him. He further asked for injunctions against obstruction to his possession. Bhibabati contested denying inter alia the identity of the plaintiff with Kumar Paramendra Narayan Roy. The rest of the story could be pieced out from the large volume of evidence which was forthcoming in this case. The defence maintained that the second Kumar died shortly before midnight and that the following morning his body was cremated with the usual rites at the new sasan at Darjeeling. The plaintiff admitted that there was a funeral procession and cremation on the morning of 9th of May hut maintained that the body so cremated was not of the second Kumar; his case being that the second Kumar was taken for dead at about dusk between seven and eight O' clock in the evening of 8th of May, that arrangements were at once made for cremation, that the body was taken in funeral procession to the old sasan and placed in position for cremation, when a violent storm and rain caused the party to take shelter, and that on their return after the rain had abated the body was no longer there, that thereafter another body was procured and was the subject of the procession and cremation, the following morning. The plaintiff s further case was that while the funeral party were sheltering from the storm, he was found to be still alive by four sanyasis who were nearby and had heard certain sounds from the sasan and who released him and took him away, looked after him, and took him with them in their wanderings, that when he had recovered from an unconscious state, he had lost all memory of who he was, where he came from and of past events. Some eleven years later he recalled that he came from Dacca, and that was how he took up a position on Buckland Bund on the margin of the river Bunganga at Dacca.

Before the First Additional District Judge of Dacca, the trial lasted for 608 days. 1042 witnesses testified for the second Kumar and 433 for the defence. On 24-8-1936, the judgment of the Court was delivered which ran into 532 foolscap pages the limit of judicial endurance! The plaintiff was declared to be the second Kumar and entitlted to an undivided orte third share in the properties in suit. The appeal from the trial Court's decree was heard by a special bench of the Calcutta- High Court consisting of Costello, Biswas and Lodge JJ (Lodge J. dissenting) and was dismissed confirming the trial court's decree. The appeal from the Calcutta High Court to the Privy Council was heard by Lord Thankerton, Lord Du Pareq and Sir Madhavan Nair, Mr. D.N. Pritt appeared for the respondent. On 13thof July 1946 Lord Thankerton advised his majesty that the decision of the High Court should be affirmed.

Strangely enough on 3-8-1946 four days after the Privy Council judgment, the second Kumar died at Calcutta. There was a funeral procession; there was a funeral pyre-there was cremation; and it really did rain on that day. But on that fateful day he could never walk out of the funeral pyre as he did previously; and no sanyasi came to his rescue. Corpses cannot walk.

The flames of the pyre became longer than long and with one violent crackle of the skull, the curtain was finally rung down on one of the strangest sagas of human history once more flaunting the fact that truth is always stranger than fiction.