Reflections on Leelamma v. Dilip kumar-1992 (1) KLT 651

 

(By Fr. Joseph Vadakkumcherry, Archdiocesan Tribunal, Ernakulam)

 

It was a moment of exultation for the Church in Kerala when the High Court of Kerala delivered its judgment in Leelamma v. Dilip Kumar on February 24,1992.

 

The facts of the case can be summarised as follows:--

 

The petitioner in this case was a Syrian Catholic wife and the husband, the respondent, was an Ezhava by birth. Concealing the fact of Ms being an Ezhava, be pretended to be a Syrian Catholic, and obtained the consent of the petitioner tor marriage. Thereafter, presenting himself as the son of Syrian Catholic parents, k& received baptism from a Catholic priest, before the marriage actually took place. The petitioner, wife, therefore, prayed for a declaration of nullity of the said marriage under S.19of the Indian Divorce Act on the ground of "Fraud".

 

The Hon'ble High Court after referring to the Canon Law for the first time has laid down in categorical terms that the personal law applicable to Latin and Syrian Catholics is their respective Code of Canon Law, and declared the said marriage null and void on the ground that misrepresentation regarding religion or community is "fraud" and that it has vitiated the consent of the petitioner in this case.

 

Though there were decisions of various High Courts in India and that of the Supreme Court on this point, they were not understood in their proper perspective when this Hon'ble High Court dealt with Kurian v. Alphonsa (1986 KLT 731) and Jose v. Alice (1988 (2) KLT 890). There the Court proceeded on a basic assumption that there was conflict between Canon Law and Civil Law. In fact, that was not the case at all.

 

Canon Law always respected the Civil Law. Further Canon Law provides for adjudication of civil effects of marriage by a civil court (see Canons 1059,1062. and 1672 of the Code of Canon Law, 1983, of the Latin Church, and Canons 780 and 1358 of the Code of Oriental Canon Law, 1990).

 

The 1988 and 1988. cases in the Civil Court could have been resolved without entering into any adverse finding on the proceedings under the Canon Law, as those cases were concerned only with the question of the civil effects of marriage, like maintenance. In my opinion those decisions did not advance the development of that branch of civil law on marriage and divorce, rather, only hindered its growth.

 

It is interesting to note that the constitutional provisions under Art.44 for the ena - tment of a Uniform Civil Code remains a dead letter and the Muslims are allowed to be governed by their personal law. Yet, when it comes to the Christians, they ought to be the only "Indians" in India. For example, the Indian Divorce Act of 1869, and the Indian Succession Act of 1925, are by their title meant to be for Indians, but for all practical purposes, they are applicable only to the Christians in India.

 

Therefore, when the Muslims and other communities are governed by their personal laws, there should be no reason why those Indian Christians belonging to the Catholic denomination be discriminated in that matter, especially, when they have their respective Code of Canon Law as their personal law. In fact, the Latin and the Oriental Codes of Canon Law are well developed and refined systems of law and in no way inferior to any other legal system for that matter, but can only claim superiority on the score of the timely revision and updating and especially when the Civil Law remains unamended even after a century.

 

Under the circumstances, the recent judgment of the High Court of Kerala assumes special significance. The High Court in this case has held in categorical terms, after referring to and relying on the decision in Lakshmi Sanyal v. S.K. Dhar (AIR 1972 SC 2667), that Canon Law governs the members of the Syrian Catholic Community.

 

In fact the Supreme Court in the aforesaid case had already held that "The question of capacity to marriage 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 the marriage would be the law of the Roman Catholic Church, namely, the Canon Law of that Church."

 

Inspite of this decision of the Supreme Court in 1972, it was unfortunate that this could not be highlighted before the High Court of Kerala in 1986 and 1988. It is in this context that the present decision comes as a much awaited remarkable and appreciable judgment, which is rendered by Hon'ble Justice Chettur Sankaran Nair, for removing the confusion over the matter for the last few years, in the minds of the Bench and the Bar in Kerala. It is given to understand that Advocate Sebastian Champappilly M.A., LL.M., who is a scholar in the field, used his expertise to serve the Catholic Community through this case.

Search and Seizure under the Income Tax Act Popularly Known as 'Income Tax Raid'

 

(R. Krishna Iyer, Chartered Accountant)

 

Introduction

 

For long the Law Enforcement Authorities have used the power of search as a potent instrument to trace culprits, to unearth evidence of indictable acts. It has originally confined to stolen goods, its usefulness forced its recognition, now extended to the Income-tax Laws also. The Criminal Procedure Code 1973 has detailed provision in this behalf. Such powers of search are now extended to civil enactments relates to taxes, duties etc. The persons against whom such searches are instituted are broadly classified as economic offenders, It is viewed that economic offences against the State, deserve to be punished severely, intention is to dissuade them on committing such offences for his private gain at the cost of the Nation and to its detriment. After the introduction of this provision 'search' and 'seizure' have become very common and now it is known as 'Income-tax Raid'.

