Decision Per Incuriam

(By M.R. Parameswaran, Advocate, Ernakulam)

In 1981 K.L.T. 861 (Dakshayani v. Madhavan) a Division Bench of the Kerala High Court held that the deposit contemplated by Order XXI Rule 89 C.P.C. for setting aside sale thereunder is to be made within the time specified in Rule 92(2) i.e., 30 days from the date of sale though the period for filing applications for setting aside court sales is extended to 60 days under Article 127 of the Limitation Act. The Court took note of the anomaly as a case of 'Casus omissus' while the comprehensive amendment was made to the provisions of the Civil Procedure Code in 1976 by Act 104 of 1976 including Article 127 of the Limitation Act and called the attention of the Government to the need for immediate amendment of the Rule 92(2) to Order XXI C.P.C. Thereafter the Madras High Court in A.I.R.1981 Madras 254 (Thangammal v. Dhanalakshmi) held that Article 127 of the Limitation Act as amended prevails over Rule 92(2) applying the maxim Generalia Specialibus Non Derogant and as such the deposit as well the application for setting aside the sale need be made within 60days. The Supreme Court in Basavantappas case AIR 1987 Supreme Court 53 pointed out the inconsistency between the two provisions and held that a harmonious construction is called for. (Thangammal v. Dhanalakshmi) AIR 1981 Madras 254 was relied upon. Necessary amendment by Parliament was also suggested in this decision. Now on 22nd February 1990 a Division Bench of the High Court of Kerala in (Pathummakutty v. Kathiyumma) 1990 KLT (1) 596 has overruled 1981 KLT 861 (Dakshayani v. Madhavan) following Thangammal's case and the decision of the Supreme Court in Basavantappa. On 20th February, 1990 a bench of three Judges of the Supreme Court has held speaking through Thomman, J. in P.K. Unni v. Nirmala Industries and others 1990 (1) KLT 896 : (1990) 2 SCC 378 that the deposit contemplated in Order 21 Rule 89 is a condition precedent to the making of an application to set aside the sale. The court drew a distinction between the making of such a deposit which is to be made in 30 days and filing of the application for which the period is 60 days after the amendment. The court overruled Thangammal's case and also Basavantappa. It is now found that there is no inconsistency and the maxim Generalia Specialibus Non Derogant nor the Principle in Heydon's case applies. The Court finally relied upon AIR 1953 SC 148 and also quoted Lord Halsbury in Mersey Docks case and Crawford v. Spooner to hold that in any view it is not for the court to make up deficiencies in an enactment. The court also referred to Dakshayani v. Madhavan (1981 KLT 861) and held that the time for making the deposit under Order 21 Rule 89 CPC is only 30 days. In the light of this decision the decision in Pathummakutty v. Kathiyumma 1990 (1) KLT 596 is not good law. It is a decision Per Incuriam as the same has been rendered after the decision of the Supreme Court in P.K. Unni's case and in ignorance of it.

Why Hear the Accused on the Question of Sentence?

*(By M. Marcus, B.A., M.L., Advocate, Ernakulam)

In life many things are taken for granted but in law we should be reluctant to do so lest we are led astray from the path of law.S.235(2) Code of Criminal Procedure 1973 is an instance of it since the legislative draftmanship of it militates against certain fundamental concepts in criminal jurisprudence for the reason that as it stands the section does not take note of the change in the status of person who is tried for an offence. The sub section under consideration reads as under:-

"IF THE ACCUSED IS CONVICTED, THE JUDGE SHALL UNLESS HE PROCEEDS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 360 HEAR THE ACCUSED ON THE QUESTION OF SENTENCE, AND THEN PASS SENTENCE ON HIM ACCORDING TO LAW".

It can be safely said that at least three distinct words known to criminal jurisprudence indicate the various stages in law of a person subject to criminal proceedings. In the first stage he is under suspicion by the authorities of law touching his complicity in the criminal act and is known as 'SUSPECT'. The second stage refers him as the 'ACCUSED' and the third stage is reached when after examining the evidence of the prosecution and considering the defence the court comes to the conclusion that he is guilty. In other words the court finds him guilty of the offence charged against him in the trial. When this stage is reached the hitherto accused becomes a 'CONVICT' in the language of the law.

It is on the convicted person or the 'Convict' that punishment is to be imposed. That part of the judgment which indicates the punishment is called 'sentence' in law. The passing of a sentence is of sufficient significance touching the liberty and sometimes">iie life of the convict and that is why the protection of a fair trial is envisaged in our criminal justice system. The caution with which one should embark upon the administration of criminal justice is well said by Manu the ancient law giver in India which deserves to be quoted in extenso:-

"AS A HUNTER TRACKS A WOUNDED BEAST

TO ITS LIER BY ITS DROPS OF BLOOD

SO LET A KING TRACE CRIME TO JUSTICE

BY CLOSE SEARCHED PROOF"

I feel that this is the best piece of advice that can be given to any person enjoined by law to administer criminal justice. It stresses the importance of proof of guilt. The proof of guilt takes place usually by the trial of the accused. It may be noted in this connection that the words 'suspect', 'accused', or 'convict' are not defined in the Code of Criminal Procedure in India, so is the fate of the word 'sentence' and we have to look to the English law to get at the import of these terms. The word 'suspect' points to a person around whom some suspicion lingers of his complicity in a criminal offence. Touching the nature of suspicion Lord Bacon said "Suspicion is like bats among birds" which is indicative of the less pleasant feature of it. The law is aware of the elusive nature of suspicion so it requires that suspicion should be "reasonable" or there should be reasonable grounds for the suspicion. Still the law says that suspicion by itself cannot be a ground to punish a person for a crime alleged to have been committed by him that is why it is said "Suspicion howsoever grave is not a substitute for proof.

We now come to the concept of an 'Accused'. The Lexicon Webster Dictionary (Encyclopadic Edn.) Vol. 1 at p. 8 explains the import of the term 'Accused' reading:

