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.

A Comment on Leelamma v. Dilip Kumar alias Kochaniyan –

1992 (1) KLT 651

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

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

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

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

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

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

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

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

"The question of capacity to marry and impediments in the way of marriage would have to be resolved by referring to their personal law. That, for the purpose of deciding the validity of marriage, would be the law of the Roman Catholic Church, namely, the canon law of that church." (Ibid at 2672).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mental Insanity and Nullity of Marriage According to

Church Jurisprudence

(Fr. Joseph Vadakumcherry, Archdiocesan Tribunal, Ernakulam)

For Christians marriage is a covenant by which the spouses establish between themselves a partnership of their whole life and which of its own very nature is ordered to the well-being of the spouses and to the procreation and upbringing of children. A marriage is brought into being by the lawfully manifested consent of the spouses who are legally capable, and the matrimonial consent is an act of the will by which the spouses by an irrevocable covenant mutually give and accept one another for the purpose of establishing a marriage. No human power can replace this matrimonial consent (CIC, Can. 1055, 1057; CCEO, Can. 776, 817). It follows that the bilateral consent of the spouses is the efficient cause of the marriage covenant, which, were it be deficient, cannot be supplied by any human authority.

Those who lack sufficient use of reason, and those who suffer from a grave lack of discretionary judgment concerning the essential rights and obligations to be mutually given and accepted, are incapable of contracting a valid marriage (CIC, Can. 1095; CCEO, Can. 818). This Canon refers to the unique mental capacity of the contractants, or the so called mental discretion, which is required for eliciting a valid marriage consent. The due mental discretion embraces all the powers of the mind and soul, namely, the cognitive, reasoning, deliberative, and volitional faculties, and the freedom of choice, which make up the deliberate, mature, and free human act of marriage consent.

Analysing the process of development of the act of marital consent we can see that the cognitive faculty supplies the basic intellectual knowledge about marriage that 'it is a permanent life-partnership between a man and a woman ordered to the procreation of progeny through some form of sexual cooperation'. It is presumed bylaw that one who has attained the age of puberty knows at least so much about marriage (CIC, Can. 1096; CCEO, Can. 819). Given that the contractant person knows this, he should, by making use of his reasoning and deliberative faculties, be able to combine reasoned judgments and deduce others from them. That means he will have to figure out the implications of the decision he is going to take so that he can bind himself to the same. This power of weighing the pros and cons and the implications thereof is called the deliberative, or appreciative, or critical faculty.

In the case of marriage consent the critical faculty makes the process of judgment mature by weighing the pros and cons and the essential basic implications of the marriage covenant. When the intellect has prepared the ground for the marital consent by way of a speculative judgment, the will, endowed with the freedom of choice gives forth the consensual act of marriage by way of a practical decision. Since the marriage covenant is a serious contract which involves life-long commitment, in order to enter it validly, a greater degree of discretion is required than would be necessary to consent to some action which only concerns the present. Hence the spouses must have that mental capacity to make a deliberate, mature, and free practical decision as to choose something as serious as marriage. This is the minimum standard of the mental discretion required for eliciting a valid marriage consent.

Lack of due discretion is strictly a consensual defect, i.e., the person does not realise adequately what the marriage covenant means and what it entails, in other words, the seriousness of the marriage contract. Hence the invalidity of a marriage on the grounds of lack of due discretion can be established only if at the time of the marriage the contractant was unable or incompetent the negotiate the matter of a real marriage.

Any substantial impairment in the functioning of the intellect or the will results in mental illness or insanity. In fact, mental illness or grave psychic disorders can deprive the patient of that mental discretion required for a valid marriage consent. The main categories of mental disorders are Psychoisis, Neurosis, and Psychopathy or Personality Disorders. Of these, Psychosis is generally wont to eliminate the discretion-airy power of the mind. Psychosis is distinguished into three types, namely, Schizophrenia, Manic-depressive, and Paranoide. The characteristic of any Psychosis is to disturb the coordinated functioning of the intellect, the will, and the affect, whereby to cause mental disequilibrium in the patient. Consequently the patient gradually estranges himself from reality and withdraws into his own imaginary world, thus falling victim to delusions and hallucinations. The basic mental disturbance is manifested in the maladjustment or incoherence of the patient with the environment.

The foremost among the Psychotic disorders, which eliminate the mental discretion, is Schizophrenia. By the onset of Schizophrenia there begins the process of a break-up of that correlativity which exists between the functioning of the intellect, the will, and the affect. The dissociated functioning of the intellect, the will and the affect tends to produce such disorders like 'apathy' (absence of affect whereby want of feeling), 'abulia' (absence of will power which implies that the individual has a desire to do something but the desire is without power or energy), 'ambivalence' (coexistence of antithetic emotions, attitudes, ideas or wishes towards a given object or situation), and 'autism' (subjective way of thinking which implies that the matter of thought is derived from the subject himself and appears in the form of daydreams, phantasies, delusions, hallucinations etc.). On the basis of accentuated manifestation of symptoms, Schizophrenia is distinguished as 'Simple', 'Hebephrenic', 'Catatonic', and 'Paranoide'.