 

The expression 'Search' means taking possession of the records for the purpose of inspection. 'Seizure' means that the authority could take into possession the records and take them outside the possession of the assessee.

 

Objects

 

The object of this provision is prevention of evasion of tax. This is to unearth the hidden or undisclosed income or property and bring it to assessment. It is not merely to get information of the undisclosed income but also to seize the money bullion etc., representing the undisclosed income and to retain them for purposes of proper realisation of taxes, penalty etc.

 

The scope of S.132 of the Act is limited to articles and things mentioned in (a), (b) or (c). The Section does not include within its ambit immovable properties because the location of an immovable property is known and no search need to be made for it. Where the precise location of the article or thing is not known and where it will not be ordinarily yielded over by the person having possession of it and in such circumstances a search must be made for it.

 

The Hon'ble High Court of Kerala in a recent decision held that the department has no authority as per S.132 to seize the immovable properties and therefore the High Court set aside the action of the Income-tax Department to seize the immovable properties.

 

The Authorities prescribed under the Act for Search and Seizure.

 

There are two Officers at two different stages who have to apply their minds under the scheme.

 

(1) Director General or Chief Commissioner or Commissioner may authorise any Deputy Director, Assistant Commissioner or Income-tax Officer and they will issues a warrant of authorization for a search. These authorised officers have to direct another set of authorities to carry out the operations.

 

(2) The authorities not below the rank of an Income-tax Officer, who carried out the actual search and seizure operations.

 

Conditions for Issue of Order

 

If the Authorised Officer has reason to believe that;

 

(a) a person summoned to produce accounts etc. fails to do so or

(b) such person is not likely to produce the accounts; or

(c) a person is in possession of money, bullion, jewellery etc. which he has not disclosed or not likely to disclose as his income.

 

There is a distinction between clause (a) and (b). Under Clause (a) the particulars of the specific documents, books of accounts etc. which are required to be produced should be specified, whereas under Clause (b) it is not necessary to specify the documents in the warrant of authorization.

 

A 'reasonable belief’ is a pre-condition to be satisfied. This Section does not permit indiscriminate search and seizure. The 'belief of the Authorizing Officer must be honest and based on cogent material. By exercise of this power, a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be exercised strictly in accordance with the law and only for the purpose for which the law authorizes it to be exercised. Sri. N.A. Palkhiwala opines that this Section "confers dangerously wide powers of search and seizure on the authorities without any external check or safeguard for the citizens".

 

If the conditions are not satisfied, the search becomes illegal. If the Commissioner does not have information about the particular individual, then search authorization would be illegal. If an assessee has been regularly producing his books of accounts and if they are accepted, it would be unjustified to issue a Search warrant, unless there is information that he has been keeping secret account books also.

 

'Reason to believe' is a cardinal requirement for initiating a search. 'Reason' means cause or justification, the word 'believe' means to accept as proof or to have faith in it. The Supreme Court observed that the reason must be held in good faith and should not be a mere pretence.

 

Merely because an assessee has utilised his undisclosed income in constructing a spacious building, his premises cannot be subjected to search. It has been observed by the Supreme Court, that if a search warrant is challenged the burden lies on the Commissioner who has issued the warrant to satisfy the Court that he had taken action on proper and relevant material.

 

Powers of the Inspecting Officers

 

The Inspecting Officers before making Search has to call upon two or more respectable inhabitants of the locality to witness the search. The Search is to be made in the presence of said witnesses and a list of all things searched to be taken and signed by such witnesses. The authorised Officer can enter and search any building where he has reason to suspect that such books of accounts, other documents, money etc. are kept and he can even break open the lock of any door or locker, if the keys are not available, he can also seize the books of accounts and other valuables.

 

He has also the power of prohibiting a person from parting with the assets and books of accounts during the course of search. This power is called a 'freezing order' or 'attachment'. This power is used when the seizure of the said articles have become impracticable. The bank accounts can also be attached by this provision. The Court held that they can be included under valuable things. Even though the fixed deposit receipt itself is not an asset, still there can be a valid order against the Fixed Deposits. The Kerala High Court has also held that it is not practicable to seize the Fixed Deposit, therefore attachment is permissable. This Order can be issued by the Authorised Officer alone and that too during the course of Search. The prohibitory order issued to bank lockers without knowing the content or without making enquiry are bad in law.

 

A prohibitory order cannot be applied in case of godown or stock-in-trade without making a detailed verification, which would only reveal the unaccounted stock representing the undisclosed income.

 

The books of accounts and documents can be subject to prohibitary order if it is not practicable to seize them, but such books of accounts or documents would not have been produced by issuing notices or their usefulness to any proceedings.

 

The Examination on an oath during the course of Search and Seizure

 

The Inspecting Officer is empowered to examine any person on oath who is found to be in possession or control of books, valuables etc. This power is not for the purpose of general investigation of the assessee but for the limited purpose of seeking an explanation or information in respect of the documents, articles or things found during the search. The questions have to be relating to documents, jewellery, money etc., found in possession of searched party. Those questions regarding past events, example, expenses on marriage in the family, cost of construction of building etc., are not legally permissible at this stage. Any statement made by such person may there after be used as evidence in any proceedings under the Act.