"A PERSON OR PERSONS CHARGED WITH A CRIME -- A DEFENDANT IN A COURT OF LAW". Stroud's judicial Dictionary Vol. 1.1971 Edn.onP.311 says "to accuse or threaten to accuse of a crime was not restricted to the narrow meaning of accusing by the course of law but meant to allege or threaten to allege before any third person". In the legal literature we do not find a final and single statement as to when a person is said to be an 'accused' for the purpose of criminal law. One view is that the person in the dock at the commencement of the trial is the "accused person". Here the person becomes an accused when he is before the judge in the open court. Another view is of Sir Patrick Devlin in his work 'Criminal Prosecution in England' on P.28 which would say that whenever evidence in the possession of the Police is weighty enough to frame a charge it is the point of time that a suspect turns to be an accused. Despite these various shades of meaning it is certain for the purpose of criminal law that a person can be an accused in criminal proceedings till he is found guilty after which his status changes and he is known as a'Convict'. To put it shortly the status being an accused is antecedent to conviction but the status of being a convict is post decisional one. The word 'Convict' is explained at page 223 of the Lexicon Webster Dictionary mentioned above meaning" to prove or find guilty of an of fence especially after trial before a legal tribunal. Stroud's Judicial Dictionary at page 558 mentions that the word 'Convicted' or 'Conviction' of a person accused is equivocal. It is further said that in common parlance no doubt it is taken to mean the verdict at the time of trial but in strict legal sense is used to denote the judgment of a court. It was so held by Tindel C.J. in Burgess v. Boetifeur, 13 L.J.M.C. 126. The person who has reached this post decisional stage in a criminal court is called a 'Convict' and it is the 'Convict' on whom the 'Sentence' is to be passed. Bouvier's Law Dictionary Vol.1 p.56 gives the meaning Accusation in criminal Law as a charge made to a competent officer against one who has committed a crime or misdeameanor so that he may be brought to justice and punishment. On page 362 the word 'convict' is explained as one who has been condemned by a competent authority which further says that to condemn is to find guilty of a crime or misdemeanor.

The word 'Sentence' in Law is derived from the Latin expression 'Sentire' which means 'feeling'. The sentence of court is the declaration of the punishment to be inflicted upon the convict. The aspect of the feeling of the judges is clear when we read in judgments "We feel that the lesser sentence will meet the ends of justice" found in certain decisions reported. Stroud's Judicial Dictionary mentions that sentence includes any order of the court made on conviction (emphasis by me).

Christopher J. Emmins. M.A. Senior Lecturer in Law at the Inns of Court School of Law in his work "A practical approach to sentencing" in his introduction observes "sentencing is about the way courts deal with a person after he has pleaded guilty or been found guilty -in other words is about what happens from the moment when a person charged with an offence ceases to be merely "the accused" and becomes an offender". In part one of the book, page -15 "That ominous phrase the sentence of the Court is so familiar to us that we rarely pause to ask just what we mean by the word sentence".

In the light of what has been mentioned above there cannot be any manner of doubt that sub-section (2) of S.235 Code of Criminal Procedure 1973 is ill phrased for the reason that it directs the court to hear the "Accused" on the question of sentence. The proper thing would have been to say that the judge shall hear the 'Convict' on the question of sentence since the question of sentence or hearing on it arises only after conviction and that is why the section says "if the accused is convicted", in its opening part. Unfortunately the word 'Accused' is replanted in the section even after the word "convicted" whereby the legislative draftsman committed error of law by not distinguishing between an accused and a convict. It is felt that the present anomaly in the section can be removed if instead of the expression hear the "accused" on the question of sentence the expression hear the CONVICT on the question of sentence is used by necessary amendment to the section.

Foot Note

*Formerly Prof: of Law, Govt. Law College, Kerala, Reader in Law, Lai Bahadur Sastri National Academy of Administration, Govt., of India, Mussorie (U.P.)

March of Law

(K.S. Rajamony, Senior Advocate, Ernakulam)

CIVIL LAW

Scariah Varghese v. Marykutty, (1991 (2) KLT 71) raises some fundamental jurisprudential problems. Notwithstanding the absence of any statute law obliging a Christian to maintain his minor children, Varghese Kalliath, J. has held that he has a legal obligation to provide maintenance for his minor children on the ground of justice, equity and good conscience. It is submitted that this is a correct decision despite the thought provoking critical comment on the decision in 1991 (2) KLT Journal 40 by Sri. V.K. Sathyavan Nair. This decision has an interesting background. In Chacko Daniel (1952 KLT 595) Koshi C.J. and Govinda Pillai, J. held that the personal law relating to Christians in Travancore does not make a father legally liable to maintain his children and that no civil court can give them relief. The only remedy is to resort to the provisions of the Cr. P.C. This was a very unsatisfactory judgment. The Court said that the law that should be applied was English Law and conceded that under English Law the father had a duty to maintain and educate his children, but wrongly accepted the English Common Law principle that the civil court cannot enforce the obligation. In India if there is a civil right, it can always be enforced through a suit in the civil court under S.9 C.P.C. In fact, even a statutory right can be spelt out of S.125 Cr. P.C. (old S.488) which has two limbs, one conferring the substantive right of maintenance and the other the procedure to enforce the claim. It is incorporated in the Cr. P.C. only for providing a speedy and inexpensive relief which does not preclude enforcing the right through the civil court. The question again arose before a Full Bench consisting of Koshi C.J. and Subramonia Iyer and Joseph Vithayathil JJ. in Cheriya Varkey (AIR 1955 T.C. 255). Eventhough in the appeal the right to maintenance of the wife and child came up, unfortunately, counsel gave up the right for the child in view of the decision in 1952 KLT 595 and pressed the right of the wife alone. Thus the correctness of 1952 KLT 595 did not in terms come up for consideration. The Full Bench speaking through Vithayathil, J. held that in matters not governed by statute or customary law, principles of justice, equity and good conscience applied and those principles could be found in the Common Law of England, that even under the Common Law the husband had a legal obligation to maintain his wife, that the husband's obligation is in no way different from that applicable to Hindus and that marriage created a status with certain obligations attached to it and one of such obligations was to maintain his wife. It is not difficult to see that all these principles apply with equal force to the child's right to maintenance also even though the right of the child as such was not gone into by the Full Bench. The question of the child's right collaterally arose later before a Full Bench consisting of P. Govindan Nair, T.S. Krishnamoorthy Iyer and M.U. Issac, JJ. in Commissioner of I. T. v. Paily Pillai (1972 KLT 24). The question involved was one of tax liability and the problem was whether a gift deed executed by the assessee in favour of his minor son .was a transfer otherwise than for adequate consideration. The Full Bench held that the transfer was only in the nature of a gift because, there was no legal obligation on the part of the Christian father to maintain his minor child and for this conclusion 1952 KLT 595 was relied on. AIR 1955 T.C. 255 was not referred to and the correctness of 1952 KLT 595 had not been canvassed in Paily Pillai's case. In the above circumstances Varghese Kalliath, J. rightly adopted the principles laid down in AIR 1955 T.C. 255. See State of U.P. v. Synthetics & Chemicals Ltd. (J.T. 1991 (3) SC 268) for a discussion on the doctrine of precedents. The decision to grant maintenance to the child can be supported on other grounds also. Art.51A (a) of the Constitution lays down that it shall be the Fundamental Duty of every citizen to abide by the Constitution and respect its ideals. Art.29(f) embodies the Directive Principles that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and moral and material abandonment. Art.21 guarantees the right to life and livelihood. Courts have not unoften recognised new heads of public policy to prevent vacuums in the legal system. Indian Legal System is based on justice, equality and good conscience. See AIR 1991 SC 2234. Did not the Supreme Court in the Central Inland Water Transport Corporation Case (AIR 1986 SC 1571) strike down an unconscionable service rule on the theory of inequality of bargaining power? The Court said (at p.1612), "In deciding any case which may not be covered by authority, our courts have before them the beacon light of the preamble to the constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our constitution." Similarly, did not the Supreme Court evolve the new theory of ‘distributive justice’ in Lingappa (AIR 1985 SC 389)? It is interesting to note in this connection that in France, the civil code has a specific provision that a judge cannot refuse to decide a controversy on the ground that there is no law on the subject. Anyway, such serious gaps in personal law point to the urgent need for a uniform civil code for the Indian people as envisaged in Art.14 of the Constitution.