Schizophrenia develops slowly and insidiously over a long period of months or years passing through three consecutive stages, called 'initial or oid\'sympomatic or qualified', and' terminal'. It is to be noted that not all cases of Schizophrenia cover all the three phases during its development. The initial stage (Schizoid) does not affect adversely and impair yet the mental faculties. By the onset of the qualified stage, even if symptoms are not conspicuously manifest, the mental faculties are impaired and the patient is rendered incapable of making a mature judgment or decision. Hence if the marriage takes place at a period starting from the onset of the symptomatic qualified stage, even if during a lucid interval, the presumption is that the marriage consent would not be valid. The Rotal Judge, Sabattani, in a decision dated 14 June 1963, invokes the traditional Rotal Jurisprudence that 'if the insanity both antecedent and subsequent is verified (having had the episodes of mental illness before and after the marriage), the concomitant insanity (at the time of marriage) could be inferred according to the principle "probatis extremis et media praesumitur probata amentia". The same Judge in another decision has held that 'the fact of someone having held a public office or a career does not exclude a possible diagnosis of a Psychotic illness in the said individual.

The psychiatric insights into Psychotic anomalies today made available by the progress of science reveal that the impairment of the mental faculties takes place not in precise connection with the first episode, but rather when the malady reaches the symptomatic stage during the slow and insidious development of the same. Moreover, it is certain that an acute onset of symptoms must have necessarily been preluded by the less conspicuous symptoms anterior to the episode, which would have escaped the attention and notice of the close associates of the patient.

In almost all the marriage nullity cases we can see that the marriage had taken place when the symptoms were in recess either under the spell of medicine drugs, or during a lucid interval. Referring to such marriages a Rotal decision points out that 'nobody ever marries a mentally insane person (when the symptoms are active) unless he himself might be insane or has had a cunning motive in conducting the marriage. Hence in nullity cases introduced on the grounds of mental insanity, the Tribunal cannot simply rule out the fact of insanity for the reason that no external gross symptoms of the malady were manifested at the time of marriage, and therefore the Tribunal should undertake the difficult task of discerning whether the apparent sanity at the time of marriage was true to fact'.

Further, it is admitted by the Rotal Jurisprudence that' the kith and kin of a respondent would not easily expose the symptoms of mental illness manifested by him before the marriage!. Hence the Tribunal, in its bid to ascertain the antecedence of the mental illness in a given case has to take proper account of the above phenomenon while assessing the evidences being supplied by the witnesses through their depositions in the Tribunal. The Rotal Jurisprudence also holds that when a mental patient suffers from other diseases, the signs of the concomitant mental illness may not be easily discerned, but that it could be ascertained from the patient's aftermath behaviour.

The expert opinion of the psychiatrists could easily be availed of today in order to assess marriage cases introduced on the grounds of mental insanity, and hence Canon Law rules that the Church Tribunals shall seek the opinion of such experts in the matter (CIC, Can. 1680; CCEO, Can. 1366). The expert however is not supposed to pass any judgment on the merit of the case he has examined. His only duty is to bring home to the Tribunal his findings on the very nature (whether psychotic or any other kind) of the malady, its causes, period of onset, seriousness, probability of cure by psychotherapy, and finally the reasons for his expert reading about the psychic disorder. Then the Tribunal on its part should verify the evidences adduced by the expert and convert, those conclusions drawn up by the psychiatrist from the points of view of psychology and psychiatry, into juridical and formal conclusions on the given case of the psychic disorder.

According to the ruling of Canon Law (CIC, Can. 1608; CCEO, Can. 1291), the Eccl. Judge must have moral certainty about the merit of the case before the pronouncement of the judicial sentence. Pope Pius XII in an allocution to the Officials of the Apostolic Tribunal of the Roman Rota explains that moral certainty, which lies in between the two expremes of absolute certainty and quasi-certainty or mere probability, is characterised by the exclusion of well-founded or reasonable doubt. Sometimes moral certainty is derived only from an aggregate of indications and proofs which taken singly do not provide the foundation for true certitude, but which, when taken together, no longer leave room or any reasonable doubt on the part of a man of sound judgment, in which case, the moral certainty arises from the wise application of a principle which is absolutely secure and universally valid, namely, the principle of a sufficient reason. The Rotal Judge Grazioli in a decision says that when the subject is impotence or insanity where truth is often only available from the circumstantial evidences, a very great probability is equivalent to moral certitude, as opposed to infallible or absolute certitude which cannot and need not be had in such cases.

An Epistle from Charles Dickens

(T.G. John, Advocate, Trichur)

“Base and shameful England! There is no justice in this country”

The words rang like a clear bell and the packed Court hall of Old Bailey which had witnessed many a criminal trial swayed a hit at the electrifying statement which came from the slender woman dressed, severely in black satin standing in the dock. On the Bench Mr. Justice Cressel (who pronounced the death sentence on this woman) squirmed restlessly.