 

Among other things, penalties are impossible for concealment of income. If the assessee has concealed the particulars of his income or furnished inaccurate particulars of such income, he will be liable to pay penalty u/S.271(l)(c) of the Income-tax Act. Certain explanations have been added in the said section by which the assessee would be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income in certain circumstances.

 

Circumstances:

 

1. In a case, a search is conducted, it is found that the assessee is the owner of the money, jewellery or other valuable articles. The assessee claims that such assets have been acquired by him, by utilising his Income but from undisclosed Income. The due date of filing the Return is over and the search is conducted after that date, the assessee has not filed his Return. In this case the assessee has concealed his Income as per the explanation and penalty will be attracted.

 

Example:

 

(a) Date of search                                                                     10-6-1990

(b) Previous year ending                                                          31-3-1989

(c)  Due date of filing Return                                                    31-8-1989

(d) It is assumed that he has not filed the Return till              10-6-1990

 

2. In another case the Return has been submitted, but such income has not been declared. In the earlier example, the Return has been not furnished even though it was due and in the later case the Return is furnished but such Income has not been included. Before the date of search the assessee has filed his Return and the Income for this acquisition of them not included. Penalty for concealment is attracted.

 

In all the above circumstances even if the assessee declares such Income in any return after the date of search, for the purpose of penalty u/s.271(l)(c) he would be deemed to have concealed the particulars of Income or furnished inaccurate particulars of such Income.

 

Therefore the position is by furnishing the Income in the Return alone he cannot escape from penalty, probably the presumption is that he would not have declared the said Income, but for the search and therefore a specific explanation is added in the section for imposing penalty.

 

There is an exception to this explanation. In the above cases, if such Income is recorded before the date of search in the books of accounts, if any, maintained by him and if such Income is disclosed before the Commissioner of Income tax, he will not be liable for penalty.

 

The object of the said exception is not clear. Once the Income is disclosed to the Commissioner before the date of search, the valuable things become a disclosed property not out of undisclosed Income as mentioned earlier elsewhere. The very object of S.132 itself is to unearth hidden or undisclosed Income. By making a disclosure to the Income tax Commissioner before the date of search it can be said that it is not out of disclosed income. The first part of the explanation of the section relates to disclosure of Income in the Return filed after the date of search irrespective of whether the Return is due or not. In other words the assessee is not entitled for the waiver of penalty by furnishing in the return the items found out in search, if they are undisclosed, would be liable for penalty.

 

But the assessee is entitled for the benefit of waiver of penalty if he makes a disclosure at the time of search by a statement to the Inspecting Officer. Before the Inspecting Officer he should specify the manner in which such Income has been derived and he should pay the tax together with interest, and then he is entitled for the waiver of penalty. But again there is one condition. The year of acquisition of his Income should relate to the year which the Return is not due as per the Act.

 

Example:  1) Search is conducted on 10-6-1990

                    2) Previous year 31-3-1990

                    3) The due date of filing the Return 31-8-1990

 

In the above case, if the assets are acquired out of the Income of the previous year ending 31-3-1990, he can get the benefit of waiver of penalty by making a statement before the Income-tax Officer. In this case even if the asset is acquired out of income after 1-4-1990, he can claim the benefit. But if the search is conducted say on 10-9-1990, and if the asset is acquired out of the income of the previous year ending on 31-3-1990, even though he has not furnished the return, he cannot claim the benefit, since the due date of filing the return for 31-3-1990 is already over. In short the benefit of waiver of penalty can be availed only when the return is not due and not on the basis of not filing the return. Therefore the condition for claiming the benefit of waiver of penalty u/s. 271(1) (c) are:

 

1. The assessee should make a statement at the time of search before the Inspecting Officer.

 

2. He should specify the manner in which it is acquired.

 

3. He should pay the tax with interest.

 

4. The return of that income should not be due to be filed.

 

In short, wherever the return is already furnished or where ever the return are over due the benefit for waiver of penalty cannot be availed by making a statement at the time of search before the Inspecting Officer.

 

Summary Statement

 

Any money, Jewellery or other valuable articles 'when seized, the Assessing Officer shall make a summary assessment on the undisclosed income in a summary manner to the best of his judgment on the basis of such materials as are available with them. The Assessee should be given a reasonable opportunity before making such a summary assessment. The order should be made within 120 days of the search. The Assessing Officer should obtain the prior approval of the Deputy Commissioner of Income tax. The Assessing Officer will calculate the amount of tax on the income estimated and also the Interest payable and the amount of penalty to be imposed. He should also specify the amount required to satisfy any existing liability under other tax laws. He may return the amount in his custody to meet those liabilities and release the balance.