The newly enacted S.138 in the Negotiable Instruments Act which has come into force w.e.f.1.4.1989 is giving rise to interesting problems. A Division bench in Manoj K. Seth (1991 (2) KLT 65) has held that a post-dated cheque has to be considered to have been drawn on the date it bears and not on the date it is delivered. The question was whether the cheque was presented within six months from the date on which the cheque was drawn as required by the proviso (a) to S.138. The reason given is that a postdated cheque becomes operative only from the date it bears, though in between the date of delivery and the date it bears, it is negotiable. The judgment is deficient in two respects. In the first place, the impact of S.118(b) of the Negotiable Instruments Act providing that, until the contrary is proved, it will be presumed that every negotiable instrument bearing a date was made or drawn on such date, has not been examined though a passing mention of that section is made. Secondly, even though the Bench has rightly disagreed with the view taken by the Madras High Court in Babu Xavier's case (1990 TNLJ (Crl) 121) in fairness reasons should have been given for the disagreement. Was it not necessary to give an opportunity to the drawer to adduce evidence contrary to the presumption, if he had any?

In a judgment of excessive brevity, Thulasidas, J. held in Calcutta Sanitary Wares (1991 (1) KLT 269) without stating any reasons that where the non-payment by the bank was on account of the drawer issuing stop-payment instruction, prosecution under S.138 is nevertheless maintainable. With respect, this does not appear to be correct in terms of S.138 which makes bouncing of the cheque an offence only for insufficiency of funds in the bank. A judgment of the Karnataka High Court reported in 1991(1) KLT SN37 and another by the Punjab & Haryana High Court reported in 1991 (1) KLT SN 40 have rightly taken the view that if a cheque is returned unpaid with the remark "payment stopped", S.138 is not attracted.

Rightly overruling 1991(1) KLT 651 a Division Bench has held in 1991(1) KLT 893 that the payee cannot go on presenting the cheque in the bank again and again to create fresh causes of action for proceeding under S.138.

In Dunlop India Ltd. (1991(1) Civil L.J. 29), the Calcutta High Court held, following 1989 (2) SC. 602, that when a registered postal cover is returned With the endorsement "refused" there will be a "resumption that the letter was tendered to the addressee. The Court relied on S.27 of the General Clauses Act and S.114(f) of the Evidence Act. Mere denial of service by the addressee is not sufficient to rebut the presumption. Similarly, in Jankala Raghunath Patra (1991 (1) Civil L.J. 215) - the Orissa High Court held, following AIR 1989 SC 630 that when a notice sent by registered post at the correct address was returned with the endorsement that the postman visited the place of address several times but found the addressee absent, the letter shall be deemed to have been delivered to the addressee. When the registered letter containing a notice under S.106 of the T.P. Act was returned with an endorsement as above, it was treated as sufficient compliance with the requirement of S.106. The time of 15 days given in the notice would be calculated from the date of the return of the envelope.

Padmanabhan, J. has held in Kunhiraman v. Manoj 1991 (2) KLT 190 that the result of DNA test can lend strong support to other evidence in deciding paternity. The DNA test is of far-reaching importance in both civil and criminal law. This new technique has created a revolution in forensic science. The scientific community, however, is not yet agreed on standards that ensure the reliability of DNA finger printing which is still on trial. The DNA technique demonstrates how the two sister disciplines of law and medicine can interact in delivering justice. The only regret is that evethough legislation has advanced to give relief to the illegitimate child, it has not progressed enough to award maintenance to the mother of the child by the putative father. There are a large number of similar issues which are on the border land of law and medicine. Spare parts of human beings are now on sale. Does a man have the right to sell his kidney? Does his body belong to him? Has he the right to destroy his body part by part when criminal law has made suicide, prostitution etc. offences? To whom does the dead body belong and can organs be removed from a dead body? When can a person be considered to be dead? If it is possible to bring back life by techniques like massaging, and use of heart-lung machines, whether transplantation can he done in the meantime? There is a story of a Professor of Surgery who while performing an operation observed that the patient was not breathing. He asked the anesthetist, "the patient seems to be dead at my end, how is the position at your end?" Matters of common interest between law and medicine should be identified and explored, because, everyone of such issues has social dimensions.

Is a petition under Art.227 against the revisional order of the District Judge under the Rent Control Act a continuation of the rent control proceedings? No, says Padmanabhan, J. in Krishna (1991 (2) KLT316). It is an original proceeding and hence the tenant cannot claim the benefit of depositing arrears of rent under S.11(2)(c) as a matter of legal right. However, a Division Bench consisting of Bhat Ag. C.J., and Krishnamoorthy, J. has held, though in a different context, that Art.227 is not an original proceeding and hence a Writ Appeal does not lie under S.5 of the High Court Act against the decision of a Single Judge exercising powers under Art.227 following AIR 1986 SC1272. This conflict may have to be resolved in an appropriate case.

Where there is a direct conflict between two decisions of the Supreme Court rendered by Judges of equal strength, which of them should be followed by the High Court? Full Benches of three High Courts have held that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. It is not correct to say that the latest judgment must be mechanically followed. The three decisions are AIR 1981 P. and H. 213, AIR 1988 Bom. 9 and AIR 1991 All. 114. The Allahabad Full Bench further held that a writ petition under Art.226 can lie against an interlocutory order passed in a civil suit from which there is no appeal or revision, if it is found that the impugned order violates fundamental principles of law and causes substantial injustice to the aggrieved party, subject of course to the well-established principles of writ jurisdiction. Under S.115 C.P.C.as amended in Allahabad, no revision lies to the High Court against an appellate order made by the District Judge in suits of less than Rs.20,000/- valuation. According to the Full bench, a writ will lie against the District Judge's Appellate order. The Full Bench however dismissed the writ petition as the opposite party was a private individual.