"I tell you, my lord", she continued "this verdict the jury has returned will rest on their consciences hereafter. I am not treated like a Christian but like a wild beast of the forest."

She was still shouting when the Judge pronounced the death sentence.

England-1849...It was the same old story of two men and a woman; a saga that had trailed humanity ever since Adam had tasted the forbidden fruit. The prisoner in the dock was Maria De Reuxa Swiss maid employed by the Duches of Sutherland. She was indicted for the murder of Pat O' Connor, an Irishman. The meeting of Maria and Pat had ripened into friendship and with the relentless arrows of Cupid, the friendship ripened into something else. But for Patrick O' Connor, the Swiss lady meant business and business meant marriage. In a fit of pique and to cure a growing sense of frustration she switched her continental charms from Pat O' Connor to one Fred Manning and they became man and wife at St. James Church, Piccadilly. Manning was a railway guard; but subsequently he was out of employment and also turned out to be a pauper. And then 'ideas' began to take shape! Together they invited Pat O'Connor. Maria's old flame. And when Pat came he had a wad of securities with him as good as spot cash. A crow-bar, a shovel and some quicklime did the rest of the business. Pat O' Connor was murdered and his body was buried in the scullery of the house of Fred. Fred Manning sold the first batch of securities for 110 and when Fred returned with the second batch unsold, Maria knew that the police was on their trial. And when the next day Fred returned after his ramblings Maria was gone with everything worth taking! Left on his own Fred also panicked and hurriedly he caught the boat train to Jersey.

Meanwhile all Britain was looking for Fred and his wife. Detectives trying to trace the missing Irishman had found Manning's home deserted. Their search ended when they dug up some freshly cemented flagstones in the scullery. They found the late Mr. O' Connor very dusty with quicklime and minus his clothes. Maria was arrested in Scotland trying to dispose of some railway bonds.

xx                        xx                               xx                                    xx           

The aforesaid outburst of Maria, the woman who donned black satin, during the course of her trial earned her a great gathering for the public hanging. Ten thousand Londoners watched the slim woman in black satin keeping her appointment with the hangman!

In the crowd that watched was Charles Dickens, the immortal English novelist. He had no liking for what he saw and wrote a seething letter to the press. That letter started an outcry that twenty years later, resulted in the abolition of public hangings.

The End of an Era

(T.G. John, Advocate, Thrissur)

In July last, Thurgood Marshall, the only Afro-American ever to serve as a justice of the U.S. Supreme Court gave up the seat he had held since 1967. He was approaching his eighty third birthday.

Thurgood Marshall was the only member of the U.S. Supreme Court who knew how it felt to be called a 'nigger'. In the 1940's and 1950's when he roamed the Court rooms of the South as Chief Counsel for the Legal Defense Fund for the advancement of coloured people, Marshall suffered all the indignities of segregation. He once told a Judge in North Carolina he had eaten the same meal in the same restaurant where the Judge dined the night before, with one difference. "You had yours in the dining room" said Marshall", I had mine in the kitchen".

Very little about the law was abstract to Marshall He not only suffered its worst failure, the long reign of legal segregation, but he was also the architect of one of its greatest triumphs. He was the victorious attorney in Brown v. Board of Education, the 1954 landmark decision prohibiting racial segregation in public schools. As a judge, Marshall helped to change American law. As a civil right lawyer he changed America. In 1967, when Lyndon Johnson chose him as the first ‘black’ Supreme Court Justice, Marshall was a man resolved to continue the revolution he had helped to set in motion.

Thurgood Marshall was born in Baltimore, Maryland in 1908 when the city was segregated, as any in the deep South. Because the University of Maryland law barred blacks, Marshall gave up hope of attending there. He went instead to the all-black law school of Howard University which in the 1930's was being transformed into a training ground for lawyers who could challenge segregation in the courts. After graduation Marshall worked as a lawyer. One of his first major cases forced the integration of the same University of Maryland law school which he was unable to attend. As he travelled through the South, Marshall was routinely threatened. More than once he found himself facing a white racist with a gun. Undaunted, Marshall and his team of lawyers laid the legal groundwork" for the celebrated case Brown v. Board of Education. Marshall convinced the court that the 14th amendment of the American Constitution would not allow segregation. His problem was the Court's long-held view that separate but equal facilities were constitutional. But Marshall convinced the Court that there was no such thing as equality in a system of separation and that the very act of separation stigmatised individuals.

It was due to failing health that Thurgood Marshall retired at the age of 83. His last words from the Bench were a stinging rebuke to the court's conservative majority. His dissenting judgment in a 6 to 3 decision was like thunder: 'Power, not reason, is the new currency of this Court's decision making...... Cast aside today are those condemned to face society's ultimate penalty. Tomorrow's victims may be minorities, women or the indigent'.