 

This is only a Summary Assessment and it is not necessary that in the final assessment the same Income is assessed and the matter can be reviewed in Regular Assessment. However, the person can apply to the Commissioner of Income tax regarding the order made by the Income tax Officer requesting for appropriate relief in the matter. The object of providing this remedy is to prevent abuse in the power of retention of assets by high and excessive estimates arrived at by the Income tax Officer. But normally the authorities are taking a view that this is only a provisional order for the purpose of retention of assets and much relief is not granted on the petitions.

 

The books of accounts or other documents seized can be retained by the authorised Officer, upto 180 days. Thereafter, they can be further retained with the approval of the Commissioner of Income tax. However the books of accounts and other documents cannot be retained for a period exceeding 30 days after the proceedings in respect of the year for which the books of accounts are relevant and completed. Where the authorised officer has no jurisdiction over the person whose premises are searched, and the books of accounts or other assets seized shall be handed over to the Income tax Officer having jurisdiction over such person within a period 15 days. Where the authorised Officer has reason to suspect that the person concerned has hidden any books of accounts, other documents, money or other valuable articles he has the power to search and also to seize them. If the location of the property is known, there is no need to conduct a search and to seize the property also. It does not include the immovable properties. The Kerala High Court had occasion to consider this issue and set aside the order of seizure of immovable properties including the prohibitory order. Title Deeds of immovable properties are valuable documents, and can be retained.

 

The Assets retained may be applied to the existing liability or the liability in respect of the regular or re-assessments. If the money has been seized and retained such money may be applied for the above purpose. If the money seized is not sufficient, the other assets can be sold. If any assets or proceeds remain in excess of the liabilities they shall be forthwith be paid to the person. The Department is also liable to pay interest on the surplus at 15 1/2%. This interest is to be payable after six months from the date of the provisional order to the date of regular-re-assessment.

 

Conclusion

 

A recent decision of the Hon'ble High Court of Delhi on this issue is very important. Failure to return an Income on the contention that the same was not taxable would not be a ground for issuing an authorization for search. The Department has jurisdiction to invoke the provision in an effect to tax the same. Failure to disclose immovable properties in the return cannot be a ground for conducting a search. The Department was under a belief that the assessee was liable to tax, cannot be a ground for a search. The issue of an authorization to conduct a search can be only on certain conditions. A search which was conducted was a serious invasion into the privacy of a citizen. The Department has power of recording the statement of a person. The authorization only enables the Officer of the Department to conduct search and seizure. They have the power to enforce the presence of a person for the purpose of examining him on an oath. In that case, the assessee requested to permit to attend to his work in the High Court. This permission was not granted. The Act does not give any power to the Income tax Department to arrest an individual. The movement of a person against whom search is ordered cannot be restricted. The Court held that by refusing to give permission to the assessee to attend to his work in effect, amounted to his confinement, which is not permissible in law.

Rent Control Petition by or Against a Firm

 

(By Susheela R. Bhatt, Advocate, Ernakulam)

 

Is a petition by or against a firm in the firm name alone maintainable under the Rent Control Act? The question sprang up many a times before our High Court. But it appears, that the answer to the question is still beset with conflicting approaches.

 

In Chhotelal Pyarelal v. Shikkarchand (AIR 1984 SC 1570) the Supreme Court had held that under the CP. and Berar Letting of Houses and Rent Control Order (1949) a petition is not maintainable in the firm name since the Code of Civil Procedure does not apply to the proceedings under that Act. The ratio laid down is that the firm is merely a compendious name for the partners constituting it and it is only by virtue of the provisions of Order XXX of C.P.C. that a firm can sue and be sued in its own name.

 

It is important to note that Order XXX of the Code of Civil Procedure as such is not applicable to the Rent Control Court and the Appellate Authority under the Kerala Act also. Yet, it is held in Javerilal Kalyanji v. Mis. Sheth Brothers & others (1989 (2) KLT 555 : 1989 (2) KU 445) that the ratio in Chhotelal is not applicable to the proceedings under the Kerala Act because of the ambit of the definition of the word 'landlord'. In the definition of the term 'landlord' the legislature has used the expression 'person'. After taking note of the fact that the expression 'person' is not defined under the Kerala Act, the court took resort to S.2(26) of the Interpretation and General Clauses Act, 7 of 1125 to hold that the term 'landlord' must be taken to include a firm as well. Adopting and applying the same reasoning for construing the meaning and ambit of the expression 'person' used in the definition of the word 'tenant' under the Kerala Act, it is to be reasonably resolved that a petition against a firm for eviction, in the firm name is maintainable under the provisions of the Kerala Act. The ratio in Javerilal's case is based on the reasoning mentioned below:

 

"The Supreme Court in Chhotelal Pyarelal's case (AIR 1984 SC 1570) was not dealing with such a situation when they held thin no application for eviction could be maintained against a firm in the firm name when Order XXX did not apply lo the proceedings. The provisions of the Kerala Act noted above are clear pointer that a petition could be maintained under the Act in the firm's name". (1989 (2) KLJ 555 at page 560)

 

The approach and reasoning reflected in Javerilal's case was adopted and accepted by the court in Vinod Kumar v. Mohammed Rasheed (1991 (2) KLT 16 at page 17 paragraph 3). The decision in Javerilal's case is cited before the court which decided Vinod Kumar's case.