East India Corporation v. Shree Meenakshi Mills (JT. 1991 (2) SC. 397) presents a hard case, but makes good law. There was a provision in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 by which a residential building occupied by a tenant on a monthly rent exceeding Rs.400/- was excluded from the operation of the Act. Since the monthly rent was Rs.900/- the landlord filed the suit in 1980 in the Civil Court for eviction and obtained a decree. When the Appellate Court and the High Court confirmed the decree, the tenant filed an Appeal before the Supreme Court and Special Leave was granted on 24.9.1984. While the appeal was pending, that provision of the Tamil Nadu Act was struck down as unconstitutional by the Supreme Court in AIR 1986 SC 1444. The result of the declaration was as though that provision had never been enacted and the jurisdiction to order eviction rested exclusively in the Rent Control Court. The civil court decree therefore became null and void. Jurisdictional defects cannot be cured by consent of parties. S.10 of the Tamil Nadu Rent Control Act (corresponding to S.11(l) of the Kerala Rent Control Act) prohibits eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that Act. The jurisdiction of the Civil Court though not expressly barred, is impliedly barred on the principles stated in Dhulabhai's case (AIR 1969 SC 78). The Supreme Court held that, with the declaration of invalidity of the section, the Civil Court had become coram non judice and its proceedings resulting in the decree had become a nullity. The appeal was allowed and the decrees of the Courts below were set aside. The Kerala High Court had been holding consistently that S.11(l) of the Rent Control Act does not affect the jurisdiction of the civil court to pass a decree for eviction, but only prohibits the execution of the decree. The only exception was a decision by Kochu Thommen, J. as he then was, in Narayanan v. Ratnamma (1987 (2) KLT 473) which stood overruled by the Division Bench in Gaurikutty Amma v. Kesavan (1988 (1) KLT 649) which in turn now stands overruled in the East India Corporation case by T. Kochuthommen and Sahai, JJ.

Can a court which has no jurisdiction be conferred with jurisdiction by applying the principle of res judicata? No, answers the Supreme Court in Isabella Johnson (AIR 1991 SC 993). There can be no estoppel on a pure question of law. The landlord filed a petition for eviction before the Rent Controller. The tenant contended that the jurisdiction vested in the civil court and not in the Rent Controller. On that plea the petition was rejected. The landlord then filed a suit in the civil court. Now the tenant contended that the civil court had no jurisdiction and that it vested in the Rent Controller. The landlord contended that the earlier decision of the Rent Controller constituted res judicata even if that decision was wrong and that such an inconsistent plea was barred by estoppel. Differing from an earlier two judge-bench decision in AIR 1979 SC 1911, that three-judge bench held that the civil court had no jurisdiction and it cannot be conferred by the principle of res judicata or estoppels.

In General Electrical Technical Services Co. v. Punj Sons (P) Ltd. (JT1991 (3) SC 360) the Supreme Court has reaffirmed the principle that Banks must pay when demand is made for the enforcement of a Bank Guarantee. Courts should not interfere with this contractual obligation except when there is strong prima facie case of fraud by the beneficiary and to prevent irretrievable injustice. Otherwise, the very purpose of Bank Guarantees would be negatived and the fabric of trading operations will get jeopardised. Stay against-Bank, granted by the High Court, was vacated.

Gauhati High Court has pointed out in 1991 (1) Civil L.J. 771 that mere registration of a document is not by itself sufficient proof of its execution. Endorsement by the Sub Registrar is not conclusive proof of the fact of execution. There must be clear evidence that it was the purported seller who put his signature and after fully knowing its contents. That is the requirement of S.67 of the Evidence Act.

The Supreme Court has held in Shanti Devi L. Singh (1991 (1) Civil L.J. 95) that the certificate of sale issued in a court sale or by a Revenue officer does not need registration. Certificate issued by the Tax Recovery Officer under the I.T. Act is also covered by this principle contained in S.17(2)(xii) of the Registration Act. Under S.89(2) every court granting a certificate of sale shall send a copy to the Registering Officer. S.89(4) imposes a similar obligation on 'Revenue Officer' which expression includes 'Tax Recovery Officer'. The Registering Officer shall file the copy in his Book No.1. However, the certificate of sale is not exempted from the levy of stamp duty.

In Durga Singh (AIR 1991 H.P. 1) a Division Bench has held that a compromise decree passed on the basis of statement made by Government Pleader without complying with the requirements of Art.299 is invalid. P.C. Balakrishna Menon, C.J. has pointed out that an adjustment of the suit under O.23 R.3 C.P.C. can only be by a lawful agreement or compromise and that in the absence of an agreement in terms of Art.299(l) of the Constitution, there was no valid compromise and the decree passed on it cannot be enforced.

Patasibai (JT1990 (3) SC 68) is a case where the plaint was rejected invoking O.VII R.11 C.P.C. as it did not disclose any cause of action. Even after issue of summons the provision can be applied if there is no triable issue. Order VII Rule 11 is frequently invoked to get election petitions which do not disclose any cause of action dismissed. Trial lawyers can usefully invoke O.VI R.16 and O.VII R.11 C.P.C. to weed out frivolous cases.

In Mary Soniz Zachariah (1990 (1) KLT 130) Thomas, J. directed the Central Government to take a decision within 6 months of the receipt of judgment, on the recommendation of the law commission to make necessary amendments to S.10 of the Indian Divorce Act. It is not known whether the direction has been implemented.

In Kunhi Kelu (1990 (2) KLT 506) a Division Bench held that a revision under S.20 of the Rent Control Act has to be heard by a Division Bench as required under S.3(4) of the High Court Act and suggested appropriate amendments to enable a single Judge to hear the revision petitions. Government does not appear to have bestowed any thought on the problem yet.

Salient Features in the Kerala Finance Bills, 1991

(Relating to Sales Tax with particular reference to Hire Purchase, Leasing and Works Contract)

(R. Krishna Iyer, B.Com., F.CA., Chartered Accountant, Ernakulam)

The Hon'ble Finance Minister has presented the Finance Bills for 1991-1992 and Government has issued notifications to regularise the budget proposals. In this article it is proposed to enlighten the salient points relating to the Sales Tax, particularly the Sales Tax on Works Contract, Hire Purchase and Leasing.

In the last year budget the Finance Minister had given importance and lot of concessions to the industries with the object of development of Indus tries in the State. Government had felt that only by the development of Industries, the most important . problem of unemployment can be solved. The development of Industries have not only the advantages of employment generation but also holds significant part of the State's economy, it improves average incomes and living standards, develop indigenous skills, reduces regional imbalances. With this object the Kerala Government in 1990-1991 budget reduced the sales tax rates of various industrial products. The exemption limit for the investment in machineries by small scale industries was increased to 100%. But of course for some reason, the concession for the investment in land and building was reduced. For the purpose of concession, the interstate sale was also included. Another important change in the reduction in the CST to 2%, in the case of new, large and small scale industries.

In the year 1991-92 budget, the Government has given further reduction/ concession for the industries. The important amendments are:

1. Purchase of goods by Industrial Units in the State.

As per the Budget for 1990-1991 the State and Central Government Undertakings has to pay only 4% Sales Tax on the purchases from local Manufacturers. These undertakings could purchase goods at 4% by issuing 'C Forms and this amendment was made in order to encourage purchases from the manufacturers of Kerala State.