 

Maintainability of a petition for eviction in the firm's name under the provisions of the Kerala Act was again canvassed before a Division Bench of our High. Court in Sreenivasa Kamath v. Anantha Kamath & Sons (1992 (1) KLT 190). Contention raised on behalf of the tenant was that the landlord is a firm and eviction petition filed in the firm name is not maintainable. Chhotelal Pyarelal's case (AIR 1984 SC 1570) was cited as a precedent. The Division Bench held that the contention is tenable and consequently set aside the order of eviction.

 

It is unfortunate that the decision is Javerilal Kalyanji's case (1989 (2) KLT 555:1989 (2) KLJ 445; and Vinod Kumar's Case (1991 (2) KLT 16) were not brought to the notice of the Division Bench which decided Sreenivas a Kamath's case. That apart it is doubtful whether the decision in Sreenivasa Kamath's case has the effect of overruling the decisions in Javerilal Kalyanji and Vinod Kumar. While discussing the question of maintainability of the petition the court has observed:

 

"No serious argument was advanced by counsel for the respondent controverting the position that in the firm name a petition can (not?) be filed under the Act."

 

The Court, therefore, assumed that a petition for eviction in the firm name is not maintainable.

 

Dealing with exceptions to the Rule of stare decisis it is stated by Rupert Cross in 'Precedent in English Law' (page 144) thus:

 

"In some cases the court makes no pronouncement on a point with regard to which there was no argument, and yet the decision of the case as a whole assumes a decision with regard to the particular point. Such decisions are said to be'sub silentio'and they do not constitute a precedent."

 

The Supreme Court in M/s. Good Year India Ltd. v. State of Haryana (AIR 1990 SC 781 at 796) has said that "A decision on a question which has not been argued cannot be treated as a precedent."

 

Again in State of U.P. v. Synthetics And Chemicals Ltd. (1991) 4 SCC 138 at page 163). the Supreme Court has stated thus:

 

"Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of Sub silentio. 'A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind' (Salmond on Jurisprudence 12th Edn. page 153)."

 

Viewed in the light of these principles the decision of our High Court in Sreenivasa Kamath's case (1992 (1) KLT 190) on the point regarding the maintainability of the petition in the firm name, appears to be sub silentio and hence can be considered as an exception to the rule of stare decisis.

 

It may be that the ratio of the decision in Javerilal’s case requires reconsideration.

 

In Haji P. Mammu v. Abdu Rahiman Basha (l986 KLT 1250), the letting out of the building in question was in favour of the firm Messers Haji P. Mammu., One of the grounds urged to evict the tenant was the 'need of the landlord for own occupation' under S. 11 (3) of the Kerala Act. The tenant took the defence based on the 2nd proviso to S. 11 (3) of the Kerala Act. Availability of the said defence was canvassed against on the premises that the tenant is a firm and hence is not a natural person. The said contention was disposed of by the Division Bench holding that the firm name is a compendious name for all the partners of the firm and that the defence under 2nd proviso to S.ll(3) "would be applicable to the partnership". In coming to the said conclusion the Division Bench relied on the decision of the Supreme Court in M/s.Madras Bangalore Transport Company (West) v. Inder Singh & others (AIR 1986 SC 1564). In this case the contention that the old firm and the new firm were different legal entities and therefore the occupation by the new firm amounted to subletting by the old firm was repelled by the Supreme Court with the observation:

 

"This contention is entirely without substance. A firm unless expressly provided for the purpose of any statute which is not- the case here, is not a legal entity. The firm name is only a compendious way of describing the partners of the firm. Therefore occupation by a firm is the occupation by its partners. Here the firms have a common partner. Hence the occupation has been by one of the original tenants........."

 

In the light of the trend of the decisions stated above, it has to be again considered by the court whether a firm is a person for the purpose of the Kerala Act.

 

It may not be out of place to point out that the ratio in Chhotelal's case was pressed into service before the Supreme Court in Shah Phoolchand Lalchand v. Parvathi Bai ((1989) 1 SCC 556). The Court rejected the contention in the following words:

 

"In our view it is not open to Mr. Nayar to raise this contention at this stage at all. This contention is not one which would have been fatal to the eviction petition. Had this contention been raised in the trial court or even in the first appellate court, itwould have been open to the respondent to amend the eviction petition and join the partners as respondents. In the aforesaid decision in Chhotelal Pyarelal Case relied upon by Mr. Nayar, the objection to the maintainability of the petition was raised at the earliest stage and was wrongly negatived by the trial court."

 

Narration of the facts in Javerilal's case (vide paragraph 10 of the judgment) disclose that the objection regarding maintainability on the basis of the ratio in Chhotelal, was raised for the first time at the stage of Revision. In Vinodkumar's Case (1991 (2) KLT 16) the said contention was raised before the execution court. Whether the contention was raised, from the very beginning of the proceedings in Sreenivasa Kamath's case is not clear from the facts set out in the decision. Whatever that be it is submitted that the contention falls in the realm of procedure and as a matter of caution, is it not better to implead both the firm and its partners in a petition under the Rent Control Act?

Muslim Women (Protection of Rights on Divorce) Act 1986 ~ Whether a Money Minting Machinery?

 

(By Samji David, Advocate, Trivandrum)

 

The historic decision of the Supreme Court in the Shahbano Case (AIR 1985 SC 945) led the Central Government to enact the Muslim Women (Protection of Rights on Divorce) Act, 1986. The purpose was not to deprive a divorced woman from claiming maintenance, but to entitle her for the same. Section 3 of the Act allows a divorced woman to realise reasonable and fair provision and maintenance during the iddat period and mahr or dower from her husband.

 

The definition of divorced woman according to Section 2(a) is "a Muslim woman who was married according to Muslim Law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim Law". This definition recognises divorce at the instance of the wife and hence it should no longer a unilateral act. That is, to claim the benefit of Section 3, it is immaterial how the divorce came into being.

 

Section 125of the Criminal Procedure Code, 1973, empowers a divorced wife to claim maintenance till her re-marriage or the death of either parties. Moreover the capacity of the wife to maintain herself would be a material factor in determining that claim. But under the present Act, a Muslim woman would be entitled to get a lumpsum amount as reasonable and fair provision for maintenance. There is no question of regular payments as being done in Section 125 of the Cr. P.C. The reason is that under Muslim Law, marriage is considered as a contract and the dissolution of it would make the parties strangers.. Of course re-marriage would disentitle a divorced woman from claiming the maintenance but it is noteworthy that she may be able to get her claim immediately since Section 3(3) of the Act prescribes a time limit for disposing such applications. Any how, she may be at liberty to arrange another marriage after receiving the maintenance amount in lump. This maintenance can be claimed by any divorced woman irrespective of her affluence. In Aharnmed's case (1990 (1) KLT 172) an unsuccessful attempt was made to prevent an affluent woman from claiming maintenance from her former husband. The court observed that even millionaire wife who lives in luxury and affluence is entitled to claim the benefit of Section 3. The object of the provision is to equip the woman, whoever she may be or her position may be, with a legal right. But to a cunning and ambitious woman, the section may be a way to richness, because the Act neither restrict re-marriage nor limit the number of times a woman can claim maintenance. A woman may, after receiving fair maintenance amount in lump, marry another man with the same motive of claiming maintenance. Is it a lacuna in the Act or machinery for minting money?

Noise Pollution - A Nuisance Only?

 

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

 

Environmental pollution is assuming dangerous proportions all the through the globe, as a result of industrialization and urbanization, upsetting the ecological balance and affecting the health and development of human beings. The acuteness of the problem has arrested the attention of all. Environmental pollution comprises not only pollutions of water, air and soil but also of noise. In our country, some attention has been paid to water, air and soil pollution. But no attention is being paid to the ever-increasing problems of noise pollution either at the State or the Central Government level.

 

Man's progress through the ages has been accompanied by noise -producing activities. The discovery of metals and the attendant noises of beating, hammering and forging marked the first stage of noise pollution. With the invention of gun powder, humanity witnessed its second stage. The Industrial Revolution and the development of railways and the internal combustion engine heralded the noise-polluted environment of the present century. Concentration of both man and machine in cities further accentuated the damage to the ears [1]. Noise pollution is spreading in multifarious directions with the development of science, technology and high-speed means of transport. It may be due to alarm bells, radio, television, loudspeakers, school-bells, motor vehicles, aeroplanes, trains, industrial machineries, artillery practice by armed forces and a lot of other objects, which produce noise of varying magnitude [2].

 

What is noise?

 

In acoustics, it has been described as sound without agreeable musical quality or as an unwanted or undesired sound. According to this definition, the sound of church bells may be music to some and noise to others. Usually, noise is a mixture of many tones combined in a nonmusical manner [3]. In law, noise may be defined as an excessive, offensive, persistent or startling sound [4].

 

It is said that what makes a sound a noise is a matter of psychology rather than acoustics. It may often be influenced by subjective factors such as familiarity and personal attitude. For example, loud music may still be considered melodious by an appreciative listener. On the other hand, extremely weak sounds and screeches can be a disturbing noise to some persons [5].

 

Noise Pollution

 

Pollution, from a legal point of view, is the wrongful contamination of the atmosphere, or of water, or of soil, to the material injury of the right of an individual. Noise, as pollutant, produces contaminated environment, which becomes a nuisance and affects the health of a person, his activities and mental abilities. Noise pollution is unwanted sound 'dumped' into the atmosphere, notwithstanding the adverse effects it may have on living and non-living things [6].

 

Noise pollution was previously confined to a few special areas like factory or mill. But today it engulfs every nook and corner of the globe, reaching its peak in urban areas.

 

Sources of noise pollution

 

Sources of noise are numerous. But they may be broadly classified as:

 

(1) Industrial and (2) Non-industrial.