As per the 1991-92 Amendment all the Industrial Units can purchase goods at 4% Sales tax. Therefore by this Amendment, the concessional rate has been extended to all the industrial units in the State. This is really a welcome change. Since the word 'Use of goods' is used in the notification it can be contended that the consumables can also be -purchased at 4%. There are two conditions:-

a) The goods manufacturered should be for sale. It is not necessary the goods have to be sold in the State (locally) and it can be for interstate sales also.

b) A Certificate has to be issued by the purchaser to the Seller in the prescribed form. The form can be issued by the purchaser. This form is very simple and the Certificate is only a declaration to the effect that the purchase is for use in manufacture.

Of course by this notification, the concession should not be enjoyed for the stock transfer of goods. There is a definite prohibition u/s.5(3)of the K.G.S.T. Act the purchase of raw-materials etc. at concessional rate by issuing Form No. 18 for export sales. Therefore even if the finished products are exported the benefit under the current notification can be availed, since there is no such express prohibition in the present notification.

There is a doubt whether in the case of industries who avail the benefit of exemption can avail this concessional purchase. In this cases, the Sales are not completely exempt. The Sales tax due on this turnover is computed and deduction is made on some basis, the effect is, as if they have paid the tax. This Sales are not completely exempt or they are not Non-taxable goods. Therefore those units can purchase goods at 4% Sales tax.

As per Section 5(3) of the K.G.S.T. Act, the Industrial Units can purchase raw-materials, component parts and Packing materials at a concessional rate of 2% if the good-are used in manufacture of Finished Products inside the State. But only 3 types of materials (Component Parts, Raw- materials and Packing materials) can be purchased by issuing Form 18 whereas, by the current notification, all the goods can be purchased, the only condition is the goods manufactured should be for Sale. Therefore the Industrial Units can still avail the benefit u/s. 5(3) for the purchase of these 3 items by issuing Form No.18.

II. Interstate Sales tax on certain items

1. Fibre foam                                                  --                     2%

2. Goods manufactured by SSI Units                  --               4%

3. Readymade Garments, brassiers and hosiery goods   4%

4.   Granite Slabs and Granite Tiles               .      -               2%

Coir and Coir Products are already exempted from Tax. But Coconut Fibre is taxed at 2% and Rubber packed coir products at 4%. However Coconut Fibre and rubberised coir is also completely exempt from tax as per the Amendment.

In the case of Fibre foam the rate of tax on Interstate sales is reduced to 2%. Similarly the goods manufacturered by SSI Units on interstate sales is 4%. It is a very welcoming change. It may particularly to be noted that this rate of 4% is for any goods, the only condition is they must be manufactured by SSI Units. As such no 'C Form is required on the sale of goods sold by SSI Units. The small scale industries are perhaps the most important sector of the country. SSI Units would prevent the encoders from the rural area in search of jobs. Enormous unemployment co-existed with the growing industrialisation of the country. The Government is paying greater attention to small scale sector to achieve the objectives of jobs to a larger number of people, balancing regional growth to reduce poverty and narrow the disparity in income. This amendment would to a greater extent benefit to promote the small scale units.

III. Complete exemption of Sales Tax

1. Coconut Fibre

2. Rubberised coir products other than fibre foam

3. Pappad

4. Paddy straw etc.

As mentioned earlier, the Interstate Sales tax (C.S.T.) is reduced to 4% for SSI Units. Therefore 'C Forms are not required in interstate sales. Further that the said manufacturers are completely exempt for a period of 3 years if their turnover is less than 10.00 lakhs a year. Further if they can export not less than 50% of their product, they will get a full exemption from Sales Tax irrespective of their turnover (even if the turnover exceeds Rs. 10.00 lakhs they will get a complete exemption for a period of 3 years). The view of the Government is to encourage small and cottage industries and to provide employment opportunities.

Rate of tax on Bamboo Ply, Mosaic Tiles, Glaced Tiles

The rate of Sales tax on Bamboo Ply is reduced to a normal levy of 1%. Considerable reduction has been made in the rate of tax on Mosaic Tiles, Glaced Tiles etc. The reduction in Sales Tax of these items would certainly help the increase in collection. The tendency to purchase goods from neighbouring States will be reduced to a certain extent by reduction in the rates.

The rate of Sales Tax on Biscuits manufactured in the State is reduced to 5%.

Coconut Oil and Coconut Oil Cake

The rate of Sales Tax on Coconut Oil and Coconut Oil Cake sold inside the State (locally) is reduced to 2% from 5%.

The purchase of Coconut or Copra by an Oil Miller for production of Coconut oil and Oil Cake in the State for sale, the rate of tax is reduced to 1% from 4%, provided the sale attracts sales tax (local or interstate). If the sale does not attracts sales tax, the rate of tax is 3% from 4%.

The Oil Millers also are exempted from payment of Additional Sales tax and Surcharge on the Copra crushed.

Sales tax on Works Contracts

From 20-8-1987 onwards 4th Schedule was also included in the Act, exclusively for the rates for the Works Contracts. There were 21 items in the said schedule. The contracts were classified under 21 items. However, the rate of Sales tax was only 5% for all the items.

As per the 1991-1992 Amendment, there is substantial increase in the rate, maximum is 15%. There was some doubt earlier whether for the goods included under 1st and Ilnd Schedule, deductions can be given and the tax has to be paid only on the balance amount. Of course by this amendment it has been made clear that the deduction is possible, if the tax is levied on the earlier sale. After the decision of the Supreme Court, in the case of the Works Contracts, in short, the tax has to be paid by the Contractor only on the following 2 items.

1. On the goods included in 1st or Ilnd Schedule, if they are purchased from outside the State.

2. Multipoint items.

Before the 46th Amendment, in the case of indivisible contracts, the State Governments could not levy Sales tax on the goods involved in the execution of contract. The very object of 46th Amendment is that the State Government are given power to levy Sales tax on those goods. The goods are not sold as It is, they can be called as 'no sale' transactions and they are treated as deemed 'Sales'. There is an attempt to compute the taxable turnover on works contract, from the total contract receipts deducting the items of 1st. Ilnd and Vth Schedule and again by deducting labour charges .

For Example:

Total Contract Receipts                                                                          Rs.1,00,000

Less: Items like Cement, MS Roads etc. already suffered

tax in the State. (Included in 1st, Ilnd & Vth Schedule)         Rs.50,000

2. Labour charges                                                                  Rs.20,000

                                                                                                         -----------------------

                                                                                                                    Rs.70,000

                                                                                                                     ---------------

Total turnover                                                                                              Rs. 30,000

                                                                                                                      ========

This amount of Rs.30,000/- is comprising of the multipoint items, profit margin and the overhead expenses of the Contractor. This method of assessment is incorrect and against the very object of the Amendment. It is only possible to levy taxes on the items of 1st, Ilnd and Vth scheduled goods if they are not suffered tax on the first sale in the State and on the multipoint items. It is not expected to levy tax on profit or on the overheads of the Contractor.