 

Industrial sources

 

In industries, noise is a by-product of energy conversion. Cotton mills, foundries and many other industries, where big machines are working at a high speed, have high noise pollution.

 

Non-industrial sources

 

Sources of non-industrial noise pollution can further be divided into the following categories.

 

(a) Loud speakers

 

Loudspeakers are used on occasions like religious festivals for hours together with the maximum pitch. It goes without saying that the disturbance caused thereby to the residents of the locality is immeasurable.

 

(b) Automobiles

 

Automobiles contribute towards noise pollution, because of unregulated blowing of horns and use of defective silencer - pipes. It has become a fashion to remove silencer - pipes from motorcycles and scooters.

 

(c) Trains

 

In India, steam engines are commonly used by railways. It results in a lot of noise. The introduction of fast trains has substantially increased the quantum of noise pollution.

 

(d) Aircrafts

 

The higher the speed of an aircraft is, the greater the level of noise pollution is. The noise of supersonic aircrafts can break window panes, crack plaster and shake buildings [7].

 

(e) Construction work

 

Huge machines, which produce much noise, are used these days in construction work.

 

(f) Projection of satellites in space

 

A new source of noise pollution is satellite programme by various countries. Satellites are projected into space with the aid of high explosive rockets. Application and use of these rockets produce deafening noise at the time of 'lifting off a satellite.

 

(g) Radio. Microphones

 

Radio and microphones can cause noise pollution, if they are switched on with high volume. The interest of the youth of the present in western music and dance leads to noise pollution.

 

The list of the sources of noise pollution, noted above, is not exhaustive. The number of items in the list is doubling with the speed of industrial and technological advancement.

 

Measurement of noise levels

 

A decibel is considered to be the standard unit for the measurement of noise. 30 decibels denotes the whispering range. 50-55 decibels may delay or interfere with sleep. 60 decibels is the level of normal talk. 90-95 decibels may cause irreversible changes in the automatic nervous system. 150-160 decibels proves fatal to some animals [8].

 

Effects of noise pollution

 

Noise is one of the main pollutants of the environment, causing various hazardous consequences to human life. The ill-effects of noise pollution are classified as follows:--

 

(i) Psychological

 

Exposure to high-level noise results in many behavioural changes in human beings. Noise causes irritation, which results in learning disabilities. It thus leads to poor attention and concentration. That is why the performace of the children of schools situated in busy areas of a city is very poor.

 

Noise can cause tension and strain. Housewives working in kitchen equipped with electric appliances fall easy victims to headache, because of the disturbing noise.

 

Physiological

 

The effects of noise on human body are very serious. With the increase of noise pollution, deafness, sleeplessness, diseases of the heart and mind are on the increase. Constant exposure to noise can produce stomach ulcer by reducing the flow of gastric juice and changing its acidity. It is said that it may even lead to abortions [9].

 

High noise levels can cause physiological disturbances even in animals. Several birds have been observed to have stopped laying eggs [10]. Apart from this, animals and birds migrate to quieter places, because of the intolerable effects of noise.

 

Personological effects

 

If the injurious effects of noise persist, they cause stable maladaptive reactions in the individual disturbing his total personality make-up. The lowered performance level among children may develop a feeling of inadequacy and lack of confidence in them. This may jeopardize their personological development as a growing child [11].

 

Legal control of noise

 

Many countries have enacted specific legislations to control noise pollution. For example, in England there is Noise Abatement Act 1960. Noise Pollution and Abatement Act 1970 regulates control and abatement of noise in U.S. A In India, there is no law, which exclusively deals with problems of noise and its control. We have only some stray provisions here and there in different laws, which are discussed below:-

 

(a) Noise control under the Law of Torts

 

Under the Law of Torts, a civil suit can be filed claiming damages for nuisance. Nuisance, as a tort, means an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it. So it is the duty of every person, living in a particular locality, not to make any unreasonable noise so as to allow neighbours to live in peace.

 

(b) Noise control under the Law of Crimes

 

Section 268 of the Indian Penal Code [12] recognises noise as public nuisance. But courts consider noise pollution as too insignificant to be taken notice of under the Indian Penal Code. Even if the courts take noise pollution seriously, the provisions of the Penal Code are inadequate to cope with the increasing menace of noise pollution.

 

(c) Noise control under the Motor Vehicles Act. 1939

 

This Act empowers State governments [13] to frame rules for the upkeep of mo tor vehicles and control of noise produced by them. But a close examination of the motor vehicles rules made by various States reveals that there is nothing substantial in them to control noise pollution except perhaps some control of 'horns' and 'silencers' producing noise. So, the power conferred by this Act has not been fully utilised by the Governments towards making effective regulatory provisions to control noise pollution.

 

(d) Noise control under Industrial Laws

 

It is really surprising that no industrial law has provided protection to the workers from noise pollution except the Factories Act, 1948. S.11(i) of the Act reads:

 

"Every factory shall be kept clean and free from effluvia arising from any drain, privy or other nuisance, and in particular........."