Of course retreading charges of tyres also come under the purview of 'Works Contract'. All the materials used in the process are items included in the 1st Schedule. The balance amount represents labour charges, overhead charges, profit etc. Therefore if the materials are purchased locally have suffered tax, the dealer s not liable to pay any Sales tax. However-there is an attempt of levy Sales tax on the balance turnover, deducting the value of materials and labour charges from the gross turnover. This method is absolutely incorrect since the purpose of the amendment is to levy sales Tax on the value of materials which could be escaped assessment being 'Works Contract'.

Similarly there is a view that all the leasing contracts are taxable. This is also not correct. The object of the amendment is to levy tax on the goods manufactured by a dealer, who leases the goods to various parties and finally disposes of the same, then he gets only a scrap value of the goods and tax can be levied only on that scrap value. Before the amendment, the leasing charges, the manufacturers collects his sale value by way of leasing charges, since the leasing charges do not come under the purview of sale, the Government was losing the sales tax and the amendment is only to levy the Sales tax on such circumstances. Therefore if an item which is included in the 1st Schedule and tax is levied on the first sale in the State, such equipment if it is leased by the buyer, no tax has to be levied on the leasing charges.

However there is doubt if the rate of tax in the point of levy of the leasing equipment is multipoint and if the leasing equipment is leased out in the same State, whether a levy of Sales tax is necessary on the leasing charges received. Of course, it can be contended that the leasing charges also are treated as 'deemed sales' after the amendment and if so, the levy of Sales tax is necessary since it is a multipoint item. The leasing charges include finance charges and other overhead expenses and therefore, if the levy is made, it is made on these items also. As already stated, the object of the amendment is to levy Salestax on the manufacturers when he leases the equipment by which it cannot be treated as a sale and Government loses revenue.

Similarly there are two types of hire purchase transacts - The manufacturer of an equipment/machinery sells the same on hire purchase basis. Since the hire charges could not be treated as sale, before the amendment it could not be brought under the purview of Sales tax. After the Amendment, such type of transactions can be brought under the purview of Sales tax. The second type is financing companies like Sundaram Finance etc., advances money on the security of Machinery/Equipment. In those cases Sales tax has been paid on the purchase value (Invoices may be drawn in favour of the buyer or financing Company). Apparently such financing Companies become dealers since the so called hire charges come under the purview of Sales tax. Therefore there is a doubt whether the said financing Companies are dealers and whether they are liable to pay Turnover tax if the goods are included in the 1st Schedule. It is to be noted that if the whole transactions and the clauses of the agreement are looked into, it is very clear that the financing companies have no intention either to take possession or sell the goods except when the hirer fails to pay the installments/hire charges. The power of taking possession of the goods is only to safe guard the interest of the financing Company. This is very clear from the fact that in all the Hire purchase agreements, if the installments are paid, the hirer is given the option to purchase the asset by payment of a nominal amount of Rs. 1 (Rupee only). This nominal amount also shows that there is no intention of sale of goods, but only to regularise the legal title of the assets. Those transactions are only financing transactions as per the decision of the Courts and if so, they are not dealers or not liable to pay the turnover tax. Again if they are multipoint items the problems as in leasing also would arise.

Certain rules have been amended by a notification dated 16-3-1991. Any works executed through a contractor by Government, local authority etc., they are called as 'Awarder'. It is particularly to be noted that a partnership firm has also been included in 'Awarder', Therefore, even if a 'Partnership firm constructs a building for factory, godown, office etc. or when a Partnership firm executes some works through a Contractor, the firm is an 'Awarder' and liable to comply with all the amended rules and regulations. The present amendment makes it clear that, the labour charges and the value of material included in the 1st Schedule for which tax has been suffered, can be deducted from the total turnover and the tax has to be paid only on the balance turnover. In the original act, there was also a doubt whether the goods supplied by the Contractor (Awarder) can be deducted. This has also been clarified and as per the amended rules the goods supplied by such awarder can be deducted. However there is some doubt the method of deduction proposed is not clear in 4(C) of the Rules. There are two types of Contracts:

1. There are free supply of certain material to the Contractor.

2. The materials supplied to the Contractors are deducted at particular rates from their bills.

In the first case the value of such materials will not form part of the turnover and therefore the question of deduction does not arise. In the second case, the value of goods supplied is correctly known and therefore such amount can be deducted to arrive at the taxable turnover. It is suggested that the rules maybe modified accordingly to avoid misinterpretations.

It has also been made clear in the amended rules that the contract for the earth work alone or does not involve in transfer of goods is completely exempt.

The title is passed from the Contractor to the 'Awarder* as per the majority agreements, only after the completion of the work. Therefore, the question of 'Sales' takes place only in that year and as such the tax can be levied only in that year. However it has been made clear in the amended rules that when system of Progressive billing is stipulated then the amount received or receivable for the year will be the turnover of that year. If there is no provision for progressive billing the turnover will be the portion of the work completed during that year. It is only correct to treat the turnover for the year of the bill amounts received in that year. But as per the rules, 'receivables' is also included and therefore the department may take a view that the 'work-in-progress' or the bills issued by the Contractor which has not been accepted or paid can also be included in the turnover of that year. There may be chances for reducing the bill by the 'Awarder'. Further it will be difficult to correctly ascertain the amount receivable or the portion of work completed during the year. It will cause unnecessary litigation for estimating the amount, especially in view of the fact that the contractor has a right to collect Sales tax and he has to remit the amount only when the amount is received and only such amount can be treated as 'Sale'.

Provision has also been made in the amended rules to insist for the Clearance Certificate from the assessing authority. Even though the 'Partnership Firm' is also an 'Awarder' for the payment and recovery of tax 'the partnership firm and body of individuals' are not included. Therefore the provision for payment or recovery in their cases do not arise. Probably this may be a*n omission in the rules. As per the amended rules the 'Awarder' has to insist for a Clearance Certificate before making the Ilnd or subsequent installments or the final payment to the Contractor. As such for the 1st payment of the bill, no clearance certificate has to be produced. The Certificate should be to the effect that the tax due in the previous instalments has been paid by the Contractor. Therefore the contractor has to obtain certficate from the Sales Tax Authority except for the 1st bill and if he has number of contracts or more than one bills are paid in the same month, he has to obtain number of certificates from the assessing authority. This is a very impracticable proposition. As per the Sales Tax Act, the dealer is liable to file the monthly return on or before 15th day of succeeding month and to remit the tax. There is no provision in the act or rules to make the payment of the tax due for one month in installments. Again it has been specified in the rules that in the absence of such a Certificate the 'Awarder' has to recover tax equal to the tax due on the contract amount. 'Contract Amount 'has not been defined. However it is meant that total contract value. In case the total contract value is 3 crores and the amount in the Ilnd bill is Rs.10.00 lakhs, the tax on the contract value will be more than the bill amount. Probably the intention is to recover the tax on the previous bill amount only. However this has to be clarified.

As per the Amendment the Works Contracts have been classified under 23 items. In the case of a building contract, includes supply and fixing, laying of glazed tiles, granite tiles, painting and polishing etc. and the rates for each items are different. Of course there is an item 'Civil works like construction of building' etc. It is not clear from the rules in such circumstances where the 'Contract amount' is total value of the contract or each item of the work has to be classified under different heads and the tax has to be computed separately for each item, or 5% tax has to be worked out on the total amount, treating the work as a composite work under Civil works. Almost all the States have made a provision to compound the payment of tax in the case of Contractors. In Karnataka Sales Tax Act only 2% tax is to be paid on civil works like construction of building etc., and in other cases at 4%, on his total turnover and in that case no accounts have to be produced. The only point is that such 2% or 4% has to be paid on the total value without deduction for labour charges etc.

The Government has to seriously consider this compounding system in Kerala also, by which most of the assessment can be completed without any difficulty and collection of tax would be easier. If the contractor has opted for composition, he can obtain a Certificate from the Sales Tax Department to that effect, that the said Contractor has applied for composition and therefore, it is sufficient if the tax at 2% is recovered from his bills and in that case no Clearance Certificate is to be insisted. This will reduce the work load of the Department as well as the unnecessary work for the Contractor for obtaining Clearance Certificates.

Photograph on the Application of Registration

It has been made in the amended rules that the application for registration shall be accompanied by a Passport Size Photograph. Of course this is required only in the case of individuals and Partnership Firms.

Security Bond

There are instances where the Appellate Assistant Commissioner or the Appellate Authority are granting stay on making part payments and on furnishing securities for the balance amounts. One of the mode of security is furnishing a Security bond in a particular form with two sureties. As per the amended Rules, the sureties must be solvent enough for the amount assured. Further they should execute a bond which should also be registered along with title, possession and valuation certificate of the Tahsildar. The value of the property should not be less than the amount as per the Bond. Therefore even if the stay is granted by the appellate authorities, they have to obtain two sureties who holds property as per valuation of the Revenue Department and property should be mortgaged. Normally 2 to 4 weeks time are granted for furnishing the security. During the period the dealer has to find out two sureties who hold the properties, they should get possession and legal opinion regarding the title, valuation certificate from the Tahsildar so as to enable him to mortgage the property and execute the deed. No provision has so far been made regarding the authority for releasing the bond. As per the existing practice the excess amount paid if any is not refunded on the ground that the department is filing a second appeal before the Tribunal or appeal is filed before the High Court. Even if the 1st Appellate Authority modifies of allows the appeal if the Department file an appeal, it has to be seen whether the Sales Tax Department will release the property based on the order of the First Appellate Authority. The effect of this provision in the mode of security by executing bond will become infructuous. In almost all the cases the dealers are furnishing security in the form of bond only.'

Form No. 25 Declaration:

This Form relates to a declaration to be furnished by the purchasing dealer. When goods taxable at the point of last purchase in the State, the dealer has to furnish this declaration from his purchaser by which he will be given exemption on the said purchases, since he has proved that he is not the last purchaser in the State. The said declaration has to be submitted on or before 25th of the succeeding month. There is substantial change in the wordings of the form. As per the amended form, the purchasing dealer has also to certify that he has filed his monthly return and the tax due for the goods is paid or he has to declare that he has claimed exemption and he has filed declaration in Form No,25. The effect of this declare Lion is the purchasing dealer has to certify either i£ has paid the tax or he has filed the declaration for exemption. This declaration is also to be submitted on or before 15th of the succeeding month or in other words the effect is he has to submit the same along with his monthly return. This declaration can be filed only when the goods purchased by the purchasing dealer are sold before 15th of Next month. If the goods are in stock or if it is sold after 3 or 4 months it is not possible for the purchasing dealer to furnish the declaration before 15th of the succeeding month. Suitable amendment has to be made in the form. Further this declaration should hereafter to be submitted in duplicate.

Form No. 25(a)- Declaration:

This is a new form introduced in the Finance Act, 1991-1992. Rule 32(13A) has also been introduced by the Amendment. This declaration has to be furnished by the Purchasing Dealer to the Selling Dealer, when the goods are taxable at the point of last sale in the State.

Turnover Tax:

As per the amendment the dealer is liable to pay Turnover Tax shall maintain separate accounts for the goods liable for turnover tax.

Monthly/Annual Returns:

There were separate forms for furnishing monthly and annual returns (Form No.8&9). As per the amendment there is only one form (Form No.9) which can be used for monthly and annual turnover. The important point to be noted is that a copy of the inventory as on 31st March should also be attached along with the Annual Return. This -provision is not applicable when the dealer maintains a day-to-day Stock Register.

The Plight of the Woman Lawyer

(D. Jameela Devi, Advocate, Ernakulam)

The issue:--The Year of the 'Girl Child' (1990) has spurred me to write these lines. Women have always been kept under constant servitude and viewed in contempt for centuries together. From the pages of history we can recollect the dominance of the male over the female. In India, once there existed female infanticide and 'Sathi'. Of late, these crude practices have revived again. Manu's Dharmasasthra proclaims 'Na Sthri Swathanthryamarhathi' -- that no woman deserves freedom. She is always under the surveillance of a man--of her father, as a daughter; or her husband, as a wife; and of her son, in her old age!

Though the symbol of Justice is a blind-folded woman, the fact is that Justice is a system created, fostered and continuously shaped by man. The emergence of women in this field has been new and relatively slow, as the advancement of education among women has remained at a low key owing to the acceptance and adoption of human values by the people at large in a traditional way.

Let us now trace the entry of women into the legal profession. In the United States, Myra Bradwell fought her case right upto the Supreme Court and lost in 1872, and the first woman was admitted to the Harvard Law School in 1950, after a prolonged struggle - social, political and legal, extending over a period of 80 years. This sensitive controversy was however resolved in India much earlier by the United Provinces Act 1923 which ordained that women could be enrolled as legal practitioners and could not be debarred from the practice of law merely because of their sex. The women in England also, however, successfully fought their way out and compelled the Government to amend the laws and permit the entry of women in the profession of law in terms of equality with their male counterparts, by the enactment of the Sex Disqualification (Removal) Act, 1919. Indian women also were denied of this right until the High Court of Allahabad took the lead and allowed the application of Miss Cornelia Sorabji to practice law, by its epoch making judgment of August 1921. She was the first women to have been enrolled as an advocate in India.

Now the study of professional occupations has become so increasingly popular that people consider it as a process of institutionalism, as a formalisation and standardisation of education. The objective of such professionalisation is to achieve for any occupation a higher level. Consequently, emancipation of women in the field of legal practice also has increased.