 

This section does not specifically provide for protection from noise pollution. But the use of the word 'nuisance' implies it. It is, therefore, the statutory duty of factories to provide adequate measures for the control of noise pollution.

 

It is interesting to note here that section 35 of the Act underlines the need for protection to eyes of employees. But curiously enough, there is no provision to protect ears.

 

(e) Railways Act. 1890

 

Though the noise pollution, caused by the railway engines, is immense, the Act of 1890 does not, in any way, curb it but affords statutory protection to the engines. As a result, railway engines are at liberty to produce as much noise as they can.

 

(f) The Aircraft Act, 1934

 

The Central Government is empowered by this Act [14] to make rules for manufacture, possession, use, operation, sale, import or export of any aircraft. The Act, thus, confers power on the Central Government for the regulation of air transport services and control of noise pollution caused by aeroplanes.

 

(g) The Bihar control of the Use and Play of Loudspeakers Act, 1955

 

This is a pioneering State Government legislation, having as its object the control of noise pollution [15] caused by loudspeakers.

 

These scattered legal provisions can by themselves do little in bridling the mounting horse of noise pollution. Therefore, other supplementing avenues have to be explored for extirpating the problem.

 

Conclusions and suggestions

 

Noise can be controlled by the following measures.

 

(1) Noise control at source

 

Regular repairs of the machinery can reduce noise to a great extent. Noise level can also be lowered, if the noise source is screened by thick walls and other noise absorbing materials. If noise is inevitable despite the adoption of the above devices, then listeners may be induced to wear ear plugs or noise - reducing cushions or helmets.

 

(2) Proper planning of cities can be a long way in retarding noise pollution. Industrial areas and aerodromes should be located far away from the residential areas.

 

(3) Noise pollution caused by railway engines can be reduced, if steam engines are replaced by electric/diesel engines. Railway tracks should not, as far as possible, be allowed to pass through residential zones.

 

(4) No doubt, the Motor Vehicles Act., 1939 assembles certain restrictions on noise produced by horns. It also requires a silencer to be fitted in every motor vehicle. But it has failed to mention the limit of noise, which a vehicle may be entitled to produce. Therefor, this limit should be prescribed. Efforts should be motivated to manufacture better automobile engines with low noise like 'Maruti Car'. Planting trees on sides of roads can diffuse the noise caused by the traffic.

 

(5) Industrial laws are devoid of specific noise pollution control provisions except the implied provision in Factories Act, 1948 [16]. Therefore, specific provisions should be incorporated to protect the workers from noise pollution.

 

(6) In India, most of the persons are unaware of the disastrous effects of noise pollution and their control. To make the people aware of the reality, wide publicity should be given by TV, Radio and Newspapers etc.

 

(7) Loudspeakers and other noise-producing activities should be completely banned (except in emergencies) during sleeping hours.

 

(8) Special bonus or tax relief should be given to those people who insulate their factories and manufacture low-noise machinery.

 

(9) Noise free zones should be formed around all schools, colleges, hospitals, telephone exchanges. Arrangements should be made to erect noise abatement zones, where noise pollution is very high to reduce it to the optimum minimum.

 

(10) Excessive noise may be treated as a form of assault and battery and actionable as such.

 

(11) Punishment should be in the form of fine and attachment of the source of noise pollution.

 

(12) Above all, a comprehensive legislation to control noise pollution has to be enacted.

 

But these suggestions can bear fruit only in the sunshine of a judiciary, which is fully aware of the hazards of noise pollution and ready to interpret the rules liberally in favour of the claimants in the light of the changing circumstances. The courts may now have no difficulty in treating noise pollution as a breach of legal duty actionable under the law in view of the fundamental duty of every citizen to protect and improve the natural environment enshrined in Art. 51A(g) [17] of the Constitution.

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Footnotes:

1 R. Kumar, Environmental Pollution and Health Hazards in India (1987), Pp.176-177.

2. R.K. Sapru, Environment Management in India (Vol.11) (1987), p.86.

3. Encyclopaedia Britannica (Vol.16), (1768), p.480.

4. Id.,480B.

5. R.K. Sapru, Op. Cit.p.86.

6. R.K. Sapru, Op. Cit. (Vol.1), p.125.

7. R.K. Sapru, Op.cit. (Vol.II), P.88.

8. Supra, n.6, p.126.

9. Supra, n.6, p.128.

10. Hollywood Silver Fox, Farm Ltd. v. Emmet t (1936) 2 K.B., 468

11. Supra, n.2, p.90.

12. S.268 reads: "A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger, or annoyance to the public or to the people in general, who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right."

13. See sections 21J, 41,68,70 and 111 A of the Motor Vehicles Act, 1939.

14. See section 5 of the Aircraft Act, 1934.

15. Section 3 of the Bihar Control of the Use and Play of Loudspeakers Act, 1955 reads:

"No person shall use and play a loudspeaker

(a) Within such distance as may be prescribed from a hospital or a building in which there is a telephone exchange or

(b) Within such distance as may be prescribed from any educational institution......"

16. See section 11(1) of the Factories Act, 1948.

17. It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.