The sex-wise distribution of different categories of legal professionals in India clearly indicates a complete male dominance at all levels, and records a decline in the proportion of women lawyers over the decade 1961-71. However, according to Bar Council of India, in 1981, the total number of lawyers was 2,21,280, of which 5,779 were women, comprising 2.5% of the total. Very many comparative studies of different States reveal that women lawyers are only in the thin minority. An analysis of membership pattern at the Punjab and Haryana High Court Bar reveals? the occurrence of a substantial increase in the entry of women to the Bar during the last five years. In 1982-83, there were only 16 women lawyers in a total population of 713, making up 2.24% of the total. In 1986, there were 35 women lawyers in a total population of 932, making up 3.86%of the total. However, it was observed during the field work that not all the lawyers enrolled at the Bar are practising lawyers. Quite a few drop out of the profession after few years, or take up other occupations, and many of them allegedly enroll themselves for extraneous considerations, such as keeping a status symbol or evasion of income tax.

Why women drop practice after a few months? The reasons are many, of which some are given below.—

Entry: A woman's entry in the legal profession is dependent on her aspirations, expectations and beliefs about the nature of rewards offered by the occupational group and on her own capacity. Her choice becomes still more difficult in view of the complete male dominance of the profession. The truth is that it is much easier to enter the legal profession than to survive in it. At present, the legal profession has assumed the character of a keenly competitive trade, in which professional efficiency stands second to ability to acquire professional work with dexterity, in which the rule of the jungle prevails. Therefore, it is said that success in the present legal profession requires" the mind of a jackal, the tongue of a parrot, the heart of a lion and the hide of an elephant." Consequently, those who have the courage to join the profession and continue with it are mostly those who have close relatives such as father, husband or uncle, who can not only protect them from unnecessary harassment and criticism but also launch them into the profession in the initial stages.

(2) Procurement and retention of work: Procurement of work is the most difficult task for lawyers. The traditional mode of procuring work is through their personal reputation and standing at the Bar and through their network of social relationships; especially through the colleagues at various levels. Such being the case, the legal profession becomes the monopoly of a few seniors, and this is the constant feature of the profession at all times, which encourages the juniors to resort to unethical practices in the procurement and retention of work. Gandhiji points out that touting is a typical and representative character of the Bar because of its practical utility in the rise of a lawyer to the higher echelons of professional hierarchy.

Under these circumstances, procurement of work becomes more problematic for women lawyers, as a woman cannot be as daring and outgoing as a man. The cultural limitations such as segregation of sexes, the early socialisation effects on appropriate sex role behaviour and attitude, and later deferential expectation from girls and boys all through their adolescence and adult life, make them unable to adopt such practices. Hence, most of them are contented with being tagged on to their seniors or relations within the profession. Therefore, procurement of work is comparatively more difficult for women because of their in-built and inhibited patterns of socialisation behaviour on the one hand and the male-dominated highly competitive and generalised nature of the occupation of independent practitioners, on the other.

(3) Practical difficulties: In our country, the progress of public awareness and education is so primitive that the traditional approach to women and their natural function has not undergone much change. Adding fuel to fire, men in the profession do not lack some of the 'qualities' that are traditionally ascribed to women. Jealousy, intrigue and pettiness, nowadays, are not peculiar to the female members of the Bar. Ordinarily, successful men are traditionally chauvinistic and having a deep-down feeling of resentment towards a competent woman lawyer, who has fought her way into the profession, without pleading for their patronage or paying their obeisance. Some, however, are said to be 'smoother' in their behaviour, that is say, instead of outright brow-breating, they are meanly provocative, maliciously amusing or deliberately denunciatory. Very few confront a woman lawyer, with the respect they would accord to their male equals.

Attitudes of Judges and judicial officers are quite encouraging to begin with. Though, generally, it is felt that some of them are of the view that a woman lawyer is not required to be treated any differently than her male counterpart in a similar situation, the position in Kerala is very much different. It is sarcastically said that "a persistent women lawyer embarrasses the Judge, a timid woman lawyer oppresses the Judge, and a meritorious woman lawyer baffles the Judge"; with a question in his mind, 'Hasn't she anything better to do?' The pages of 'THE LAWYERS' (a legal periodical published by Mrs. Indira Jaisingh, Advocate) offer dismal reading in this respect, if what is published is correct.

(4) Competence: Some women lawyers have come up with remarkably ingenious ideas to overcome cultural constraint they suffer from. Levels of competence vary from person to person. In spite ofall the obstacles in the field, some women lawyers have reasonably high reputation in various aspects of practice, such as dealings with clients, drafting and pleading, and presentation in court. They also get work independently, ie. work comes to them on the basis of their reputation and standing at the Bar. The rest are those who cannot boast of such accomplishments as they stick on to their patron-seniors to hand over the work to be done. The more influential the patron, the greater the amount of work. This category often relates to the wives and daughters of senior lawyers, businessmen and bureaucrats.

Suggestions: Though not exhaustive, I give below some possible steps which would help women lawyers:-

(i) Though girls are being encouraged to enter professions, they are given less freedom of movement than boys at the domestic level. This kills their initiative and makes them dependent on the malefolk. The girls should be given deserving freedom.

(ii) At times, educational investment is symmetrical, but higher expectations are placed on the sons - the daughters are expected to be married off. This gender discrimination at the family level is not justifiable.

(iii) In the legal profession itself, women lawyers often experience disruption of practice and detrimental effects during the period of advancement pregnancy, childbirth and lactation. There should be a group insurance scheme from which periodical payments should fee made available to the concerned woman lawyer during such period, just as maternity benefits are granted to women in employment.

(iv) Organizational and State support systems can encourage women in the profession - through nominations on various State panels, appointments as Law Officers and other such avenues in the legal system --and they can compete with men successfully.

(v) The introduction of duel system in the management of briefs will also minimize the difficulties in the procurement of work for women lawyers.

Conclusion: Women in the legal field have to wage a relentless war for their emancipation from the age-old bounds and bonds. The structure of the family, the nature of women, the nature of the legal profession, are all immutable and inscrutable factors. But it is said that once women are given the opportunity to show their merit, then, inspiteof the cultural and institutional constraints, they rise to the occasion and show that they can compete with men on equal basis. Organizational reforms are also urgently required. The emergence of legal firms, with men and women lawyers as partners, will not only help women lawyers but curb the malpractices in the profession and uphold its dignity. Moreover, the availability of specialised and standardised legal services will also help relieve overcrowding and contribute to the autonomy of the profession, and at the same time make it ideologically neutral and independent. However, women who prove their mettle in both the domestic and professional spheres, may, in a course of time, help to overcome and even change the primitive, traditional male superiority-complex and bring about a real acceptance and recognition for women in the legal profession.